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ROBINSON, Sir JOHN BEVERLEY, lawyer, politician, and judge; b. 26 July 1791 at Berthier, Lower Canada, second son of Christopher Robinson* and Esther Sayre; d. 31 Jan. 1863 in Toronto, Canada West.
John Beverley Robinson’s father, a Virginia born loyalist, had served in the Queen’s Rangers in the closing stages of the Revolutionary War. The regiment was evacuated to New Brunswick and then disbanded in 1783. Christopher Robinson the following year married Esther Sayre, the daughter of a well-known loyalist clergyman, and in 1788 the family moved to Quebec, where John Beverley was born three years later. In 1792 they went to Kingston, Upper Canada, where Christopher was appointed surveyor general of the woods and reserves of Upper Canada; in 1794 he was called to the bar. Then, suddenly, on 2 Nov. 1798 he died. The Robinsons and their children, the eldest of whom was Peter*, age 13, had moved from Kingston to York (Toronto) only a short time before.
The seven-year-old John Beverley was sent to Kingston to live with and be educated by his father’s friend, the Reverend John Stuart*, with whom he remained for four years. In 1799 the boy was enrolled in the school opened by the recently arrived John Strachan. Four years later Strachan was ordained a priest of the Church of England and given the charge at Cornwall, where he also re-established his school. Until 1807 Robinson lived in the Strachan household at Cornwall, his fees paid by Stuart and the executor of his father’s estate, although Strachan had offered to take him free of charge. In the relationship of pupil and teacher was formed Robinson’s life-long admiration for and friendship with Strachan.
At age 16 he left Strachan’s tutelage to article in law with D’Arcy Boulton* Sr, the solicitor general of Upper Canada. He mixed easily with the young people of York’s society, worked hard, read avidly, and when the assembly was in session, watched many of its debates. As a former pupil of Strachan and a bright, personable young man, he was drawn into Chief Justice William Dummer Powell*’s circle, a connection which helped him in his early career. In 1811, after Boulton had been captured by a French privateer on his way to England, Robinson had to move into the office of John Macdonell*, the newly appointed attorney general, to finish the last year of his articling.
During the spring of 1812, as war clouds blew north from the United States, Robinson volunteered to serve in one of the flank companies – special militia companies designed for regular service. When war was formally declared on 18 June 1812, these companies were called to train for active service. As one of those best qualified by education and family, Robinson was given an officer’s commission. His role in the fighting was brief and glorious. He went with Isaac Brock* to the southwestern area of the province in August to repel General William Hull’s invasion, and commanded the volunteers who accompanied the regulars to take formal possession of Detroit. The volunteers then took parties of prisoners back to York. In September the York flank companies were sent to reinforce the Niagara frontier. Robinson was temporarily in command of one of these companies when the invaders crossed at Queenston. Arriving there just moments after Brock’s death, Robinson’s company was ordered on another charge like that in which Brock had been killed. John Macdonell, commanding the militia flank companies, was mortally wounded, and the companies fell back. They were then sent on the long flanking march which led to victory in late afternoon.
When he returned to York with prisoners, Robinson was congratulated on his new appointment. Only after asking was he told that he had been made acting attorney general of the province. Powell’s recommendation had secured him the post, although he was just 21 years old and not yet even a member of the bar. It was subsequently rumoured that Robinson’s friendship with Powell’s daughter, Anne, had won him the appointment, but in his later life, when he was displaced from power, Powell would still insist that Robinson had been chosen for his abilities. From 1812 to 1814 the young Robinson performed the functions of attorney general, giving legal opinions to the provincial government and handling crown prosecutions of criminals.
His most serious problem in the context of the war was the potential disloyalty of many recent immigrants to the province; most of these were Americans who, in moving westward to obtain land, had crossed into Upper Canada, and their loyalty, whether to the United States or to Upper Canada, was not strong. In retrospect, it is clear that relatively few settlers actually deserted to the Americans during the war, but there was evidently sufficient disaffected talk to upset the government and its leaders. The American invasion intensified the disaffection, and some prominent critics of the government prior to the war, such as Joseph Willcocks*, did desert. When a party of settlers from Norfolk County obtained arms from the Americans and returned to that area to terrorize their neighbours, a group of militia officers and volunteers acted to stop them and 18 of the renegades were taken in arms. The arrests gave government authorities the chance to make a deterrent example; the 18 were charged with treason and Robinson was made responsible for their prosecution. General Francis Rottenburg*, the provincial administrator, urged haste in holding the trial, suggesting that some of the accused, as militiamen, might be court-martialed. Robinson resisted Rottenburg’s pressure and proceeded methodically to assemble evidence to hold civil trials for treason. Three of the 18 prisoners from Norfolk agreed to turn crown’s evidence. Nineteen persons were finally tried: 15 from Norfolk, two indicted at York, and two who had surrendered voluntarily. The grand jury also indicted another 50 persons who had fled to the United States. The trials began at Ancaster on 7 June 1813 and lasted two weeks. Fourteen were found guilty, one pleaded guilty, and four were acquitted. Robinson subsequently recommended to Sir Gordon Drummond*, commander of the forces, that seven of the convicted should be executed, but Chief Justice Thomas Scott* added another, and on 20 July eight men were hanged. It is doubtful whether the name “Bloody Assize,” used subsequently to describe the trials, was really deserved. Those executed had committed treason in wartime.
Robinson had also to prosecute normal criminal offences and to appear at the assizes in each district of the province. He was expected to provide names of people suitable to act as justices of the peace, and many administrative procedures required the attorney general to act on behalf of the governor. In addition, he had his own private practice. When D’Arcy Boulton returned to Canada in the autumn of 1814 he was appointed attorney general because of his seniority in years of service. Robinson was given the post of solicitor general on 13 Feb. 1815.
The war’s end and relief from its responsibilities gave Robinson, encouraged by Strachan, the opportunity to go to England for further legal studies and be called to the bar there. With Powell’s aid, he was granted a leave of absence by the new provincial administrator, Sir George Murray*, and on 1 Sept. 1815 left York. By late October he was settled in London, where he was received graciously by Lord Bathurst, the secretary of state for war and the colonies. Among his sponsors at Lincoln’s Inn was the solicitor general of the United Kingdom. Between terms of study he travelled to the Continent and to Scotland and northern England. His leave of absence was twice extended at full pay and a third time on half salary.
One of Robinson’s letters of introduction had been to William Merry, the under-secretary for war. On his first call at the Merrys he met “an exceedingly fine, pretty little girl – a Miss Walker – there; very pleasant and engaging in her manner and appearance.” On 5 June 1817 he and Emma Walker were married, and in early July they left England for Upper Canada. Robinson continued as solicitor general for a few months, but the promotion of Boulton to the bench led to his appointment as attorney general on 11 Feb. 1818.
As attorney general, Robinson received a salary which seems to have been regarded as a retainer, as well as fees for his work for the crown. He still pursued his private practice, and on his return from England in 1817 he had been retained by the North West Company to represent them in litigation against Lord Selkirk [Douglas*], an affair which would give him much notoriety. Following the destruction of his colony on the Red River by the Nor’Westers, Selkirk had hired a band of Swiss mercenaries, come to Canada, armed himself with a magistracy from Lower Canada, and headed west. He had seized Fort William (Thunder Bay) and its contents, expelling the NWC’s people. The company, which had first contemplated civil action for damages, decided to press criminal charges of theft and assault against Selkirk in the Western District of Upper Canada. Robinson as attorney general was expected to prosecute. He returned his retainer to the company, but naturally was open to suspicion of a conflict of interest. His attempt to have an indictment preferred against Selkirk at Sandwich (Windsor) in September 1818 failed, as did a second bill, for conspiracy, which went to a jury. Shortly after, Robinson brought charges against the Nor-Westers for felonies against Selkirk and his people, but all the accused were acquitted.
The bitterness evident in the Selkirk affair was symptomatic of Upper Canada following the war. The collapse of the NWC’s business in the American west simply exacerbated the already difficult economic situation in Upper Canada. The end of the war had brought a drop in farm prices. The war had also ended immigration from the United States so that land development had slowed and land prices had fallen. Damage to property, particularly in the Niagara peninsula, had been extensive and compensation was not yet being paid. The discontented soon found spokesmen.
Shortly after Robinson’s return to Upper Canada in 1818, a Scot named Robert Gourlay had appeared to scout a piece of land his wife owned in the western part of the province. Unduly influenced by his wife’s relatives, Thomas Clark* and William Dickson*, who were large-scale land developers and speculators in the Niagara area, Gourlay blamed the government for its restrictive development policies and its discouragement of immigration by Americans. In order to get information for a proposed book Gourlay composed a questionnaire, to be printed in the Upper Canada Gazette, which invited information, complaints, and suggestions for improvements from landowners. Both Powell and Samuel Smith*, who was administering the government, approved the questionnaire and its intent, but Strachan, more suspicious, saw that it provided a vehicle for many Upper Canadians to express grievances.
Robinson, deeply involved in the Selkirk litigation, seems to have paid little attention to Gourlay until Smith, who had become alarmed by the spring of 1818, ordered him “to watch the progress of” Gourlay for an “occasion to check [him] by a criminal prosecution.” In June Robinson rendered an opinion that Gourlay’s third printed address was “grossly libellous” and “entirely subversive,” but told Smith that prosecution should be considered carefully before any court action which might give importance to what would otherwise be an insignificant affair. Gourlay’s meetings across the province Robinson considered “dangerous,” however, because they pointed out “the mode by which popular movements on pretences less specious than the present can be effected.”
Smith decided to act, giving the prosecution to Henry John Boulton, the solicitor general. Gourlay was acquitted of a charge of seditious libel. However, the new lieutenant governor, Sir Peregrine Maitland*, at Strachan’s urging, decided to silence the agitation, and the assembly, so recently critical of government, passed with only one dissenter an act “to prohibit certain meetings within this province.” Under a statute of 1804 Gourlay was ordered to leave the province. He did not, and was arrested and jailed in mid January 1819. Robinson represented the crown at Gourlay’s trial in Niagara the following August. Convicted of ignoring the order to leave the province, Gourlay was banished from Upper Canada.
The government, alarmed by the discontent voiced by Gourlay, decided that a spokesman was needed in the assembly for the lieutenant governor and his advisers in the Executive and Legislative councils. At the general election held in midsummer 1820 Robinson was returned for the town of York, and the labour of preparing, presenting, and defending government measures in the assembly thereafter fell mostly on his shoulders. Although he told his friend John Macaulay* that he was not fond of politics, Robinson continued in his leading role until 1828. The goals which Maitland and his chief advisers, Robinson and Strachan, set out to achieve in the 1820s were to promote economic development through the encouragement especially of British immigration and the construction of public works; the creation of a centrally controlled banking system like that advocated earlier by Hamiltonian federalists in the United States; the maintenance of the constitutional connection with Britain and of British political institutions; support for the Church of England, tolerance of some religious sects, and friendliness to Presbyterians and conservative Methodists; public support for elementary education; and avoidance of some aspects of the American experience, such as a wide electoral franchise and the separation of church and state.
When the assembly met in November 1821, Barnabas Bidwell*, the member for Lennox and Addington, took his seat. Bidwell, a former member of the United States Congress and state official in Massachusetts, had come to Canada in 1810 fleeing a charge of malversation of government funds in that state. Robinson thought him a “rascal” and was only too happy to promote any measure to get him out of the assembly. Like many other Upper Canadian Tories, Robinson saw Bidwell as the product of an American political system which, based on republicanism and reform, encouraged corruption and disloyalty in its adherents. The attorney general presented a petition to the house from some electors in Lennox and Addington who wanted Bidwell’s election declared “null and void,” thereby preserving the “pure and unsullied . . . dignity” of the assembly. After long debate in which Robinson played a prominent role, and a close decision, Bidwell was expelled and a bill was passed barring persons who had held office in the United States from standing for election. Yet Marshall Spring Bidwell*, after two disputed by-elections, was returned in his father’s place in the general election of 1824. The episode was the beginning of the alien question which was to divide the province after 1824.
Robinson was also personally concerned with the government’s desperate need for revenue. The legislatures of Upper and Lower Canada had failed to agree since 1819 on the division of customs duties between them. Both houses of the Upper Canadian legislature decided that the attorney general should go to England to persuade the imperial government to intervene in the deadlock. Robinson, his wife, and brother Peter, set off for London via New York in February 1822. Two days after their departure Anne Powell followed, against her family’s wishes. She joined the Robinsons at Albany, but Robinson refused to allow her to sail from New York with them. She crossed in another packet which broke up in heavy weather on the rocky coast of southern Ireland. Anne’s body was cast ashore. Her father, whose influence had waned with the coming of Maitland and who was in England seeking preferment, was crushed. Much against his wishes his daughter had pressed her attentions on Robinson for five years; the infatuation had now ended in tragedy.
Robinson’s principal task in England was persuading the imperial government to enable Upper Canada to obtain some of the arrears in customs revenue due since 1819 and guarantee the province a share of future revenue. When he arrived he found, however, that the Colonial Office was considering a political union of the Canadas. A group of officials from Lower Canada, including Solicitor General Charles Marshall and Receiver General John Caldwell*, were pressing for such a union to create a predominantly Anglophone province whose legislature would be dominated by English speaking members. The colonial secretary and his senior officials, anxious to solve the political impasse in Lower Canada, seemed receptive to the plan. Robinson joined in the talks, but soon realized the discussions were unlikely to assist Upper Canada and pressed to have provision dealing with the financial problem inserted in the union bill. He won his point, but when the bill was introduced in the British parliament, it met unexpected opposition. The government withdrew it and Robinson was asked to redraft the financial and trade provisions into a new bill, which became law as the Canada Trade Act in August 1822. The act established a comprehensive scale of import duties on goods from the United States entering Upper Canadian ports of entry on the Great Lakes. Shipping tolls on the St Lawrence were eliminated, and Upper Canada was paid one-fifth of the duties collected from 1 Jan. 1819 to 1 July 1824, with its share to be revised every three years thereafter.
Robinson was now ready to return home, but Lord Bathurst held him back as an adviser. Meanwhile he was completing his terms at Lincoln’s Inn. He also began negotiations with the under-secretary for the colonies, Robert Wilmot-Horton, with whom he had dealt on the proposed union and trade bills, for a proper post office in York. He pressed Wilmot-Horton and the crown law officers for an opinion on whether persons who had been resident in Upper Canada for seven years but had not taken the oath of allegiance and become naturalized British subjects were legally able to hold land. Both Robinson and Maitland felt that immigrants should be legally secure in their lands but they were also fearful of the potential disloyalty of unnaturalized Americans and sought legislation to exclude aliens from the assembly. The imperial government was not, however, ready to make a hard ruling at this time.
Robinson also raised the question of war damages. Two boards of inquiry had assessed the value of the damages at £230,000 and £182,130 respectively, but no money had been paid. An unofficial committee in England, consisting of Edward Ellice, Alexander Gillespie, and John Galt*, had been pressing for payment to some Canadian claimants since the summer of 1821. In the fall of 1823 the British government authorized Maitland to make an initial payment from imperial funds of one quarter of the second award, if the provincial government would pay another quarter. The rest of the claim was also to be shared equally. The result was disappointing to Robinson because the province was already in severe financial difficulties. Galt recommended that payment of the imperial funds should be handled through Gillespie’s company, a Montreal and London mercantile and forwarding house; the money would thus be channelled through a company which was a creditor of many Upper Canadian businessmen. Henceforth Robinson had little use for Galt.
During the summer and autumn of 1822, Robinson and Wilmot-Horton saw each other constantly, becoming close friends. In discussing colonial policy they developed a project to encourage British immigration to Upper Canada, believing it to be the way to offset the influence of predominantly American immigration, increase the Anglophone population in Canada, and maintain the British connection with the colonies. To Wilmot-Horton the plan, which received government approval in January 1823, would make “the redundant labour and the curse of the mother country, the active labour and blessing of the colonies.” As they considered potential immigrants, their attention turned to Ireland as a source and they received encouragement and help from the Irish administration. Robinson’s brother, Peter, was asked by the colonial secretary to supervise the migration to Upper Canada.
Discussion of the union of the two provinces had continued through the summer and into the autumn. Although he personally disliked the idea, Robinson had not spoken against it until signs of adverse public opinion in the Canadas began to arrive. He disliked the enlarged and strengthened elective assembly, and felt that English speaking Montreal merchants were merely trying to drag in Upper Canada to help with their own political and economic problems. When a new union bill was introduced to the British house early in 1823, it died in the face of vigorous opposition by the reformers who pointed out that French Canadians rejected the measure. Robinson in the meantime had been thinking of an alternative. His pamphlet on the plan, published in London in 1824, contained two papers by himself, one by Strachan, and one by James Stuart* of Quebec. Robinson proposed a union of all the British provinces in North America as a more effective deterrent to United States encroachment, and he argued that government officials would be more secure, for a civil salary list would be easier to pass in a single legislature. The union would be federal in nature with provincial governments, constituted as they now were, looking after local matters. The union parliament would consist of an upper house with members summoned from the provincial legislative councils by the governor general, and a lower house elected by the provincial assemblies or by electors meeting a fairly high property-requirement franchise. This parliament would “enact laws for the general welfare and good government of the United British Provinces.” It could deal with religious matters, subject to the restrictions in the Canada Act of 1791, with commerce, and with defence. It could levy tariffs, whereas the provincial governments would depend on excise and land taxes. Such a proposal would strengthen the British hold in North America, for the Anglophone majority it would establish in the united legislature would be able to prevail over the French Canadians, whom Robinson considered conservative, agrarian, and opposed to commercial development. This concept of union, though rejected by the imperial government at the time, remained in Robinson’s mind throughout his life.
In February 1823 he completed his terms at Lincoln’s Inn and was called to the English bar. Strachan had urged him to attempt public life in England and was willing to provide a forgiveable loan of £1,500 for the purpose. More tempting was Lord Bathurst’s offer of the chief justiceship of Mauritius at £3,500 per year, a salary greater than Robinson would ever earn on the bench, plus a housing allowance. But he preferred to stay in Canada: “One day or other we shall become a great people – that’s certain – our boys may live to see it,” he wrote Macaulay. He returned to York in early July 1823.
Robinson came back to York as one of the two most influential men in the province. The friendship which he and Strachan shared with Lieutenant Governor Maitland and the supporters they had in the Legislative Council and House of Assembly gave them much influence. As chief officer of the government during the 1820s Robinson was not the leader of a cohesive political party based on a constituency of support for policies across the province, but he was at the centre of a group of administrative officers and government supporters in the legislature who were bound together by friendships and common interests. This group, called the Family Compact by its Reform opponents, had fought together in the War of 1812 and was distinguished by support of the British connection, opposition to the United States, a desire to assimilate French Canadians into a “British” culture, and support of commercial development and the construction of public works. Strachan was the Compact spokesman on religious and educational matters, while Robinson led the group in the assembly. The Reformers nevertheless attributed more unity of purpose to the Compact than in fact existed; on banking, land, education, and religious policy the group was not always in agreement.
Robinson was once more returned for York in the 1824 elections, after a bitter campaign. William Lyon Mackenzie, in the newly founded Colonial Advocate, remarked: “His abilities are greatly overrated; his flippancy has been mistaken by some for wit; but not by us. . . . We account him to be a vain, ignorant man.” Robinson commented to the governor’s secretary: “Another reptile of the Gourlay species has sprung up in a Mr. Mackenzie. . . . What vermin!” The narrowness of Robinson’s victory signalled a change in the political temper of the assembly: in the coming sessions the house would be evenly divided between government supporters and opponents. The opposition was even more diffuse in character than the Compact group. Opposition members coalesced around a series of issues, primarily the alien question, but they were as often motivated by personal axes as by high ideals and ideology. There was a coterie of friends and supporters centred around Marshall Spring Bidwell, a few radicals influenced by the British Reform movement, a group who opposed the Church of England and its claims to church establishment, individuals some of whom disliked the government’s land and development policies, or, like Robert Randall*, had personal grievances against the government.
The first session of the 9th parliament opened in January 1825 with much talk and little legislation. But behind the scenes the great issue of the 1820s was developing. The British courts had ruled that persons who had remained in the United States after 1783 and their descendants could not continue to be considered British subjects. Lord Bathurst in passing on the decision to Maitland late in 1824 advised him that neither Bidwell could sit in the assembly. But because so many people in Upper Canada would be adversely affected, in both their right to hold land and their civil rights, the dispatch was not acted on. Instead, Robinson and the colonial secretary discussed the matter when the former went to England in the summer of 1825. Since the imperial parliament would not act at that time, it was agreed that a bill of limited scope should be passed by the Upper Canadian legislature to confer the civil rights and privileges of British subjects upon those who had resided in Upper Canada for seven years and who would renounce their American citizenship.
There had been spirited public discussion of the issue for months prior to the meeting of the assembly in November 1825. Robinson’s draft bills passed through the council but when he presented them to the house, explaining how the legislation would solve the problem, a storm of protest erupted. Robinson felt that the opposition deliberately misrepresented the government’s position in arguing that the bills were a gratuitous insult to people born or long resident in Upper Canada. The opposition also questioned the right of a colonial government to act in this matter and the house passed an address asking the imperial parliament to intervene.
This parliament then gave the Upper Canadian legislature the power to naturalize persons resident in Upper Canada who met the qualifications of British naturalization laws, but instructions for modified legislation had not been received when the Upper Canadian legislature reconvened in December 1826. Robinson, knowing what the instructions from England would be, found himself fighting a politically popular bill introduced by John Rolph, which provided that all resident settlers were to become British subjects unless they registered their dissent. When the imperial government’s instructions finally arrived, Rolph’s bill was amended by the attorney general to conform with them. Once more the opposition took exception to the Colonial Office’s requirement that persons register their naturalization and again take an oath of allegiance. Robinson felt that they were arguing against the judgement of the courts and against a measure which would relieve people of disabilities arising from that judgement. After angry debate and the defection of members from the opposition, the amended bill was passed.
The enraged opposition sent Robert Randall to England to protest. Randall consulted both the colonial secretary and the radical parliamentary opposition; fear of raising the issue in parliament forced the new colonial secretary, Lord Goderich, to agree to instructions for a new bill which passed the Upper Canadian legislature in May 1827. All who had received land grants, held office, taken the oath of allegiance, or been resident in the province before 1820 were to be admitted to the rights of British subjects. No provision for renunciation of allegiance to foreign countries was made. This new bill was acutely embarrassing to Robinson and the government party in Upper Canada. After they had patiently accepted Colonial Office dictation and defended the unpopular decisions made, a new colonial secretary had bowed to pressure by the Upper Canadian opposition and undermined the colonial administration.
While the alien question was still at full heat in 1827, D’Arcy Boulton’s replacement on the bench arrived in York. He was John Walpole Willis*, an equity lawyer, who was expected to serve only briefly on the Court of King’s Bench until the provincial legislature created a court of equity in Upper Canada. He developed a dislike of Robinson, perhaps because by now so many in the province deferred to his legal abilities. The conflict came into the open when Willis presided over the trial of Francis Collins*, the fiery newspaper editor, whom Robinson was prosecuting on three charges of libel. Previously, and in the course of his trial, Collins charged that Robinson had been remiss in not laying criminal charges against some of those involved in the Samuel Peters Jarvis*–John Ridout duel ten years before, and in not prosecuting those who had destroyed William Lyon Mackenzie’s press in 1826. From the bench, Willis agreed with Collins. Over Robinson’s objections Willis ordered prosecution in both cases. The seconds in the duel, Solicitor General H. J. Boulton and James Edward Small, were acquitted of murder charges, and Mackenzie’s tormenters were fined five shillings. Although Robinson deeply resented the criticisms of him implicit in these prosecutions, he then agreed at Willis’ urging to drop the libel charges against Collins, who had precipitated the furor. Shortly after, Willis argued that the Court of King’s Bench could not act without all its three members present, as it had done in the past. He withdrew from the bench, and thereby not only stopped the functioning of the provincial courts but brought into question the validity of all the court’s previous decisions. Maitland, after seeking the advice of Robinson and Boulton, removed Willis from the bench.
The alien question, Willis’ removal, and criticism of the clergy reserves were province-wide issues in the election of 1828. Robinson again won his seat narrowly, but his work was made more difficult by the fact that the new house was overwhelmingly anti-government and anti-Anglican. When Chief Justice William Campbell* retired in the spring of 1829, Robinson was appointed to replace him and resigned his seat in the assembly. He had refused the appointment in 1824 because he could not afford to give up his law practice for the salary of the chief justice. Robinson’s elevation to the bench removed him in large part from political struggles, although his appointment carried with it the speakership of the Legislative Council and the presidency of the Executive Council.
As government leader in the assembly throughout the 1820s Robinson had demonstrated a legalistic and constitutional approach to the solution of problems which the opposition had handled in a more openly “political” fashion. He had shown a consistent concern for sponsoring a controlled, commercially based development of the province through the encouragement of immigration, the construction of public works, and the discouragement of land speculation. Although much interested in the welfare of the Church of England, he at times disagreed with John Strachan’s passionate advocacy of its rights. Robinson seemed to have taken for granted the Anglican dominance of education and had been instrumental in preventing the sale of the clergy reserves to the Canada Company in 1826. Nevertheless, his critics in the assembly saw him grow in tact and caution, and he had been successful in pushing much basic housekeeping legislation through a sharply divided assembly.
Robinson lost his real influence with the appointment of the new governor, Sir John Colborne, in August 1828. Colborne did not lean on the advice of a few Compact councillors as had his predecessor. He was a conservative, but many of the leading men in the Compact party distrusted him. However, when the Reform-dominated assembly demanded that Robinson be removed from his political posts in the councils in accordance with the 1828 Canada Committee report which had recommended political independence for the judiciary, Colborne was quick to defend Robinson’s worth. Although Robinson might not have objected to losing the posts “to save him from the drudgery of colonial politics,” Colborne felt that he should continue at least in the speakership because his legal experience would be helpful in drafting legislation. The colonial secretary accepted the substance of the assembly’s demand and ruled that no judges were to serve in the executive or legislative councils in future. Robinson remained a legislative councillor but was advised to confine his contributions to giving legal advice. He and Colborne became friends and Colborne consulted him on occasion over provincial affairs. Robinson remained the senior Tory in the province, a kind of figurehead. No one emerged in the assembly with his knowledge or effectiveness in debate. Only once, in 1832, did he break his cautious abstention from politics: to pen the reply of the Legislative Council to a dispatch from Lord Goderich which seemed to pay too much attention to Mackenzie and his grievances.
Robinson’s relations with Colborne’s successor, Sir Francis Bond Head*, were closer, and more cordial, though in personality they differed. Certainly many radicals saw them as working too closely together. Both agreed that an outward show of calm was necessary as rumours of rebellion began circulating in Toronto in the summer and fall of 1837. The chief justice willingly stood in the ranks of militia called out to resist Mackenzie. On 7 December, when the militia marched north to Montgomery’s Tavern to defeat the rebels, Robinson sat in his study writing a history of the rebellion. Because of his advice and support during the crisis, Head recommended that Robinson be knighted, but Robinson declined the honour.
As chief justice, Robinson presided over the trials of those charged with insurrection or treason in connection with the rebellion and the Patriot invasions from the United States in 1838. Over 900 had been arrested, but most were released without trial and bound to keep the peace. Robinson presided daily over the actual hearings and passed sentence on those convicted. Thirty-seven men were sentenced to transportation or had death penalties commuted to that punishment, but on Robinson’s recommendation only 25 were actually transported. Others were given prison sentences of a few years. However, it was Robinson’s view that “some examples should be made in the way of capital punishment,” and Samuel Lount* and Peter Matthews*, both leaders in the rebel movement who had pleaded guilty to high treason, were hanged.
Through discussions of the treatment of insurgents, Robinson came into contact with Sir George Arthur*, who had relieved Head in early 1838. Although the two were carefully formal to begin with, Arthur too succumbed to the knowledge and experience of his chief justice and relied upon his “friendly advice.” When Governor General Lord Durham [Lambton*] visited Upper Canada for a few days in July 1838 he too took the opportunity to seek Robinson’s views on a proposal to federate the British North American provinces in an elaborate political system of local and general governments with ill-defined areas of jurisdictional competence. Robinson made a number of comments on the scheme, objecting most strongly to suggestions that the legislative councils be abolished and that the elected assemblies control the entire provincial revenues. He had few illusions that his discreet advice would be heeded because “nothing but a notorious, factious opposition to government in the adviser is acknowledged as giving any value to Colonial opinions.”
Ill health forced Robinson to ask for a leave of absence in the summer of 1838 so that he could seek medical advice in England. He and his family stayed with his wife’s friends at Cheltenham. In December Colonial Secretary Lord Glenelg asked him to come to London to discuss Canadian affairs. It was the first of many interviews with influential British politicians, including Sir Robert Peel, the Conservative leader, who, in a period of unstable Whig governments, were reluctant to move decisively in formulating Canadian policy. At this time Robinson visited Durham, and found him still undecided about what to recommend in his report, trying to please both “the ballot and short parliament people” (radicals in England) and the British in the Canadas.
Durham’s report was tabled in the House of Commons in February 1839. To his wife Robinson described it as “horrid,” and he saw the sections on Upper Canada, which criticized the Family Compact, as “disgraceful and mischievous.” He gave his opinion to Peel and the Duke of Wellington without delay. Once more, as in 1823, Robinson pointed out to colonial office officials that the union of the Canadas Durham recommended would only drag Upper Canada into the difficulties in Lower Canada. He foresaw that the assembly proposed would be closely divided between French and English and would give “no assurance of anything but bitter and hateful conflict.” To attempt to submerge the French Canadians in the legislature would be to force them into a “close phalanx against the British portion of the Legislature,” without any guarantee that the Anglophones would remain “faithful to British supremacy.” To give the governor power temporarily to suspend elections was unfair to all the colonies. Reinvestment of control of colonial lands in the British government to encourage immigration was unwise since the colonial governments would be unwilling to give it up. The abolition of the clergy reserves he rejected, for the Protestants of the province would be left “destitute of any public provision to support the public worship of God, and to ensure the maintenance of religious instruction.” The proposal that the governor carry out his responsibilities through heads of departments in whom the legislature placed its confidence was absurd. “The Assemblies of the Provinces . . . displayed a degree of selfishness (if not corruption), a prodigality, a negligence, a recklessness beyond what one can think credible . . . it is happy indeed that they have not had higher and greater interests at their mercy.” Such a form of government would lead to “a servile and corrupting dependence upon Party”; it would be without parallel in the British empire and “in comparison with it the Republican Government of the United States would be strongly conservative.”
In the following weeks Robinson made a number of his own confidential recommendations to deal with Canada’s problems. What was needed were guarantees against American aggression, the restoration of order so that investment might once more flow into the Canadas, governmental forms to prevent the recurrence of disturbances, and financial assistance to Upper Canada to offset the effects of suspended immigration and a decline in commerce and revenue. Robinson’s alternatives to Durham’s plans for union included the annexation of Montreal to Upper Canada and the maintenance of separate provincial governments, with Lower Canada to be governed for up to 15 years by an appointed executive and a partly elected, partly appointed legislative council. To better control the rebellious Lower Canadian population he suggested various measures to assimilate French Canadians into the English language culture, including the use of English in government and the courts and the substitution of English for French civil law in Lower Canada.
In April Robinson came up to London. He saw Peel regularly and conferred with many leading Whigs and Tories in an effort to discredit Durham’s report. The weakness of Lord Melbourne’s ministry gave him some hope and the abandonment of a union bill offered in parliament in June 1839 seemed to augur well. Throughout the summer while he consulted physicians and tried to rest Robinson continued writing to Tory leaders and to supporters of the Anglican establishment and the clergy reserves.
During the summer the government placed the Canadian issue at the top of its list of priorities: Lord John Russell was appointed colonial secretary in August and shortly afterwards Charles Poulett Thomson* was appointed governor general of British North America. Robinson, who had had his leave extended to 1 March 1840, now anticipated for himself even more effort to fight the union. In the autumn of 1839 he began a short book criticizing the proposal. After a long introductory chapter on the geography and economy of the British North American provinces, it gave a detailed argument against the union bill as presented in June 1839. With the publication of Canada, and the Canada Bill in February 1840, Robinson had shot his bolt against the union project.
His efforts in the winter and spring of 1840 were turned to the clergy reserves. He met with leaders of the high church party in parliament such as Sir Robert Inglis and Henry Phillpotts, bishop of Exeter, to present his views. Early in 1839 the Tory majority in the Upper Canadian legislature had passed a bill providing that the income from the clergy reserves be applied to “religious purposes” in a manner to be determined by the British parliament, rather than by the Upper Canadian legislature. This reinvestment of the reserves in the crown was rejected by the British government on the grounds that the drafting of the bill had constitutional defects. Robinson was not unhappy at the rejection because he felt that this reinvestment merely opened use of the reserves’ income to future political pressures. An act passed in August 1840 by the imperial parliament was something of an improvement, built on the principle of dividing the reserves among denominations, but giving a bigger share to the Church of England. Robinson’s cultivation of pro-Anglican British politicians had proved effective. Most Anglicans in Upper Canada were aware that the imperial act was better than they could have obtained in Upper Canada, though few in 1840 could have been happy that this legislation provided support for other denominations as well.
The winds of change over the winter of 1839–40 were blowing hard. The Upper Canadian assembly voted to support the proposed union, and, in consequence, the English Tories, who had been neutral although sympathetic to Robinson and his arguments, decided to support the union measure. But Robinson’s consorting with the Tories in England and his absence from the bench began to excite comment. In mid March Russell told Robinson that his presence in England was no longer required or welcome. After a few weeks of visiting and farewells, the Robinsons embarked from London.
The new union bill was introduced in the spring of 1840 just as they left. The Canadas were to be reunited for legislative and executive purposes. Equal representation in the assembly was accorded to each of the former provinces in order to ensure Anglophone domination. Other recommendations made by Durham were ignored or dealt with in different ways. The new governor general of the Canadas engineered an Upper Canadian solution to the clergy reserves by which one-half of the revenues were to be divided between the Anglicans and the Presbyterians, the other half, when funds permitted, among all denominations. He also introduced many of the administrative reforms advocated by Durham. But many of the points Robinson had argued had been accepted and incorporated in the bill. Legislative councillors were to hold office for life, executive responsibility to the legislature was not specified, and the courts were clearly established; indeed, his only objection would probably have been to the union itself and the basis of representation with its potential for political deadlock between French and English.
When Robinson and his family returned to Toronto the political climate of Upper Canada had completely changed. As a judge, he was effectively divorced from political life, and as an old Compact Tory he was excluded from political power. He made some effort to maintain the unity of the high Tories in Upper Canada, but their exclusion from office made this a difficult task. He no longer had personal contact with the governors, although Sir Charles Metcalfe*, after reading Canada, and the Canada Bill, corresponded with him.
Much of his time outside his legal duties in the next 20 years was devoted to the Church of England. He served on the executive of the Church Society, the body charged with managing the temporal affairs of the Toronto diocese as well as carrying out good works. He became a vice-president of the Society for the Propagation of the Gospel and was active in the Society for Promoting Christian Knowledge. He believed firmly in the union of church and state and the need for an established church because he felt the only secure basis for civil authority was religion. Hence he defended the clergy reserves, although his views about how to do so were more liberal than Strachan’s. He was friendly with the leaders of the high church party in England and associated with them in Canada, but was never attracted by the Oxford Movement or the Tractarians or their followers in Canada. Whether or not he ever accepted a separation of church and state as did Strachan is uncertain. He was always hesitant to make religion a subject of political contention.
Robinson was not narrow in his religious views. He gave land and support to the Methodists because he felt their preachers had brought the Christian message to the frontier when no one else had. He appeared publicly several times in the 1840s and 1850s at meetings of the British and Foreign Bible Society, an organization to which normally only evangelical Anglicans belonged. He had played an active role in establishing King’s College, an Anglican university in Toronto, and strongly defended its denominational character. “A college or university which professes to take the range of the sciences – and to send forth a youth in the world qualified to act his part in it – and yet carefully abstains from including any religious doctrine must be an abortion,” he told Strachan in 1844. Following Robert Baldwin*’s act to secularize King’s College in 1849, he advised Strachan that he should not be satisfied with merely a theological seminary, but that the Anglicans, like the other major denominations, should have their own college. Strachan and his supporters obtained a charter for the University of Trinity College in 1852; Robinson became its first chancellor, serving until his death.
In 1849 Governor General Lord Elgin [Bruce] recommended Robinson for a knighthood as one means of placating the ultra Tories. Robinson told Elgin’s secretary rather cynically that he would accept but that he hoped responsible government would not lead to a too generous creation of knighthoods. He was made instead a Companion of the Bath in 1850, but in 1854 was created a baronet of the United Kingdom.
His work as chief justice of the Court of Queen’s Bench naturally occupied most of his time. He worked hard; there was seldom an arrears of business in the court. In fact, Robinson had specifically asked for legislation to allow the court to convene and render judgements after the regular terms as a means of speeding up procedure. The Upper Canada Law Journal noted in its obituary: “Few opinions will ever command more respect or carry more weight than those delivered by Sir John Robinson. They are remarkable for their lucid argument, deep learning, strict impartiality and pure justice.” D. B. Read* observes that he tended towards severity in criminal matters. As a judge he was courteous and careful, if anything rather conservative. No man has served longer as chief justice than did Robinson, and his judgements are among those which merit a full examination by a legal historian of Canada.
His judgements seldom excited controversy. Two did, however: one in 1859 in which he gave a light sentence to an Orangeman charged with attempted murder following a public brawl, and the John Anderson extradition case which aroused intense public interest in both Canada and Britain. Anderson, a slave from Missouri, had, it was alleged, murdered a man in making good his escape to Canada. In 1860 the Court of Queen’s Bench presided over by Robinson granted Anderson’s extradition to the United States, but the Court of Common Pleas overturned the ruling on a technicality.
Robinson’s years on the bench were financially comfortable, but his income was less than it might have been if he had remained at the bar. Indeed, with the help of his prosperous private practice in the 1820s he had built one of Toronto’s best homes in Beverley House. He also accumulated a good deal of land, some of which he inherited from his brother Peter in 1838. In 1852 he owned 300 acres in Simcoe County, over 1,000 acres in York, some land in Ontario and Peel counties, and some 29 parcels elsewhere. Nevertheless he was by no means wealthy. He and his wife had four sons and three daughters. Three sons became lawyers; the youngest entered the British army and attained the rank of major-general. His second son, John Beverley*, entered politics, serving briefly in the cabinet before confederation and as lieutenant governor of Ontario in the 1880s.
Robinson had never really liked the notoriety of political life; his career on the bench was probably most satisfying because it removed him from politics. He never seems to have thought of power as such; rather he accepted responsibility to govern and to be a public servant. He saw himself as part of the governing class, the “regularly bred,” who must take up his duty. He thought that he acted in a liberal or benevolent way on principles which would preserve and strengthen an essentially good Upper Canadian society. His loyalist background, his education by Strachan, and his experience during the War of 1812 shaped his attitudes fundamentally. Looking back from the 1840s, he argued that the war had given Upper Canadians a sense of identity, a sense of anti-Americanism and of pro-British sentiment. He would long remember that many Upper Canadians had been lukewarm in defence against the United States, and remained suspicious of American-born settlers and those whose politics were “republican.” Indeed, maintenance of the British connection was his major goal, a goal which could be attained only by encouraging immigration from Britain and by establishing British political institutions in Canada. That British political institutions changed during his lifetime made it difficult for him to adjust his thinking.
He saw what he described as “ancient and venerable institutions,” “respect for rank and family,” “the power of wealth,” and “the control of numerous landlords over a grateful tenantry” as part of the essential fabric of a stable society. That these did not exist in Canada meant that government depended on “the presumed good sense, and good feeling of an uneducated multitude” which periodically could be led astray. Even late in life, when he had begun to feel that he had often been mistaken in his understanding of public wants, he still distrusted democracy. He believed always in a balanced constitution – an elected assembly, an independent upper house to act as a check on the assembly, and an independent executive which could be checked by both houses of the legislature and check them in turn. A society governed in this way could prosper through the work of its people.
Robinson was always a supporter of British immigration and of development. He subscribed to the stock of the Welland Canal Company and the Desjardins Canal Company because of the assistance they would give to the Upper Canadian economy. Nevertheless, as his comments on the United States in the 1830s indicate, he did not favour extravagant development and widespread credit to encourage it.
He was also an early advocate of British North American union. From 1823 onwards he saw such a union as preferable to the union of the two Canadas. The control of Canada by its Anglophone majority could only be ensured by bringing the Atlantic provinces into the union. By the 1840s many Upper Canadian Tories shared his views. His loyalism, his Anglicanism, and his distrust of democracy did not make him into a colonial, however. He would visit England often, be friendly with that country’s leading men, and be offered attractive opportunities outside Canada, either in England or in other colonies, but his sense of duty and his love of Upper Canada kept him a Canadian. Indeed, in the last years of his life, he reconciled himself to the concept of responsible government as he saw it working and realized that it was the means by which the British connection could be maintained.
In the spring of 1861 Robinson suffered such a severe attack of gout that his work on the bench had to be curtailed. He was able to resign from the Queen’s Bench on 15 March 1862, at which time he was appointed presiding judge of the Court of Error and Appeal. That fall he was again seized cruelly by gout but continued to serve until pain forced him to retire to his home in January 1863. On 28 January the aged Bishop Strachan gave him communion, and three days later he died.
John Beverley Robinson was the author of Canada, and the Canada Bill: being an examination of the proposed measure for the future government of Canada . . . (London, 1840; repr. East Ardsley, Eng., and New York, 1967); Remarks on the proposed union of the provinces (n.p., 1839); and with Jonathan Sewell*, Plan for a general legislative union of the British provinces in North America (London, [1824?]), repub. in General union of all the British provinces of North America (London, 1824).
Sir John Beverley Robinson papers are in the possession of Christopher Robinson (Ottawa) (mfm. in PAC, MG 24, B9). MTCL, William Dummer Powell papers. PAC, MG 23, H I, ser.4, I; MG 24, A40; RG 1, E1, 50–57; E3; RG 5, A1, 16–267; RG 7, G1, 55–95. PAO, Cartwright (John Solomon) papers; Jarvis-Powell papers; Macaulay (John) papers; Robinson (John Beverley) papers; Strachan (John) papers; RG 4, ser.A-1. PRO, CO 42/351–453 (mfm. at PAC).
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