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ELMSLEY (Elmsly), JOHN, judge and politician; b. 1762 in the parish of Marylebone, London, England, eldest son of Alexander Elmsly (Elmslie) and Anne Elligood; m. 23 July 1796 Mary Hallowell in London, and they had five children including John Elmsley*; d. 29 April 1805 in Montreal, Lower Canada.
The Elmslie family came from the parish of Touch, Kincraigie, in Aberdeenshire, Scotland, where they were small farmers and Quakers. In the mid 18th century Alexander and his brother Peter moved to London, changed the spelling of their name to Elmsly, and joined the Church of England. John Elmsley entered Oriel College, University of Oxford, on 3 Dec. 1782, graduating with a ba in 1786 and an ma in 1789. He was called to the bar at the Inner Temple on 7 May 1790. Through connections with the Home secretary, the Duke of Portland, Elmsley secured the chief justiceship of Upper Canada in April 1796, when he was resident at Lincoln’s Inn. On 20 Nov. 1796 he arrived at Newark (Niagara-on-the-Lake) with his friend, the Reverend Thomas Raddish (Reddish); his bride and her loyalist father, Benjamin Hallowell, followed later after a lengthy visit in Boston, Mass., their home until March 1776.
Lieutenant Governor John Graves Simcoe had left the province in July, choosing Peter Russell to act as administrator in his absence. The government officials were rather unwillingly preparing to follow Simcoe’s orders and move the seat of government from Newark to York (Toronto). Elmsley objected strongly to the move because he thought that there would be great difficulty in finding lodgings and jurors for the Court of King’s Bench and the Home District court, both of which automatically held their sessions in the capital. He and Russell quarrelled acrimoniously on this issue throughout most of 1797. In July 1797 a resolute Elmsley paid £1,105 for a house in Newark. Russell insisted that the capital be moved, and in June 1797 met his first parliament in York. A compromise was reached by passing a bill permitting the courts to remain at Newark for a further two years. Elmsley finally moved to York in the spring of 1798, building a large house that later became the lieutenant governor’s residence.
Russell and Elmsley continued to disagree about almost everything. In November 1797 Russell had renewed his own temporary appointment as a puisne judge, first made by Simcoe in 1795. Elmsley immediately objected, and his objection was upheld by the Duke of Portland on the principle of separation of judicial and executive authority. Other issues continued to divide the administrator and the chief justice.
In April 1799 Peter Hunter was appointed lieutenant governor of Upper Canada and commander of the forces in the Canadas, and on 16 August he arrived in York. Because his military responsibilities necessitated long absences from the province Hunter left its administration mainly to a committee of the Executive Council consisting of Russell, Æneas Shaw, and Elmsley, who was chairman. During the early years of the Hunter administration Elmsley was the most powerful man in the province, but he later lost much of his influence to his own nominee as judge, Henry Allcock, and to the attorney general, Thomas Scott*.
While he was in Upper Canada Elmsley was particularly concerned with land granting problems, the provisional agreement with Lower Canada on tariffs, and the administration of the courts and law. In land and tariff matters he was greatly influenced by his friend Richard Cartwright and generally supported the loyalist and merchant point of view. In legal matters he tried to adapt English law to Canadian circumstances. He objected, for example, to the complicated English machinery by which married women alienated property, and introduced a bill to make such transactions easier. In this attitude he was consistently opposed by Allcock, who believed that there should be absolutely no tampering with English law, procedures, and precedents.
Elmsley wrote reports on many subjects in Upper Canada, especially in the early years of Hunter’s administration. They are usually clear and sensible, but as in his private correspondence he revealed a tendency to dramatize events, his own actions, and his deteriorating relations with others. He was one of the few university graduates in the province, and was much given to elegant phrases and Latin quotations, a habit that may not have endeared him to all his colleagues.
At the time of his appointment to Upper Canada, Elmsley was promised promotion to the chief justiceship of Lower Canada, should it become vacant. In 1800, however, he withdrew his claim because he feared that he would lose money with another move. Despite his reluctance he was appointed to the Lower Canadian post in May 1802, following the resignation of William Osgoode*. The salary was increased from £1,000 to £1,500 a year, and he was to be called to the Executive and Legislative councils with a “seat next in Rank to the Lieutenant Governor.”
Elmsley was urged to hurry to Quebec, but he waited for Hunter’s return to York and did not take the oaths of office in the lower province until 29 Oct. 1802. Although he was “perfectly master of the French language” and had studied “the old norman law” in France, he was at a disadvantage in Lower Canada because he constantly had to depend on others for specialized knowledge and advice on French jurisprudence. It probably did not help that he regarded the French judicial system as inferior to the English. In any event his career in Quebec was brief. From June to November 1803 he was on leave in England, and in November 1804 he became seriously ill. In February 1805 he went to Montreal intending to travel in the United States to recover his health, but he died there on 29 April 1805. His widow and children returned to England; his large houses in York and Quebec were both eventually bought by the government.
In this period the position of chief justice was extremely important in the administration of the province. In both Upper and Lower Canada Elmsley was president of the Executive Council and speaker of the Legislative Council. He was particularly powerful in Upper Canada because there was no resident lieutenant governor throughout his entire career there. His difficulty in working with others, however, combined with occasional impetuousness to prevent his accomplishing all that he wished. Like so many of the early government officials he was obsessed with his own importance and with his precarious personal finances. Although his contemporaries all agreed that he had great ability, his quarrelsomeness, especially with Russell and Allcock, greatly reduced his influence.
AO, ms 75; ms 78. MTL, John Elmsley letterbook; William Dummer Powell papers; Peter Russell papers; D. W. Smith papers. PAC, MG 23, GII, 10, vol.4: 1596–99; HI, 3; 5; RG 1, E1, 46–48; E14, 10–11. PRO, CO 42/120–31, 42/320–42. QUA, Richard Cartwright papers. Corr. of Hon. Peter Russell (Cruikshank and Hunter). Corr of Lieut. Governor Simcoe (Cruikshank). Gentleman’s Magazine, 1805: 677. Alumni Oxonienses; the members of the University of Oxford, 1715–1866 . . . , comp. Joseph Foster (4v., Oxford and London, 1888), 2: 423. Armstrong, Handbook of Upper Canadian chronology. F.-J. Audet, Les juges en chef de la province de Québec, 1764–1924 (Québec, 1927), 37–38. D. B. Read, The lives of the judges of Upper Canada and Ontario, from 1791 to the present time (Toronto, 1888), 43–52. The register book of marriages belonging to the parish of St George, Hanover Square, in the county of Middlesex, ed. J. H. Chapman and G. J. Armytage (4v., London, 1886–97), 2: 151. Dooner, Catholic pioneers in U.C., 193–201. Life and letters of Hon. Richard Cartwright (Cartwright). MacDonald, “Hon. Richard Cartwright,” Three hist. theses. W. R. Riddell, The bar and the courts of the province of Upper Canada, or Ontario (Toronto, 1928); Legal profession in U. C.; Life of William Dummer Powell. E. A. Cruikshank, “A memoir of Lieutenant-General Peter Hunter,” OH, 30 (1934): 5–32. E. G. Firth, “The administration of Peter Russell, 1796–1799,” OH, 48 (1956): 163–81.