BOURNE, JOHN GERVAS HUTCHINSON, judge; baptized 1 July 1804 in Eastwood, Nottinghamshire, England, only son of John Bourne and Ruth Elizabeth ; m. May 1831 Elizabeth – and they had two children; d. 21 Nov. 1845 in London.
John Gervas Hutchinson Bourne matriculated to Pembroke College, Oxford, on 17 Oct. 1821 and received a ba from Pembroke in 1825 and an ma three years later. From 1826 to 1831 he was a fellow of Magdalen College but had to resign when he married. He was admitted to the Inner Temple on 28 Nov. 1825 and was called to the bar on 20 Nov. 1829. After becoming a barrister, he practised on the Midland circuit, where he attracted the attention of Thomas Denman, a prominent Whig lawyer who became lord chief justice in 1832. Denman was involved in the dismissal of Henry John Boulton* as chief justice of Newfoundland and was undoubtedly responsible for his replacement by Bourne in July 1838. Bourne was apparently loosely associated with the reformers in Britain, but there is no evidence that he had been an active partisan. He was best known, according to Governor Henry Prescott*, as “a Scholar and a perfect Gentleman.” He had published in London The exile of Idria: a German tale (1833) and The picture, and the prosperous man (1835), as well as a translation of Pierre-Jean de Béranger’s songs (1837). Bourne was a competent lawyer but, as he admitted to Colonial Secretary Lord Stanley in 1843, had he “been very eminent . . . in the Law, or making a fortune by it” in England, he would not have gone to Newfoundland Bourne arrived in the colony in September 1838. He did not find his legal duties onerous, except for travelling the outport circuit – he suffered severely from seasickness. In his charges to the juries, he repeatedly complimented Newfoundland on its lack of serious crime. Unfortunately the cases he did have to consider often had strong political overtones. Since Boulton’s removal was viewed by reformers as a victory and by conservatives as an affront, Bourne became the focal point of partisan conflict. On his arrival he had added to his unpopularity among conservatives by proclaiming himself a “zealous advocate for Catholic rights” who had married a Catholic and brought up his elder daughter in that faith. When in the Kielley v. Carson case [see William Carson] Bourne upheld the right of the Newfoundland House of Assembly to the same privileges as the British House of Commons and when he supported a revision of the process of jury selection to ensure more Catholics were chosen, Henry David Winton* and his conservative Public Ledger accused him of throwing himself “into the arms of the radical party.”
The reformers admired Bourne’s “heart,” yet they felt he lacked “the moral courage to be guided by its promptings” and were frequently disappointed in his judicial decisions, especially when he followed “in Boulton’s path” in Nowlan v. McGrath and denied that fishing servants had first claim on the assets of a bankrupt planter. The Newfoundland Patriot warned, “That man can be no friend to Newfoundland who would register an opinion from the Bench of Justice that a custom which protected her fisheries, was a custom which could not be legally supported.” When Bourne presided over a trial in which a verdict for libel was passed against John Kent*, a leading reformer, Kent ceased to be “on speaking terms” with him. Indeed, Bourne’s decisions in several libel suits against reform journalists and his firmness during the Conception Bay riots in 1840 were praised by the conservative press.
If Bourne was innocent of partisan behaviour on the bench, he was guilty of possessing a quick temper. He frequently quarrelled with his fellow judges, especially Augustus Wallet DesBarres for whom he had scant respect. His bête noire was Bryan Robinson*, a prominent conservative lawyer, who successfully appealed the Kielley–Carson decision to the Privy Council. A flamboyant court-room performer, Robinson clashed with Bourne during libel trials in the early 1840s and their clashes were a source of public entertainment. Bourne became convinced that he was “the object of attack to all about him.”
When accepting the position of judge of the Vice-Admiralty Court in September 1843, Bourne pleaded with Stanley for a “transfer to any European situation . . . of even considerably less than half my present pay.” Robinson was equally discontented and in February 1843 had petitioned the Colonial Office to dismiss Bourne. He charged the chief justice “with evincing partiality, with warping the Law of the Land,” with “ignorance in his profession,” and, for good measure, with beating his wife. The legal adviser to the Colonial Office, James Stephen, found the last charge not proved but plausible; yet, “however disgraceful,” wife-beating “can hardly be said to disqualify a man from being a Judge.” The other complaints were so flimsily supported that Robinson was advised to “retract or greatly to qualify” them. “Reluctantly” he agreed not to pursue the matter.
Although counselled by his friend Sir Richard Henry Bonnycastle of the Royal Engineers to treat Robinson’s complaints “with dignified contempt,” Bourne over-reacted and sought retribution. In an attempt to gain conservative support for his administration, Governor Sir John Harvey* had named Robinson to the Executive Council. Since Robinson was an aggressive, high-church Anglican, the appointment appalled the colony’s Presbyterians, who included Walter Grieve* and several other of Bourne’s closest associates, and the low-church Anglicans, led by Charles Blackman*, whose church Bourne attended. Apparently at their urging, and with the encouragement of Winton, Bourne insisted that Robinson’s appointment be cancelled. When Harvey refused, Bourne accused him of naming Robinson because Harvey owed him money. Unable to substantiate these charges to the Colonial Office, Bourne was dismissed in May 1844 and replaced temporarily by James Simms*.
Bourne returned to London where he published a lengthy poem, England won . . . (1845), and began to work on “some articles upon Colonial Affairs.” He died on 21 Nov. 1845, from “an affection of the brain, the result perhaps of intense study conjoined to disappointed hopes,” according to obituaries. To some extent Bourne was the victim of the bitter partisanship of Newfoundland politics, which had led to the departure of both of his immediate predecessors, Richard Alexander Tucker* and Boulton. But, unlike them, he was not dismissed for overtly political activities. As the Patriot declared in his obituary, Bourne “should have rested content with defeating Robinson’s machinations; he erred when he came unnecessarily into collision with the Governor. When he did this he played into his adversary’s game.” In this sense Bourne’s uncontrollable temper and lack of discretion were the causes of his disappointed hopes.
PANL, GN 2/2, 40, 43–44, 46–47. PRO, CO 194/118–20. Newfoundlander, 1838–44. Newfoundland Patriot, 1838–42. Patriot & Terra Nova Herald, 1842–44. Public Ledger, 1838–44. Royal Gazette and Newfoundland Advertiser, 1838–44. Times and General Commercial Gazette (St John’s), 1838–44. Gunn, Political hist. of Nfld. Prowse, Hist. of Nfld. (1895). Malcolm MacDonell, “The conflict between Sir John Harvey and Chief Justice John Gervase Hutchinson Bourne,” CHA Report, 1956: 45–54.