Reminiscences of the Nova Scotia Judiciary

MR. JUSTICE JOHNSTONE

My earliest recollection of the late Judge Johnston dates back to the years when he was the proprietor of Mount Amelia, which was then a large estate of many acres, but has since been divided up into a number of holdings any one of which is large enough to make forty or fifty ordinary town lots. The judge took a very great interest in his property, planting thorns and cedars which still flourish, and a number of seedlings that have since become magnificent oaks of which he thought a1most as much as of his children. I have often heard an old farmer since deceased, who was afterwards an occupant of the property, describe the interest with which the old judge watched the growth of hjs trees of which he could tell the year, month, and day of planting. The house was standing until a few years ago, and was one of the most comfortable and convenient in the town. It would indeed have done anyone’s heart good to note the material and workmanship that entered into its structure. It has since been taken down to make room for the residence of Mr. Covert.

But all this, while it throws light upon the character of the proprietor, is perhaps a little remote from the chief purpose of this paper. It seems to me that when a boy I must have seen the late judge every day of my life. The image is so clear and distinct. He was not then a judge, and must ha~ been a member of the House of Assembly. His tall and dignified form conveyed an impression of great distinction, and I can remember that he always walked with a slight stoop of the shoulders, with his hands folded behind his back, and that he seemed to be ever deeply absorbed in thought. I have often regretted that I never heard him speak in the House of Assembly. His impassioned eloquence is one of the traditions of the House, and it must have been a treat to listen to him from the gallery. But still greater must have been the pleasure of hearing him in one of those great forensic efforts in a field in which he had few equals and no superior. Once only did I ever hear his voice, except from the bench of the Supreme Court. It was the occasion of a lecture in the old Mechanics Institute of Dartmouth, which, after doing duty for many years as a public school, has in more recent times been transformed into the town hall. It must have been, as I have said, the occasion of one of the Institute lectures, for he was moving or seconding a vote of thanks, and I can remember well the deep rich tones of his clearly resonant voice, and the graceful turn of the few sentences he spoke. All else has faded out and gone: the lecturer and the lecture have been alike forgotten; but the few gracious words of the orator, his pose, his voice, his manner are as well remembered as if I had heard them the day before yesterday. To my childish fancy he seemed to be something a little more than merely human, and I believe he was one of the political idols of my father’s house. I can well recall, after one of his exciting campaigns in the county of Annapolis, the long procession of carriages that seemed for ever to be climbing the hill towards the mountain home of the conquering hero where there were great goings-on.

“His great fires up the chimney roared,” and the night was given to festivity in celebration of the victory. Then there came a time when something dark and malign seemed to come over the scene. That was when Mr. Somebody “crost the flure.” The idol was shattered, and opprobrious epithets were bandied, and the popular Protestant bigotry found vent in dubbing him with the nickname, Romo-Johnston. All this I did not understand, but the account of those days and events has all been so admirably and so lovingly written by the Rev. Dr. Saunders that it would be almost an impertinence were I to attempt to retell the story.

My next picture will present him as a judge of the Supreme Court. He ought to have been Chief Justice, but accidents must happen. The old Chief Justice, Sir Brenton Haliburton, was like Charles the Second, so unconscionable a time a-dying that he did not leave the scene until the Government that could have and would have made Mr. Johnstone Chief Justice had passed along with the late Chief Justice, and so it happened that the late Sir Brenton Haliburton was succeeded by Sir William Young, and James W. Johnstone had to plead before his rival. A few years passed quickly away, and the wheel of fortune brought the Conservatives into power again, when the new office of Judge in Equity was created, and Mr. Johnstone became the first judge to bear that title. I can see him now in his little court room off the prothonotary’s office, smaller than the court-room of the stipendiary magistrate, and not half so commodious, where I have heard long and difficult arguments between counsel like the late Hiram Blanchard and John W. Ritchie whose brief of law would frequently consist of. two or three cases scribbled on the back of an old envelope. He had so much in his head that he did not require a very elaborate brief, which reminds me of an incident in the judicial career of the late Chief Justice Weatherbe. He was about to hold circuit at Port Hood, when the crier called on him to learn whether he should carry his books to court for him. “I have no books for you” replied the Chief. The answer surprised the crier, who informed him that the judge who had held the last court in Port Hood had so many books that he was obliged to take them to court in a wheelbarrow. “Yes, I daresay,” said Chief Justice Weatherbe. “He carried his law in a wheelbarrow, but I carry mine in my head.”

Whether as Judge in Equity or as Judge of the Supreme Court in banco, he was, it should go without saying, an ornament to the bench. But perhaps the very qualifications that made him so effective as an advocate detracted from the merit of his performances when he was a judge. Give him his brief, and he would know how to get the most of it, to identify himself for the moment with his client, to see with his client’s eyes and hear with his client’s ears, to know no interests for the time being, other than those he was retained to advocate. There need be no nice balancing of the pros and cons, and there was no necessity therefore of a judgment to be passed upon the lawfulness of the position for which he was contending. His business in his advocacy, and his sole business, was to say the best that could be said for the interests entrusted to his keeping. But when he became a judge all this dramatic faculty, if such we may call it, must go for nothing. He must balance argument against argument, weigh witness against witness, unravel the tangled skein of interlacing evidence, and seek to extract the silver thread of genuine truth from the base and bewildering imitations with which it had been implicated by the perjuries of witnesses and the artifices of ingenious counsel. With what laborious industry he addressed himself to such tasks may be seen in the reports of Mr. Oldright.

Mr. Justice Johnstone did not always know his own mind. As a judge he could always see both sides of a question, and he could not easily make up his mind which was the right one. His conscience was not at rest until his intellect was completely satisfied as to the soundness of his conclusions. On one occasion when he was sitting in the court in banco, on appeal from one of his own decisions, he came to the conclusion that the decision under appeal was erroneous. Mr. Justice Ritchie, then an associate Justice, who afterwards succeeded him as Judge in Equity, considered that the first decision was correct and ought not to be reversed, saying with his finely chiselled lips, and in his very precise and sententious manner, but with perfect good nature and politeness, “This is one of the cases, I think, in which second thoughts are not the best.” An involved and tangled-up question of fact, depending upon a careful analysis of a vast mass of evidence, had no terrors for him. It seemed almost to have a sort of fascination for his intellect, so much so that in one of the reports will be found a case in which he examined at great length the evidence of a cloud of witnesses, at the obvious cost of immense and protracted labour, only to come to the conclusion that it really did not matter which set of witnesses was to be believed, as the question of law could be decided in only one way, no matter how the question of facts should be determined.

He was a frightfully bad pen-man. Among some old manuscripts that have come down to me, there is a legal opinion written in his own hand, probably before I was born, for the trustees of schools or some such officials of the town of Dartmouth. It must have puzzled the worthy gentlemen for whom it was prepared to make head or tail of it, but I presume that it was either preceded or supplemented by oral explanations of which the writing served only as a souvenir. On one occasion, when a judgment delivered by him as Judge in Equity was under review, the counsel who was arguing the appeal was unable to read the manuscript, and passed it up to his Lordship for his interpretation, a task which he very prudently declined, saying he had not written it for his own perusal. The judgment, therefore, had to proceed on the basis of conjecture as to the meaning of the hieroglyphics.

I cannot better close this hasty and imperfect sketch than with a reference to a speech delivered by the learned judge, when a member of the legislature on the occasion of a resolution that a sword should be presented to Sir John Inglis. I should like to quote the whole of it, for it is very brief. But the wretched manner in which the reports of the House of Assembly were edited in those old days makes it impossible for me to turn up the report in the time at my disposal, and I must rely upon my memory for his peroration in which, referring to the gallant soldiers who had fallen in the struggle in which their brave general had been engaged, he spoke of them as “noble men who knew, though they learned it not from the classic page, Dulce et decorum est pro patria mori.”

Russell, B. “Reminiscences of the Nova Scotia Judiciary” Dalhousie Review, Volume 05, Number 4, 1926 https://dalspace.library.dal.ca/bitstream/handle/10222/58213/dalrev_vol5_iss4_pp499_512.pdf?sequence=1&isAllowed=y