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 TO THE 
 
 
 
 HON. R()BP]ET BALDWIN, 
 
 FROM 
 
 WM. HUME BLAKE, A. B., 
 
 PROFICbSOU OF LAW IN THE UNIVKRSITY OP KI^g's COLLEGE 
 
 UPON Tilt: 
 
 iDMINISTRATIOK OF JUSTICE 
 
 IN 
 
 WESTERN CANADA. 
 
 TO WHICH IS APPENDED THE PETITION ON THE <A.MF. 
 SUBJECT NOW JiEFORE THE LEGISLATURE. 
 
 T C) R N 'i' O : 
 PRINTED BY GEORGE BROWN, YONGE STREET. 
 
 18 4 5. 
 
1^ 
 
 I'^lntertHl accoictinti; to Act of the Provincial Legislature, 
 m the year JS45, by the Author, in the Office of the 
 Registrar of the Province of Canada. 
 
LETTER, &LC. 
 
 lure, 
 the 
 
 My Dear Friend, 
 
 I am not confident that the Hberty 
 which I have taken in addressing you in this 
 public manner, may not be considered as the 
 abuse, rather than the just use, of the friend- 
 ship with which I would fain believe myself 
 honoured. But deeply impressed as I have 
 long been, with the absolute necessity of 
 some alteration, in the constitution of the 
 superior courts of justice, in the portion of this 
 Province wherein we reside j and having had 
 frequent experience of that zeal for the public 
 good, which is not to be deterred, by consid- 
 erations of a personal character, from under- 
 taking whatever has a tendency to promote 
 the general welfare, I have persuaded myself, 
 that even those weak and ill-digested thoughts, 
 which had occurred to me, on a subject so 
 important as the administration of justice, 
 would not be regarded by you, as altogether 
 impertinent. 
 
 The petition with which I took the liberty 
 some time since to trouble y ou, and which will 
 
 B 
 
 M 
 
4 
 
 be found printed in tlie appendix to this letter, 
 points to two particulars, in which our system 
 of judicature, is radically defective. In the 
 one particular, we have plainly departed from 
 the spirit of English practice. For, in that 
 country the due administration of the law, 
 by all courts, is cai'efully secured by the 
 right of appeal, which pervades their whole 
 system •, while we, by a strange oversight, 
 have neglected to provide any appellate tribu- 
 nal within the Province, before w^hich, the 
 validity of the judgments of our Court of 
 Queen's Bench could be tested. And this state 
 of things, for the continuance of which during 
 so long a period, I am unable, considering 
 the love of liberty so generally prevalent 
 amongst us, satisfactorily to account •, has 
 led to the startling result, that the whole body 
 of law, civil, as well as criminal, is at present 
 administered by that court without controul. 
 Its decrees are, for all practical purposes, 
 absolute. In the other particular, we have 
 indeed followed the letter of English prac- 
 tice, in establishing a Court of Equity presided 
 ovei* by a single judge j but in doing so, we 
 have' been altogether unmindful of our social 
 condition, and thus our literal adoption of the 
 English institution, has, I very humbly think, 
 betrayed us into serious error. It need hardly 
 be stated, that the reform of these abuses 
 
o 
 
 is of vital, practical, irnportanco to the com- 
 munity at largo. 'J'licir present existence can 
 only be attributed, to the unpardonable 
 remissness of professional men, in neglecting 
 to press the matter upon the attention of the 
 Legislature. 
 
 It may possibly seem strange to you, Sir, 
 that the mode of petitioning the Legislature, 
 should have been adopted, in preference to an 
 application, to the Head of the Government. 
 But this course has not been pursued, without 
 some hesitation, and a good deal of delay •, for 
 a petition was pi'esented to his Excellency the 
 Governor-General, so far back as the month 
 of June last, numerously signed, by gentlemen 
 connected with the profession of the law, by 
 which the subject was brought under his 
 Excellency's notice, in very respectful, but 
 at the same time very urgent terms. And it 
 is only in consequence, of the entire silence 
 of the Ministers of the Crown upon the sub- 
 ject, that the present course has been found 
 unavoidable. Were the matter one of ordi- 
 nary interest, possibly it might have been 
 allowed to share the fate of other abuses, 
 which having been cherished for a season, 
 have only been redressed when the magnitude 
 of the evil, become apparent to the mass of 
 the people, has obliged the adoption of some 
 remedy. But the evil, to which it is desired to 
 
e 
 
 point the attention of the Legislature, has 
 this peculiarity •, that althougli in itself a griev- 
 ance of the most pressing kind, it is yet brought 
 to the notice of tlie people at large only by 
 slow degrees. Its weight indeed is felt every 
 now and then, with overpowering force j but it 
 falls on isolated individuals, scattered through 
 the community, and consequently fails to pro- 
 duce simultaneous and general opposition; and 
 it is that alone, which seems to arouse the 
 attention of those who govern. The origin 
 too, of the ill consequences pointed at, is for 
 the most part concealed from the view of men 
 in general -, it is felt, and produces its natural 
 result, discontent ; but the public generally, 
 want that familiar acquaintance with the sub- 
 ject, and that opportunity and leisure, for 
 observation and reflection upon it, which is 
 requisite to enable them to trace it to its 
 source. Professional men, on the other hand, 
 have these abuses and their causes, daily, and 
 painfully forced upon their attention, and it 
 has therefore seemed to me a peculiar and 
 sacred duty, which we owe to our fellow- 
 countrymen, to be ever forward in advocating 
 such reform as may be found expedient, to 
 preserve in its purity and efficiency, that 
 system of judicature, by which property, 
 liberty, life, is designed to be protected. 
 
 But, apart from the consideration of any 
 
 •i 
 
 ft 
 
peculiar duty duo IVoiu our protbsfsiou, the 
 subject itself has seemed to ine of such vital 
 importance, as not to admit of delay, con- 
 sisteutly with any tolerable degree of prudence, 
 or justice to the country. For one may, 1 think, 
 say, viewing the subject in the most practical 
 light, and without any disposition to theorize, 
 that the able and impartial administration of 
 the law, is the greatest boon of civilized life. 
 But for the attainment of this object, it is not 
 only necessary, that our Courts of Justice 
 sliould be filled with able and impartial judges, 
 but it is also of the utmost importance, that 
 those dignified magistrates should feel that 
 they act in the presence of an observing 
 people, and an independent bar, who are per- 
 mitted at every step to bring their decision under 
 review. If, Sir, the able and impartial admin- 
 istration of justice, in a country so densely 
 populated, and so wealthy as England, where 
 a free pr'^ss clo£jely watches, and strictly, 
 sternly scrutinizes the conduct of all public 
 men, — in a country which enjoys the inesti- 
 mable privilege, of possessing an independent, 
 upright, and learned bar, which fills so large a 
 space in the public eye; and whose judges 
 enjoying, for the most part, ample fortunes, are 
 further raised above the possibility as it were 
 of temptation, by the exalted dignity of their 
 station, — If the facility of appeal, is yet felt to 
 
1 
 
 » 
 
 l)u requisite to the able and iiiipartiul admin- 
 istration of justice, in a country so circum- 
 stanced, how ahsohitely indispensable must it 
 be, in a connnunity so pecuharly situated as 
 this colony. For every one, how little con- 
 versant soever he may be with human nature, 
 umst see that the discharii^e of the judicial 
 duty, in a society so narrow as our own, and 
 so peculiarly constituted, must be liable to 
 disturbances, which, in England, could be 
 hardly appreciated. Not only the counsel and 
 attornies, the agents by whom business is 
 conducted in our courts, but in truth the 
 principal inhabitants of the country, a great 
 proportion of those whose affairs are under 
 adjudication, are more or less, personally known 
 to the judges. It is hardly possible, under such 
 circumstances, but that numerous occasions 
 must occur, in which a suspicion at least may 
 arise, that political bias, or personal feelings, 
 have intruded themselves into the judgment 
 seat. Neither must we flatter ourselves into 
 a belief, that such suspicions are so wholly 
 groundless, as to entitle us to treat them with 
 entire disregard. If an eloquent and learned 
 lord, in speaking of that august court, which 
 decides in the last resort, in England, could 
 remark with truth, " That even the noble judges 
 of that high tribunal are clothed beneath their 
 ermine with the common infirniities of human 
 
 • 
 
9 
 
 i 
 
 nature," wc should certainly rondcscciid to the 
 frailties of those, who yield to some .sliglit .sus- 
 picion concerning men, who are sometunes 
 selected, (or at least supposed to be selected,) 
 for the important trust of ndministcring tlic 
 law, not from any peculiar litue.ss lor the 
 discharge of tliat duty which has been discov- 
 ered in them, but because their political 
 opinions happen to coincide with those of the 
 governor of the day. 
 
 It is hardly necessary for mc to guard 
 myself against the imputation, of intending 
 any disrespect to the distinguislied judges, 
 who at present till the Court of (Queen's l/onch, 
 to which court I now particuhu-ly refer, 'i'hoy, 
 I feel confident, discharge the various duties 
 of their stations, witii all the impartiality 
 which the country could desire. And i. am 
 no less confident, that my cliaracter is siHlici- 
 ently well known to every member of that 
 court, to prevent them from entertaining 
 the thought, that I could for a moment be 
 unmindful, of the debt of gratitude Avliich 
 we all owe them, for the faithful discliargc 
 of their most arduous duties. Possiblv^ 1 
 may not be exposed to the charge of any 
 unworthy motive, when I declare that I cannot 
 contemplate the distinguished individual v.ho 
 presides over that court, consecrating the 
 great and varied powers of his nund to tlie 
 
10 
 
 service of his country, after the highest point 
 of ambition has long been attained, without 
 feeUngs not only of admiration, but surprise. 
 
 But when I find the Commissioners, appointed 
 in England to inquire into the abuses which 
 had crept into Courts of Justice, holding to 
 His Majesty language which I take leave to 
 cite, I feel that my remarks cannot be liable to 
 misconstruction. They observe in their first 
 Report: — ^^ J\o person can visit the same 
 " counties twice every year for any length of time, 
 " without acquiring that sort of acquaintance with 
 " some of the principal inhabitants, and those 
 ''feelings and impressions with respect to particu- 
 " lar practitioners, which are calcidated to excite 
 " a suspicion, however unfounded, of partiality, 
 " as often as any causes in which such persons 
 ''happen to be concerned are presented to the 
 *' CourtJ^ And again, after some comments 
 on the impropriety of the same Judges 
 uniformly attending the same Circuits in 
 Wales, they remark : — *' The same objection 
 "may be said to arise in England, where the 
 "same Judges sometimes elect the same 
 " circuits successively. But this is no neces- 
 "sary consequence of '\ En.^'lish system, 
 " and we thi ik it highly dv ^i ' I.:;, that such an 
 " arranorement should be made in the election 
 *' of circuits by the Judges, as to prevent its 
 " frequent recurrence.'^ 
 
11 
 
 When the distinguished men who composed 
 that Commission, all of whom, then eminent 
 in their profession, were, without exception I 
 believe, subsequentl}^ elevated to the Bench, — 
 when they felt it to be their duty to point to 
 such abuses in the very front of their first 
 report ; is it not a just conclusion, that if there 
 be any thing fitted to raise the character above 
 those party prejudices and personal feelings, 
 mists which are, alas ! but too apt to rise up 
 and obscure the purest virtue, if aught able to 
 purify the soul, and exalt it as it were above 
 itself, we in this country are especially 
 bound to promote its establishment? 
 
 But, Sir, instead of pursuing a course so 
 plainly dictated by wisdom and sound policy, 
 we have felt warranted in discarding every 
 help to the duo and impartial administration 
 of justice ; as if the virtue of public mer b r i 
 were so pure, and the probability of complaii>t 
 amongst the people so remote, that no 
 measures could be required to promote the 
 one, or obviate the other. And in consequence 
 it is to be presumed, of this so happy state of 
 society, the judgments of the Court of Queen's 
 Bench, which decides upon whatever Her 
 Majesty's subjects in this Province hold most 
 dear, are placed beyond controul. It is true 
 that an appeal is permitted to the Governor in 
 Council ; but that proceeding is so palpably 
 
12 
 
 an idle, immcaning form, that it is not referred 
 to, (3von by the most unthinking, without a 
 smile of contempt. And, indeed, the appeal 
 to Her Majesty in Council is, for all practical 
 purposes, equally unavailing. For in the first 
 place, it is only permitted when the matter in 
 disj)ute exceeds JC500 st^g; and even then, the 
 cause ])ecomes so totally removed out of the 
 coiilroul of tlioso interested, the remedy itself 
 is so ruinously expensive, and requires for its 
 comi)letiou so great a portion of time, that it 
 amounts in ellect to a total denial of justice. 
 
 Now, Sir, T ask you, can it be considered that 
 a S3'st(un, which renders the primary decision 
 of tlie Court of Queen's Bench, in matters of 
 icss value than :C500, practically conclusive; 
 and which clogs the right of appeal, in matters 
 of greater value, with attendants so cumbrous 
 as to render it available to hardly one in a 
 thousand, — can it be said that such a system is 
 based in wisdom or justice ? For, assuming 
 that (H)urt to be filled with men of the greatest 
 ability, guided in their administration of the 
 law by the purest and most impartial virtue, 
 yet th-^ power to appeal would be no less 
 expedient. How often do we find the 
 judgnieuts of the superior courts in England, 
 (and it may not perhaps be too much, to 
 asv;umo the Judges of those courts at least on 
 a par with our own) — how often do we find 
 
■ 
 
 13 
 
 judgments even there, reversed in tlie 
 Exchequer Chamber. But laying out ot view 
 the probability of reversal upon appeal; taking 
 it for granted that all the judgments of our 
 court would stand such a test ; (altliough I must 
 candidly confess that such an assumption 
 would bespeak a strange ignorance of the 
 mind of man, and an utter unacquaintance 
 with the nature of those difficulties which 
 legal questions present;) xtill, even on such 
 false hypothesis, the power of calling in 
 question those primary decisions is indispen- 
 sable, in order to the maintenance, by Courts 
 of Justice, of a character for ability and 
 impartiality. Because when suitors, conscious 
 of the integrity of their motives, have further 
 imbibed from their agents strong impressions 
 upon the law of their case ; and when Counsel 
 have, after the most mature deliberation, 
 confirmed such impression by their opinion ; 
 how can it be expected that either the one 
 class or the other, should rest satisfied with 
 judgments, pronounced upon grounds either 
 wholly new, or as they think, plainly fallacious, 
 while they are deprived of all means of bringing 
 such judgment again under discussion? To tell 
 such a suitor that *'the question is upon the 
 record, and he may take it to England," is, as 
 I have shown, little better than a mockery. 
 Such a system can never continue for any 
 
14 
 
 I; 
 
 I?'- 
 
 great length of time, without the production 
 of a most injurious and paiufully prevalent 
 impression, that there is a want, either of purity 
 or ability in the administration of justice. 
 
 But althoufjh the rehearinij of causes before 
 Her Majesty in Council, were shown to be a 
 more efficient remedy than I am able to regard 
 it j still the determination in such a manner, so 
 removed from the observation of those inte- 
 rested, would deprive the right of appeal of its 
 great moral effect, which is indeed one of its 
 principal advantages. For, it is to little pur- 
 pose that we render those magistrates, who 
 discharge the important function of adminis- 
 tering the law, independent of the Crown, 
 unless we also subject all their acts to public 
 scrutiny. It is in truth public opinion, brought 
 fairly to bear upon the matter, which has ren- 
 dered the purity and ability of the English 
 bench so eminent j and the principal benefit 
 derived from the act rendering judges inde- 
 pendent of the Crown, is to be found in the 
 free operation thereby given to public opinion j 
 which would otherwise have been much 
 impededyhad those, upon whom it was intended 
 to operate, felt, that notwithstanding the public 
 voice, the continuance or discontinuance of 
 their office, did still depend on the mere will 
 of the Sovereign. Let us reflect upon that 
 disgraceful solicitation of judges in the reign 
 
15 
 
 of James I., which has fixed a deeper stain on 
 the memory of Bacon, than even the subse- 
 quent corruption for which he was disgraced. 
 A passage in the life of that great man, which, 
 as it cannot be referred to without t'.ie deepest 
 pain and humiliation, so an adequate idea of 
 its nature, can hardly be conveyed except in 
 his own words. His letter to the King, still 
 extant, is the record of this transaction too 
 lamentably true. I subjoin an extract : — " For 
 " the course your Majesty directeth and com- 
 " mandeth for the feeling of the judges of the 
 " King^s Bench, their several opinions, hy dis- 
 ^^ trihuting ourselves and enjoining secresy ; we 
 " did first find an encounter in the opinion of 
 " my Lord Coke, who seemed to affirm, that 
 " such particular, and as he termed it, auricular 
 ^^ taking of opinions, was not according to the 
 " custom of this realm ^ and seemed to divine 
 "that his brethren would never do it. But 
 " when I replied that it was our duty to pursue 
 "your Majesty's directions, and it were not 
 " amiss for his Lordship to leave his brethren 
 " to their own answers •, it was so concluded. 
 "And his Lordship did desire that I might 
 "confer with himself 5 and Mr Sergeant Mon- 
 " tague was named to speak with Mr. Justice 
 " Cloke \ Mr. Sergeant Crew with Justice 
 " Houghton J and Mr. Solicitor with Justice 
 "Dodderidge. This done, I took my fellows 
 
13 
 
 " aside, and ordered that they shoidd presently 
 " speak ivith the three judges, before I could speak 
 " with my Lord Coke for no doubt of infusion ; 
 " and that tlicy sliould not in any case make 
 " any doubt to the judges, as if they mistrusted 
 " they iDoidd not deliver any opinion apart, but 
 *• speak resolutely to them, and only make 
 " their coming to be to know what time they 
 " would bo attended with their papers. This 
 *' sorted not amiss j for Mr. Solicitor came to 
 " nic this evening, and related to me that he 
 " had found Judge Dodderidge very ready to 
 " give an opinion in secret." 
 
 But the details are too painful j what has 
 been already cited explains the nature of this 
 auricular taking of opinions j by which the law 
 was made for the case 5 and the deep iniquity 
 of PeacUam's conviction, for which the y*ac/5 
 w ere wrung from an aged minister undergoing 
 the torture, through the instrumentality of the 
 same Crown Officer, is written in characters 
 too indelible, to need any mentic \ of mine, in 
 order to recall it to the memory. When we 
 reflect on those shameful passages in our legal 
 history, (for Peacham's case do'^sby no means 
 stand alone), or turn to the still more disgraceful 
 scenes enacted by a Chief Justice of the same 
 court, in the reign of James II., of which Sir 
 James Macintosh has left us so vivid a 
 picture, we cannot help asking ourselves 
 
17 
 
 '4 
 
 how the English bench has been purified, 
 and elevated to its present rank ? Can 
 such a change be attributed merely to 
 the Statute rendering the judges independent 
 of the Crown? By no means : for the desire 
 of further promotion, the debasing po>\er of 
 corruption, the undue influence of party or 
 personal feeling, the damning sin of ignorance, 
 may al! operate as powerfully and as bane- 
 fully for the subversion of public justice, where 
 the judges are /<?«•«% independent of the Crown, 
 if public opinion be suppressed. The punish- 
 ment of such oflences, in England, has, since 
 the Act rendering judges independent, been 
 handed over to the people, instead of remain- 
 ing with the Sovereign , and it is the instant^ 
 hopeless disgrace, to which public opinion w:mld 
 consign men guilty of such conduct, that has 
 raised the character of English judges to its 
 present high standard of ability and purity. 
 
 But, we in this Province, have practically 
 dispensed with the tribunal of public opinion 5 
 and the profession, and the public, quietly look 
 on, as if it required only independence on the 
 Crown, to render public men here, both able 
 and upright. For, Sir, before public opinion 
 can form a public tribunal for the correction of 
 the abuses pointed at, there must exist some 
 court, before which, the purity and soundness 
 of the decision complained against, can be 
 
18 
 
 tested. Without this, the mass of the people 
 want a sure basis upon which to form their 
 estimate j and the judgment of the profession 
 must be equally unavailing, from the absence 
 of a similar criterion. Distrust, and discontent, 
 will indeed spring up under our present system, 
 but then they will be generated slowly and 
 separately in individual minds •, and although 
 such a state of things must result, in an utter 
 scepticism, regarding the integrity and effici- 
 ency of our courts, it will yet, obviously fail 
 to operate as a present corrective j and will 
 consequently lead to, instead of obviating, that 
 most pressing evil, a universal distrust in the 
 administration of justice. Nor should the court 
 before which the primary decisions are to be 
 tested, be a court situated in another country, 
 at a distance of some thousand miles, where 
 the cause, conducted by different agents, 
 different counsel, at an enormous cost, is 
 instantly stilled , or, if heard of again, it is only 
 at such a distance of time, and in such a way, 
 as to deprive the proceeding of all moral 
 effect. It must, in order to its forming the 
 basis of public opinion, be a tribunal situated 
 within the Province : before which the matter 
 may be tested under the eye of the same 
 agents and counsel, who conducted the cause 
 before those judges whose decision had been 
 
f 
 
 19 
 
 appealed from, and in presence of the people 
 affected by such decisions. 
 
 By this alteration we should ensure, to a 
 great extent, that patient deliberation, and 
 that laborious research, which are so indispen- 
 sable to sound legal judgment; and we would 
 raise up an almost impassable barrier against 
 tne silent, dangerous inroads of imi)urity. 
 Without it we may indeed, for iiught I know, 
 enjoy all those advantages which the iuost 
 careful provisions regulating appeals, have 
 secured to the people of England ; but, Sir, you 
 may rest assured that this result is no necessary 
 consequence of our institutions •, it must flow^ 
 exclusively from the superior integrity, and 
 ability of our public men. 
 
 When we turn our attention from the Conrt 
 of Queen's Bench to the Court of Chancery, 
 we shall, I apprehend, discover anomalies 
 equally startling ; for, while those questions 
 calling for determination in the former Court, 
 receive the united consideration of the five 
 Judges who sit there, all decisions in the latter 
 proceed upon the unassisted reasoning of the 
 Vice Chancellor alone. Now, any [)erson, 
 guided by plain common sense, would, I 
 presume, upon hearing this statement, at once 
 conclude, either that the matters in contro- 
 versy in the Court of Chancery are insigrdfi- 
 cant in point of value, or that the questions to 
 
20 
 
 be there settled, are of a nature more simple, 
 than those about which Courts of Law are 
 conversant. But the truth is precisely and 
 remarkably the reverse. For, while the 
 machinery constituting a Court of Equity, is 
 of too costly a character to warrant its 
 employment about matters of small value; 
 every body, at all acquainted with the subject, 
 knows that the amount of property in litiga- 
 tion in that court, is vastly greater in proportion, 
 than in the Court of Queen's Bench. 
 
 With respect to the difficulties encountered, 
 it can, I should think, hardly admit of question, 
 that the duty devolved upon the Equity 
 Judge, is incomparably the more arduous. 
 Because, leaving out of view the points arising 
 out of the technicalities of pleading, all those 
 who practice in our Courts of Law are aware, 
 that the vast majority of cases depending 
 there, arise upon the commercial law j a 
 system which, having sprung up in an enlight- 
 ened age, is based on principles so plain and 
 so consonant to reason, that they cannot fail to 
 commend themselves, with almost intuitive 
 ease, to the judgment. The greater simplicity 
 of our law of real property, the absence of 
 complication in titles, the form of our convey- 
 ances and wills, so simple as hardly to 
 present any complexity, the condition of our 
 society in short, have reduced the number of 
 
21 
 
 questions toucbini^ real estate, wliicli so much 
 engross the attention of Courts of Law in 
 Eiigland, to a mere fraction. The Equity 
 Judge, on the other hand, has frequently to 
 deal ^vith compHcated questions of fact; while 
 the refined and abstruse doctrines of equity, 
 which bave called forth the bigbest powers, and 
 taxed the deepest learning of the most 
 enlightened minds, are thrown open to him in 
 their whole circle ; with the additional compli- 
 cation, that he is called upon to apply those 
 doctrines to states of society, and conditions 
 of property, having no parallel in England ; 
 and the extent of the applicability of such 
 doctrines, is consequently very frequently 
 matter of difficult determination. I am at a 
 loss therefore to conceive any ground of 
 reason, upon which we should persist in 
 committing this arduous duty to the Vice 
 Chancellor alone ; while the united wisdom of 
 five Judges, is thought necessary for the due 
 execution of the more simple task, assigned to 
 the court of common law. Reasons may, no 
 doubt, be conceived for this established differ- 
 ence between the two jurisdictions ; and 
 difficulties may be suggested, in the way of 
 increasing the number of Judges in our Court 
 of Equity ; but I apprehend that no conceiva- 
 ble reason, or supposable difficulty, would have 
 led to the establishment with us of this 
 
22 
 
 anomaly, had we not found, in the example 
 of En<»;lan(l, a precedent for our guide. Yet, 
 when justly considered, this exam[)le ought not 
 to deter us from exercising, on this important 
 suhject, an uid)iassed judgment. For a 
 slight acquaintance with the judicial history of 
 England, will discover to ns many clews by 
 which to account for the origin and continu- 
 ance of such a system in that country ; none of 
 them however rooted in, or necessarily arising 
 from the nature of the thing. But, although 
 we were unable to trace the origin of this 
 custom amidst the obscurity of antiquity, or to 
 account for its contiiuiance upon any other 
 ground than its essential fitness to the end 
 proposed j still its establishment can not be 
 properly considered a sufficient ground for 
 our adoption of it, unless our condition, in this 
 particular, so far resembles that of England, 
 as to render the cases, at least somewhat 
 analogous. Nothing, however, short of the 
 grossest self-deceit, and the most arrogant 
 self-complacency, can deceive us into a belief, 
 that our condition resembles that of England 
 in any degree at all sufficient, to render her 
 example on this point useful as our guide. 
 For, although it may be very possible to 
 select from the distinguished bar of that 
 enlightened country, individuals able to cope 
 with, and overcome the difficulties which 
 
23 
 
 surround an Equity JucI^m^ — nncn whc, after 
 twenty, lliirty, or forty years of j-roles- 
 sional eminence, approach, on their suhsequent 
 elevation 1 1 the Bench, every suhject, as one 
 might say, witli the singuhir advantajro of 
 havinjif had either the same, or anah)irous 
 diificuhies, argued and inifokUMl hy the greatest 
 lights of the day ; altliough that may be 
 possible in Enghmd, who can (latter himself 
 that we in this country are, or can hope for 
 years to have arrived, at the same degree of 
 perfection ? Amidst a bar, pressed forward 
 into active life, with hardly an initiation into 
 the rudiments of law as a science ; and whose 
 members, during their professional career, 
 seldom bestow the same amount of labour, 
 or acquire the same extent of professional 
 experience, required from, and treasured up by 
 an English Barrister in a single year of 
 practice : from a Bar so constituted, a'ld in 
 some respects necessarily so constituted, by- 
 reason of the youth and peculiar circumstances 
 of our country, we cannot hope to i enabled 
 to select men, whose single unassisted judg- 
 ments, would prove satisfactory. 
 
 Such, Sir, is a brief sketch of some few of 
 those consequences, which necessarily result 
 from our present ill-advisd system -, the argu- 
 ment, you will have remarked, proceeds upon 
 general principles, unsustained by reference to 
 
24 
 
 particular examples occurring in practice : such 
 omissiori) however, wa? designed j because it 
 was thought that any reference to cases of 
 individual hardship, might give to this letter 
 an invidious character, which it was most 
 especially desired to avoid. The matter, 
 beside, s emed so plain upon general reason- 
 ing, as hardly to admit of illustration, by the 
 minutest scrutiny into the practical working of 
 the system. And it may, I think, be affirmed 
 without hesitation, that the state of things just 
 pointed out, is such as no wise government 
 would suffer to continue •, i.'nless compelled by 
 the most imperious necessity. The disorder 
 is so violent, and the seat of the disease so vital, 
 as to warrant the adoption of even a desperate 
 remedy. But that suggested by the petition, 
 which you will find subjoined to this letter, 
 while open to no just objection, seems fitted 
 to lead to the most happy results. 
 
 The division. of our present Court of Queen's 
 Bench into two jurisdictions, either possessed 
 of co-ordinate powers, or with such a distri- 
 bution of business as the Legislature may 
 deem expedient, is a step so little liable to 
 objection, on principle, that its soundness 
 would not require to be much reasoned, even 
 though we were wholly without precedent*, 
 but English practice has so completely forti- 
 fied us in this part of the proposed change, that 
 
25 
 
 I do not feci it necessary to guard it by a 
 single observation. The project of creating 
 three judges to preside over our Court of 
 Equity, is confessedly more open to the charge 
 of innovation. Although neither is that step 
 without precedent ; for such was the constitu- 
 tion of the Court of Exchequer in England ; 
 which was a Couri of Equity, filled by the 
 same number of judges as the common law 
 courts. But, even assuminof this change to be 
 
 ' Or} 
 
 wholly unprecedented ; it yet seems so much 
 forced upon us by our social condition, that 
 we can hardly bo considered as having been 
 left an option. For in as much as our Cana- 
 dian bar, and that is, I presume, to be regarded 
 as the nursery of our judges, in as much as we 
 must, for long, want that profound learning, 
 and ample experience, the inestimable advan- 
 tage of witnessing those disj)lays of ability and 
 learning which are of daily occurrence in the 
 Courts at Westminster; how can w^e reasonably 
 hope to find amongst us, men, whose single 
 unassisted judgments will command the 
 respect, either of the profession or the public. 
 To impose upon a single individual, the arduous 
 duty of unfoldinfi" the complicated facts, and 
 applying the refined and abstract doctrines 
 of equity, in the im])ortant causes which fre- 
 quently depend in that court; does seem to me 
 to bespeak either an unbounded stretch of self- 
 
 £ 
 
26 
 
 eoinplacencj, or an unpardonable ignorance of 
 our actual condition. Whereas, by bringing 
 ♦he united wisdom of three judges, to bear 
 upon the matters in controversy, in the equity^ 
 as in the common law court; the after confer- 
 ences of these men, by which, the applicabihty 
 of precedents, and the validity of arguments, 
 would be closely sifted, and severely tried, 
 would inevitably result in decisions command- 
 ing the respect of both the suitors and the b. r. 
 Thus, without impairing the efficiency of the 
 common law jurisdiction, or rendering the 
 primary judgments there justly liable to cavil ; 
 we should add to our Equity decrees all that 
 additional weight, which they would receive 
 in consequence of the judge presidin:^ there, 
 (who might, perhapc, with propriety be termed 
 the Chancellor) being assisted b^ two asso- 
 ciates. While the assemblage of these several 
 judges, in a court, to be termed the Court of 
 Exchequer Chamber, would furnish us with an 
 efficient appellate jurisdiction, within the Pro- 
 vince, in which every question of difficulty 
 night be submitted to the decision of six new 
 judges^ Under such a system, a new class of 
 litigation would, no doubt be originated, in the 
 form of appeals from the common law courts 
 to the Exchequer Chamber; but the new power 
 of appeal thus conferred, is such, as has been 
 already demonstrated to be absolutely nece*- 
 
27 
 
 sary to the ends of justice ; and at the same 
 time, the frequency of those ruinously expen- 
 sive cases of Chancery, would be proportion- 
 ably diminished. But I do not feel it necessary 
 to demonstrate, by any lengthened argument, 
 that the change which I have been advocating 
 would operate beneficially ; for I have never 
 found a reflecting person to hesitate on that 
 point: although a sense of the imperious neces- 
 sity of the alteration, does not seem to have as 
 yet impressed itself upon the public mind. 
 Indeed, so far as I have been able to ascertain, 
 the learned judges who preside over both 
 courts, view with favour the proposed altera- 
 tion, which would divide the arduous duties, at 
 present imposed on the Equity Judge ; and 
 would relieve the common law tribunal of its 
 heaviest responsibility, which arises out of a 
 sense of the finality of its judgments. 
 
 But, Sir, it is argued, by those who heartily 
 concur in the prayer of the petition ; that the 
 Legislature will never consent to the additional 
 tax of £3,000 per annum, necessary to defray 
 the expense of the increased establishment; 
 that the proposed change will be attributed by 
 the people at large, not to any desire for the 
 attainment of equal justice, but to a love of 
 aggrandizement, said to be very generally 
 prevalent amongst the naembers of our profess 
 sion; and that upon these grounds we cannot 
 
28 
 
 hope, that our petition will meet with a 
 favourable reception, 
 
 I cannot however persuade myself that su"h 
 reasonin<^ can prevail, except with the most 
 unthinking. For, assuming this ir3,000 to be 
 what it certainly is not, an additional tax ; will 
 any reasonable man consider this paltry 
 pittance of any moment, when weighed against 
 the evils resulting from our present ill-advised 
 system? Do the people of this Province 
 expend annually hundreds of thousands, upon 
 objects in which they have but a remote 
 interest; and shall it be considered reasonable 
 in them to pause, and parsimoniously enquire 
 whether they will expend six, or riine thousand 
 pounds, to attain an object which comes home 
 to every man's door — the able and impartial 
 administration of the law? Would any 
 member of the Legislature feel, that he had 
 given a satisfactory answer to one complaining, 
 that his rights were absolutely concluded by 
 a hasty, ill-advised judgment of the Court of 
 Queen's Bench, when he informed him, that to 
 afford redress by the establishment of a Court 
 of Appeal, would cost the country nine, ins tend 
 of six thousand pounds per annum? Could 
 any statesman satisfy his own mind, when 
 informed that those for whom he is called to 
 legislate are obliged, unler the present system, 
 to abide by unsound decrees in Equity, unless 
 
 'i 
 
 w. 
 

 29 
 
 they happen to bo fortunate enough to be able, 
 and courageous enough to be wilHng; to 
 encounter the ruinous costs of an appeal, — 
 could any statesman, I ask, satisfy himself of 
 the propriety of continuing such a state of 
 things by reflecting, that to render the primary 
 decisions of that court satisfactory, would 
 entail upon the Province, an additional annual 
 burthen of three thousand pounds ! ! The 
 mere statement of such a proposition is its 
 clearest refutation. If the premises be true, 
 and I have not yet heard any man deny them; 
 if it be undoubted that our present system is 
 vicious, and I cannot help regarding it as such 
 to an alarminsf extent ; then the conclusion is 
 inevitable, the best interests of the people 
 demand an instant change. 
 
 But I argue this question under serious 
 disadvantages, in assuming that the proposed 
 alteration v/ould, in truth, impose an additional 
 burthen. The proposition may be specious, 
 but is certainly untrue. No doubt the three 
 thousand per annum would, under the new 
 regime, be borne by the Province, in a way 
 imperceptible by any, instead of falling with 
 ruiiious weinrht on the shoulders of a few : but 
 could we sum up the amimt paid in the most 
 grievous way by individuals, under present 
 circumstances, we should, I appiehend, lind it 
 Vastly to exceed the required amount. To 
 
■if 
 
 30 
 
 V 
 
 instance but one particular, the costs of 
 cases out of Chancery, now depending before 
 the Court of Appeal at ihis moment sitting, 
 can not fall short, I should think, of £2,000. 
 Now, laying out of view the dangerous conse- 
 quences to liberty, which cannot but result 
 from placing the administration of the law 
 practically beyond controul ; though I should 
 consider that sul)ject entitled to the gravest 
 attention; still, waiving all consideration of 
 it for the present ; the coldest and most 
 self-interested calculator would, I presume, 
 willingly pay his quota of the general burthen, 
 rather than run the risk of being obliged, at 
 some unlucky turn, to sustain that unjust and 
 insupportable taxation, which by the present 
 state of things, is made to fall ruinously on indi- 
 viduals. He would regard that inconsiderable 
 portion of the general tax which he would 
 be called to bear, as the small annual premium, 
 which prudence never refuses to pay, as an 
 insurance against possible misfortune and 
 ruin. The observation just made, will equally 
 serve to demonstrate the futility of the notion, 
 that the proposed plan would tend to the 
 aggrandizement of the profession. No doubt, 
 every man who has the interest of his clients 
 at heart, would gladly change his present 
 doubts and difficulties, for the almost absolute 
 certainty, which would result, of being able 
 
 'It 
 i 
 
 I 
 
 I 
 
31 
 
 to obtain justice. And the improvement 
 suggested, would open the door to distinction 
 somewhat wider. This latter effect must be 
 regarded as highly desirable. It would tend 
 to the growth of those honourable feelings^ 
 the importance of which, conside»-ing the 
 implicit confidence necessarily reposed in 
 those gentlemen who practice the profession 
 of the law, can hardly be over-estimated. But, 
 in a pecuniary point of view, these changes, 
 tending as they would on the whole to put an 
 end to needless litigation, could not fail to 
 produce a considerable diminution in the 
 emoluments of the profession. The Province 
 would bear a slight additional burthen, but 
 individuals would be spared, and the profession 
 would lose, the large amount at present 
 expendea in fruitless litigation. 
 
 But in the narrowest way of viewing the 
 subject j on the assumption that the proposed 
 change would entail an additional charge of 
 £3,000 per annum *, and that the most rigid 
 economy is expedient, in such a matter as the 
 administration of justice-, still all this is far 
 from leading to the conclusion, that the 
 Legislature would be justified in allowing the 
 present state of things to continue. For there 
 exists an obvious mode in which the expense 
 of the new system may be gradually decreased, 
 upon the death, or resignation of those, at 
 
32 
 
 present filling ofTiccs connected with the 
 administration of law. And it is presumed 
 that a slight temporary burthen would hardly 
 weigh with tiic House, regard being had to 
 the magnitude of the object proposed. It is 
 generally believed, that the income at present 
 received by the Master of the Court of 
 Queen's Bench is very consiiierable j and the 
 office of Master and Registrar of the Court of 
 Chancery, will no doubt, ere long, prove 
 exceedingly lucrative. Now, were the future 
 incumbents of those offices paid by a fixed 
 salary, (say £500 per annum,) and the fees 
 derived from those two sources, converted 
 into a fee fund, it is confidently asserted by 
 those best acquainted with the matter, that the 
 surplus arising from this fee fund, would more 
 than defray the additional charge. Beside the 
 saving thus effected, there is another retrench- 
 ment which I would su<?n^est, thoui^fh with 
 some diffidence, in consequence of its not 
 having met with general approval , I mean the 
 reduction of the salaries of future judges. 
 Were the emoluments of the Chiefs reduced 
 to £1,000, and those of the puisne judges to 
 £800, a saving under the new system of 
 £2,000 per annum, would be effected without 
 any loss, as I apprehend, being sustained by 
 the public. I am aware that this proposition 
 is regarded with great disfavour. It is said 
 
33 
 
 that the income is too small ; and that 
 the efficiency of the Bench, the very object 
 which we profess to seek, will be thus 
 diminished j and did it appear to me that the 
 proposed reduction would tend, even in a 
 remote degree, to such a result, I should at 
 once reject it. But I cannot help regarding 
 the present salaries as unreasonably large. 
 And the most careful consideration which I 
 have been able to give to the subject, has 
 convinced me, that the scale suggested, would 
 be much better proportioned to the resources 
 of the country, as well as to the average 
 emoluments of the profession. 
 
 It is asserted, however, that the reward of 
 professional skill, will be so much larger than 
 the judicial salary which I have named, that 
 no person will be found to relinquish the one 
 for the sake of the other j and I readily admit 
 that the average profit of successful profes- 
 sional labour, does exceed the sum fixed. 
 Buc it must be remembered, that by far the 
 largest share of that profit arises, not from the 
 labour of the professional man as Counsel, but 
 as Attorney, or Solicitor. I much question 
 whether any Barrister in the Upper Province, 
 does now derive from his mere Counsel 
 business, an annual income of £800. And 
 this brings me to the last point, to which I 
 would beg to direct your attention — the 
 
34 
 
 separation of the professions. Because, if 
 tliere be any foundation for the opinion, that 
 the union of Barrister and Attorney can not 
 lon<rer continue, consistently with the interests 
 of the public j then the objection that the 
 judicial income would not bear a fair propor- 
 tion to the professional, would cease j the duty 
 discharged in the character of Attorney, 
 afibrding, as has been remarked, by far the 
 largest share of professional income. And, 
 I must confess, that the more I have reflected 
 upon the matter, the more perfectly I have 
 been convinced that this separation has now 
 beccme unavoidable. For, to consider the 
 subject with reference only to the increased 
 skill, which the great augmentation of business 
 within the last ten years has rendered neces- 
 sary ; who can expect the same individual to 
 fill, with any tolerable degree of credit, the 
 different characters of Attorney at Law, 
 Solicitor in Chancery, in Bankruptcy, Nisi 
 Prius Lawyer, Practitioner at Common Law 
 and in Equity, Draftsman, and Conveyancer. 
 To sustain any one of these characters 
 respectabl}^, would require a life of study and 
 practice. To acquire even a passable profici- 
 ency in all, would be well nigh impossible. The 
 necessary qualification for the due discharge 
 of these various duties, can only be secured 
 by that division of labour, which would be 
 
35 
 
 brought about by tlio separation of the 
 professiona : a step wliich tiie {)ubiic interest 
 imperatively demands. But, apart fn.ni all 
 consideration as to the dillieulty olacciuiring a 
 competent deij^rce of skill •, there is wanting 
 altogether, under existing circumstances, that 
 stimulus to diligent, unremitting study, so 
 indispensable in order to the attainment of 
 excellence in any science ; but especially in a 
 science so extensive, and complicated, as our 
 municipal law. So long as business continues 
 to be the fruit, of unbecoming personal solicita- 
 tion, and not of professional eminence, so long 
 we may expect to find our Bar, characterized 
 by those mental qualities best calculated, to 
 secure that peculiar mode of advancement , 
 but we must not look lor that zeal after 
 knowledge, and consequent learning, or those 
 high and honourable feelings, which so 
 eminently distinguish the Bar of England. 
 Place between the Barrister and his Client, 
 the intelligent Attorney •, prompt and zealous 
 in the advancement of his cause, and sufficiently 
 skilled, to recognize and appreciate profes- 
 sional acquirements, and new springs of action 
 are at once put into operation. Extensive 
 knowledge, a high sense of honour, and 
 manly independence, which under existing 
 circumstances, do but clog men's advancement, 
 would then form the staple commodities of 
 
36 
 
 the Barrister. And this state of tilings, so 
 desirahlc in itself, would moreover ensure 
 that confidence, and good understanding 
 between the Bench and the Bar, so essen- 
 tial to the maintenance, in the minds of the 
 people, of a respect for the judicial insti- 
 tutions of the country, the importance of 
 which it would be impossible to overrate. 
 This change would, no doubt, diminish greatly 
 the income of some persons •, but that is an 
 evil which must be encountered at one period 
 or other: and no professional gentleman would, 
 I apprehend, resist a change calculated to 
 elfect a great public good, on that ground. 
 Beside fortune in this, as in most other condi- 
 tions of life, would then spread her blessings 
 on the right hand and on the left, so as to leave 
 just room for complaint to none. Each would 
 have it in )iis power, to pursue the walk best 
 suited to his genius and his taste : either select- 
 ing that branch wJiich would confer present 
 affluence, or the one which, while affording at 
 first but a moderate income, would eventually 
 open the doors, to the highest honours of the 
 profession. 
 
 I am fully sensible, my dear Sir, that these 
 thoughts, ill-digested as they are, and written 
 amid the hurry of business, will stand in 
 neef' of your most indulgent consideration. 
 But finding that either leisure or inclination 
 
37 
 
 was wanting, to those who wouhl liavc dis- 
 cussed the suhji'ct much more satisfactorily 
 than myscir-, 1 did not feel justified in refraining 
 longer, to express what had occurred to mo 
 on a matter too hmg neglected ; and whicli, 
 in my conscience, I beheve to be of the most 
 vital, practical importance to my fellow- 
 subjects in this Province. If the thoughts 
 which I have ventured to set down, though 
 with much ditiidence, shall have the efTect of 
 producing inquiry on this subject in tlie Legis- 
 lature, they will have fully answered the 
 end of, 
 
 My dear, Sir, 
 
 Your faithful friend, 
 
 WM. HUME BLAKE. 
 

 33 
 
 TO THE HONOURABLE THE LEGISLATIVE ASSEMBLY, 
 OF THE PROVINCE OF CANADA, IN PROVINCIAL 
 PARLIAMENT ASSEMBLED : 
 
 The Petition of th^ undersignedj Members of the Legnl 
 Profession^ 
 
 HuMB\Y Sheweth : 
 
 That your Petitioners, regarding the uue adminis- 
 tration of the Law to be a matter of paramount importance, 
 beg leave respectfully to invite the attention of your 
 Honourable House, to the prese^it constitution of the 
 Courts of Jus^'.ce within the limits of Upper Canada. 
 
 There exists here but one Superior Court of common 
 law-jurisdiction, from the judgments of which there is, in 
 effect, no appeal, except to Her Majesty in Council ; a 
 remedy at once so dilatory and expensive, as to render the 
 decisions of the Court here, practically conclusive upon the 
 rights of suitors. 
 
 The Court of Chjxncery, on the other .and, is presided 
 over by a single Judge, to -whose unassisted judgment are 
 thus conceded, matters of the utmost nicety and the 
 greatest importance, whilst his decisions are only to be 
 relieved against, by an application to a Court composed of 
 Ithe Judges of the Court of Common Law, — a remedy 
 inefficient in itself, and at the same time so costly, as to 
 render acquiescence in the primary judgment, in most 
 cases, an evil of less magnitude than cv^en a successful 
 appeal. 
 
 The state of things thus pointed out is, in the estimation 
 of your Petitioners, ill calculated to secure that due 
 
39 
 
 deliberation which the ends of justice so imperatively 
 demand ; and still less fiHed to inspire the minds of suitors 
 with that confidence, in the wisdom and integrity of legal 
 decision, Lhe maintenance of which is of such paramount 
 importance. 
 
 Your Petitioners are aware that some cf these evils are 
 incident to the infant state of the Province ; but they very 
 respectfully submit, that the alteration, which they take 
 the liberty to suggest, would obviate those of them which 
 are felt to be most pressing. 
 
 Your Petitioners would propose that two Superior 
 Courts of Common Law Jurisdiction should be erected, in 
 lieu of the one which now exists, in each of which three 
 judges should preside ; and that the Court of Char ery 
 should also be presided over by three judges. This 
 simple alteration would be attended with but little expense 
 to the pjblic. It would, indeed, in our estimation, result 
 in a saving to the public, regard being had to the extent of 
 litigation which would be thereby avoided. Possibly your 
 Honourable House will be enabled, to combine these 
 advantages with such other alteration, as may render the 
 plan on the whole, effectuate a retrenchment. 
 
 The effect of this alteration, in the estimation of yowt 
 Petitioners, would prove beneficial to all classes of suitors. 
 They would thus have a choice of Common Law Courts in 
 which to institute proceedings, and in a Court of Equity 
 would not be compelled, to rest upon the opinicm of asingle 
 Judge. The primary decision would then in each casj be 
 rendered more satisfactory to the suitors ; whilst, by the 
 combination of all the Judges, your Honourable House 
 would be enabled to constitute a Court of Appeal so 
 efficient and unexpensive, as could not fail to produce the 
 most valuable result. Though we have respectfully 
 suggested to your Honourable House a remedy for the 
 evils of which we have complained, yet we do not wish it 
 
40 
 
 to be understood, that it is the only remedy that can be 
 proposed ; but if your Honourable House, in your wisdom, 
 shall adopt any other courf^, to accomplish the objects 
 your Petitioners have in view, your Petitioners will have 
 obtained all they desire. 
 
 Your Petitioners, therefore, humbly pray the attention 
 of your Honourable House to the premises, and that your 
 Honourable House will be pleased to provide for the evils 
 of which your Petitioners complain, such remedy os to 
 your Honourable House, in its wisdom, may appear most fit. 
 
 And your Petitioners, as in duty bound, will ever pray. 
 
I