Saskatchewan Gen Web Project - SASKATCHEWAN AND ITS PEOPLE by JOHN HAWKES Vol 1I 1924

Volume II



An Act was passed in 1885 under which advocates were called upon to enroll. In 1886 the following enrolled: David L. Scott, Nicholas Flood Davin, Wm. Cayley Hamilton, T. C. Johnstone, A. E. Forget, John Secord, W. P. Sharpe, F. F. Forbes, James Henry Benson, all of Regina; William Grayson, Moose Jaw; T. C. Down, Broadview; R. B. Gordon, Regina; Jas. A. Lougheed, J. C. F. Brown, Calgary; G. A. Watson, Edmonton; John R. Costigan, Calgary; W. Johnson, Moosomin; H. N. Murphy, Fort Qu'Appelle; J. P. Mitchell, Medicine Hat; R. A. Stevenson, Moosomin; J.G. Gordon, Moose Jaw; C. N. Campbell, Calgary; E. Saunders, Regina; F. Cochrane, Calgary; H. I. Everts, Indian Head; A. L. Sifton, Prince Albert; H. W. Newlands, Prince Albert; W. R. Gunn, Prince Albert; W. S.Maclise, Prince Albert; J. V. Kildahl, Edmonton; H. Bleecher, Cal- gary; Stephen Brewster, Prince Albert; W. S. Redpath, Qu'Appelle Sta- tion; Robert Strachan, Edmonton; A. P. Forget, Battleford; Edouard Richard, Battleford; C. C. McCaul, Macleod; E. P. Davis, Calgary; R. D. Strong, Regina; Hayter Reed, Regina; John Pascoe, I. Jephson, T. Ede, Calgary; W. J. Scott, Battleford; C. W. Peterson, Calgary; W. White, Moosomin; C. H. Connon, Regina; H. A. J. Macdougall, Wm. Smith, Fort Qu'Appelle; T. B. Lafferty, Calgary.

In 1887 :-Richard Peake, Calgary; Leslie Gordon, Qu'Appelle Sta- tion; C. L. Shaw, Edmonton; Jeremiah Travis, Calgary; C. P. Conybeare, Lethbridge; F. W. G. Haultain, Wm. Gordon, Macleod; James McKay,Prince Albert; J. A. Priour, Edmonton.

In 1888 -Finmore M. McLeod, Peter McCarthy, W. L. Barnard, Cal- gary; Severe Gagnon, Regina; J. B. Smith, Calgary. On January 8,1889, W. A. Galliher, Lethbridge.

Of these today two are Chief Justices (Sir Frederick Haultain and Judge David L. Scott of Alberta); one has been a Supreme Court Judge, and is now Governor of Saskatchewan (His Honor the Hon. H. W. New- lands); one is a Judge of the Supreme Court (Hon. James McKay) ; one has been leader of the Canadian Senate (Sir James Lougheed), and a Dominion Minister.

Among those deceased are the Hon. A. L. Sifton (Chief Justice of Alberta and Minister of the Crown in the War Cabinet); Judge T. C. Johnstone, Nicholas Flood Davin (M. P. for West Assiniboia), and His Honor A. E. Forget (first Governor of Saskatchewan).


The Law Society of the Northwest Territories was founded in 1898 with W. Cayley Hamilton, Q. C., as its president, and Norman Mackenzie secretary-treasurer, both of Regina. During the lifetime of the Terri- tories the benchers were, in addition to the two named: N. D. Beck, Q. C., Edmonton; Hon. J. A. Lougheed, Q. C., Calgary; C. C. McCaul, Q. C., Cal- gary; C. P. F. Conybeare, Q. C., Lethbridge; Hon. James McKay, Q. C., Prince Albert; Peter McCarthy, Q. C., Calgary; E. L. Elwood, Moosomin; James Muir, Q. C., Calgary; W. B. Willoughby, Moose Jaw; H. C. Taylor, Edmonton. Mr. Cayley Hamilton, a man of ability and charac- ter, died in 1901, and was succeeded as president by Mr. N. D. Beck, who held the office till the inauguration of the province. Messrs. Norman Mackenzie, J. A. Lougheed, C. P. F. Conybeare, James McKay and E. L. Elwood were benchers for the whole period (1898-1907); Mr. McCaul resigned in 1899; Messrs. James Muir, W. B. Willoughby and H. C. Tay- lor were elected in 1901 and remained in office till the end.

The first benchers of the Law Society of Saskatchewan were E. L. Elwood (president 1908); Norman Mackenzie, K. C. (president 1909 and 1919); Frank Ford, K. C.; James Balfour, K. C. (president 1915); C.E. D. Wood (president 1912); W. B. Willoughby, K. C. (president 1910); James McKay, K. C.; H. Acheson (Saskatoon, president 1913); J. A. M. Patrick, K. C. (Yorkton, president 1911), and 0.S. Black, K. C. (Weyburn, president 1914). Mr. C. H. Bell was registrar, till 1914, when he was made a judge and was succeeded by the present registrar, Mr. J. Kelso Hunter. Most of the benchers have attained distinction. Of the Territorial benchers associated with Saskatchewan, Hon. James McKay sat in the House of Commons and is now a Supreme Court Judge; Mr. E. L. Elwood, greatly honored, died as a Supreme Court Judge; Mr. Willoughby led the Conservative opposition in Saskatchewan, and is now a member of the Dominion Senate. Mr. Norman Mackenzie, the first secretary, has persistently refused office, but probably there is no man in the province who exercises a greater influence not only as the head of a great legal house, and by his practical association with powerful busi- ness interests but by his high personal standing and the confidence felt in his grasp of affairs, and his ability to advise and direct in situations of difficulty. He has also a high sense of the artistic, and as a patron of the arts has filled a valued role in a new country. Another distinguished hencher is the present Mr. Justice Embury, who was elected in 1913, served with great distinction in the Great war, rising to the rank of Brigadier General, and being appointed to a Supreme Court Judgeship while still on active service. Judge Wood, of Weyburn, who was president in 1912, deserves high and special mention as a pioneer of distinction. Coming into the West by way of the Missouri River and Fort Benton, he served in the Mounted Police, wielded a great influence as a pioneer editor (Macleod Gazette), then taking up law, becoming president of the Law Society, and finally a Saskatchewan Judge.


A pioneer J. P. in the northeast country, asked to write something about the administration of justice in the early days, was good enough to send the writer the following:- "Justice was first administered by the N. W. M. P. and generally without much red tape. Later, as the country became sparsely settled J. P.'s were appointed at various points. Some of these men assumed that they were lawmakers, and gave decisions without considering the rules of evidence or the limits of their own jurisdiction. I had received an appointment, but took it somewhat seriously. I consider, at that time a J. P. had more left-handed power than a judge, as people did not know enough to appeal, and so their decisions stood, often very unjustly.

"I remember a case when five parties were arrested by a 'Mountie' and appeared before two J. P.'s for setting different prairie fires. There was really no evidence, nothing but suspicion. However, the J. P., who was running the show, fined one of them and adjourned Court, upon which the Mountie asked what about the other four. The J. P. said he had forgotten them, but he quickly fined them on the same evidence in the same amount, with a jail alternative in default. These men had not even been asked to plead.

"A J. P. asked me to sit on a case with him and before the trial sug- gested that we commit the accused to jail, as he had no money to pay a fine. When I pointed out that the man had not yet been tried and might not be guilty he replied, 'But so and so has just sworn that he did so and so and I know him to be a reliable man.' When he said this the J. P. was referring of course to the 'information and complaint.' This case was dismissed, because I found we had no jurisdiction to try it. I fully believe that had I not been on the case the man would have gone to jail.

"An amusing episode occurred at what I think was my first case. It was a bad prairie fire case. I invited an educated Scotsman, a J. P., to sit with me~ and it was also his first case. I arranged with him that he should administer the oath to the witness, while I took down the evi- dence. In a deep solemn voice he gave the oath in this manner, 'Do you swear by God to tell the truth and nothing but the truth.' I was near splitting, but nudged him and whispered the usual form of the oath. He then altered it to 'Do you swear to tell the truth and nothing but the truth by God.' No doubt the form would stand, but the way he put it, it sounded like profanity on his part.

"We ourselves have had experience as a magistrate, and could tell some stories, but refrain. Although not within our own actual knowl- edge we vouch for the truth of the following. It concerns a brother magistrate who was well-known to me. His first call after his appoint- ment was from a neighbor who wanted to swear an affidavit as a school trustee. The magistrate's name was Jacob, commonly called Jake. Jake knew nothing of the form of an oath; so he said to his neighbor: 'Well, Bill, swear.' 'How shall I swear, Jake?' said Bill. Said Jake: 'You want to swear this thing don't you, so swear.' 'Well,' said Bill after a pause, 'By G__________ Jake this thing's alright.' And on that Jake signed the affidavit."


In the early '90's owing to the great distances, sparse population and primitive mercantile machinery, criminal law preponderated, and the duties of the Territorial Judges were largely confined to the trial work. Appeals were few, and much more personal interest was attached to an appeal case in the early days than at the present time, where an appeal is a matter of course.

Mr. Justice McGuire was a man of fine presence, with abundant grey hair, moustache, and very long side whiskers of the kind that were some- times called in certain circles "Picadilly weepers." He had an excellent command of language, but was at times inclined to be pedantic, as the subjoined instance will show. He delivered judgment in the Territorial Court en Banc, in June, 1890, in the case of Emerson versus Banner, and the case is reported in the Old Series of the Northwest Territories Re- ports. The case involved the validity of a bill of sale as against an execution subsequently registered. The affidavit of bona fides in the bill of sale used the words "the creditors" instead of "any creditors," and a portion of the judgment above referred to is recorded as follows:

"The learned Counsel endeavored to show by syllogistic illustrations that the use of the words 'the creditors' entirely changed the meaning of the affidavit, overlooking the fact that in cases of universal negatives the logicians say that both subject and predicate are distributed. I do not know that Mr. Bannerman is a logician, or if so, to what school he belongs; whether to an Ancient or a Modern school; whether he is to be classed as an Aristotelian, an Epicureau, or a Heraclitic-Protagorean; whether his mind is of the Rhetoric-Sophistical, or Spenozistic-Meta- physical, or simply Transcendental-Aesthetic order; or is he, like so many in these Territories, a lover of Bacon? The evidence does not en- lighten us on any of these points, nor do I think the omission material. The power of being able to 'divide a hair twixt south and southwest side' may be interesting to sophistical rhetoricians who have leisure and taste for such subtleties. I do not think we should void a bill of sale by reason of the possibilities suggested here."

We may perhaps take this opportunity of explaining an incident which was often told on the late Judge Rouleau. The case was reported and on the face of it, it looks like a humorous paradox. The Judge sen- tenced a man to three months and told him that if he was guilty he would have given him two years. The point is that a jury found the man guilty. As told me by a lawyer who was in Court at the time, the verdict of guilty was dead against the evidence, and the worthy French Judge had charged strongly for an acquittal. What Judge Rouleau meant to convey was this -"The jury have found you guilty and I am bound to accept the verdict and to pass sentence upon you. I therefore sentence you to three months, but I do not believe you are guilty. If I did, I would give you two years and not three months." Bibliography follows:

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