concerning the system of movable curés which had been instituted by him.
The bishop clung to his method despite all opposition and remonstrance,
even setting aside at one time a royal edict on the subject. In the very
height of the dispute Laval proceeded to Court, and asked permission to
retire from the bishopric he had been so zealous to establish. His plea
was ill-health, and the King granted his prayer, appointing in 1688
Saint Vallier as his successor. Laval wished to return to Canada, but
this privilege was denied him, and it was not until four years had
passed away that he was allowed to come back to the Church he loved so
well. Saint Vallier sought by every means in his power to undo Laval's
great work. He attacked the Seminary, and attempted to change its whole
economy, receiving, however, much opposition from the priests, who were
warmly attached to their old prelate. Laval groaned in despair at these
attacks on the fabric he had raised, but he had the grim satisfaction of
seeing the new bishop fail signally in many of his objects of
demolition. Laval at length, wearied and worn, retired to his beloved
Seminary, and on the 6th of May, 1708, he died there, at the advanced
age of 85, and was buried near the principal altar in the cathedral. The
Catholic University of Quebec, which boasts a Royal Charter signed by
Queen Victoria, stands as a monument to his fame and name.
JAMES ROBERT GOWAN,
_JUDGE OF THE JUDICIAL DISTRICT OF SIMCOE._
Judge Gowan is the only son of the late Henry Hatton Gowan, of Wexford,
Ireland, where the subject of this sketch was born on the 22nd of
December, 1817. His family emigrated to this country when he was in his
fifteenth year, and settled on a farm in the township of Albion, in what
is now the county of Peel. The late Mr. Gowan was afterwards appointed
Deputy Clerk of the Crown for the county of Simcoe, which position, we
believe, he retained until his death in 1863. The son's education would
appear to have been somewhat desultory, but he was an apt scholar, and
possessed the national fondness for learning. Having chosen the legal
profession as his future calling in life, he was articled as a clerk in
the office of the late Mr. James Edward Small, of Toronto--a well-known
lawyer of his day and generation, who held the post of Solicitor-General
in the first Baldwin-Lafontaine Administration, formed in 1842. Young
Gowan went through the ordinary routine of study, working hard at his
books, and furnishing frequent contributions to the newspapers of the
day on a great variety of subjects. He was called to the Bar of Upper
Canada in Michaelmas Term, 1839. He at once formed a partnership with
Mr. Small, and devoted himself assiduously to the practice of his
profession, writing occasional articles on legal and other topics for
the press, and building up for himself the reputation of a man whose
opinions were of value. Notwithstanding his youth, he displayed
remarkable ability as a legal draughtsman and special pleader, and had
mastered the cumbrous and elaborate system of pleading then in vogue
among the profession. He took a keen interest in the political questions
of the day. He was a Reformer, and a disciple of Mr. Baldwin, who held
him in high esteem. The partnership with Mr. Small lasted somewhat more
than three years, during which period it was that the senior partner
accepted office in the Government of the day. As Solicitor-General, a
goodly share of patronage must have fallen to the latter's share, and we
presume it is to his connection with Mr. Small that Judge Gowan owes his
appointment to the position of Judge of the District and Surrogate
Courts of the county of Simcoe. His appointment bears date the 17th of
January, 1843, and is said to have been made without any solicitation on
the part of the recipient. However that may be, it is certain that few
better appointments have been made by any Government in this country.
Mr. Gowan first took his seat on the Judicial Bench when he was only
twenty-five years of age. He has continued to discharge his judicial
duties, almost without interruption, from that time to the present,
embracing a period of nearly thirty-eight years. During the whole of
that time not a single important decision of his, so far as we are
aware, has been over-ruled. He enjoys the reputation of being one of
the most profound and learned lawyers in the Dominion, and his decisions
are regarded with a respect seldom accorded to those of County Court
judges.
[Illustration: JAMES ROBERT GOWAN, signed as JAS. ROBT GOWAN]
His skill as a legal draughtsman was such that Mr. Baldwin, who, at the
time of Judge Gowan's appointment, was Attorney-General for Upper
Canada, availed himself of his services in preparing various important
measures which were afterwards submitted to Parliament. This was a
remarkably high compliment for a young man of twenty-five to receive,
but there is no doubt that the compliment was well merited, for the
measures so prepared were models of compact statutory legislation, and
gained no inconsiderable _eclat_ for the Administration. The example set
by Mr. Baldwin has since been followed by other Attorneys-General, and
Judge Gowan has thus made a decided mark upon our Canadian legislation
and jurisprudence. It is said, and we believe truly, that it was he who
suggested the introduction of the Common Law Procedure Act of 1856, and
that the adaptation of the English Act to our local requirements was
largely the work of his hand.
At the time of his appointment the judicial system of the inferior
courts was in a very primitive condition. He set himself diligently to
work in his own district, and, in the face of many difficulties,
succeeded in organizing the system which he has ever since administered
with such benefit and satisfaction to the community in which he resides.
The position of a judge in a rural district was attended in those days
with a good many inconveniences which have disappeared with advancing
civilization. The roads were in such a condition that he was generally
compelled to make his circuits on horseback. Judge Gowan's district was
the largest in the Province, and extended over a wide tract of country,
the greater part of which was but sparsely settled. He was frequently
compelled to ride from sixty to seventy miles a day, and to dispose of
five or six hundred cases at a single session. One of the newspapers
published in the county of Simcoe gave an account, several years ago, of
some of his early exploits; from which account it appears that he was
often literally compelled to take his life in his hand in the course of
his official peregrinations. It describes how, on one occasion, he was
compelled to ride from Barrie to Collingwood when the forest was on
fire. The heat and smoke were sufficiently trying, but he also had to
encounter serious peril from the blazing trees which were falling all
around him. On another occasion, while attempting to cross a river
during high water, his horse was caught by the flood, and carried down
stream at such a rate that he might well have given himself up for lost.
He saved himself by grasping his horse's tail, and thereby keeping his
head above water until he came to a spot where he could find foothold,
and so made the best of his way, more than half drowned, to the shore.
He was also frequently compelled to encounter dangers from which
travellers in the rural districts of Canada are not altogether free,
even at the present day--such dangers, for instance, as damp beds,
unwholesome and ill-cooked food, and badly ventilated rooms.
Notwithstanding all these drawbacks, he was able to say, after he had
been a judge for more than a quarter of a century: "I have never been
absent from the Superior Courts over which I preside;"--by which he
meant the County Courts and Quarter Sessions--"and as to the Division
Courts, except when on other duties at the instance of the Government,
fifty days would cover all the occasions when a deputy acted for me."
In 1853 Judge Gowan was one of the five judges appointed under the
Division Court Act of that year, whereby the Governor was authorized to
appoint five judges to frame rules regulating the procedure in the
Division Courts. His collaborateurs in this task were the Hon. Samuel
Bealey Harrison, Judge of the County Court of the United Counties of
York and Peel; Judge O'Reilly, of Wentworth; Judge Campbell, of Lincoln;
and Judge Malloch, of Carleton. The rules framed by them have since
received many additions, and have been elaborately annotated; but they
still form the basis of Division Court practice in this Province. During
the same year (1853), Judge Gowan married Anna, second daughter of the
late Rev. S. B. Ardagh, Rector of Barrie, and Incumbent of Shanty Bay.
After the passing of the Common Law and County Courts Procedure Acts, in
1856 and 1857 respectively, Judge Gowan was associated with the judges
of the Superior Courts in framing the tariff of fees for the guidance of
attorneys and taxing-masters in the Courts of Common Law. He was also
associated with the late Robert Easton Burns, one of the Puisné Judges
of the Court of Queen's Bench, and the Hon. John Godfrey Spragge, the
present Chancellor, in framing rules and orders regulating the procedure
in the Probate and Surrogate Courts. He also rendered valuable service
in assisting the late Sir James B. Macaulay and others in the
consolidation of the Public General Statutes of Canada and Upper Canada
respectively.
In 1862, during Chief Justice Draper's absence in England, special
commissions were issued to Judges Macaulay and Gowan, authorizing them
to hold certain assizes which the Chief Justice's absence prevented him
from holding in person. Later in the same year disputes arose between
the Government of Canada and the contractors for the erection of the
Parliament Buildings at Ottawa. The disputes were submitted for
adjudication to a tribunal of three persons, consisting of the engineer
employed by the Government, an engineer named by the contractors, and an
Upper Canadian judge to be accepted by both the parties to the dispute.
Judge Gowan was the one so accepted. He acted as Chairman to the
tribunal, which settled the matter by a unanimous decision.
In 1869 a Board of County Court Judges was formed under the statute 32
Victoria, chapter 23, for further regulating Division Court procedure,
and settling conflicting decisions. The Board consisted of Judge Gowan,
and Judges Jones, of Brantford, Hughes, of Elgin, Daniell, of Prescott
and Russell, and Smith, of Victoria. They began their labours, and
promulgated certain rules, in the early spring of the year; but these
rules were only temporary, and were followed, on the 1st of July, by
other and more elaborately formed regulations, which are still in
operation. Judge Gowan was appointed Chairman to the Board, and still
retains that position. His large experience, both in the framing of such
rules and in carrying them into effect in the courts, have proved very
serviceable to the country at large, where the rules and orders
promulgated by the Board have all the force of law. During this same
year (1869), he was engaged, with other leading Canadian jurists, in
consolidating the Criminal Law of the various Provinces, prior to its
submission to Parliament to receive the sanction of that Body. Two years
later he was appointed one of five Commissioners to inquire into the
constitution and jurisdiction of the several Courts of Law and Equity,
with a view to a possible fusion. His colleagues in this important
inquiry were Judges Wilson, Gwynne, Strong, and Patterson.
Judge Gowan was one of the Royal Commissioners appointed on the 14th of
August, 1873, by His Excellency the Earl of Dufferin, to investigate the
charges made by the Hon. L. S. Huntington in connection with the Pacific
Railway Scandal. His colleagues were the Hon. Antoine Polette, a Judge
of the Superior Court of Quebec, and the Hon. C. D. Day, Chancellor of
McGill College, Montreal, and formerly a Judge of the Superior Court of
Lower Canada. The Commissioners were appointed by virtue of an Act
passed during the session of 1868. They were empowered to investigate
the charges, and to report thereupon to the Speakers of the Senate and
Commons, and to the Secretary of State. Everybody remembers the
excitement which prevailed throughout the country at that time. The
Commission met at Ottawa three days after the date of its appointment.
The examination of witnesses began on the 4th of September, and lasted
to the end of the month. Mr. Huntington, though summoned to appear
before the Commission and give evidence, did not present himself, nor
was any evidence offered in substantiation of the charges made by him on
the floor of the House. The labours of the Commission, therefore, were
necessarily unproductive, and they simply reported the evidence taken
and the various documents filed.
In 1874 Judge Gowan was appointed one of the Commissioners for the
revision, consolidation, and classification of the Public General
Statutes relating to Ontario; a task which was finally completed in
1877, and which included all public statutory legislation down to the
month of November in that year. The Judge has recently received from the
Ontario Government a beautifully-executed gold medal struck in
commemoration of the completion of that important work.
From the foregoing account of a few of the most important of Judge
Gowan's public services, it will be seen that his labours, in addition
to his ordinary official duties, have been many and onerous. He has also
held various offices which must have involved a considerable amount of
labour, and close attention to details. He was Chairman of the Board of
Public Instruction from the time of its foundation to its abolition in
1876. He has been for more than thirty years Chairman of the Senior High
School Board of the county of Simcoe. He has also held high office in
the Masonic Fraternity, and has taken a warm interest in all matters
relating to the Episcopal Church, of which he is a life-long member. In
1855 he was largely instrumental in founding the _Upper Canada Law
Journal_, and for many years thereafter he contributed to its pages.
Notwithstanding all these multifarious pursuits he never looks like an
overworked man, but carries his sixty-three years with a remarkably good
grace. He continues to take a warm interest in public and social
matters. He is revered alike by the public and by the professional men
of the county of Simcoe, who are justly proud of his well-deserved fame.
About twelve years ago, when he had completed a quarter of a century's
service on the Bench, he was presented by the local Bar with a
life-sized portrait in oil of himself in his robes. The portrait was
accompanied by an enthusiastic address expressive of the respect and
esteem in which he was held by the donors. He has been offered a seat on
the Bench of the Superior Courts, but has preferred to retain the
position which he has so long occupied. During the last eight years he
has had an efficient ally in the person of Mr. John A. Ardagh, B.A., who
was appointed Junior Judge of the County of Simcoe in 1872.
Judge Gowan resides at Ardraven, a pleasant seat in the neighbourhood of
Barrie, overlooking Kempenfeldt Bay, an inlet of Lake Simcoe. He also
has a delightful summer residence called Eileangowan, situated on an
island containing about four hundred acres, in Lake Muskoka, opposite
the mouth of Muskoka River, about an hour's ride from Gravenhurst.
ROBERT FLEMING GOURLAY,
_THE "BANISHED BRITON."_
A few years before his death Mr. Gourlay issued the prospectus of a work
bearing the following title: "The Recorded Life of Robert Gourlay, Esq.,
now Robert Fleming Gourlay, with Reminiscences and Reflections, by
himself, in his 75th year." So far as we have been able to ascertain, no
portion of the projected work has ever been given to the world; and we
may add that nothing like a consecutive account of the life of one of
the most remarkable men known to the early political history of Upper
Canada has ever been attempted. Any account written at this distance of
time, and without access to Mr. Gourlay's family papers, must
necessarily be somewhat fragmentary and disconnected. During his
lifetime he published several volumes and numerous pamphlets, all of
which throw more or less light on certain episodes in his career; but
the writer who undertakes to separate the wheat from the chaff, and to
weave into a harmonious narrative the rambling, discursive, and often
incoherent literary productions of this singular man, will find that he
has no sinecure on his hands. It is desirable, however, that the attempt
should be made, for Robert Gourlay exercised no slight influence upon
Upper Canadian politics sixty-and-odd years ago, and the accounts of him
contained in the various histories of Canada are wofully meagre and
unsatisfactory. His life is interesting in itself, and instructive by
way of an example to egotists for all time to come. It presents the
spectacle of a man of good abilities and upright intentions, who spent
the greater part of a long life in endeavouring to benefit his
fellow-creatures, and who nevertheless, owing to the peculiar
idiosyncrasies of his character, was foredoomed to disappointment and
misfortune almost from his birth. "Robert," said his father, "will hurt
himself, but will do good to others." This judgment was passed when
Robert was a boy at school, and his subsequent career fully vindicated
the accuracy of the paternal estimate.
Robert Gourlay--who when past middle life assumed the name of Robert
Fleming Gourlay--was a native of the parish of Ceres, in Fifeshire,
Scotland, and was born there on the 24th of March, 1778. He came of
respectable ancestry. His father, a man of liberal education, had
studied law, and practised for thirteen years as a Writer to the Signet
in Edinburgh; and before the birth of his son, the subject of this
sketch, had become the possessor, by marriage, descent, and otherwise,
of considerable landed property. Soon after Robert's birth the old
gentleman retired from the practice of his profession, and settled upon
one of his estates, in the parish of Ceres, where he devoted much of his
time to devising and carrying out various agricultural improvements. He
also expended large sums of money in improving and beautifying the
highways in his parish, and in contributing to the comfort and
happiness of his poorer neighbours. His real estates were worth at least
£100,000 sterling, and he had a floating capital of about £20,000.
Robert received an education commensurate with his station in life.
After being taught by several private tutors, he was placed at the High
School of Edinburgh. He was also for a short time at the University of
St. Andrews, where he was a contemporary and warm personal friend of
Thomas (afterwards Doctor) Chalmers. The Doctor has left written
testimony to the capacity and moral worth of his fellow-pupil. The
latter also seems to have spent a term at the University of Edinburgh.
Owing to his being the eldest son, and born to considerable
expectations, he was not bred to any regular profession, and his life
for some years after leaving school seems to have been passed in a
somewhat desultory fashion. He lived at home, and was on visiting terms
with the resident gentry of Fifeshire. He took some interest in military
matters, and in October, 1799, received a commission to command a corps
of the Fifeshire Volunteers. This commission appears to have lapsed,
for, when war was declared by Great Britain against Bonaparte in 1803,
we find Robert Gourlay volunteering as a private in a troop of yeomanry
cavalry. The services of the troop, however, were not required, and,
regarding this as a slight to the troop and himself, he withdrew his
name from the muster-roll in high dudgeon. In 1806 he was again seized
with military ardour, and offered his services to take charge of a
military corps and invade Paris, during Bonaparte's absence in Poland.
He at this time evidently possessed an energetic, but unpractical and
ill-balanced mind, which may have been to some extent due to the nature
of his training, but was doubtless chiefly a matter of inherited
temperament. Like his father, he was very kind and generous to the poor
of Ceres and the neighbouring parishes, and spent much time in making
himself familiar with their needs and sympathies. By the lower orders he
was greatly beloved, and with reason, for he was actuated by a sincere
philanthropy, and contributed largely to the improvement of their
condition. He studied the economical side of the poor question with
great diligence, and was recognized as an authority on all matters
relating to parish rates, tithes, visiting justice business, and
pauperism generally. These studies brought him into contact with Mr.
Arthur Young, the eminent writer on agricultural questions, whose
"Travels in France during the years 1787, '88, '89 and '90," is the most
trustworthy source of information regarding the condition of that
country just before the breaking out of the Revolution. Mr. Young formed
a high estimate of Gourlay, and, at his suggestion, the latter was
appointed by a branch of the Government to conduct an inquiry into the
state of the poor in England. Mr. Gourlay travelled, chiefly on foot,
through the greater part of the chief agricultural districts of England
and Scotland, and when he had brought his inquiries to an end, he was
pronounced by Mr. Young to be better informed with respect to the poor
of Great Britain than any other man in the kingdom. He was consulted by
members of Parliament, political economists, parish overseers, and even
by members of the Cabinet, as to the best means for reforming the poor
laws, and was always ready to spend himself and his substance for the
public good.
In 1807 he married, and settled down at Pratis, one of his father's
estates in Fifeshire. He had only been thus settled a few months when he
got into a quarrel with his neighbour, the Earl of Kellie. The cause of
quarrel seems ludicrously small to have produced such results as ensued.
Lord Kellie was Chairman of a meeting of heritors held at Cupar on the
15th of February, 1808. The object of the meeting was to pass a loyal
address to the King, and to discuss certain details respecting the
farmers' income-tax. The address was duly voted, after which it was
proposed to adjourn the discussion on the income-tax question until a
future day. Mr. Gourlay, who was present, opposed this adjournment with
much vehemence. While he was making a speech, in favour of proceeding
with the discussion without delay, the Chairman, Lord Kellie, pronounced
the meeting adjourned, and vacated his chair. This action Mr. Gourlay
construed into a personal insult to himself. He and Lord Kellie were
diametrically opposed to each other in their views on this income-tax
question, and Mr. Gourlay considered that the Earl had taken an unfair
advantage of his position in order to stave off discussion. In this view
he was probably borne out by the fact. There can be no question,
however, that his anger was altogether out of proportion to the offence.
He wrote to Lord Kellie demanding an apology. The demand not being
complied with he devoted a fortnight to writing his "Letter to the Earl
of Kellie concerning the Farmers' Income Tax, with a hint on the
principle of representation, &c. &c." This letter, which occupies
sixty-three printed octavo pages, was published in London, at the
author's expense, and circulated throughout the county of Fife. Mr.
Gourlay's argument on the main question was sound enough, but it could
have been stated effectively in two or three pages, instead of in more
than twenty times that number. The pamphlet diverged into all sorts of
extraneous matters, and was full of personal abuse of Lord Kellie. It
did Mr. Gourlay no good in the county, even with the farmers whose cause
he espoused, and from this time forward we perceive in all his writings
the most unmistakable evidences of an irritated mind, and a temper under
very inadequate control.