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BOULTON, HENRY JOHN, lawyer, officeholder, judge, and politician; b. 1790 in Kensington, England, second son of D’Arcy Boulton* and Elizabeth Forster; m. in 1818 Eliza, daughter of Ephraim Jones* of Brockville, Upper Canada; d. 18 June 1870 at Toronto, Ont.

Henry John Boulton was born at Holland House in a fashionable suburb of London, the son of a London barrister and grandson of Sir John Strange, master of the rolls. His family immigrated in the 1790s to Rensselaer County in New York and about 1800 to Canada, seeking, as Boulton later said, “a wider field for our energies.” Boulton probably attended John Strachan’s school at Cornwall, as did his three brothers, before beginning legal studies in 1807 in York (Toronto) where his father was solicitor general. Boulton went to England in 1811 to continue his law studies at Lincoln’s Inn. He spent three years in a solicitor’s office in London, then two years at Oxford beginning in 1814. He subsequently studied under a special pleader and was called to the English bar from the Middle Temple; he was admitted to the bar of Upper Canada on 5 Nov. 1816.

With a solid foundation in English law and considerable intellectual ability and ambition, Boulton returned to Canada where, despite the quick temper he could display in court, he succeeded John Beverley Robinson as solicitor general in 1818 at age 28; Robinson succeeded Boulton’s father as attorney general. In 1829 Henry John Boulton became attorney general himself, again succeeding Robinson. Although the patronage of these legal offices was thus confined, Boulton, like his father and Robinson before him, filled the posts so ably and impartially that even Francis Collins*, an outspoken critic of the Family Compact who was editor of the Canadian Freeman, testified to his fairness.

Boulton was elected to represent Niagara in 1830, styling himself an independent rather than a ministerial candidate. In his election address, he assured the voters that “in the house he should fearlessly represent their interests as if he held no . . . office under the Crown.” Thus, from the beginning of his parliamentary career, Boulton was identified with an independent position or even a “liberal cast,” as the Niagara Reporter suggested in 1833. Yet the Canadian Freeman in 1830 called Niagara a “rotten borough” and referred to Boulton as a “ministerialist”; William Lyon Mackenzie described him and his brother George Strange Boulton “as bad as bad can be, perhaps the very worst members any country or nation can be afflicted with,” and headed his “Black List” in the Colonial Advocate with Boulton’s name.

As attorney general Boulton skirmished with the more radical Reformers who disliked his proposed bills in 1830 and 1832 for the incorporation of York. They also resented his legalistic arguments to Lieutenant Governor Sir John Colborne who in January 1833 refused the request of Reform sympathizer Father William John O’Grady* to have Colborne lift the suspension as pastor of York imposed on him by Bishop Alexander Macdonell*. Yet in the O’Grady case Boulton’s action prompted no swift reaction from Irish Roman Catholics such as he was later to provoke in Newfoundland. In York Boulton had the support of Macdonell who had formed a working alliance with the administration in the interest of his co-religionists.

Boulton also provoked Reformers by supporting the repeated expulsions of Mackenzie from the assembly in 1831 and 1832. With Solicitor General Christopher Hagerman* Boulton complained of the cordial reception given Mackenzie by Lord Goderich, the colonial secretary, when he presented grievances to the authorities in 1832. As a result of Mackenzie’s mission to London, Goderich sent a dispatch to Colborne in November 1832 advising the administration to drop its attacks on the reformer and to institute several financial and political reforms. The Legislative Council refused to accept the dispatch, and in violent debates in the assembly many Tories showed that they were as opposed as Reformers to imperial commands which clashed with their own interests. Boulton’s language was characteristically extravagant, and he was described at a public meeting in Brockville in January 1833 as “the first man in the Province who ever attempted to agitate the question of separation from the Mother Country.” Late in April 1833 Boulton and Hagerman were dismissed from their offices by the imperial government.

Boulton deeply resented his dismissal. He publicized the correspondence between himself and Colborne’s civil secretary, Major William Rowan*, “so as to not leave room for unfounded or injurious rumours as to the cause of our dismissal,” and he asked Rowan to state specifically the breach of public duty for which he was removed from office. Rowan replied that it was Boulton’s promotion of the repeated expulsions of Mackenzie from the assembly; the Colonial Office had raised constitutional objections which it had conveyed to Colborne and through him to Boulton. Boulton maintained that he had never been informed by Colborne of the Colonial Office’s objection. He journeyed to England to seek redress, and the imperial government acknowledged that his removal had been unwarranted. He was immediately offered the more lucrative post of chief justice of Newfoundland, and arrived in that colony in November 1833.

The Supreme Court had been established in the colony only seven years and Boulton’s predecessor, Chief Justice Richard Alexander Tucker, had been removed for what Governor Thomas John Cochrane* and others considered a recalcitrant attitude and “a mixing of political duties with his judicial ones.” It was a charge difficult for any chief justice in Newfoundland to avoid since he was also expected to act as president of the Council, which exercised both executive and legislative functions.

Boulton seemed to answer the wish of the Newfoundland administration for a man well versed in English criminal law, able to frame new laws and to remodel the courts and judicial procedures. He set to work with a will. After consultation with the law officers and assistant judges of the Supreme Court, he first changed the method of empanelling juries. Under his new regulations the sheriff was to summon 48 jurors, rather than the previous 18, from which 12 would be drawn by lot; this was the system then used in Britain. For special juries 40 names would be drawn by lot from the 75 qualified grand jurors to form a list from which the opposing lawyers would alternately strike off names, to a total of 12 for each side; the remaining 16 would comprise the special jury.

Among the eligible grand jurors were the Reform leaders, Patrick Morris*, John Kent*, Patrick Doyle, and Laurence O’Brien, and five other Roman Catholics; the remainder were leading Protestant merchants of St John’s. The Reformers attacked the new rules, which, they claimed, “allowed conservatives to strike off any person who was supposed to differ from him in interest or opinion” and they, alleged “that the Attorney-General [James Simms] availed himself of [this practice] in all the political trials since the alteration was effected.” Undoubtedly the law officers had felt some anxiety that the Reform leaders might not act with the strictest impartiality in cases involving their partisans. In August 1835 Daniel O’Connell presented a petition from the Reformers to the British House of Commons for the removal of Boulton as chief justice. Boulton journeyed to England and apparently satisfied the Colonial Office of the propriety of his actions, for Under-Secretary Sir George Grey defended him in the house.

Early in 1834 Boulton framed a law to incorporate a law society and to regulate the admission of barristers and attorneys to the bar. The Reform opposition claimed that the new rules disbarred aspiring lawyers who could not afford the fees charged by qualified attorneys with whom they had to apprentice themselves for five years.

The fact that in most of these disputes Boulton was the innovator and the Reformers defended tradition and ancient usages became apparent again in several cases in 1834 and 1835 involving the credit arrangements of the fisheries. For instance, seamen were accustomed to receiving their wages, not from the “planter” who had hired them for the voyage, but from the merchant who received the proceeds of the voyage. Boulton claimed that the seamen were deprived of all security for the payment of their wages under such arrangements, but the fishermen and Michael Anthony Fleming*, the Roman Catholic bishop, pointed out that the planter was simply a “steward” and usually without sufficient means to guarantee wages. The chief justice also annoyed fishermen by altering the writ of attachment so that a fisherman’s boat and tackle could be seized for debt, a harsh measure which took from the fisherman his means of engaging in the fishery on his own. The third custom he overturned, in a case involving Patrick Morris, was the practice of “current supply”; Boulton said that past creditors, and not the supplying merchant – in this case, Morris – had a superior and prior claim to the proceeds of a voyage. In normal commerce such practices would be unquestioned, but these changes in the prosecution of the fishery in Newfoundland brought charges from the Reformers that Boulton shook “the confidence which induced merchants to afford to planters the means of carrying on their fishing voyages.” In the tense political situation of the early 1830s political leaders could play on the fears of the fishermen and stigmatize Boulton as the author of injustice and bigotry.

At the opening of the Central Circuit Court in 1835 Robert John Parsons*, editor of the liberal Newfoundland Patriot, published a caricature of Boulton’s address to the grand jury, entitled “Stick a pin here: the beneficial effects of hanging illustrated.” Boulton then charged Parsons with contempt of court, fined him £50, and sentenced him to three months in jail, asserting that the article “strikes at the very independence of the seat of Justice. . . .” He would have been wiser perhaps to have ignored the article, for when O’Connell brought the case to the attention of the British government, British law authorities decided that although Boulton’s decision was strictly legal, the “practice for many years . . . of this country was against him”; the sentence against Parsons was remitted. A second petition against Boulton prepared by the Reform leaders was printed in the Patriot on 2 Feb. 1836. These efforts to vilify Boulton did not go unanswered. Some 900 residents of St John’s, including merchants, professional men, 17 captains, six carpenters, and 12 illiterates, sent a memorial to the colonial secretary on Boulton’s behalf.

During an assembly inquiry in 1837 into judicial administration, at which John Valentine Nugent* was both chairman and a witness against Boulton, direct attacks were made on the chief justice. Morris, who had a genuine concern for the Irish fishermen of Newfoundland and whose suspicion of Protestant ascendancy was shared by Bishop Fleming, repeated his longstanding charges that the chief justice “has exhibited . . . great partiality on the bench; his adjudications have been unjust, arbitrary, and illegal, biassed by strong party prejudices. . . . [He] has totally subverted the ancient laws and customs of Newfoundland.” When the house ordered that Morris’ lengthy speech be printed, Boulton instituted a libel suit for £2,000 damages against Morris, Kent, and Nugent. Boulton proposed the unusual move of stepping down from the bench and acting as his own counsel while the two assistant judges presided, but the case was never heard.

Acting on the report of its committee, the assembly sent Morris, Nugent, and Dr William Carson* to London at the end of 1837 to seek Boulton’s removal and to ask that in future the chief justice not be a member of the Council. Boulton also left for London to answer the charges. He was not without defenders. In his brief was a deposition from John Stark, registrar of the Northern Circuit Court of Newfoundland, who asserted that crime and litigation had decreased in late years, “a clear proof that the laws are now more certainly administered and better understood,” and that Boulton was “just, impartial, upright and independent in his decisions and decrees.” Expressions of support were also sent from Boulton’s assistant justices, the members of the grand jury, 928 residents of St John’s, the Chamber of Commerce, 39 merchants and lawyers, and the deputy sheriff of Harbour Grace, all attesting to his integrity, ability, and impartiality.

The assembly delegation to London was joined by Bishop Fleming, who wrote to one of Boulton’s most outspoken critics, Father Edward Troy*, of the “truly flattering reception of the delegates at the Colonial Office” and stated that it appeared certain that “Mr. Boulton is disposed of.” With O’Connell as one of their spokesmen, the Reform leaders were confident of success. A committee of the Privy Council, to which Boulton’s case was referred, criticized the vehemence of the Reformers’ memorial and found no evidence of “any corrupt motive or intentional deviation from his [Boulton’s ] duty as a Judge”; however, the committee noted much “indiscretion in the conduct of the Chief Justice” in participating in party controversies in Newfoundland, and recommended that he be removed from office. Lord Glenelg, the colonial secretary, had, in January 1838, already decided on Boulton’s dismissal, and the latter’s request for a new appointment was turned down by the Colonial Office.

Thus at age 50, with a family of eight children and bereft of office for a second time, Boulton returned to private practice in Toronto. His old constituency, Niagara, welcomed him back and returned him as an “independent” to the newly created assembly of the Province of Canada in 1841, and he was appointed a qc in 1842. In the new house it soon became apparent that Boulton did not support William Henry Draper*’s moderate Conservative ministry on many questions. Contemptuous as ever of public favour or disdain, Boulton made up his mind in favour of responsible government, and openly supported Robert Baldwin* by 1843. As chairman of a meeting called in Toronto on 6 Feb. 1844 to establish the Reform Association of Canada, Boulton stated that, “after considerable experience of Colonial Office Government . . . he was convinced, that to ensure the British connexion and Canadian prosperity, it was absolutely necessary that the people of Canada should have the entire management of their own local affairs.” This association with the Reformers brought the wrath of the Conservative press down upon him. The Montreal Gazette spoke of Boulton as “that lord of Misrule . . . an office-seeker and demagogue.” The editor of the newly established Montreal Pilot, Francis Hincks*, defended Boulton, pointing out that his stake in the country “is so large as to make him much more interested in promoting its prosperity, than he would be by securing for himself what, people who have never tasted them, imagine to be the sweets of office.”

Boulton’s support of the liberals resulted in his losing the Niagara seat in 1844, but in December 1846 he was appointed a member of the Executive Council. In 1847 he was given the safe Reform seat of Norfolk, and was described by the Conservative Toronto Patriot as being “brought forward on the ultra-radical ticket.” One of his chief contributions as a supporter of the administration of Robert Baldwin and Louis-Hippolyte La Fontaine was to move successfully the amendment to the 1849 Rebellion Losses Bill that excluded those convicted in 1837–38 from the financial benefits of the bill, a device which finally persuaded the reluctant rank and file Reformers from Canada West to accept the measure. Yet Boulton was never at home among the Reformers and by 1850 he was again an “independent” member, advocating, as did his nephew, William Henry Boulton*, the elective principle in the Legislative Council. He further asserted his individuality by proposing an amendment to the Reform government’s speech from the throne which was essentially a demand for representation in parliament according to population. Boulton did not seek re-election in 1851, but continued to practise law in Toronto until 1860 or 1861 when he retired. In 1855 he had been manager of the Canadian section of the Paris exhibition.

Throughout his lifetime, Boulton remained an individualist and was consequently abused as an office-seeker, bigot, unbending tory, and ultra-radical. He was a man of energy and ability with connections that assured him a place in politics, but his inability or unwillingness to conciliate opposition did not permit him to fit into any party. This temperament was manifest in his frequent outbursts of defiance, which could and often did turn political defeat into personal disaster. Yet Boulton was a colourful personality in the assembly, and his parliamentary career cannot be considered a failure. Although forcefully expressed, his opinions were conventional, supporting Sir John Colborne in the 1830s, responsible government in the 1840s, and, later, elective institutions and “rep. by pop.”

With regard to his years in Newfoundland, Boulton’s severest critics were historians D. W. Prowse* and Bishop Michael Howley*, both of whom relied largely on the hostile assembly investigation and memorial seeking Boulton’s removal. Prowse adds, without evidence, a charge of personal meanness. Yet Boulton’s concern for individuals in several cases he heard indicates that he was not always the stern, inflexible judge. Charges of religious bigotry are also difficult to sustain. His wife was a Roman Catholic who once on leaving church spoke out indignantly against Father Troy’s denunciation of her husband. Like his Protestant contemporaries, Boulton disliked Roman Catholic clerical involvement in politics, and he privately criticized Father Troy’s withholding the services of the church from Roman Catholics for political reasons. A modern historian has concluded, as Prowse did, that Boulton was “the scapegoat, not only of the popular party, [which was] enraged by his bias in the Council and by his inflexibility on the Bench, but of the Colonial Office which had assigned him to these incompatible offices.”

He was an enigma to his contemporaries. Newspapers confined themselves to the barest death notices. The Toronto Leader and Patriot simply reprinted the biography, probably written by Boulton himself, which appeared in Henry J. Morgan*’s Sketches of celebrated Canadians, but added that he “was respected by the whole community and was in every sense a good and worthy citizen,” a direct contradiction of J. C. Dent*’s comment in his book, The last forty years, that Boulton was neither respected nor popular.

Hereward and Elinor Senior