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SEWELL (Sewall), JONATHAN, lawyer, musician, office holder, politician, author, and judge; baptized 6 June 1766 in Cambridge, Mass., son of Jonathan Sewall (Sewell) and Esther Quincy; d. 11 Nov. 1839 at Quebec.
Jonathan Sewell was born into a prominent and cultivated Massachusetts family and, with his younger brother, Stephen*, grew up on the love and encouragement of his parents. His loyalist father, attorney general of the colony, earned the enmity of American patriots, and on 1 Sept. 1774 a terrified eight-year-old Jonathan witnessed the sack by a patriot mob of the family mansion in Cambridge. Within a week the Sewalls moved to Boston; a year later they arrived in London. In 1778 the family settled in Bristol, where they adopted the English spelling of the family name, Sewell. Jonathan discovered a talent for the theatre, and his performance in a school play impressed the celebrated actress Sarah Siddons, who described him as “Dame Nature’s chosen son.” He had innate abilities in music and painting as well, and his father found that he had “impetuous and penetrating” powers of mind. Edward Winslow* later described him as “one of the finest lads I ever saw.”
After briefly attending Brasenose College, Oxford, Jonathan left England in early 1785 under the care of Attorney General Jonathan Bliss* of New Brunswick to study law with an old family friend, Solicitor General Ward Chipman*. To improve his courtroom skills Sewell founded in Saint John the Forensick Society, a student club that debated moot points of law. He also got an apprenticeship in conservative politics as a campaigner for the government party, of which Chipman was a leader. In October 1787 he was appointed registrar of the Vice-Admiralty Court. The following May he was called to the bar, and he soon had a clientele. His family had been reunited in Saint John, but in the summer of 1789 he moved to Quebec, where there was greater scope for his abilities.
That October, thanks to strong recommendations from Chipman and judge Joshua Upham*, Sewell acquired his lawyer’s commission. He quickly found that Scottish and Canadian barristers monopolized civil litigation, and he was contemplating a move to Montreal when, in October 1790, he was appointed attorney general of the province of Quebec pro tempore. The position eventually went to James Monk*, but, boosted by the temporary appointment, Sewell’s private practice flourished. Its growth was also due to Sewell’s rapid mastery of French civil law, with which he had been unfamiliar on his arrival.
Sewell’s success partially reflected his acceptance by Quebec’s British community. Its members embraced him even more readily after he became a protégé of Prince Edward* Augustus, who, impressed by Sewell’s proficiency as a violinist, engaged him to lead an amateur orchestra in regular musical evenings. Sewell acquired the most recent works of European composers and for one concert composed new verses to “God save the King” which would create a sensation in 1800 when sung on a London stage by the actor Richard Brinsley Butler Sheridan after an attempted assassination of George III. Sewell’s social relations were not only cultural; in September 1793 he had baptized “a natural child” named John St Alban Sewell.
Sewell shared the moderately liberal views of his social entourage. He promoted the efforts of Chief Justice William Smith* to establish a non-denominational university, opposed slavery, and was a firm believer in habeas corpus. Although a staunch defender of the royal prerogative, he supported a balanced constitution with an important role for an elected house of commons. He welcomed the granting of an assembly for Lower Canada by the Constitutional Act of 1791 (but regretted the division of the province) and in 1792 published An abstract from precedents of proceedings in the British House of Commons to guide the assembly’s deliberations.
In 1793 Governor Lord Dorchester [Guy Carleton*] and Smith obtained Sewell’s appointment as solicitor general and inspector of the king’s domain. With Monk, Sewell analysed and worked to suppress a series of militia riots in 1794. Both men demonstrated a tendency, widespread among British inhabitants, to view the rioters as pawns of French revolutionary and American agents. After Monk’s elevation to the bench in 1794 Sewell prosecuted the unfinished cases – demonstrating considerable leniency, in accordance with Dorchester’s prudent policy of treating political offenders lightly. In 1795 Sewell took a leading role with Chief Justice William Osgoode* and Montreal lawyer Arthur Davidson* in successfully opposing legislation that would have opened the legal profession to unqualified persons. On 9 May 1795, thanks to Dorchester and Osgoode but over the opposition of Monk, who detected a serious rival in this “Going Man,” Sewell was appointed attorney general and advocate general. He was named judge of the Vice-Admiralty Court in June 1796.
The office of the attorney general was an important one in the Lower Canadian administration. In addition to drafting government regulations and legal instruments, the attorney general prosecuted cases of all sorts, including those involving state security. With the aid of Montreal merchant and magistrate John Richardson*, among others, Sewell established an intelligence network that would function for more than a decade with relative effectiveness. When a series of riots broke out in 1796–97 over a new road act, Sewell reported to Governor Robert Prescott* that they were orchestrated by French emissaries who were seconded by demagogic politicians such as Joseph Papineau and Jean-Antoine Panet*, both groups playing on “pretended grievances” and on the “profound Ignorance” that was “too surely the Characterisk of the Canadians.” On Sewell’s recommendation, arrests were made at Quebec and troops sent to Montreal to stiffen the resolve of timid magistrates. At Quebec 23 of the 24 persons indicted, and at Montreal 11 of the 13 tried, were convicted; the sentences were light but the conviction rate impressed.
Imbued with the loyalists’ sense of the fragility of the social order and fearing that the colony was to be invaded by a French fleet, Sewell drafted what became the Better Preservation Act of 1797. It suspended habeas corpus, in some cases on mere suspicion of undefined “treasonable practices.” In addition, this cleverly worded statute authorized imprisonment of assemblymen to permit the incarceration of the Panet–Papineau faction should the invasion materialize. In May 1797 the arrest of the American David McLane* for treason offered the possibility of making an example. Sewell prosecuted, and in the course of building up a strong case he was party to dubious transactions that compromised the justice of the proceedings. Following McLane’s execution there were no more riots. Clearly mob action, and the fear that it might become organized and strengthened by a discontented militia, undermined Sewell’s moderately liberal views.
Sewell’s approach to ordinary criminal cases contrasted strikingly with his treatment of security issues. No blurring of the law to serve the royalist cause altered his respect for the rights of the accused or his belief that penal law must be interpreted restrictively; indeed, on more than one occasion he agonized over the fate of helpless individuals caught in the system. Of the nearly 400 indictments Sewell drafted between 1793 and 1802, only 170 were of Canadians and 43 of women.
Sewell spent much of his time writing an astonishing array of legal opinions for the government. Almost all are models of clarity, convincingly argued and well supported by authorities. Most display a concern to protect the rights of the crown; his insistence on support from legal authorities worked to the detriment of land claims by Indians who rarely had “any Title or any other evidence Whatever” sufficient to impress him.
Sewell was aware of the distinction between an opinion grounded in law and one based on policy preference, but in certain areas – and in none more frequently than ecclesiastical affairs – he crossed the line between the two. When dealing with the Church of England he normally confined himself to legal authorities and more than once, to the dismay of his intimate friend Anglican bishop Jacob Mountain*, they led him to “an Opinion which I adopt against my will.” Although he considered that the Church of England in the colony lacked in law certain rights essential to its functioning (such as the legal existence of parishes), he did believe it to be an established church. In the case of the Roman Catholic Church, Sewell asserted that policy dictated the exercise of a royal supremacy he believed was sanctioned in law, and he argued that a supposed lack of legal recognition of the church by British law should be exploited to oblige it to accept royal supremacy. Initially convinced that the church was “merely tolerated,” by 1801 he had come to fear “with too much certainty” that it had, in fact, been established by the Quebec Act of 1774. To Lieutenant Governor Sir Robert Shore Milnes he expressed the opinion that, given the independence of the church and the ignorance and superstition of the population, the influence exerted over the inhabitants by the clergy and the bishop was “immense” and “highly dangerous.” However, he added, “to direct [the bishop] is to direct all,” and since the root of the executive’s problems in the colony was, he felt, a lack of sway over the people, the control of the church was the best means to obtain it. The government must therefore use its “right of nominating the Bishop, the Coadjutor and the Parish priest which it assumed by the conquest of Canada but has never yet exercised.”
In the spring of 1805, encouraged by Milnes, Sewell engaged coadjutor bishop Joseph-Octave Plessis* in discussions designed to bring Bishop Pierre Denaut* to request legal recognition of his position and of his church in return for his own recognition of royal supremacy. Ultimately, Denaut’s decision to petition the king for legal recognition of his office in the form of letters patent under conditions to be determined by the crown constituted a tactical victory for Sewell. When Denaut died in early 1806, Sewell, along with Civil Secretary Herman Witsius Ryland, tried in vain to persuade the administrator of the colony, Thomas Dunn*, not to accept Plessis as bishop, or Bernard-Claude Panet* as his coadjutor, until the crown had replied to Denaut’s petition. Despite recurrent reminders from Sewell, Mountain, and Ryland, the British government never responded.
Executive influence over the Canadian population could also be obtained, Sewell believed, through control of education, so, with Mountain and Milnes, he worked out the details of a scheme for government-financed and -directed elementary schools in the countryside staffed by loyal Canadian teachers who would instruct habitant children in the English language and the blessings of British rule. He drafted the government bill, which, amended by the assembly to impotence with respect to the education of Canadians, established the Royal Institution for the Advancement of Learning in 1801.
For Sewell, the anglicization of the population was essential if the colony was to be kept under British rule. This could be advanced more rapidly by encouraging massive immigration, particularly of Americans. Unfortunately, the seigneurial system discouraged immigration, and Sewell provided Milnes with opinions as to the legal means available to make the system so onerous that the population itself would be induced to seek conversion to freehold tenure.
The role of the attorney general being in part political, in 1796, shortly after his appointment, Sewell had obtained election to the assembly for William Henry (Sorel), one of two ridings in which British inhabitants constituted the majority. In the house he was often called on to draft bills, but with regard to government business he normally played a role secondary to that of leaders of the English party such as John Young* and Pierre-Amable De Bonne*. He supported the party, except on two controversial issues – the financing of prisons in 1805 [see Ignace-Michel-Louis-Antoine d’Irumberry* de Salaberry] and the expulsion of Ezekiel Hart, a Jew – in which his legal opinions obliged him to break rank. He remained in the assembly until 1808.
Sewell continued in private practice while attorney general. His official function enabled him to transmit quickly to his clients the latest information on pending legislation; but he was aware of possible conflicts of interest, and on at least three occasions refused private business on that ground. By the early 19th century he probably had the foremost practice in the colony, his clients being largely prominent businessmen, office holders, and seigneurs. In the early 1800s he defended Young when Young was sued for debt by Catherine Le Comte Dupré; his successful plea that French law had been modified by practice since the conquest was interpreted by Canadian nationalists as an attack on the Canadians’ legal tradition. Sewell took under his wing aspiring lawyers such as Edward Bowen*, James Stuart*, Jean-Thomas Taschereau*, and Philippe-Joseph Aubert* de Gaspé, instilling in them a great respect for the forms of the law.
According to Aubert de Gaspé, Sewell treated his clerks like his own children. On 24 Sept. 1796 he had married Henrietta Smith (familiarly known as Harriet), a daughter of the late chief justice and, at 20, “a woman of great beauty,” in Aubert de Gaspé’s estimation. The marriage was born out of love and would be lived in love. Of their 16 children the Sewells were fortunate to lose only four in infancy. Sewell was a highly attentive father; on one occasion, for example, he protested angrily when a son in school received corporal punishment, a means of discipline he abhorred. In 1805 Sewell moved his burgeoning family into a mansion he had had built just inside the Porte Saint-Louis. Valued at some £4,000, it helped to introduce into Quebec the Palladian architecture then popular in Britain and the United States. The Sewells entertained constantly at dinner parties and were highly prized guests in the best British and Canadian homes. Sewell was a member of the exclusive Barons’ Club and was an active shareholder in the Union Company of Quebec, which in 1805 built the Union Hotel as a focal point of social life at Quebec. Sewell much preferred Quebec’s high society to that of Montreal, which he found scandalous and frivolous. He particularly deplored the coldness shown to their wives by Montreal’s businessmen, with “their male clubs, companies, & coffee houses.” Trois-Rivières was a social “purgatory” and afforded him as attorney general “more occupation speaking comparatively than the whole district of Montreal.”
On 22 Aug. 1808 Sewell was appointed chief justice of Lower Canada in succession to Henry Allcock*. It was a post he had been seeking since 1801 with the assistance of a battery of influential people. Immediately after taking office, he consulted with his colleagues on ways to systematize and streamline court procedures, and in 1809 he published orders and rules of practice for the Court of King’s Bench at Quebec and for the Court of Appeals. Monk followed suit in Montreal two years later. Sewell attended to his judicial duties assiduously; from 1809 to 1823 he was present on 90 per cent of all court days during which he was in the colony. He was a highly competent criminal-law judge, fair except where the colony’s security was concerned. His addresses to grand juries, often published, were model lectures on complex fields of law.
Sewell generally believed serious crime to be increasing among the Canadians and, like many of his judicial contemporaries, he maintained that it took root in immorality. Following late 18th-century orthodoxy, he considered that any fundamentally dishonest or immoral act was a misdemeanour, even though not covered by law. He constantly inveighed against taverns, gambling houses, and brothels – “public Seminaries of Depravity” – holding that they introduced misery and disease into the lives of the working classes, whose social utility was diminished in consequence. He was slightly in advance of his time in his concept of punishment. No adherent to the selective-terror school of theologian William Paley, he drew inspiration from Sir William Blackstone’s Enlightenment-inspired attacks on what Blackstone called the “multitude of sanguinary laws.” Sewell’s sentences were designed to prevent crime rather than punish the guilty and he felt that it was the certainty, not the severity, of punishment that deterred crime. He was even known to spare penitent parties a record and imprisonment in the company of hardened criminals. He believed capital punishment necessary for violent or potentially violent crime but found it a terrible ordeal to pronounce. On occasion he stretched the evidence so as to invite acquittal for non-violent property crimes carrying the death sentence, and in some cases, including convictions for murder, he intervened to save a prisoner from the gallows. To the end Sewell would persist in efforts to lessen recourse to the death penalty through reduction in the number of crimes punishable by death and through transportation of felons; however, he was thwarted by the indifference of the assembly and the Colonial Office.
Compared to criminal cases, civil suits were a pleasure for Sewell. He had a tendency to favour the crown whenever the political interests of the government were deeply engaged, but if his judgements are not entirely impartial, they are remarkable for their clarity of expression, their search for general principle, and the depth of scholarship that underpins them. Sewell probably did more than anyone to professionalize the administration of civil justice prior to codification of civil law in 1866.
As chief justice, Sewell took a seat on the Executive Council in September 1808. For £100, the salary of an ordinary councillor, he presided over all committees of the whole, all committees on questions of state, the committee of public accounts until 1818, the land committee until 1828, and the Court of Appeals. The governor referred most matters to the council and generally accepted its advice; since often no more than six councillors were present and Sewell was by far the most faithful in attendance, he held great sway over the government. He was called to the Legislative Council in September 1808 and in January 1809 he became its speaker. Able, despite being speaker, to debate and vote (twice in the case of a tie) and again extremely faithful in attendance, he ultimately exercised an influence over it comparable to that of Louis-Joseph Papineau* in the assembly.
Sewell’s roles made him easily the most powerful official in the colony after the governor. His influence was particularly evident during the administration of Sir James Henry Craig*. In 1809, as opposition to Craig’s policies was expressed with ever-increasing virulence in Le Canadien, the newspaper of the Canadian party, Sewell, as chief justice, warned a grand jury that the “Liberty of the press,” like all civil liberties, was subject to “the good of the community” and that “whensoever the press is prejudicial to the public weal It is abused.” A year later he was among the executive councillors who advised Craig to seize Le Canadien and to detain Pierre-Stanislas Bédard* and others connected with it on suspicion of treasonable practices under the Better Preservation Act. Although politically involved in Bédard’s arrest, he had no compunction about acting in his judicial role to preside over a court that rejected Bédard’s application for habeas corpus. This kind of mixing of politics and judicial administration had been condemned as unconstitutional by the British parliament in 1806, and in Lower Canada it brought criticism from the bar. Confident in Sewell’s control of the court system, Craig was able to intimidate a formerly fractious assembly.
In May 1810, at Craig’s request, Sewell analysed the political ills of the colony. They arose, he believed, “1st From the French predilections in the great Mass of the Inhabitants, and 2ly From want of Influence and power in the Executive Government.” “The great links of connection between a Government and its subjects are religious, Laws and Language,” he asserted. Those links did not exist in the colony. British and Canadians nurtured a “national antipathy,” and since no “incorporation of two such Extremes can ever be effected,” he concluded “the Province must be converted to an English Colony, or, it will ultimately be lost to England.”
To achieve this objective, he again urged encouragement of large-scale American immigration, conversion from seigneurial to freehold tenure, and construction of Craig’s Road to open up the Eastern Townships. Confiscation of the Sulpician estates would finance government-controlled education and a declaratory act of parliament would confirm royal supremacy over the Roman Catholic Church. Political reform was needed. Sewell recommended imposing a higher property qualification for voters and members of the assembly, convinced that a combination of British “industry and perseverence,” Canadian “Idleness,” and the manner of bequeathing property characteristic of each group would ensure to British colonists the bulk of landed property. To accelerate anglicization he recommended “an incorporate union of the Two Provinces of Upper and Lower Canada” which would leave each province its existing system of laws. Craig supported all of Sewell’s proposals except union; later, however, he came to accept the idea of union.
Britain did not endorse Sewell’s program. Craig’s replacement, Sir George Prevost*, attempted to conciliate the Canadian party. The change was not to Sewell’s liking, but following the advent of war with the United States he was agreeably surprised to find the Canadians evincing “universally a sincere and loyal desire to assist in every way for the defence of the Country,” and he exercised a moderating influence within the English party. In July 1812 he made a major contribution to the war effort by proposing the army bills scheme, generally attributed to Young, who had, rather, recommended a provincial bank; Sewell’s scheme, which was adopted, placed the issuing of currency in imperial military hands.
In January 1814 the relative political calm in the colony was shattered when the assembly attacked the rules of practice published by Sewell in 1809 and by Monk in 1811. Following the lead of Stuart, Sewell’s former pupil, who for personal reasons had developed a “rancorous hatred” towards him and his brother Stephen, the assembly impeached Sewell and Monk, in part on the grounds that some of their rules constituted legislation and that the judges had thereby usurped the role of the assembly. More than three-quarters of the assembly’s charges were political, however, Sewell being accused particularly of poisoning Craig against the Canadians, attempting “to extinguish all reasonable freedom of the Press,” and promoting “American dominance.” Sewell was soon in “a state of pitiable distress,” noted Assistant Civil Secretary Andrew William Cochran; although he was “a man of great talent, his feelings are fine and his nerves weak.” The other judges and the Executive Council quickly declared themselves included in the indictments relating to the rules of practice. Sewell and Monk were thrown together to prepare a defence with the assistance of Richardson. Sewell, it was decided, would defend their cause in London.
In early June 1814 the entire Sewell family left for England. At the Colonial Office Sewell quickly learned that the political charges against him would not even be considered: to heed them, Colonial Secretary Lord Bathurst claimed, “would be to admit that a councillor was responsible for the acts of a Governor [which is] contrary to every principle.” The rules of practice were referred to the Privy Council for examination. In his defence Sewell asserted that the assembly’s ultimate objective was the “revolutionary project” of “transferring the Executive Power and Prerogatives of the Crown, to the Legislative.” The crown had therefore to rescue its judicial and administrative officers from dependence on the elected body. Sewell transformed his own defence into an attack on Prevost’s conciliatory administration. In the end Prevost attributed his recall more to Sewell’s efforts than to possible displeasure over his conduct of an attack on Plattsburgh, N.Y., in 1814. In June 1815 the Privy Council announced that none of the rules of practice was unconstitutional. In 1818 they would be reprinted without change.
Meanwhile, Sewell had turned to other matters. The War of 1812 had made colonial defence a primary concern in London. To address it, in November 1814 Sewell sent to Prince Edward Augustus, now the Duke of Kent, a plan for union of all the British North American colonies. The Canadians, he now realized, would fight the Americans as long as they could retain their language, laws, and religion under British rule. But effective resistance to the more powerful enemy could be achieved, he thought, only by the combined efforts of all the colonies. Initially, he envisaged a central executive and legislature, with each colony retaining a lieutenant governor and an executive council. Sewell’s proposals sought to reinforce the crown and executive at the expense of the legislature and to free judicial and administrative officials from harassment by elected assemblies. No doubt criticism of the small place he left to the central, legislature induced Sewell to modify his plan by adding provincial legislatures to handle strictly local matters. His scheme was then apparently published in 1814 as A plan for the federal union of British provinces in North America. It was a product of the New England loyalist mind; like a federal plan drafted by his father in 1784, and contrary to another proposed by his New Yorker father-in-law, it sought to achieve stability by excluding the masses from the political process rather than by admitting them into it.
Sewell arrived back at Quebec on 4 July 1816 to a rare salute from the fortress. With him he brought a highly flattering letter from Lord Bathurst instructing Governor Sir John Coape Sherbrooke* to promote Sewell’s interests. Sherbrooke warned Bathurst that “an infatuated dislike amounting almost to detestation” of Sewell “pervades all classes,” particularly the clergy. Thanks to the governor’s skilful management, however, the assembly even voted Sewell a salary of £1,000 as speaker of the Legislative Council in return for the council’s agreeing to make permanent Papineau’s equivalent salary as speaker of the assembly.
Throughout his long involvement in public life Sewell had remained active socially. In December 1808 he had assumed the patronage of a literary society formed by Aubert de Gaspé and other young men of Quebec. He promoted the theatre and attempted in vain to persuade Plessis to lift his prohibition of it for Catholics. In October 1818 he was appointed to the board of the Royal Institution. A few months later he chaired a meeting of the managers of the Quebec Dispensary. Long a subscriber to the Agriculture Society, in 1819 he donated to it a fine imported cow and her bull calf.
Sewell’s re-engagement in the maelstrom of Lower Canadian politics from 1816 did nothing for his health. In July 1820 an alarmed Governor Lord Dalhousie [Ramsay], cognizant of “how large a space [Sewell] fills in the direction of public affairs,” warned Bathurst that “a Complication of disorders, arising from intense study, and anxiety of mind appears to have broken his Constitution.” Dalhousie developed an exceptional friendship and political relationship with his urbane, conservative, and well-informed chief justice. In November 1820 he told Bathurst that “as my Confidential adviser in the . . . administration of the Government, I turn to him on all occasions of difficulty.” None the less, Sewell’s unpopularity with the assembly induced Dalhousie to contemplate replacing him as speaker of the Legislative Council with Lieutenant Governor Sir Francis Nathaniel Burton* in order to improve the productivity of the legislature. The change was not made, however.
In the 1820s, as his numerous sons came of age, Sewell’s nepotism gave the Canadian party new reasons to detest him and promoted in Dalhousie the only serious reservation he had about the chief justice. The governor was particularly upset in late 1822 when Sewell, in a politically reckless move, jumped at the position of sheriff of Quebec for his son William Smith. Predictably, the assembly attacked the appointment as prejudicial to the administration of justice. Nevertheless, only Dalhousie’s firmness discouraged Sewell in 1826 from pursuing his strenuous efforts to have another son, Robert Shore Milnes, appointed protonotary for the district of Quebec.
It was as an office holder, in fact, that Sewell approached the issues of the day. With regard to financial matters, for example, he insisted that salaries be the priority item of payment on the civil list and, taking a line in opposition to his merchant colleagues in the English party, in 1821 he combatted, unsuccessfully, incorporation of the Quebec Fire Assurance Company, the Quebec Bank, and the Bank of Montreal. Again it was as an office holder that Sewell responded to a growing sentiment in the early 1820s, particularly among Montreal merchants, for a legislative union of the Canadas. He gave Dalhousie a copy of his plan of 1814 for federation, but the governor rejected it as according too much influence to the crown and executive and likely to provoke a furious reaction from the assembly. In any case Dalhousie too preferred a legislative union of the Canadas, and he supported just such a scheme in 1822. Sewell, however, warned the Colonial Office that the proposed plan was arousing hostility among the Canadians. Once more he put forward his project for federating all the colonies. Undersecretary Robert John Wilmot-Horton had Sewell’s proposal published in 1824 along with one by the attorney general of Upper Canada, John Beverley Robinson*, under the title of Plan for a general legislative union of the British provinces in North America. Meanwhile, in early 1823, Sewell had urged Dalhousie not to allow a clause respecting religion to be included in any union bill, for fear of provoking the Canadians; rather, he suggested the negotiation of a “Concordat,” on the basis of Denaut’s petition, whenever a successor to Plessis had to be appointed.
Sewell’s opposition to the proposed legislative union of the Canadas in 1822 was noticed in the assembly (he had engineered defeat of a motion for it in the Legislative Council), and at the end of the session of 1823 Dalhousie recorded that “the whole House of Assembly in body has dined at the private house of the Chief Justice”; only Papineau declined. Under the temporary administration of Burton in 1824–25 the political tensions that had characterized Dalhousie’s administration decreased to such an extent that even Papineau was constrained to exchange invitations with Sewell. However, Burton’s efforts to appease Canadian nationalists made the chief justice uneasy. In early 1825 Sewell suggested the rejection of Papineau as speaker of the assembly, but Burton refused. When Burton worked out a compromise supply bill with the house, Sewell abstained from voting on it in the Legislative Council; although he disliked the bill, he believed that it was politically and constitutionally acceptable and so strongly supported in council that a negative vote on his part would have been useless. Disenchanted, Dalhousie later accused him of “trimming and manœuvring.”
Sewell was more clearly conciliatory towards the Canadians while on the bench in the early 1820s. Before a grand jury in 1822 he applauded the growing acceptance of both French civil and English criminal law as “the triumph of good sense over national prejudice.” When the post of advocate general came open in early 1823 he recommended that it be reserved for “a Canadian gentleman of the first standing at the Bar.” Sewell’s influence in improving the quality of the judiciary remained strong, but his presence in court declined for reasons of health. At the same time the judicial system was increasingly taxed. The number of causes handled by the provincial courts of King’s Bench had swelled from 1,103 in 1808 to 3,409 in 1826. In 1828 Sewell warned Dalhousie that the courts had become overwhelmed.
The bench had other problems. The refusal of the assembly from the early 1820s to provide what the judges deemed reasonable pensions to Monk and Isaac Ogden spurred them, led by Sewell, to seek financial independence of that house. Appealing to the Colonial Office, they invoked the necessity for an independent judiciary and also requested appointment during good behaviour rather than royal pleasure. Sewell argued that the colonial judiciary had matured to such a point that the judges should be placed on the same footing as their British counterparts. The Colonial Office agreed to the change of tenure on condition that the assembly guarantee a satisfactory salary and pension. The assembly, on the other hand, demanded that the judges be excluded from the councils and sought to use the establishment of a fixed salary and pension as a springboard for its claim to control crown revenues. The independence of the judiciary, consequently, became one more issue of controversy in the 1820s and 1830s.
Sewell’s place in the social and cultural life of Quebec continued to grow. In 1824 he was obliged to purchase the Union Hotel for £4,215 at a sheriff’s auction in order to protect his large investment in it. Having no desire that he or his sons go into business, he leased the hotel. The same year he won the Royal Institution’s prize for service to education, and in 1825–26 acted as president of the institution. At Dalhousie’s urging, he and his brother-in-law, William Smith, had been instrumental in founding the Literary and Historical Society of Quebec in 1824. Named a vice-president in March 1824, he gave the society’s first paper in May, a study of French law before 1663 as it applied to the colony. He was president of the society in 1830 and 1831.
Sewell, whose wife was Presbyterian, supported St Andrew’s Church financially, but was an active, devout Anglican. For many years he presided over the Quebec branch of the British and Foreign Bible Society, and he was a leading member of the Cathedral of the Holy Trinity. By 1824 the cathedral was too small and Sewell offered to build a chapel of ease on condition that he and his heirs could name the incumbent. Bishop Mountain accepted the offer and Sewell named as incumbent his son Edmund Willoughby. Sewell purchased a lot on Rue Saint-Stanislas and had the building, called Holy Trinity chapel, constructed on the model of Ranelagh Chapel in London. He spent more than £3,500 on the building which, opened in November 1825, could seat 800. Dalhousie pronounced it “neat,” but found Edmund Willoughby “unfit & unqualified.”
In June 1826 Sewell and his entire family became extremely depressed by the death of a 12-year-old daughter. Leaving his three eldest boys to manage his affairs, he took his wife and other children to England and the Continent. The family arrived in London in early August, and three weeks later Sewell was received by Bathurst at his estate in Cirencester. Immediately afterwards the Sewells embarked for France and Belgium. In Calais Sewell was taken by the mayor for a Frenchman, and in Paris he bought 600 volumes of French law for the Advocates’ Library at Quebec. By the end of September the family was back in London.
Sewell made frequent trips to Cirencester and spent many hours at the Colonial Office, being consulted on behalf of the Royal Institution, the provincial judges, and Dalhousie. Although he presented Dalhousie’s views on Burton’s supply bill, he admitted the bill’s validity. He persuaded the Colonial Office to accede to the assembly’s demand that Britain reimburse the colony for the defalcation of Receiver General John Caldwell, but the Treasury refused to pay. He learned that the ministry would not consider major constitutional reforms as Dalhousie wished; however, he obtained authorization for the governor to borrow from unappropriated funds under the assembly’s control to pay expenses, a major gain for the executive.
The Sewells returned to Quebec in late spring 1827. The rest had restored Sewell’s combativeness. He virtually wrote the provocative speech with which Dalhousie opened the legislature in late 1827 and successfully advised the governor to take the momentous step of refusing the assembly’s election of Papineau as its speaker. Not surprising, he was the subject of strong attacks in petitions drawn up in 1828 by Patriote constitutional committees. To a charge that the public had little confidence in the Court of King’s Bench at Quebec, he replied that in 20 years only 153 of 4,000 decisions had been appealed and one-half of those solely to delay execution. Sewell’s identification with Dalhousie extended to chairing a committee to erect a monument to James Wolfe* and Louis-Joseph de Montcalm*, which the governor viewed as a testimonial to his own administration.
Dalhousie was replaced at the head of the government in 1828 by Sir James Kempt*, who in March 1829 negotiated with the assembly a supply bill modelled on that passed by Burton in 1825. Sewell whole-heartedly backed the measure, even employing his double vote in the Legislative Council. Late in 1829 Papineau thought that “the chief justice would like to make peace in his old age.” Indeed, when in 1830 it became clear that the Colonial Office accepted the exclusion of the judges from the Executive Council in partial fulfilment of a demand by the assembly that they be excluded from both councils, Sewell readily offered his resignation; it was accepted on 14 October. He remained speaker of the Legislative Council, but in a supposedly non-partisan advisory capacity.
Nevertheless, Sewell viewed Kempt’s administration as fuelling “the ponderous Car of Democracy” at the expense of the royal prerogative. Increasingly he registered his dissent from conciliatory votes in the Legislative Council, and in 1834, after years of debate, that body finally deprived him of his double vote and left him only the right to break ties. In 1831, however, he had successfully rallied opposition there to the fabriques bill [see Louis Bourdages*]. Earlier that year, when the council, acting under doubtful legal authority, had arrested the Patriote editors Ludger Duvernay* and Daniel Tracey* for having published articles critical of it, Sewell had reprimanded the two men before sending them to jail. Subsequently the Quebec Court of King’s Bench refused them a writ of habeas corpus. These incidents provoked public outrage. A crowd, singing “La Marseillaise” and “La Parisienne,” marched to Sewell’s mansion; recalling the mob of 1774, Sewell was frightened.
The hardening of Sewell’s political views in the late 1820s and early 1830s was probably a reaction to the radicalization of the Patriote party and was reflected in an opinion expressed to Governor Lord Aylmer [Whitworth-Aylmer] in November 1834 that no more Canadians should be appointed to the bench. Aylmer heeded Sewell’s advice, but his successor, Lord Gosford [Acheson], did not. In the mean time, Sewell’s tireless efforts on behalf of his sons – three Sewells were on the establishment of the Legislative Council in 1832 – were satirized in a popular Patriote song, “C’est la faute à Papineau.” Sewell played only a minor role during and after the rebellions of 1837–38 because most of the disturbances occurred in the Montreal district. In court he articulated an extreme royalist interpretation of the law of treason, but he issued writs of habeas corpus, before that recourse was suspended, to a number of Quebec Patriotes, including politician Augustin-Norbert Morin* and the painter Joseph Légaré*. He was reappointed to the Executive Council by Governor Lord Durham [Lambton] in June 1838, but he remained only until Durham’s departure in November. In his report Durham singled out Sewell’s federal plan of 1814.
Meanwhile, in declining health, Sewell had resigned as chief justice on 20 Oct. 1838. He was replaced by Stuart. Sixty-two members of the bar underlined in an address the progress that their profession had made under Sewell’s leadership. Indeed, Sewell’s reputation as a judge and legal thinker had reached into the United States: he had been consulted in 1822 on the preparation of a penal code for Louisiana; eight years later he was elected to the prestigious American Philosophical Society; in 1832 Harvard University conferred on him an honorary lld; in 1835 the Massachusetts Historical Society elected him a corresponding member; and about 1839 the American Jurist and Law Magazine (Boston) commented that Lower Canadian cases “derive their chief interest from the learned judgements of that enlightened and accomplished Jurist Chief Justice Sewell.”
During the 1830s Sewell had continued to add threads to the cultural fabric of Quebec. In 1831–32, to save another substantial investment, he had purchased Nicolas-François Mailhot*’s Royal Circus and hotel. He transformed the circus into a theatre, employing local artists such as Légaré to do the decoration, and then leased it. Known as the Theatre Royal, it opened in February 1832 with a benefit play for the poor, Sewell himself apparently having written the welcome address, which underlined the moral and social vocation of the theatre. The venture did not thrive, but the successive lessees bore the brunt of the losses. Sewell also founded a quartet with himself and Archibald Campbell* as violinists, Louis-Édouard Glackmeyer* as flautist, and J. Harvicker as cellist; they gave concerts, cultivated a taste for classical music at Quebec, and formed a generation of amateur musicians. Finally, Sewell gave lodging in 1838 to the Italian miniaturist Gerome Fassio*, with whom he conversed in fluent Italian.
Sewell’s family life had remained idyllic, occasionally burdened by his depressions, but more often lightened by his humour. In old age, as in youth, he wrote poems “For Mrs Sewell My own dear Jewell,” and to the end he generously supported his children in financial or other difficulties.
Sewell died on 11 Nov. 1839 and was buried four days later from Holy Trinity cathedral; a monument depicting him, sculpted in London at a cost of £600, was erected by Harriet in Holy Trinity chapel. He died intestate, but Harriet was guaranteed one-third of the estate by her marriage contract; the remainder was divided equally among the ten surviving children and two orphaned grandchildren (counting as one). Sewell’s mansion reflected not only the wealth of its former owner but also his views and tastes: a picture of Dalhousie graced a nursery wall, two violins lay in the study, the wine cellar was plentifully stocked, and the library boasted 1,476 volumes (of which 1,120 were on law, politics, or public administration). The estate also included 14 properties in Upper Town (almost all acquired in the 1830s), a country seat at Auvergne, land on the Rivière Saint-Charles, and large tracts of wild land, which Sewell had begun to settle, in Ham and Tingwick townships. With landed properties worth £20,692, bonds in England worth £16,020, a large deposit in the Quebec Bank, and accounts receivable, his estate had a value of £39,209 after deduction for bad debts.
Somewhat above the average height at five feet seven inches, handsome, intelligent, witty, and bilingual, Sewell was an attractive man. Aubert de Gaspé considered him “one of the most estimable men I ever knew.” Unlike many of his contemporaries in the tight, personal world of Lower Canadian politics, he was not mean-minded. Although painfully sensitive to criticism, he could stand back philosophically and look at politics with humour. When his office as speaker of the Legislative Council was turned into an orderly room for a militia regiment, he wrote:
We know the Assembly was always in fact
A disorderly House to the Letter
And ’tis firmly established by many an act
That their Speakers own Room was no better.
The reverse in the Council, The whole world have seen
There order was ever in Bloom
And the Speaker’s apartment, at all Times has been,
And still is, an orderly Room.
Order and the means of establishing it were the judicial and political objects of this loyalists’ son, traumatized early in life by mob disorder and later profoundly troubled by the seeming bloody chaos of the French revolution. Sewell feared the potential tyranny of the people unrestrained by religion, education, and the ownership of property. Neither the French language nor the French law disturbed him, for he mastered both, and he was not a religious bigot; but the Canadians in their masses, in their presumed ignorance and malleability at the hands of demagogues or priests, frightened him in their potential for revolution or despotism.
His own family and the means of establishing it were scarcely less important in Sewell’s mind. He was prepared to suffer terrible attacks to ensure the future of his sons in Lower Canada, and in this determination he represented a class of office holders who had decided to make the colony their country. A man of subtlety and suppleness – for which Ryland detested him – Sewell was less rigid in action, if not views, than many of his colleagues in the English party. At the same time he suspected conciliatory governors of wanting to buy peace and an honourable retirement to Britain or advancement at the expense of the British colonial population. Advocating a well-ordered administration of justice, oligarchic rule by British colonists, anglicization of the colony, and maintenance of the royal prerogative, Sewell attempted to erect the four walls of a fortress that he believed would protect the British community; he thus shared the “garrison mentality” of more rigid colleagues. In addition, through his participation in the founding of social organizations and in his efforts to foster a cultural life in the colony, Sewell helped to form a collective conscience in the colony’s British population. Reinforced by immigration and economic growth after the War of 1812, they gradually moved out of their defensive shell and attempted to fashion a colonial society in their own image. This development, resisted by Canadian nationalists, may have been an important underlying factor leading to the rebellions of 1837–38.
A portrait of Jonathan Sewell hangs in the Canadian Senate; a copy of it is at PAC, C1111S6.
Jonathan Sewell is the author of An abstract from precedents of proceedings in the British House of Commons (Quebec, 1792); Orders and rules of practice in the Court of King’s Bench, for the district of Quebec, Lower Canada (Quebec, 1809); Rules and orders of practice in the provincial Court of Appeals (Quebec, 1811; 2nd ed., 1818); A plan for the federal union of British provinces in North America (London, 1814); An essay on the juridical history of France, so far as it relates to the law of the province of Lower-Canada . . . (Quebec, 1824); and, with John Beverley Robinson, Plan for a general legislative union of the British provinces in North America (London, ), repub. in General union of the British provinces of North America (London, 1824).
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