THE

CANADIAN

LAW TIMES

EDITED BY

EDWARD B. BROWN, B.A.,

Of Osgoode Hall, Barrister-at-Law.

VOLUME XXIV.

TORONTO:

THE CARSWELL COMPANY, LIMITED

1904

Entered according to the Act of the Parliament of Canada, in the year one

thousand nine hundred and five, by THE CARSWELL COMPANY, Limited, in the office of the Minister of Agriculture.

24 1969

THE

CANADIAN LAW TIMES.

JANUARY, 1904.

SOME CONSTITUTIONAL OPINIONS OF THE LATE MR. JUSTICE GWYNNE.

IN

N discussing the important question of the title of this article I was reminded of an old story. Years ago while in a Southern State a professional brother from another Southern State joined a legal friend and myself. Being asked "how business was," he replied with a sigh, "that it would be good were it not for the constitutional lawyers." I was surprised, and said that "we had a few, but as a rule they were not in general practice." "Ah," he said, "that is not the kind that I mean. By the laws of our State any man is free to practise law, and so when a man fails in dry goods he hangs out his shingle and we call him a constitutional lawyer."

John Wellington Gwynne was the opposite of this ideal of the constitutional lawyer. Born in Ireland, and blessed with an excellent English and an old-fashioned classical education, and with very great natural abilities, he was well prepared for the study of law required in Upper Canada. I have often wondered what means were taken in Ireland to impress such a permanent recollection of the classics on the student. An apt Latin quotation was always ready on the lips of an Irish gentleman, while with most of us all that remained was a faint recollection of what had once been knowledge. In addition, however, the late Justice Gwynne had an unusual mastery of the English language. His written judgments are masterpieces of pure English, and what is unusual, his addresses were equally so. At the Bar he was never at a loss,

VOL. XXIV. C. L.T.-1

but always using the right phrase, and the proper words to convey his meaning rose to his lips without pause or apparent mental effort.

He was born in Ireland in 1814, and was the son of a Dublin clergyman. He came to Canada in 1832, apparently returning to Dublin, for we hear of him at Trinity College. He was called to the Bar of Upper Canada in 1837; elected a Bencher of the Law Society in 1849, and created a Queen's Counsel in 1850. He was appointed a puisne Judge of the Court of Common Pleas on the 12th November, 1868, and promoted to the Supreme Court of Canada in January, 1879, having thus a long judicial life.

Mr. Justice Gwynne was remarkable for a knowledge of pleading and practice in both law and equity at a time when there were very few who practised at both Bars. He had strong convictions, an active mind, great facility in expression, and an intense desire to do justice.

So soon as he was elevated to the Bench he began a laborious series of judgments which lasted until his short last illness-a period of over 33 years. In the first volume of reports issued after he took his seat in the Court of Common Pleas he delivered the judgment of the Court in a large number of the reported cases, and in very few instances did he content himself with concurring in the result. To review such a long and industrious career adequately would be impossible for many reasons. One only need be stated. The practice of law is continually changing, and as the habits of people change the statute law and its administration necessarily vary. In the 18th century there was little change in the mode of living, and consequently the precedents and decisions were almost the same at the end as at the beginning of it. But the 19th century was a period of unrest, and, during the latter half, one of scientific development and of a constantly growing industrial change. The forces at work have altered all the habits of life, the growth of nations and of Canada have been perplexing factors. To shew how the questions brought before the courts have varied, let the reader take up one of the reports of cases during Mr. Justice Gwynne's earlier years of judicial

work. The questions are largely brought before the Court on issues raised by demurrers or other pleadings, and the arguments and judgments are accompanied by a historical analysis of the cases bearing on the issues thus presented.

Now there are no questions of pleading; the chief points reported are on the construction of statutes, passed to explain, alter, or vary legislation of a yet recent date by Imperial, Dominion, or local legislatures.

Judgments given at the beginning of the thirty odd years of Mr. Justice Gwynne's judicial career would seem flat, stale, and unprofitable to the legal student of the present day. Besides, Mr. Justice Gwynne was a Judge basing his opinions not on what the law ought to be, but on what he found it to be. That has always seemed to me to be the best type of Judge, though not the kind which arrests the public eye. The other class, the Judge who makes the law, is the public ideal, and undoubtedly there are occasionally great ones; but it is very seldom that men like Lord Mansfield and Chief Justice Marshall are found, who, in creating new laws by means of legal decisions, make few mistakes. A reader of Mr. Justice Gwynne's judgments will find in them laborious study to arrive at facts, and equal industry in ascertaining and applying the law to these facts. I think on that account that a few of his judgments on constitutional questions are worth remembering.

Before taking them up, I wish to quote a few on domestic relations. Really, as has been said, the law and practice of a nation as to the domestic relations lie at the basis of its constitutional law.

In one of his earlier reported judgments, Balsam v. Robinson, 19 C. P. 269, he thus expressed his opinion on the then changed legal position of husband and wife: "If it should prove to be the law, that the words in the Act, which vest all her real and personal property in herself, 'free from the debts and obligations of her husband, and from his control and disposition without her consent,' are to be construed as giving to her absolute control and disposition without his consent, I fear the result may be to deprive her of the benefit of his ad