DAVIDSON, ARTHUR, advocate and judge; b. 12 Nov. 1743 in the parish of Kennethmont, Scotland, elder son of Walter Davidson; m. first 3 March 1785 Jane Fraser, daughter of Alexander Fraser* and Jane McCord, and they had three children, Jane, Elizabeth, and Walter*; m. secondly 9 March 1799 Eleanor Birnie; d. 4 May 1807 in Montreal, Lower Canada.
On 10 July 1766 Arthur Davidson, Master of Arts of King’s College, Aberdeen, landed at Quebec. Following his indenture to Henry Kneller*, an attorney and later the attorney general, he was admitted to the bar of the province of Quebec on 2 Oct. 1771. His legal talents were appreciated from the start: even before qualifying as an advocate he had been employed by William Brown* of the Quebec Gazette to prepare a suit for debt against Brown’s partner, Thomas Gilmore*. In 1778, along with Thomas Dunn and Jenkin Williams, he helped Francis Maseres* execute Kneller’s will.
Davidson also took an interest in public affairs. He assisted George Pownall*, clerk of the Legislative Council, and in 1779 became secretary of the Quebec Library, founded that year by Governor Haldimand. Hoping to succeed Pownall, who had indicated a wish to retire, he visited London during the winter of 1779–80 in order to lobby various officials, including his chief patron Lord George Germain, secretary of state for the American Colonies and president of the Board of Trade. When Pownall decided not to resign, however, Davidson resolved to try his luck in Montreal, where he settled in October 1780.
Despite his achievements, he had not been content in Quebec. In late 1779 he counselled his relations not to emigrate, advising them that “the times are exceeding gloomy and discouraging at present,” and confessing that “if it was not that I am in some measure settled in this country, and can do better in it than perhaps anywhere else, I should not live here myself.” In particular, he seems to have become disenchanted with governmental activity: as he rather cryptically complained towards the end of 1778, his position with Pownall “prevented my being able to use my Interest last winter (an opportunity which I shall never have again) to procure some other place.” At any rate, Davidson apparently made up his mind after leaving Quebec to concentrate on a legal career.
He did undertake to represent Pownall, who was now the provincial secretary, in Montreal, but it is not clear what this representation entailed or how long it continued. He also accepted a number of minor appointments: by 1789 he had become a superintendent of inland navigation, by 1792 he was a member of the Land Granting Department, and in 1799 he was appointed to commissions that supervised the repairing of churches and the erection of a court-house for the District of Montreal. Such positions, however, imply not so much political ambition, let alone influence, as a sense of public responsibility.
Meanwhile, Davidson was building up a lucrative practice. In 1784 he was able to pay 7,000 livres cash down for a house on Rue Saint-Jacques costing 10,000 livres and by 1800, when appointed a judge, he was reputed to be “independent as to Fortune.” Later on he appears to have run into financial difficulties, perhaps as a result of expenses incurred over the seigneury of Saint-Gilles, which his father in-law Alexander Fraser had transferred to Walter Davidson in 1791, and which Davidson was managing in trust for his son. In any event, the total value of his estate in 1807 was £960 3s. 2d., which had to be divided equally among his three children and second wife. The latter was consequently obliged to apply for relief to Governor Craig, who in 1808 granted her a concession of land as a means of support.
Davidson’s most notable action as a lawyer was his testimony in 1787 before a commission appointed by Governor Lord Dorchester [Guy Carleton] to inquire into the administration of justice in the province of Quebec. Bitterly criticizing the Court of Common Pleas, which had been devised by Governor Murray* to enable Canadians to invoke their former laws, employ their own lawyers, and argue cases in French, Arthur Davidson deplored the confusion and acrimony caused by references to both the English and the French legal systems and emphasized the dissatisfaction of “the first Characters in the community; and particularly Mercantile Characters.” Specifically, he protested that the judges issued irregular summonses, misapplied the rules of evidence, thwarted counsel in the questioning of witnesses, delayed and seldom explained the legal grounds for their judgements, assessed costs arbitrarily, failed to keep clear and full records, and sometimes saw parties and reached a decision before hearing a case. Furthermore, John Fraser behaved towards him “with evident marks of private Spite, prejudice or resentment”; Fraser’s colleagues on the Court of Common Pleas, Edward Southouse and René-Ovide Hertel* de Rouville, “countenanced, in their usual complaisant manner, this most indecent treatment”; and all three judges plainly lacked “a professional Education and Practice, and for want therefore are not possessed of legal Ideas.” Finally, the Canadians were far too indulged: not only were the English-speaking advocates frequently required to plead in French – “an unfair and unreasonable exaction as being without equality or reciprocation whatsoever” – but unlicensed Canadian lawyers were allowed to represent clients before the court despite the act passed in 1785 to regulate admission to the bar.
Some years later, in 1795, the solicitor general, Jonathan Sewell*, sought Davidson’s advice concerning the enforcement of this act. Petitions requesting exemption from its regulations had been presented to the House of Assembly by Joseph-François Perrault*, Thomas Cary*, and Louis Fromenteau, and Sewell was sufficiently alarmed to propose a counter petition from the Montreal bar. In his reply Davidson applied his earlier testimony diplomatically. Assuming that the assembly would sympathize with the petitioners, he concluded that “nothing we could say would have any weight with them.” Accordingly, he suggested that a petition should be sent to the Legislative Council instead, and if this proved inadequate, that a joint petition from the Montreal and Quebec bars be presented to the governor. It is not known whether his advice was followed, but the bills passed by the assembly on behalf of Perrault, Cary, and Fromenteau never became law.
By this time Davidson’s legal reputation had led to his employment by the government as both a defence attorney and a prosecutor. In the list of civil expenditures for 1794 he is recorded as having defended Joseph Boucher de Niverville, colonel of militia at Trois-Rivières, against charges brought by three militiamen, and also as having prosecuted 28 actions for the recovery of debts owed to the Lake Freights Company. The latter proceedings alone netted him more than the annual salary of a puisne judge, and he had obviously become one of the most successful advocates in the district.
On 1 Feb. 1800 Arthur Davidson was appointed by the new lieutenant governor, Robert Shore Milnes*, to the Court of King’s Bench for the District of Montreal. This court had been created by the Judicature Act of 1794, which also divided the province into the judicial districts of Quebec, Montreal, and Trois-Rivières. Consisting of the chief justice for the district and three puisne judges, it replaced the contentious Court of Common Pleas and so heard both civil and criminal cases.
In 1802 Milnes commended Davidson and his fellow judge Isaac Ogden* for their “Vigilant attention” in bringing to his notice the alleged misbehaviour of a lawyer, Pierre Vézina, at Trois-Rivières. The lieutenant governor stressed the “public Importance” of the conduct of attorneys in court, and declared his “fixed Determination to assist the Judges by every means in his power in restraining and punishing every species of MalPractice.” During the same year Davidson joined the other Montreal judges in recommending that lawlessness in the interior, or Indian, territory be checked by authorizing the courts of Lower and Upper Canada to try felonies committed outside their provinces, and in 1803 this recommendation was given effect by the passage of a statute. However, order could not be effectively imposed until after the merger of the rival North West and Hudson’s Bay companies in 1821.
Throughout his judicial career Davidson continued to distance himself from politics. Despite the common practice of judges to belong to one or both of the councils, he did not participate actively in either the executive or the legislative side of government, and he does not appear to have made any close political ties. Nevertheless, he apparently harboured social, if not ethnic, predilections, which were clearly revealed in an opinion he submitted during June of 1803. The eight judges of Lower Canada were then asked whether lands granted in free and common socage should be governed in respect of descent and dower according to the laws of England or those of Canada (primarily, the customary law of Paris). Five of them – John Elmsley, Thomas Dunn, Jenkin Williams, Isaac Ogden, and Davidson – argued in favour of English law, while the other three – James Monk*, Pierre-Amable De Bonne, and Jean-Antoine Panet – maintained that French law should regulate land transfers. The majority opinion was eventually adopted in the Canada Tenures Act of 1825.
In developing his argument Davidson disclosed not only the policy that probably lay behind that opinion but also his own concerns. Generally, he approved of the trend towards greater reliance on English law, and he especially welcomed, as favouring the merchants, the use of English rules of evidence and trials by jury in commercial actions. But he was also anxious to support the new settlers, and so urged that the system of free and common socage should be both confirmed and extended. This consolidation, he asserted, would not only bolster the position of the present freeholders but induce others to join them – in short, further British settlement of the province.
Such views, added to his testimony in 1787 and advice in 1795, provide a context for estimating the significance of Arthur Davidson. A well-trained, able, and conscientious lawyer, unlike so many legal practitioners during the early years of British rule, he was clearly intent on improving both the standards of his profession and the quality, or at least the consistency, of the law. At the same time, on the fundamental issue of relations between the British and the Canadians – or possibly between the merchants and new settlers on the one hand and the adherents of a quasi-feudalistic ideal on the other – he evidently sided with those who sought to resolve the growing tensions by promoting a more intensive anglicization of Lower Canada.
McCord Museum, Arthur Davidson papers. PAC, MG 11, [CO 42] Q, 30: 548–88, 638–68, 765–801; 71: 396–98; 84: 165, 173–74; 89: 144, 153–55; 92: 196–202, 283; 93: 58, 194–95; 97: 95, 130–34, 155; 102: 298; 107: 77–85; 293: 230–45; RG 4, A3, 3, no.41; 5, no.25; RG 7, G15C, 7: 64, 341, 411, 431, 444–45, 459–61. Bas-Canada, chambre d’Assemblée, Journaux, 1795: 83, 87–88, 101, 183–86, 201–2, 217–20, 235–36, 239–40, 247–48, 261–62, 267–68, 273, 315–16; 1805: 170–77. “Courts of justice for the Indian country,” PAC Report, 1892: 136–46. “Lower Canada in 1800,” PAC Report, 1892: 9–15. Quebec Gazette, 23 March 1775, 13 Nov. 1777, 21 Jan. 1779, 6 Sept. 1781, 9 Sept. 1784, 20 Jan. 1785, 20 June 1799, 14 May 1807. Quebec almanac, 1782–1808. P.-G. Roy, Inv. concessions, 1: 25; 5: 535; Les juges de la prov. de Québec, 147. Édouard Fabre Surveyer and D. A. Heneker, The bench and bar of Quebec (Montreal, 1931), 2–21, 26, 28. Douglas Brymner, “Report on Canadian archives,” PAC Report, 1892: i–lix. Ægidius Fauteux, “Les bibliothèques canadiennes et leur histoire,” Rev. canadienne, nouv. sér., 17 (janvier–juin 1916): 195. É.-Z. Massicotte, “Quelques rues et faubourgs du vieux Montréal,” Cahiers des Dix, 1 (1936): 135–36.