Sir John Beverley Robinson & Private Property Rights in Upper Canada: The Good, The Bad, and the Ugly
PART ONE: "The Good"
Sir John Beverley Robinson was Chief Justice of Queen's Bench for Upper Canada between 1829 and 1862. His decisions, spanning over thirty volumes of Upper Canada Reports, were crucial in shaping Canadian common law. Born to Loyalist parents and educated by John Strachan, Robinson was a vital player in the "Family Compact" of Upper Canada, the Tory elite that ran the colony. Bernard J Hibbitts' paper, “Progress and Principle: The Legal Thought of Sir John Beverley Robinson,” McGill Law Journal, is the inspiration behind this post (as well as my own insights). You can read the original paper here (pdf alert) or at the Canadian Legal Information Institute.
In the late 1960s and early 70s, cultural relativism hit the history profession, and most mainstream Canadian history went ideological. The phrase "Canadian Tory" came to define a set of ideals: deference to tradition and loyalty to the Crown. Upper Canada's Chief Justice, Sir John Beverley Robinson, is seen as a precedent-bound traditionalist—the quintessential Canadian: deference to authority and – among Canadian judges – adherence to precedent.
However, this version of Canadian history – particularly Upper Canada in the early 19th century – warrants revision. The "Tory-formalist thesis" creates misconceptions and caricatures of real people. It masks what happened with the transformation of Canadian legal culture in the 19th century. And that's important today for one big reason: pollution.
As Upper Canada began building canals and railroads, Sir John Beverley Robinson oversaw cases where one's private property rights were overturned for the "common good." Robinson wasn't the only judge to do this; he followed a trend. But in doing so, it led the Canadian common law into dangerous territory. The legal system was telling producers:
You don't have to worry about externalities like pollution.
It's outside of the court's jurisdiction.
The legislature will address the issue for you.
Whether intended or not, buying politicians to quell the unruly masses was the consequence.
Of course, the man was a product of his time. But even so, we can reflect and trace how the unifying thread of the commonwealth unravels. How state, capital, and democracy merged to create the neo-liberal order. And how common law brought about its own downfall by sacrificing private property rights for the greater good.
Who was Sir John Beverley Robinson?
Sir John Beverley Robinson was your typical 19th-century English Justice. His judgments followed English common law principles, emphasizing reason and precedence. Of course, Upper Canadian authority was constitutionally bound by the Mother Country. Robinson's judicial responsibilities were discovering and administering law to resolve disputes between local litigants.
Contrary to the strict Tory-formalist thesis of Canadian history, Robinson was not some conservative absolutist. Like his peers, he viewed the law as constant and evolving, responding to changes and with an overall interest in the common good. Robinson's judgments exhibit this practical flexibility in legal interpretations.
Given the era Robinson found himself in, disputes involved conditions that were specific to colonial life. The absence of apparent English authority prompted Robinson to look for other sources for guidance, most notably in the United States. Robinson's reluctance to refer to other colonial sources (such as Nova Scotia or Newfoundland) may have been due to scarcity. In Upper Canada during the early to mid-19th century, it was easy for Robinson to get his hands on British and American materials like reports and records relative to the other British colonies.
Robinson frequently consulted American law, mainly commercial law, since it shared similarities with Upper Canadian society. That said, Robinson acknowledged the limitations of American jurisprudence in a British colony and always emphasized the superiority of English law. That said, Robinson didn't always apply English law even when it was clear. He would instead acknowledge the need for legal evolution in the new frontier society. He rejected blind adherence to English rulings and took personal responsibility for developing Upper Canada's common law.
Fortunately, Robinson lived before the late 19th-century legal reforms. The doctrine of precedent still allowed flexibility – past decisions didn't bind judges. Like all judges throughout common law history until relatively recently, Robinson could treat precedents as evidence of abstract principles rather than binding law.
While the later legal reforms were considered "progressive" in their time, the result has been judges legislating from the margin. Fortunately, Robinson avoided decisions that – when adhering to English precedent – could be considered unlawful in an Upper Canadian context.
Robinson's guiding principle was that colonists only took applicable parts of English law to the New World. If specific English statutes didn't suit the conditions of the frontier colonial society, then the Chief Justice would ignore them.
Robinson emphasized reasonable interpretations of statutes. He also allowed for flexibility in legal procedure, such as in pleadings, so long as the departures remained "intelligible." One reason for this was to prevent certain parties from exploiting the formalities of the justice system for fraudulent schemes.
Robinson recognized the unique conditions of colonial society that differed from society in the Mother Country. He relaxed English rules on proof of marriage and dower claims. Robinson didn't like disputes over technicalities. He advocated for the triumph of substance over form.
Despite invoking English legal ideals, Chief Justice Robinson's views did not indicate a mindless deference to authority. Like others in his era, he regarded common law as a manifestation of natural reason. He viewed shaping the law to suit colonial conditions and promote Upper Canadian interests as a legitimate use of the judiciary.
Like in Britain and America, Upper Canada's society was based on the principle of private property, especially in 19th-century Upper Canada, where land was critical in social cooperation and conflict.
Land served as the primary source of wealth and power. Not only as an organizational framework for settlement and investment but as the basis for social status and voting. Therefore, protecting private property rights was crucial for the colony's prosperity and political stability. Sir John Beverley Robinson, a man of his time, understood property's significance. He sought to establish – what he termed – "an invisible wall" around land, securing landowners' interests through the common law.
Robinson advocated for adhering to English precedent when dealing with private property. He wanted Upper Canadian property owners to feel secure in their estates. He emphasized the importance of certainty regarding private property rights. In this respect, we can divide Sir John Beverley Robinson's decisions on the bench into three sections: the good, the bad, and the ugly.
The good: Robinson believed in private property rights. The bad: He wasn't a private property absolutist. And the ugly: He violated private property rights to justify commercial expansion. Borrowing from American jurisprudence, Robinson, like many legal experts of his time, ensured that the pollution created by the Industrial Revolution would be exempt from the traditional rules of law.
The Good
In cases such as Matthews v. Holmes (1853), McKinnon v. Burrows (1834), or Weller v. Burnham (1853), Robinson's rulings on private property were influenced by the conception that – while community interests are notable – the rights of landowners takes priority. Even if it means adhering to traditional (and unpopular) doctrines. For example, Robinson incorporated English waste laws into Upper Canada, which protected property owners from tenants causing permanent changes to the land. Most American courts abandoned the doctrine because of the negative consequences on agricultural development, while Upper Canada kept it on the books until 1853.
Robinson's decisions also considered community interests, such as existing landowners, from the consequences of land speculation in a changing market. Judgments like McKinnon v. Burrows (1834) limited damages in breaching property deeds since rapid settlement and rising land values had ruinous consequences for vendors.
Another instance is Matthews v. Holmes (1853), where Robinson overruled a common English practice of accepting lands at a valuation to pay debts. While seemingly against the interests of private property owners, the decision protected the stability of the land transactions market. Admitting parol evidence in Matthews v. Holmes would have turned Upper Canada's land market into a casino, negatively affecting all private property owners.
And this gets to the crux of Robinson's time as Chief Justice of Upper Canada. He served during a period of unparalleled commercial expansion. Like many justices of his time, Robinson, from our modern viewpoint, was between a rock and a hard place. He was aware of the ongoing economic transformation and the challenges it posed for the old English common law. Conventional wisdom says he was able to successfully balance the rights of private property owners with that commercial expansion. But as we'll see in the next part, "The Bad & The Ugly" consists of legal reasoning that still haunts us today.
That said, it's unfair to judge the people of history by today's standards. While we can learn much from doing so, we shouldn't take this method too seriously. Take Robinson's writings in 1854. He comments on the emergence of commercial entities – banks, insurance companies, canal and railway companies, and corporations – which gave rise to new legal questions. Robinson aimed to provide clarity and predictability in legal matters, allowing businessmen to plan effectively.
For example, in Hamilton v Niagara Dock & Harbour Company (1842), Robinson emphasized the need to establish clear rules for corporate bodies. To do so, he focused on enforcing the contracting parties' intent rather than abstract concepts of a "just" price. He saw contracts as bargains. At the core of his approach was the "will theory" of jurisprudence. Parties sign contracts based on internal standards, such as intention. Robinson rejected decisions based on "community morality" or his perception of a fair exchange.
The "Will Theory" was relatively new in Anglo-American jurisprudence but was increasingly popular during the commercial age. Robinson's adoption of this doctrine was progressive for the time, not the actions of an ideological conservative "Tory."
Robinson also exercised caution in extending new powers to the banks. He emphasized the need to protect stockholders, merchants without public privileges, and the overall economic welfare of the colony.
Robinson didn't like banks engaging in business outside the parameters of their charters. He also didn't like the rapid high-risk growth that the banks were so fond of. He preferred a cautious stance, one that considered the circumstances of the colony, its narrow capital base, and the vulnerability of its enterprises to American competition.
Given the constitutional and economic constraints of the time, Sir John Beverley Robinson shouldn't be considered a strict, ideological Tory. While he was a member of the Family Compact and favoured prudent investment and precedence in law, he was also willing to disregard English law when it suited the economic interests of the colony. Which leads us to, “The Bad & the Ugly.”