SMALL, JAMES EDWARD, lawyer, politician, and judge; b. February 1798 at York (Toronto), the son of John Small* and Eliza Goldsmith; d. 27 May 1869 at London, Ont.
James Edward Small was a member of one of the founding families of Upper Canada and an Anglican, but his career, like those of Robert Baldwin* and George Ridout*, was to be an atypical one, considering his social position. Small allied himself with Reformers rather than with the official class or Family Compact.
After 1807 he and Baldwin attended the Reverend George Okill Stuart’s Home District Grammar School, a fact unlikely to give them useful political connections with John Strachan when he wielded power. Small served as a midshipman on the St. Lawrence during the War of 1812, articled in law with William Warren Baldwin*, and was admitted to the bar in January 1821. The following May he married Frances Elizabeth, the daughter of Surveyor General Thomas Ridout*. They had four sons, all of whom attended Upper Canada College.
On 12 July 1817 Small had been the second for John Ridout, who was killed in a duel with Samuel Peters Jarvis*. Jarvis only was charged with murder and acquitted at that time, but in 1827 Small and Henry John Boulton, who had seconded Jarvis, were charged by the radical editor Francis Collins* as accessories to the murder of Ridout. Both were acquitted by Judge John Walpole Willis*. The year before, Small, Alexander Stewart of Niagara, and Marshall Spring Bidwell* were counsel for William Lyon Mackenzie in his successful suit for compensation against the young Tories who had destroyed his printing shop.
Socially and professionally Small played a prominent role. He was frequently elected a bencher of the Law Society of Upper Canada, beginning in 1829. In 1830–31 he was a member of the committee which formulated new rules for admission to the bar, and in 1833 he was commissioned a magistrate. He was also a vice-president of the York Auxiliary (later Upper Canada) Bible and Tract Society from its establishment in 1828 until 1846. He was not successful, however, in obtaining the clerkship of the Executive Council in succession to his father.
Small, a moderate Reformer, began his complex political career in 1828 when he and Robert Baldwin were defeated in the elections for the House of Assembly in the two-member riding of York County by Mackenzie and Jesse Ketchum. The following year Small, presenting himself as an independent but branded a Tory government supporter by Mackenzie, whom he later unsuccessfully sued for libel, lost to Baldwin in the town of York by-election. In January 1832 he again opposed Mackenzie in a by-election, after the latter’s first expulsion from the assembly, but was decisively defeated. Victory finally came in the general election of October 1834, which resulted in a Reform landslide; he narrowly defeated Sheriff William Botsford Jarvis in Toronto. He proved an ineffectual legislator, and was easily defeated by William Henry Draper* in 1836. After the election Small, William Warren Baldwin, and George Ridout, who had all attacked Lieutenant Governor Sir Francis Bond Head* at a meeting of the Constitutional Reform Association, were dismissed from their various government offices. Small lost the post of commissioner of the Court of Requests. Meanwhile, he had been elected an alderman for St David’s ward in 1836, but was not re-elected in 1837.
Undaunted, in 1839 he successfully contested the 3rd riding of York (later York East) when the sitting member, Thomas David Morrison*, was unseated for his part in the rebellion of 1837. In 1841 he held his seat, defeating John Simcoe Macaulay* in spite of Tory and radical opposition. He was, however, again defeated as alderman for St David’s.
In the legislature Small supported Robert Baldwin and his call for responsible government. John Charles Dent* stated that although “his voice was weak, and his constitution delicate” his infrequent speeches were treated with respect. When Baldwin, Louis-Hippolyte La Fontaine, and their supporters were brought into the government by Sir Charles Bagot* in September 1842, Small succeeded Tory Henry Sherwood* as solicitor general for Canada West. He again defeated Macaulay in the by-election required when he joined the Executive Council. He held office only until November 1843 when the entire council, except Dominick Daly, resigned in a disagreement over patronage with Bagot’s successor, Sir Charles Metcalfe*. In the election of 1844 Small defeated George Monro*, but was unseated by a legislative committee with a Tory majority because his qualifications were defective. He declined to stand for election in 1847.
In 1839 Small had formed a legal partnership with his former student, James Robert Gowan*, which lasted until January 1843, when he arranged Gowan’s appointment as judge of the newly created Simcoe District. During the 1840s Small received his highest legal honours: he was solicitor for King’s College from 1841 to 1849, became a qc in 1842, and was elected treasurer of the Law Society of Upper Canada in 1849.
Late that same year he was appointed judge of Middlesex County by Baldwin; when he accepted he asked that it not be a bar to something better. Judge David J. Hughes, in his vitriolic history of the bar in Middlesex, was to describe Small as “a man who was a better judge of a good dinner than he was of law. . . .” Hughes further asserted that Small boasted of never having read the Common Law Procedure Act, and accused him of maladministration of the division courts. A contemporary newspaper referred more kindly to his “advancing years and accumulating infirmities” in judging his administration. With the retirement of Baldwin in 1849 Small never obtained a better post, and his pleas for an assistant were only granted by John A. Macdonald*’s Conservative government shortly before he died.
Small owed his successes in life as much to his background as to any innate abilities, for he was not a man of forceful personality and he suffered from ill health. He was, however, like Baldwin, one of those who took a direction different from others of their class. Never at the centre of the stage, his loyalty to Baldwin and his political moderation were assets that helped in the transition to responsible government.
MTCL, Robert Baldwin papers, J. E. Small to Baldwin, 31 March 1847; 23 March, 24 Aug., 29 Oct., 15 Dec. 1849. PAO, Small (James Edward) and Gowan (James Robert) papers. Arthur papers (Sanderson). Can., Prov. of, Legislative Assembly, Journals, 1844–45. Journal of Education for Ont., XXII (1869), 87. London Free Press (London, Ont.), 27, 29 May 1869. Scadding, Toronto of old (1873), 84, 185, 396. Town of York, 1815–34 (Firth). Armstrong, Handbook of Upper Canadian chronology, 103, 114, 121, 124, 133, 173. Commemorative biographical record, county York, 31–32. Political appointments, 1841–65 (J.-O. Coté). Political appointments and judicial bench (N.-O. Coté). The roll of pupils of Upper Canada College, Toronto, January, 1830, to June, 1916, ed. A. H. Young (Kingston, Ont., 1917). R. M. and Joyce Baldwin, The Baldwins and the great experiment (Don Mills, Ont., 1969). Careless, Union of the Canadas. Cornell, Alignment of political groups. Dent, Last forty years, I, 103–4, 122, 137–38, 241, 249, 379; Upper Canadian rebellion, I, 135, 198–200, 228–29, 339–40. History of Toronto and county of York, II, 145–46. D. J. Hughes and T. H. Purdom, History of the bar of the county of Middlesex . . . ([London, Ont., 1912]). W. R. Riddell, The legal profession in Upper Canada in its early periods (Toronto, 1916), 29, 70, 88, 103, 141. G. E. Wilson, The life of Robert Baldwin; a study in the struggle for responsible government (Toronto, 1933).