The Canadian Portrait Gallery - Volume 3 (of 4)

JAMES ROBERT GOWAN,

JUDGE OF THE JUDICIAL DISTRICT OF SIMCOE

Judge Gowan is the only son of the late Henry Hatton Gowan, of Wexford, Ireland, where the subject of this sketch was born on the 22nd of December, 1817. His family emigrated to this country when he was in his fifteenth year, and settled on a farm in the township of Albion, in what is now the county of Peel. The late Mr. Gowan was afterwards appointed Deputy Clerk of the Crown for the county of Simcoe, which position, we believe, he retained until his death in 1863. The son's education would appear to have been somewhat desultory, but he was an apt scholar, and possessed the national fondness for learning. Having chosen the legal profession as his future calling in life, he was articled as a clerk in the office of the late Mr. James Edward Small, of Toronto — a well-known lawyer of his day and generation, who held the post of Solicitor-General in the first Baldwin-Lafontaine Administration, formed in 1842. Young Gowan went through the ordinary routine of study, working hard at his books, and furnishing frequent contributions to the newspapers of the day on a great variety of subjects. He was called to the Bar of Upper Canada in Michaelmas Term, 1839. He at once formed a partnership with Mr. Small, and devoted himself assiduously to the practice of his profession, writing occasional articles on legal and other topics for the press, and building up for himself the reputation of a man whose opinions were of value. Notwithstanding his youth, he displayed remarkable ability as a legal draughtsman and special pleader, and had mastered the cumbrous and elaborate system of pleading then in vogue among the profession. He took a keen interest in the political questions of the day. He was a Reformer, and a disciple of Mr. Baldwin, who held him in high esteem. The partnership with Mr. Small lasted somewhat more than three years, during which period it was that the senior partner accepted office in the Government of the day. As Solicitor-General, a goodly share of patronage must have fallen to the latter's share, and we presume it is to his connection with Mr. Small that Judge Gowan owes his appointment to the position of Judge of the District and Surrogate Courts of the county of Simcoe. His appointment bears date the 17th of January, 1843, and is said to have been made without any solicitation on the part of the recipient. However that may be, it is certain that few better appointments have been made by any Government in this country. Mr. Gowan first took his seat on the Judicial Bench when he was only twenty-five years of age. He has continued to discharge his judicial duties, almost without interruption, from that time to the present, embracing a period of nearly thirty-eight years. During the whole of that time not a single important decision of his, so far as we are aware, has been over-ruled. He enjoys the reputation of being one of the most profound and learned lawyers in the Dominion, and his decisions are regarded with a respect seldom accorded to those of County Court judges.

His skill as a legal draughtsman was such that Mr. Baldwin, who, at the time of Judge Gowan's appointment, was Attorney-General for Upper Canada, availed himself of his services in preparing various important measures which were afterwards submitted to Parliament. This was a remarkably high compliment for a young man of twenty-five to receive, but there is no doubt that the compliment was well merited, for the measures so prepared were models of compact statutory legislation, and gained no inconsiderable eclat for the Administration. The example set by Mr. Baldwin has since been followed by other Attorneys-General, and Judge Gowan has thus made a decided mark upon our Canadian legislation and jurisprudence. It is said, and we believe truly, that it was he who suggested the introduction of the Common Law Procedure Act of 1856, and that the adaptation of the English Act to our local requirements was largely the work of his hand.

At the time of his appointment the judicial system of the inferior courts was in a very primitive condition. He set himself diligently to work in his own district, and, in the face of many difficulties, succeeded in organizing the system which he has ever since administered with such benefit and satisfaction to the community in which he resides. The position of a judge in a rural district was attended in those days with a good many inconveniences which have disappeared with advancing civilization. The roads were in such a condition that he was generally compelled to make his circuits on horseback. Judge Gowan's district was the largest in the Province, and extended over a wide tract of country, the greater part of which was but sparsely settled. He was frequently compelled to ride from sixty to seventy miles a day, and to dispose of five or six hundred cases at a single session. One of the newspapers published in the county of Simcoe gave an account, several years ago, of some of his early exploits; from which account it appears that he was often literally compelled to take his life in his hand in the course of his official peregrinations. It describes how, on one occasion, he was compelled to ride from Barrie to Collingwood when the forest was on fire. The heat and smoke were sufficiently trying, but he also had to encounter serious peril from the blazing trees which were falling all around him. On another occasion, while attempting to cross a river during high water, his horse was caught by the flood, and carried down stream at such a rate that he might well have given himself up for lost. He saved himself by grasping his horse's tail, and thereby keeping his head above water until he came to a spot where he could find foothold, and so made the best of his way, more than half drowned, to the shore. He was also frequently compelled to encounter dangers from which travellers in the rural districts of Canada are not altogether free, even at the present day — such dangers, for instance, as damp beds, unwholesome and ill-cooked food, and badly ventilated rooms. Notwithstanding all these drawbacks, he was able to say, after he had been a judge for more than a quarter of a century: "I have never been absent from the Superior Courts over which I preside;" — by which he meant the County Courts and Quarter Sessions — "and as to the Division Courts, except when on other duties at the instance of the Government, fifty days would cover all the occasions when a deputy acted for me."

In 1853 Judge Gowan was one of the five judges appointed under the Division Court Act of that year, whereby the Governor was authorized to appoint five judges to frame rules regulating the procedure in the Division Courts. His collaborateurs in this task were the Hon. Samuel Bealey Harrison, Judge of the County Court of the United Counties of York and Peel; Judge O'Reilly, of Wentworth; Judge Campbell, of Lincoln; and Judge Malloch, of Carleton. The rules framed by them have since received many additions, and have been elaborately annotated; but they still form the basis of Division Court practice in this Province. During the same year (1853), Judge Gowan married Anna, second daughter of the late Rev. S. B. Ardagh, Rector of Barrie, and Incumbent of Shanty Bay. After the passing of the Common Law and County Courts Procedure Acts, in 1856 and 1857 respectively, Judge Gowan was associated with the judges of the Superior Courts in framing the tariff of fees for the guidance of attorneys and taxing-masters in the Courts of Common Law. He was also associated with the late Robert Easton Burns, one of the Puisné Judges of the Court of Queen's Bench, and the Hon. John Godfrey Spragge, the present Chancellor, in framing rules and orders regulating the procedure in the Probate and Surrogate Courts. He also rendered valuable service in assisting the late Sir James B. Macaulay and others in the consolidation of the Public General Statutes of Canada and Upper Canada respectively.

In 1862, during Chief Justice Draper's absence in England, special commissions were issued to Judges Macaulay and Gowan, authorizing them to hold certain assizes which the Chief Justice's absence prevented him from holding in person. Later in the same year disputes arose between the Government of Canada and the contractors for the erection of the Parliament Buildings at Ottawa. The disputes were submitted for adjudication to a tribunal of three persons, consisting of the engineer employed by the Government, an engineer named by the contractors, and an Upper Canadian judge to be accepted by both the parties to the dispute. Judge Gowan was the one so accepted. He acted as Chairman to the tribunal, which settled the matter by a unanimous decision.

In 1869 a Board of County Court Judges was formed under the statute 32 Victoria, chapter 23, for further regulating Division Court procedure, and settling conflicting decisions. The Board consisted of Judge Gowan, and Judges Jones, of Brantford, Hughes, of Elgin, Daniell, of Prescott and Russell, and Smith, of Victoria. They began their labours, and promulgated certain rules, in the early spring of the year; but these rules were only temporary, and were followed, on the 1st of July, by other and more elaborately formed regulations, which are still in operation. Judge Gowan was appointed Chairman to the Board, and still retains that position. His large experience, both in the framing of such rules and in carrying them into effect in the courts, have proved very serviceable to the country at large, where the rules and orders promulgated by the Board have all the force of law. During this same year (1869), he was engaged, with other leading Canadian jurists, in consolidating the Criminal Law of the various Provinces, prior to its submission to Parliament to receive the sanction of that Body. Two years later he was appointed one of five Commissioners to inquire into the constitution and jurisdiction of the several Courts of Law and Equity, with a view to a possible fusion. His colleagues in this important inquiry were Judges Wilson, Gwynne, Strong, and Patterson.

Judge Gowan was one of the Royal Commissioners appointed on the 14th of August, 1873, by His Excellency the Earl of Dufferin, to investigate the charges made by the Hon. L. S. Huntington in connection with the Pacific Railway Scandal. His colleagues were the Hon. Antoine Polette, a Judge of the Superior Court of Quebec, and the Hon. C. D. Day, Chancellor of McGill College, Montreal, and formerly a Judge of the Superior Court of Lower Canada. The Commissioners were appointed by virtue of an Act passed during the session of 1868. They were empowered to investigate the charges, and to report thereupon to the Speakers of the Senate and Commons, and to the Secretary of State. Everybody remembers the excitement which prevailed throughout the country at that time. The Commission met at Ottawa three days after the date of its appointment. The examination of witnesses began on the 4th of September, and lasted to the end of the month. Mr. Huntington, though summoned to appear before the Commission and give evidence, did not present himself, nor was any evidence offered in substantiation of the charges made by him on the floor of the House. The labours of the Commission, therefore, were necessarily unproductive, and they simply reported the evidence taken and the various documents filed.

In 1874 Judge Gowan was appointed one of the Commissioners for the revision, consolidation, and classification of the Public General Statutes relating to Ontario; a task which was finally completed in 1877, and which included all public statutory legislation down to the month of November in that year. The Judge has recently received from the Ontario Government a beautifully-executed gold medal struck in commemoration of the completion of that important work.

From the foregoing account of a few of the most important of Judge Gowan's public services, it will be seen that his labours, in addition to his ordinary official duties, have been many and onerous. He has also held various offices which must have involved a considerable amount of labour, and close attention to details. He was Chairman of the Board of Public Instruction from the time of its foundation to its abolition in 1876. He has been for more than thirty years Chairman of the Senior High School Board of the county of Simcoe. He has also held high office in the Masonic Fraternity, and has taken a warm interest in all matters relating to the Episcopal Church, of which he is a life-long member. In 1855 he was largely instrumental in founding the Upper Canada Law Journal, and for many years thereafter he contributed to its pages. Notwithstanding all these multifarious pursuits he never looks like an overworked man, but carries his sixty-three years with a remarkably good grace. He continues to take a warm interest in public and social matters. He is revered alike by the public and by the professional men of the county of Simcoe, who are justly proud of his well-deserved fame. About twelve years ago, when he had completed a quarter of a century's service on the Bench, he was presented by the local Bar with a life-sized portrait in oil of himself in his robes. The portrait was accompanied by an enthusiastic address expressive of the respect and esteem in which he was held by the donors. He has been offered a seat on the Bench of the Superior Courts, but has preferred to retain the position which he has so long occupied. During the last eight years he has had an efficient ally in the person of Mr. John A. Ardagh, B.A., who was appointed Junior Judge of the County of Simcoe in 1872.

Judge Gowan resides at Ardraven, a pleasant seat in the neighbourhood of Barrie, overlooking Kempenfeldt Bay, an inlet of Lake Simcoe. He also has a delightful summer residence called Eileangowan, situated on an island containing about four hundred acres, in Lake Muskoka, opposite the mouth of Muskoka River, about an hour's ride from Gravenhurst.

ROBERT FLEMING GOURLAY,

THE "BANISHED BRITON."

A few years before his death Mr. Gourlay issued the prospectus of a work bearing the following title: "The Recorded Life of Robert Gourlay, Esq., now Robert Fleming Gourlay, with Reminiscences and Reflections, by himself, in his 75th year." So far as we have been able to ascertain, no portion of the projected work has ever been given to the world; and we may add that nothing like a consecutive account of the life of one of the most remarkable men known to the early political history of Upper Canada has ever been attempted. Any account written at this distance of time, and without access to Mr. Gourlay's family papers, must necessarily be somewhat fragmentary and disconnected. During his lifetime he published several volumes and numerous pamphlets, all of which throw more or less light on certain episodes in his career; but the writer who undertakes to separate the wheat from the chaff, and to weave into a harmonious narrative the rambling, discursive, and often incoherent literary productions of this singular man, will find that he has no sinecure on his hands. It is desirable, however, that the attempt should be made, for Robert Gourlay exercised no slight influence upon Upper Canadian politics sixty-and-odd years ago, and the accounts of him contained in the various histories of Canada are wofully meagre and unsatisfactory. His life is interesting in itself, and instructive by way of an example to egotists for all time to come. It presents the spectacle of a man of good abilities and upright intentions, who spent the greater part of a long life in endeavouring to benefit his fellow-creatures, and who nevertheless, owing to the peculiar idiosyncrasies of his character, was foredoomed to disappointment and misfortune almost from his birth. "Robert," said his father, "will hurt himself, but will do good to others." This judgment was passed when Robert was a boy at school, and his subsequent career fully vindicated the accuracy of the paternal estimate.

Robert Gourlay — who when past middle life assumed the name of Robert Fleming Gourlay — was a native of the parish of Ceres, in Fifeshire, Scotland, and was born there on the 24th of March, 1778. He came of respectable ancestry. His father, a man of liberal education, had studied law, and practised for thirteen years as a Writer to the Signet in Edinburgh; and before the birth of his son, the subject of this sketch, had become the possessor, by marriage, descent, and otherwise, of considerable landed property. Soon after Robert's birth the old gentleman retired from the practice of his profession, and settled upon one of his estates, in the parish of Ceres, where he devoted much of his time to devising and carrying out various agricultural improvements. He also expended large sums of money in improving and beautifying the highways in his parish, and in contributing to the comfort and happiness of his poorer neighbours. His real estates were worth at least £100,000 sterling, and he had a floating capital of about £20,000. Robert received an education commensurate with his station in life. After being taught by several private tutors, he was placed at the High School of Edinburgh. He was also for a short time at the University of St. Andrews, where he was a contemporary and warm personal friend of Thomas (afterwards Doctor) Chalmers. The Doctor has left written testimony to the capacity and moral worth of his fellow-pupil. The latter also seems to have spent a term at the University of Edinburgh. Owing to his being the eldest son, and born to considerable expectations, he was not bred to any regular profession, and his life for some years after leaving school seems to have been passed in a somewhat desultory fashion. He lived at home, and was on visiting terms with the resident gentry of Fifeshire. He took some interest in military matters, and in October, 1799, received a commission to command a corps of the Fifeshire Volunteers. This commission appears to have lapsed, for, when war was declared by Great Britain against Bonaparte in 1803, we find Robert Gourlay volunteering as a private in a troop of yeomanry cavalry. The services of the troop, however, were not required, and, regarding this as a slight to the troop and himself, he withdrew his name from the muster-roll in high dudgeon. In 1806 he was again seized with military ardour, and offered his services to take charge of a military corps and invade Paris, during Bonaparte's absence in Poland. He at this time evidently possessed an energetic, but unpractical and ill-balanced mind, which may have been to some extent due to the nature of his training, but was doubtless chiefly a matter of inherited temperament. Like his father, he was very kind and generous to the poor of Ceres and the neighbouring parishes, and spent much time in making himself familiar with their needs and sympathies. By the lower orders he was greatly beloved, and with reason, for he was actuated by a sincere philanthropy, and contributed largely to the improvement of their condition. He studied the economical side of the poor question with great diligence, and was recognized as an authority on all matters relating to parish rates, tithes, visiting justice business, and pauperism generally. These studies brought him into contact with Mr. Arthur Young, the eminent writer on agricultural questions, whose "Travels in France during the years 1787, '88, '89 and '90," is the most trustworthy source of information regarding the condition of that country just before the breaking out of the Revolution. Mr. Young formed a high estimate of Gourlay, and, at his suggestion, the latter was appointed by a branch of the Government to conduct an inquiry into the state of the poor in England. Mr. Gourlay travelled, chiefly on foot, through the greater part of the chief agricultural districts of England and Scotland, and when he had brought his inquiries to an end, he was pronounced by Mr. Young to be better informed with respect to the poor of Great Britain than any other man in the kingdom. He was consulted by members of Parliament, political economists, parish overseers, and even by members of the Cabinet, as to the best means for reforming the poor laws, and was always ready to spend himself and his substance for the public good.

In 1807 he married, and settled down at Pratis, one of his father's estates in Fifeshire. He had only been thus settled a few months when he got into a quarrel with his neighbour, the Earl of Kellie. The cause of quarrel seems ludicrously small to have produced such results as ensued. Lord Kellie was Chairman of a meeting of heritors held at Cupar on the 15th of February, 1808. The object of the meeting was to pass a loyal address to the King, and to discuss certain details respecting the farmers' income-tax. The address was duly voted, after which it was proposed to adjourn the discussion on the income-tax question until a future day. Mr. Gourlay, who was present, opposed this adjournment with much vehemence. While he was making a speech, in favour of proceeding with the discussion without delay, the Chairman, Lord Kellie, pronounced the meeting adjourned, and vacated his chair. This action Mr. Gourlay construed into a personal insult to himself. He and Lord Kellie were diametrically opposed to each other in their views on this income-tax question, and Mr. Gourlay considered that the Earl had taken an unfair advantage of his position in order to stave off discussion. In this view he was probably borne out by the fact. There can be no question, however, that his anger was altogether out of proportion to the offence. He wrote to Lord Kellie demanding an apology. The demand not being complied with he devoted a fortnight to writing his "Letter to the Earl of Kellie concerning the Farmers' Income Tax, with a hint on the principle of representation, &c. &c." This letter, which occupies sixty-three printed octavo pages, was published in London, at the author's expense, and circulated throughout the county of Fife. Mr. Gourlay's argument on the main question was sound enough, but it could have been stated effectively in two or three pages, instead of in more than twenty times that number. The pamphlet diverged into all sorts of extraneous matters, and was full of personal abuse of Lord Kellie. It did Mr. Gourlay no good in the county, even with the farmers whose cause he espoused, and from this time forward we perceive in all his writings the most unmistakable evidences of an irritated mind, and a temper under very inadequate control.

His health having temporarily given way, he determined to try change of climate, and in the course of the year 1809 he took up his abode in England, as tenant of Deptford Farm, in the parish of Wily, in Wiltshire, an estate belonging to the Duke of Somerset. His Grace had expressed himself as being very desirous of improving the condition of the English farming community, and had for several years made pressing overtures to Mr. Gourlay to settle in Wiltshire, and to give him the benefit of his knowledge and experience. There can be no doubt that Mr. Gourlay was actuated at least as much by philanthropy as by selfish motives in becoming the Duke's tenant. It may be said, indeed, that throughout the whole of his life he was singularly indifferent to mere gain. He had a bee in his bonnet which was constantly stinging him to set himself up in opposition to those in authority, but he was thoroughly honest in his views, and would suffer any trial or indignity rather than sacrifice what he regarded as a righteous principle. In his inability to see any side of a question but his own, he was undoubtedly a consummate egotist, but his egotism was of the intellect only, and a more honourable and single-minded man in all his pecuniary transactions never lived. In almost every battle which he fought with the world he had right on his side, but he had the unfortunate faculty of always putting himself in the wrong. He was critical without discrimination, and though naturally frank and open in his disposition, was morbidly suspicious of the motives of others. He was also infected by an itch for notoriety. It was sweet to him to know that people were talking about him, even if they were speaking to his disadvantage. He was often guided by petulance and passion; seldom or never by sober judgment. His mission in life seemed to be that of a grievance-monger, and no occupation was so gratifying to him as the hunting-up and exposure of abuses. Had his just and liberal principles been allied to a calm intellect and a patient temper, he would have accomplished much good for his fellow-creatures, and might have lived a happy and useful life. But his cantankerous temper and irritable nerves were constantly placing him at a disadvantage. He had not been long settled at Deptford Farm ere he began to agitate for a reform of the poor-laws. It was no secret that the poor-laws were in a most unsatisfactory state, and needed reformation, but Mr. Gourlay's method of advocacy was ill calculated either to produce the desired end or to elevate him in public esteem. He wrote column after column in the form of letters to the local newspapers, in which the most sweeping and impracticable measures were suggested as proper subjects for legislation, and in which the magnates of the county of Wilts were referred to in the most violent and opprobrious language. When the papers refused to publish his communications any longer he issued them in pamphlet form, and circulated them broadcast through the land at his own expense. He got together considerable bodies of the labouring classes, and harangued them with scurrilous volubility about the oppressions to which they were subjected by the "landed oligarchy." He declaimed violently against the Government, which permitted such "reptiles" to "grind the faces of God's poor." He drew up petition after petition to Parliament, in which the landlords were denounced as tyrants, bloodsuckers, and monsters of selfish greed.

This course of procedure could have but one result. It influenced the poor against their landlords, who looked upon Gourlay as a visionary and mischievous demagogue. The Duke of Somerset's ardour for improving the condition of his tenants suddenly cooled, and he began to regret that he had imported this pestilent Scotchman, whom he stigmatized as a "republican firebrand," into the hitherto quiet vales of Wiltshire. The pestilent Scotchman, however, had an agreement for a lease of his farm for twenty-one years, drawn up by the Duke's own solicitor, and had expended several thousands of pounds in improvements and farm-stock. He had faithfully performed all the conditions on his part, and his farm was a model throughout the county. He gained premiums from various agricultural societies for the best ploughing and the best crops. No matter; it was necessary that he should be got rid of, at any cost. A cunning solicitor found a pretext for filing a bill in Chancery against him, and he was thus involved in a protracted and ruinous litigation, whereby it was sought to avoid the agreement on certain technical grounds into which it is unnecessary to enter. After much delay a decree was pronounced in his favour; whereupon he filed a bill against the Duke for specific performance of the agreement. This occasioned further delay and expense, for the Duke's solicitors fought every inch of ground, and resorted to every conceivable means to embarrass the plaintiff. When the suit was finally decided in the latter's favour, he was a ruined man. His farming operations had never been profitable, for his object had been to carry on a model farm rather than to make money. The lawsuits had been attended with great expense, his mode of living had been suited to his condition and expectations, and his charities to the poor had been abundant. Worse, however, remained behind. His father had become bankrupt, and his own expectations of succeeding to an ample fortune were at an end.

The bankruptcy of the elder Gourlay was due to various causes. The close of the war between Great Britain and France had produced a great fall in the price of real estate throughout the United Kingdom. Mr. Gourlay's property consisted chiefly of land, and he was thus shorn of much of his wealth. This might have been borne up against, but he had unfortunately engaged in some injudicious speculations which collapsed at this time, and rendered it necessary that he should pay a large sum of money. His only means of obtaining the requisite amount was by sale of his real estate, and the small prices realized for the latter were absolutely ruinous to the seller. So far as can be judged, he seems to have been an honourable, high-minded man, but — at any rate in his declining years — with little capacity for business. There is no doubt that his affairs were wofully mismanaged, and that a man of more tact and experience might have steered clear of insolvency. The crash came, however, and he was reduced to ruin. This was in 1815. He survived his reverse of fortune about four years, and died towards the close of the year 1819.

Meantime five children — a son and four daughters — had been born to Robert Gourlay, and his wife was in delicate health. After casting about in his mind what to do, he resolved to visit Canada, where he owned some land in right of his wife, and also a block in the township of Dereham, in the county of Oxford, which he had purchased on his own account in 1810. He looked across the Atlantic with wistful eyes, and thought it possible that he might to some extent retrieve his broken fortunes there. Leaving his family on the farm in Wiltshire, where he had then resided for more than seven years, he sailed from Liverpool in the month of April, 1817. The expedition was intended to be merely experimental. In the event of his prospects in Canada turning out equal to his anticipations he purposed to remove his family thither. In any case he did not intend to fight the Duke of Somerset any longer, and before his departure he offered to surrender his tenancy of Deptford Farm, upon terms to be settled by mutual arbitrators. The offer was declined, the Duke foreseeing that he would be able to get rid of his refractory tenant upon his, the Duke's, own terms. Such was the state of affairs at the time of Mr. Gourlay's departure from England.