Source: Library and Archives Canada/MIKAN 2909458

SMITH, WILLIAM, historian, diarist, jurist, and politician; b. 18 June 1728 in New York City, eldest child of William Smith and Mary Het; m. 3 Nov. 1752 Janet Livingston, and they had 11 children; d. 6 Dec. 1793 in Quebec City.

William Smith’s grandfather had been a merchant in England before immigrating to New York City in 1715. His father graduated from Yale College in 1722, became a successful lawyer, and in 1753 was appointed a member of the Council of the province of New York; his mother was from the French speaking Huguenot settlement of New Rochelle, New York. Smith graduated from Yale College in 1745 and articled in his father’s law office. Licensed attorney at law in October 1750, he quickly established a lucrative practice. He became particularly skilled in the defence of what were often ill-defined landed estates, and he was prominent in efforts to raise the standards of the legal profession by adherence to British forms. In 1763 Governor Robert Monckton offered Smith, then only 35 years old, the position of chief justice of the Supreme Court. Smith hesitated, because his father had just been appointed third judge of the same court, and the opportunity was lost. In 1767, when his father retired from the colonial council, Smith was appointed to succeed him.

From an early age Smith was a prolific writer. After several literary ventures, in 1753–54 he co-authored the Independent Reflector, New York’s first magazine. With one of his friends, William Livingston, he compiled the first collection of the Laws of New-York from the year 1691 to 1751, inclusive, published in 1752, and so acquired the basic material for The history of the province of New-York, which he published in London in 1757. This work served him well over the years, giving him a wide reputation as an authority on the colony, and he was often referred to as “the historian of New York”; 20 years later he began a second volume, published posthumously. In 1757 he was also the co-author, again with Livingston, of a pamphlet entitled A review of the military operations in North-America, condemning the direction of the Seven Years’ War. In this polemic he took his first look at his future home: “Canada must be demolished – Delenda est Carthago – or we are undone.” By now a compulsive writer, from 1763 to 1787 Smith kept a journal, intended partly as a confidant but chiefly as a historical source book, and from its publication in the mid 20th century it has served as such to historians of the British empire in North America.

Smith’s talents as a writer were frequently enlisted in partisan causes. New York politics were dominated by family groupings struggling for control of patronage, and Smith espoused his father’s long-standing antipathy to the De Lancey party. A Presbyterian, he opposed such Anglican enterprises as the foundation in 1754 of King’s College (the future Columbia University) and the establishment of a bishop in America. William Livingston, John Morin Scott, and Smith became known as the “New York Triumvirate,” whose object, one critic observed, was “to pull down Church and State.” John Adams reported that Smith had “acted an intrepid, an honest and a prudent part” in the Stamp Act crisis of 1765, for which he earned the cognomen “Patriotic Billy.” After his appointment to the council, however, Smith became more cautious and as his land speculations increased he turned away from some of his youthful enthusiasms. He preferred to oppose the De Lancey party and the Anglican church covertly and represented himself to successive governors as the man “above party” on whom they could rely for disinterested advice. Nevertheless, when New York began to drift into rebellion, there were those among both radical and conservative opponents of Britain who looked to him for support. In 1776 he moved to his country house in a vain attempt to sit out the crisis in rural retirement, and he refused to pledge allegiance to the new state. After two years on parole in Albany, he was finally forced to take a stand and joined the British in New York City. Although he recognized that both sides were at fault in the conflict, he believed that nothing could pardon the revolutionaries’ desire to shatter the unity of the empire, and he declared his allegiance to the crown in 1778. To the British he was a prize equivalent to a repentant Samuel Adams, a sign for gentlemen “who had been lying on their oars,” though there were reservations: “few Men so able, if he could be trusted.” Two years later he was rewarded by appointment as chief justice of New York.

Sir Guy Carleton*’s arrival as commander-in-chief of the British forces in 1782 shaped the future course of Smith’s life. The two men quickly established a rapport, conversing frequently about ideas of empire and imperial management. Smith had long been an advocate of a union of the American colonies: between 1765 and 1775 he had written several papers urging a united legislature consisting of a lord lieutenant with wide discretionary powers, a council, and an assembly chosen by indirect election. Individual colonial governments would remain as they were beneath this superstructure; the continental assembly would handle all royal requisitions for taxation. Since Carleton had initially hoped to exercise viceregal powers in New York, and was disgusted by the way his command had been shackled by the British government’s determination to accept defeat, he saw great merit in the imperial structure Smith proposed, especially when Smith insinuated that the commander-in-chief was the obvious man to head it.

The British evacuated New York in 1783, and Carleton and Smith sailed for England on the same ship in December, Carleton to face a government unappreciative of his true merits, Smith to learn the numbing routine of office-seeker and claimant for compensation, although London was also a broadening experience in that he met and found himself at ease with many of the dissenting reformers of the day. Smith’s fortunes were inextricably tied to those of Carleton, who had recommended his appointment as chief justice of Quebec while they were both still in New York. Put simply, if Carleton became governor of Quebec, Smith would become chief justice; if not, Smith’s future was blank. It gradually became clear that even compensation for his losses as a loyalist might depend upon Carleton’s success. He heard that William Pitt himself had some “Doubt of my Principles” in the recent war.

Smith viewed Quebec in the context of what he hoped was a British determination to reunite the empire in North America, and he had to encourage an often surly Carleton, determined upon a peerage before accepting any post there, with visions of what might be achieved. If the surviving colonies were put under central direction and made a shining example of the superior wisdom of British forms, then the disorganized Americans would repent of their independence and perhaps “place themselves under the same protecting Power.” Carleton should be governor general of all the provinces and captain-general of the militia, with control of the navy and full authority to negotiate and conclude treaties within North America. He alone would be in contact with the imperial government, and all North American officials would correspond with him. He should approve all executive decisions, control Indian affairs and frontier defence, regulate commerce, grant crown lands and charters for towns, universities, and other public institutions, and choose all officers usually appointed by the British government. He should also have the power to confer for the levying of general taxes with a two-chamber house drawing members from all the colonies. The British government’s conception of what was needed in North America, however, differed from Smith’s. When Carleton was finally commissioned on 15 April 1786, it was not as governor general of a federation of colonies but as multiple governor of Quebec, Nova Scotia, and New Brunswick, with none of the overriding powers Smith had envisaged. Ennobled as Baron Dorchester, he was sent to Quebec on a fact-finding mission, to advise ministers on the constitutional problems of the province.

Dorchester and Smith arrived at Quebec on 23 Oct. 1786, and Smith took the oaths of office as councillor and chief justice on 2 November. Once again denied a full measure of power, Carleton retired from the political scene and did not attend the council. Since the next in line, Lieutenant Governor Henry Hope, was frequently absent, Smith was left to preside over meetings, and his position was strengthened through his chairmanship of numerous council committees. The council was sharply divided along party lines drawn in the names of national groups. The majority French party saw in Smith a powerful threat of anglicization, and the hostility of its leader, Adam Mabane, was doubly assured by the fact that he himself had hoped to become chief justice. Other judges, Thomas Dunn* and Pierre-Méru Panet*, regarded him askance as a newcomer and an American, who retained large land holdings in Vermont and New York and whose reputation for equivocal conduct had preceded him. But since the English party had no leader of Mabane’s calibre, men such as Hugh Finlay* and Samuel Jan Holland* at first looked to Smith to fill that role.

Smith made no secret of his wish to see massive anglophone immigration to strengthen Quebec through increased population, and one of the ways he hoped to encourage it was by anglicizing the legal system of the colony. He and Mabane soon came into conflict in a council committee called to report on the courts of justice. Among the reforms Smith proposed were new judicial districts for the loyalist settlements and the extension of optional jury trials, which since 1785 had been permitted in some civil cases, to all personal actions. Mabane, however, opposed further encroachment of English legal practice on French civil law procedures. Meanwhile, only two months after his arrival, Smith had caused a major controversy by upsetting the customary interpretation of the Quebec Act. He reversed the decision found by Mabane in the Court of Common Pleas in a case involving William Grant*, of Saint-Roch, and Alexander Gray by demonstrating that French civil law did not apply to natural-born British subjects. He argued that the Quebec Act, which had expressly granted Canadian laws to Canadians, had not expressly denied English law to British-born subjects, who were therefore entitled to their natural rights. Although he had good legal precedent for his opinion, Smith chose not to mention it, and it seemed that he was destroying singlehanded a system of laws widely regarded as holding back a flood of British immigration. His legal decision was a political challenge to the French party in the council. When he tried to embody his views in a law, Paul-Roch de Saint-Ours counterattacked by introducing a bill to abolish optional jury trials, as well as the English law of evidence in force in commercial cases since 1777. On 22 March 1787 the council voted not to commit Smith’s bill for consideration. Manœuvring to avoid defeat, Smith seized on a protest against Saint-Ours’ bill, in the form of a petition from the English merchants, as a reason to shelve it. The merchants’ protest was argued before the council on 14 April by the attorney general, James Monk*, who condemned the past administration of justice in such strong terms that a formal inquiry was unavoidable. Smith, the only judge not castigated by Monk, was mainly responsible for conducting the investigation and was uncomfortably prominent as one disappointed litigant after another denounced his colleagues. The accumulated evidence was sent to London with no suggestion as to what should be done; the judicial system had been discredited but continued as before; and Smith, blamed for the impasse, lost support among the English party. In April 1789 Monk was relieved of his office and replaced by Alexander Gray; feeling that he had been made the scapegoat, Monk became a bitter opponent of the chief justice.

Smith continued his efforts to clear the way for immigration when he supported, or possibly inspired, Charles-Louis Tarieu* de Lanaudière’s petition in January 1788 to convert his seigneury to freehold tenure. This effort failed, but in 1790 Smith chaired a council committee that recommended voluntary conversion. Feudal tenures, he argued, had held back the expansion of the old French colony and left it weak enough to be conquered; their retention would retard the progress of Quebec now that it was an English colony. A storm of public protest greeted the committee’s report, and when the legislative session opened in March 1791, the council voted unanimously to abandon a bill for voluntary conversion. Many members of the English party were themselves seigneurs.

Smith, feeling isolated, frequently demonstrated his scorn for provincial politicians, whom he found slovenly, unsophisticated, and unfit for an elective assembly. As he wrote to the London merchant Brook Watson*, “neither Protestant nor Popish Catholic, British nor Canadian, merchant nor landholder” agreed with his views. The only initiative that won nearly unanimous support was his proposal, advanced in 1789, for a provincial educational system crowned by a university with a council consisting of an equal number of French and English members. But since he opposed any denominational connection for the college, the plan was buried in London [see also Charles-François Bailly de Messein; Jean-François Hubert].

Smith had created acrimonious political controversy with himself as the focal point, a situation far different from his experience in New York, where he had been able to influence governors and yet remain in the background. And, as with the judicial investigations, to what end? Decisions were made in London, not Quebec. Dorchester’s advice to the home government on the constitutional problems of the colony was mostly negative, and the chief justice fully concurred. In 1789 the initiative for reform passed to William Wyndham Grenville, the new Home secretary, who drew up a plan for dividing Quebec into two separate provinces. He sent a copy of this document, the basis of the Constitutional Act of 1791, to Dorchester for his comments; Dorchester turned it over to Smith.

Grenville’s plan beat a retreat from the glorious prospect Smith cherished: a British America from Atlantic to Pacific and from the Arctic Ocean, through Louisiana, to the Gulf of Mexico. The expansion of British North America required a government that was more centralized, not further fragmented. There should, Smith argued, be a federal government uniting the existing colonies under a governor general, with a legislative council and a, general assembly. The council would consist of members from each province appointed for life by the governor general; the general assembly would have members chosen by the assemblies of the various provinces. To pass in the general assembly, a bill would have to receive not only a majority vote, but also a vote representing a majority of the provinces. This double majority would not, however, be necessary in the council. The legislature would meet at the behest of the governor general at least once in two years and continue no longer than seven years between elections. There was to be no hindrance to royal appointment of the executive council or crown officers. Thus a federal system was to be superimposed on the political constitutions of the provinces. Smith’s plan was included in Dorchester’s reply to Grenville, but a few words from London were sufficient to dispel the dream: the plan, sniffed Grenville, was “liable to considerable objection.”

The constitution of 1791 fell far short of Smith’s ideas, but as chief justice, now of Lower Canada, he resolved to do his best to set the new province on a correct course. He was determined that its politics should be conducted in proper parliamentary form, and his appointment as speaker of the Legislative Council gave him the necessary authority. He drew up commissions for Black Rod and the Serjeant-at-Arms with an exact copy of the uniforms worn at Westminster. Under his direction a council committee decided that all intercourse between council and assembly should be “in strict adherence to parliamentary practice,” and he saw to it that the writs issued to councillors were exact duplicates of the royal summonses to the House of Lords. He even determined the physical layout of the new legislature.

Reform of the judicial system continued to be one of Smith’s main concerns. In October 1792 Grenville’s successor, Henry Dundas, in an effort to make uniform the administration of justice in British North America, forwarded a plan to replace the existing Lower Canadian establishment of one chief justice and six judges of the Court of Common Pleas with two stationary courts of king’s bench in Quebec and Montreal, each presided over by a chief justice. Smith opposed the change, which threatened his personal position, and set out in a draft bill a whole judicial system that, to advance the provincial autonomy of Lower Canada under the crown, would have created almost a complete duplicate of the English judicial system. (Dundas’ plan went into effect, but after Smith’s death.) Smith also played an important role in determining land policy in the colony as chairman of the committee charged with reporting on the land-granting clauses of the royal instructions of 1791. Although the proclamation based on his report followed ministerial intentions, much depended on interpretation, and Smith’s zeal for immigration led him to interpret it in such a way that Lower Canada was opened to the worst kind of speculation. Millions of acres were petitioned for, mostly by Americans who had no intention of bringing in settlers Warrants of survey for large tracts of land were readily issued, and were then sold and resold in the United States, where they were accepted as proof of title. Smith’s policy, in effect, defeated his aims, and the land-granting problem was not resolved during his lifetime.

Smith died on 6 Dec. 1793 after a prolonged illness. The funeral procession was led by His Royal Highness Edward Augustus*, followed by the members of the Legislative Council and the assembly, officers both civil and military, “and the most respectable and numerous concourse of Citizens ever witnessed on a similar occasion.” Smith was buried – strange victory for a lifelong foe – in an Anglican cemetery. He was survived by his wife Janet and four children, including Harriet, who became the wife of Jonathan Sewell*, and William*, a future historian and member of the Executive Council.

William Smith received one of the greatest gifts any man can have, a second chance. He was one of the few loyalists able to resume a career broken by the American revolution. Consequently his life spanned not just two colonies, but two empires as well. From the perspective of the old empire he foresaw the new: a British America federated, virtually autonomous, bulwarked by British political concepts and traditions. He was able to adapt ideas formulated in the first empire while an official of the second. Yet Smith’s career was one of potential rather than actual achievement. His political durability was bought at a high price. Too many men had too many reservations about him; there were too many accusations of duplicity and greed and hypocrisy. His portrait shows a man of middling stature with a high forehead and a weak chin. He was an ascetic individual, prim, self-possessed; an intellectual with a gift for crushing repartee. It was his misfortune to live in times that required clear-cut decisions or at least the appearance of straightforwardness. Smith’s motto had always been in medio tutissimus ibis.

L. F. S. Upton