Source: Courtesy of Wikimedia Commons
ALLEN, Sir JOHN CAMPBELL, lawyer, author, office holder, politician, militia officer, and judge; b. 1 Oct. 1817 in Kingsclear Parish, N.B., son of John Allen and Ann Blair; m. 3 July 1845 Margaret Austen Drury in Portland (Saint John), N.B., and they had at least nine children; d. 27 Sept. 1898 in Fredericton.
A tory, an anti-confederate, and a gentleman, John Campbell Allen was the last New Brunswick Supreme Court judge to owe his place largely to patrician superiority rather than political partisanship. His 20-year tenure as chief justice lent the court credibility in a period of unprecedented internal difficulty and jurisprudential challenge. In the final decades of his life he was viewed by those who regretted the post-confederation upheavals in Maritime society as a sort of exemplar of the loyalist virtues of a bygone age.
A grandson of Isaac Allen, who had served for 22 years as a Supreme Court judge at the foundation of the province, J. C. Allen was reared at the family farm on the site of Aukpaque, the old Malecite encampment above Fredericton. He did not attend college but studied law in the office of John Simcoe Saunders*, a provincial functionary of modest practical experience but great legal learning. Admitted as an attorney on 13 Oct. 1838 and called to the bar on 15 Oct. 1840, Allen located himself not at Saint John – the focus of the province’s most lucrative legal business – but in sleepy Fredericton, where he would spend his entire professional career. Here, according to his successor as chief justice, William Henry Tuck*, he was easily the “foremost lawyer in the county of York,” though lawyer-historian James Hannay* thought that he “never made much money out of law, because he never cared enough about the amassing of wealth.” Among his early employments was that of amanuensis to the “exceedingly deaf” judge George Frederick Street* when on circuit.
Allen’s most notable accomplishment as a lawyer came not as advocate or counsel but as editor. In 1847 he published, as a private undertaking, the first annotated edition of the rules of the various provincial courts. Two years later he showed his worth as a scholar by producing an elaborately annotated edition of New Brunswick appellate law reports for the years 1825–27, using manuscript notes made at the time by judge Ward Chipman* Jr, who was a first cousin to Allen’s wife. In 1848 Allen succeeded David Shank Kerr as official Supreme Court reporter. Though laborious and unremunerative, the appointment was an auspicious mark of governmental favour. In this capacity Allen produced six volumes of case reports, spanning the years 1848 to 1866. With his 1865 appointment to the Supreme Court he vacated the reporter’s office, but his zeal for service to the bar was such that he continued informally to collect the reports for a further year, until James Hannay could replace him. He also made the manuscript of the long-delayed final two volumes of his reports available to James Gray Stevens* for use in his 1874 digest of New Brunswick case-law, and participated actively in the difficult task of digesting. Significantly, Stevens dedicated the work to Allen rather than the incumbent chief justice, and as late as 1894 the Supreme Court reporter was thanking Allen for assistance and encouragement.
With James A. MacLauchlan, Allen had been designated by the provincial government in 1845 to regularize the land titles of the mostly Acadian settlers who had squatted on the New Brunswick side of the former Disputed Territory in the upper Saint John valley [see Sir John Harvey*]. Probably he owed this appointment to the influence of his father, a country squire and reliably conservative member of the House of Assembly for 36 years, who joined the Executive Council in 1845. Paternal commendation may also account for Allen’s appointment in 1851 as clerk of the Executive Council, a position he held until he himself entered provincial politics. In the same year he became the first elected mayor of Fredericton. Allen’s father and paternal grandfather were militia colonels; at age 20 he followed family tradition by joining the New Brunswick Regiment of Artillery, rising to the rank of captain by the time of his appointment to the Supreme Court. In 1844 he was designated by the controversial lieutenant governor Sir William MacBean George Colebrooke* as his aide-de-camp. In religion Allen was at first a moderately low-church Anglican, choosing to attend Fredericton’s parish church rather than Bishop John Medley’s cathedral, but his sympathies broadened over time, as did those of most New Brunswick Anglicans. He did not leave the parish church in 1873 when the new rector, George Goodridge Roberts*, introduced chanting, an altar cross, the eastward position, and other Oxford enthusiasms. In 1887, when the parochial divisions over such practices became the subject of litigation, it was Allen who was proposed as mediator of the dispute.
In 1856 Allen was elected to the House of Assembly for his native York County; he was successful in every subsequent contest until elevated to the bench. He served as solicitor general in John Hamilton Gray*’s short-lived Conservative administration in 1856–57, but it is a measure of the general respect in which he was held that he was elected speaker of the Smasher-dominated assembly in 1863. After the election of 1865 he served for several months as attorney general in the anti-confederate government of Albert James Smith*.
Despite intelligence, amiability, and electoral success, Allen showed no inclination to become the leader the Conservatives needed in the wake of their historic ouster from power in 1854 [see Charles Fisher*]. Indeed, he is one of the few New Brunswick attorneys general between 1851 and 1970 not to have been premier of the administration in which he served. Like many hereditary Conservatives in the period immediately after the initiation of responsible government, he had a profound distaste for the low-level political patronage that was the cement of party formation. In what was probably his most famous speech in the house he accused inhabitants of his own constituency of committing “the most unhappy desecration of the franchise” by selling their votes. Undue partisanship repelled him, and if this were the result of responsible government then “he was fast becoming disgusted with the whole system.” In some respects, however, Allen could be radical. Despite his alarm at electoral corruption he was prepared to countenance almost universal manhood suffrage at a time when even the Smashers professed to view it with horror. The basis for his opposition to the Quebec scheme of colonial union was not – as with Smith and Timothy Warren Anglin – that it undermined provincial autonomy but – as with Lieutenant Governor Arthur Hamilton Gordon* – that it was a “flimsy substitute for legislative union.”
Gordon thought highly of Allen, who was one of his personal lawyers, praising him as the most respected figure in an anti-confederate government that also included the patrician William Hunter Odell and the upright Arthur Hill Gillmor*. Allen’s visible role in the régime was not large, however. He attended only the 1865 legislative session as attorney general, at which he spoke rarely and never on confederation, and he accompanied Smith on an unsuccessful trek to London to persuade the Colonial Office of the intransigence of anti-union sentiment in New Brunswick. Almost from the beginning of the government it must have been assumed that Allen would go to the bench at the expected resignation of Chief Justice Sir James Carter*. Allen’s right to a seat was almost undeniable. By convention, Maritime attorneys general, like their English counterparts, had a strong claim to the first acceptable judicial appointment. Equally, however, Allen was regarded as the province’s most credible judicial candidate, irrespective of political consideration. His appointment to the bench in September 1865 was universally popular.
Allen sat on the Supreme Court for 31 years. As a judge he perambulated the province on circuit to preside at trials and sat on appeals at Fredericton as part of the Supreme Court en banc. Usually only the latter involved production of a written judgement, and from these it appears that Allen’s first decade on the bench was spent as an able junior to Chief Justice William Johnston Ritchie. The case reports suggest that together they carried nearly the whole burden of judgement writing, the remaining judgeships being filled with virtual nonentities. When Ritchie was translated to the newly created Supreme Court of Canada in 1875, Allen, the senior as well as the most able puisne judge, was the automatic choice for the chief justiceship, though it can only have helped that Allen’s old anti-confederate allies Smith and Anglin were now influential as federal Liberals.
During Allen’s tenure the Supreme Court faced the novel task of scrutinizing legislation against the federal-provincial division of powers set out in the British North America Act. Several of the most significant constitutional cases of the late 19th century originated in New Brunswick and, in general, the court performed creditably. In 1869, under Chief Justice Ritchie, it had enunciated what became the accepted Canadian theory of judicial review of legislation, provoking stern counter-attacks from the New Brunswick legislature and from a pamphleteering County Court judge. It was also the first appellate court to rule on the constitutional validity of the intensely controversial Canada Temperance Act [see Sir Richard William Scott*]. In Barker v. the City of Fredericton (1879), Chief Justice Allen joined three other judges in striking down the federal enactment. In this earliest approach to the division of powers conundrum the court attempted a predictably literalist, “separate spheres” analysis of the structure of the federation, but one tempered by ready acknowledgement of historical and contemporary context. That the decision was ultimately reversed by the Supreme Court of Canada is a reflection of the Delphic nature of the constitutional document rather than the quality of the New Brunswick court’s reasoning. Barker provoked a newspaper war within the Saint John legal community between supporters and opponents of the federal temperance law. This journalistic controversy was the genesis of Jeremiah Travis*’s sensational A law treatise on the constitutional powers of parliament, and of the local legislatures, under the British North America Act, 1867 (Saint John, 1884), much of its vehemence directed at the “absurd” constitutional jurisprudence of the New Brunswick Supreme Court, not sparing Chief Justice Allen.
In addition to originating important division of powers litigation, late-19th-century New Brunswick was the scene of the first of the young nation’s separate schools crises [see John Costigan*]. Here the Supreme Court was called on to decide whether Roman Catholic schools funded publicly at the time of confederation amounted to “Denominational” schools which had existed “by law,” so as to fall within the protection of the British North America Act. In Ex parte Renaud (1873) a unanimous Supreme Court, speaking through Chief Justice Ritchie, ruled against the Roman Catholics. The judgement was affirmed at every level of appeal. When agitation over school tax assessments led to loss of life at Caraquet in 1875 it was judge Allen who presided at the difficult riot and murder trials and then, as chief justice, on the largely successful appeals from his own rulings.
Though the late-19th-century Supreme Court’s constitutional jurisprudence was creditable, the bench’s prestige was at its lowest point since judges Ward Chipman* Sr and John Murray Bliss* had sought to rule the province in the 1820s. All agreed that Chief Justice Allen was not the towering legal presence that Ritchie had been, but the real problem was in the character of the court’s other personnel. The court’s level of technical legal craftsmanship was troublingly low – its reversal rate in the Supreme Court of Canada was an amazing 42 per cent – but the personal character of the men sent to the bench was even more at fault. During Allen’s tenure there was a spate of judicial appointments: he served with a total of 12 judges junior to himself. All but one were post-confederation appointments, and all but one of these were federal Conservatives. By the late 1870s the New Brunswick bench was for the first time dominated by men whose primary qualification was political partisanship rather than legal accomplishment.
It was not long before the situation provoked comment. In 1882 Jeremiah Travis provided a candid assessment of the set of “abject incapables” on the New Brunswick bench. Allen himself, though of a “kindly disposition,” was “simply a fair lawyer” who through indolence delayed his decisions for “literally, years.” Others fared less well. The “grossly and shamelessly dishonest” Andrew Rainsford Wetmore, for example, was the “worst Judge that has ever disgraced the bench of our province.” Charles Duff, though of a “fair intelligence,” was nearly insane as a result of “years of debauchery.” Acalus Lockwood Palmer was a competent “general lawyer” but so involved in shady financial transactions that “no one has any reliance whatever on his integrity.” Of subsequent appointments, John James Fraser was accused publicly of repeated intoxication in court, a charge never convincingly denied; William Henry Tuck was said, probably correctly, to have displayed political partisanship on the bench. Both of these last incidents led to sensational imprisonments of newspaper editors for contempt of court and journalists were not slow to suggest that the contempt power had come into frequent use because the Supreme Court judges, in both their public and their private characters, had much to be sensitive about. By the end of the 19th century the New Brunswick bar, also, was held in low public esteem. Professional concern over the falling status of bench and bar prompted the founding of the Saint John Law School (now the University of New Brunswick Faculty of Law) in 1892; Chief Justice Allen was its patron. Allen did, however, veto the bar’s attempt to enhance the legal system’s prestige by emulating other provinces in addressing the bench with the high-sounding “My Lord” rather than the traditional New Brunswick “Your Honour.”
Throughout these troubles Allen himself was treated with elaborate and sincere respect; his 1889 knighthood was seen as entirely fitting. He participated enthusiastically in the loyalist revival of the 1880s, vaunting his lineage so fiercely that one of his own connections by marriage was moved privately to deride him as a “presuming popinjay” and an “impertinent pup.” In 1883 he was among the requisitors for a volume of loyalist vignettes by his fellow old tory and anti-confederate Joseph Wilson Lawrence, and no one pressed more ardently for completion of what became Lawrence’s Judges of New Brunswick than the chief justice. Allen volunteered to arrange the project’s finances and even offered “any assistance I can give towards writing up what may be considered the legal part of it.”
When finally published, in 1907, long after the death of both Lawrence and Allen, Judges memorialized only those men appointed to the bench before confederation, concluding with the chapter on Allen himself. Such a structure of presentation reflects contemporary perception that Allen’s retirement in 1896 had brought New Brunswick’s distinctive colonial era to an end. Almost from the time of his appointment commentators observed that, with the only route to the bench now through partisan politics, the Supreme Court could never again occupy the high place in public and professional estimation that it had before 1867. Reminiscing in 1892 on the state of the pre-confederation bench, James Hannay recalled nostalgically that there had been “legal giants in those days.” The tribute of another lawyer-historian, William Kilby Reynolds*, also depicted Allen’s career in romantic, end-of-era terms. Carefully emphasizing that Allen “was made a judge because he was worthy to be one,” Reynolds famously concluded that “it is something for those who come after us to remember that, whatever may be the stamp of men who sit upon the bench in future years, we have at least had such jurists as Chipman [Jr], [Robert Parker*], Carter, Ritchie and Allen as chief justices of New Brunswick.” With Allen’s passing that patrician succession in the New Brunswick judiciary came to an end.
John Campbell Allen was the author, possibly along with James A. MacLauchlan, of Report of awards made on the upper Saint John under fourth article of the Treaty of Washington (Fredericton, 1848), but no copy of this work has been located. He edited N.B., Supreme Court, Rules of all the courts, and a collection of statutes relating to practice, with notes, and an appendix of fees (Fredericton, 1847), and also prepared Reports of cases determined in the Supreme Court of New Brunswick, by the Honorable Ward Chipman . . . (Fredericton, 1849), based on the Chipman manuscript now in N.B. Museum, A365. A revised edition covering the period to 1835 remains in print and is referred to commonly as volume 1 of the New Brunswick Reports (Saint John and Fredericton). In his official capacity as Supreme Court reporter Allen edited six volumes of Reports of cases argued and determined in the Supreme Court of New Brunswick (Saint John and Fredericton, 1850–79). In new editions all of them are still in print and are known commonly as volumes 6–11 of the New Brunswick Reports.
NA, MG 23, D1, ser.1, 80; MG 24, A20, 3 (transcripts); MG 27, I, D15, 21. N.B. Museum, F71; I. A. Jack papers, diary; New Brunswick Loyalist Soc. records, application book; Tilley family papers, box 9. PANB, MC 1156; RG 5, RS32, C, 8. N.B., House of Assembly, Journal, 1846; Reports of the debates, 1857–58, 1865; Supreme Court, New Brunswick equity cases (Toronto), 1 (1876–93); New Brunswick Reports, 12–16 (1867–77). [W. K. Reynolds], “Sir John Campbell Allen,” New Brunswick Magazine (Saint John), 1 (July–December 1898): 233–34 (portrait appears facing p.233). [James] Steadman, Opinion of judge Steadman of the York County Court, delivered in 1868, upon the power of the judiciary to determine the constitutionality of a law enacted by the parliament of Canada or a provincial legislature . . . ([Fredericton?, 1873]). Daily Telegraph (Saint John), 23, 27 Dec. 1892. Progress (Saint John), 5 May, 13 Oct. 1888; 16 Feb., 2–9 March 1889. St. John Daily Telegraph and Morning Journal, 12 Aug. 1869. Saint John Globe, 16 May, 12, 18 June 1888; 23 Feb. 1901; 13 Dec. 1911. Elections in N.B. The New Brunswick militia commissioned officers’ list, 1787–1867, comp. D. R. Facey-Crowther (Fredericton, 1984). Lawrence, Judges of N.B. (Stockton and Raymond). MacNutt, New Brunswick. J. G. Snell, “Relations between the Maritimes and the Supreme Court of Canada: the early years,” Law in a colonial society: the Nova Scotia experience, ed. P. [B.] Waite et al. (Toronto, 1984): 143–63. P. M. Toner, “The New Brunswick separate schools issue, 1864–76”