Judge Des Barres on Trial

By Keith Mercer

Beginning in the late eighteenth century, the St. John’s police were tasked with preventing congestion, garbage, and unregulated animals in the streets. This was one of their first active and preventative duties, along with regulating taverns and the Sabbath. They walked the beat and reported infractions to the magistracy. Not surprisingly, one of the House of Assembly’s first bills in 1833 was “An Act for the more speedy abatement of nuisances,” making official what the police had been doing on the ground for decades. This statute was sent to magistrates across the island, but nuisances were most pressing in St. John’s. Constables, under threat of fines, submitted lists of offenders to the courts. The high constable played the lead role in enforcing the act, occasionally with a little extra pay. This could mean shooting homeless dogs, or rounding up loose swine and selling them at auction.[1]

A.W. Des Barres, c. 1861, in D.W. Prowse, A History of Newfoundland: From the English, Colonial, and Foreign Records (London: Macmillan, 1895), 423. This image, and that of Cochrane, was taken 25 years after these events.

The Nuisance Act enjoyed wide political and public support but also led to one of the most disturbing attacks on the police in Newfoundland’s early history. In December 1833, Constable John Toor reported several instances of citizens carting uncovered putrid substances through the streets, contrary to the new law. The magistracy issued summonses for these parties to appear before the Sessions. A.W. Des Barres, assistant judge of the Supreme Court, caught wind of this and personally intervened in the streets, seizing the summonses from the constables and defendants. He publicly called the magistrates “blackguards” – dishonourable men or scoundrels – and dismissed the Court of Sessions as a farce. He had never heard of the Nuisance Act, he claimed, and was simply acting to protect the poor. Des Barres burst into the Sessions, with Magistrate James Blaikie presiding over a case, and shouted for him to come outside at once.

Magistrate Peter Weston Carter thought there might be trouble and ordered the constables, all in attendance at the Sessions, to ready themselves. In a heated discussion at the police office, located in an adjoining room to the Sessions, Blaikie defended the constables’ and court’s honour under hurls of insults from the angry judge. He found it hard to believe that Des Barres did not know about the Nuisance Act, giving him a copy of it on the spot just to refresh his memory. Early in 1834, Des Barres was indicted for assaulting Constable David Rogers and obstructing him in the line of duty. He was acquitted of both charges in a jury trial before the Supreme Court – his court, much to the surprise of the judges, governor, senior law officers, and most observers in the room. A boisterous crowd surrounded the courthouse to cheer the verdict.[2]

Sir Thomas Cochr.ane, c. 1860, Wiki Commons

During the trial, the jury heard from long-time magistrates Blaikie and Carter that Des Barres had intervened in a case beyond his jurisdiction and acted in a “most violent and unwarrantable manner towards our Police Constables in the execution of their duty.” He used base language against the magistrates, threatened to jail policemen, and accused the magistrates, clerk of the peace, and constables of using fines from the new bill to line their pockets. During his testimony, Rogers, an experienced special constable, described how Des Barres had threatened and tried to bribe him, and physically prevented him from doing his duty. They scuffled at least twice, Des Barres allegedly striking him with a cane. This behaviour was corroborated by senior constables and other witnesses. After seizing a summons from Rogers, the judge reportedly ripped it up and chewed it in his mouth before spitting it onto the ground. For his part, Des Barres admitted that emotions ran high, especially with insolent constables refusing to “obey” him, but he denied the testimony of the Crown’s witnesses. In his opinion, the carters should have been given a warning instead of fined, which caused great financial stress for their families. He also alluded to the police acting harshly recently in shooting a dog, a common occurrence in the capital. Significantly, however, Des Barres acknowledged that he had destroyed summonses and revealed that the men who had been the target of those court orders were his own employees, who were carrying blubber from the harbour to be used as manure on his farm. Governor Thomas Cochrane was shocked by the verdict and alarmed at the tactics and evidence that Des Barres had employed at trial.

William H. Eagar, “The Town and Harbour of St. John’s,” 1831, Toronto Public Library.

In a turning point during the trial, Des Barres produced a summons that Rogers, the Crown’s star witness, claimed that the judge had destroyed on the street. Des Barres used that document, supported by his witnesses who had been the target of the summonses, to refute Rogers’s testimony and discredit him in the eyes of the jury. Although the trial focused on assault and obstruction, there were serious discussions about the authenticity of the summons. The constables, magistracy, and clerk all agreed that it was a forgery. Cochrane kept Des Barres on a leave of absence from the Supreme Court and demanded that he explain the alleged falsification of this court order. Des Barres refused to co-operate, pointing to his acquittal and suggesting that as a Supreme Court judge his professional ethics should be given the benefit of the doubt. Cochrane requested Chief Justice Henry John Boulton to convene a special inquiry, and most of the key witnesses were interviewed one more time. Boulton did not conclude so definitively, but his analysis suggested that the evidence pointed strongly to falsification. Cochrane suspended Des Barres, who then travelled to London to put his case directly before the British government.[3]

To his superiors in the Colonial Office, Cochrane described this as a “very painful investigation” concerning allegations of extreme judicial and ethical misconduct. Des Barres’s duty was to protect the law, not subvert it. If the charges were true, particularly falsifying the summons, he was morally unfit to hold public office. Cochrane felt that Des Barres was guilty and should be removed from the bench, while Des Barres accused the governor of holding a personal vendetta against him. Des Barres got his chance to present his case before the justice committee of the Privy Council in 1835. By this time, Cochrane, who had grown increasingly unpopular and was at odds with the Liberals and Catholic bishop Michael Anthony Fleming, had been replaced as governor and there was disarray in the Supreme Court. According to sources in Newfoundland, perhaps out of fatigue and to get the superior court running again, there appeared to be a path back to the bench for Des Barres, though the colonial secretary was still not satisfied with his explanations and wanted to see another trial on the forgery allegations, preferably outside of Newfoundland.

William Gosse, “Water Street, St. John’s, Looking West, in 1837,” Newfoundland and Labrador Heritage Website.

In the end, Des Barres arrived in Newfoundland in late 1835 to stand trial in the Supreme Court a second time, which found him not guilty of falsifying the court orders. He was reinstated and quickly joined the court on its southern circuit – his regular jurisdiction – with everyone apparently content to turn the page on this scandal.[4] Des Barres, who was first appointed as an assistant judge to the Supreme Court in 1826, served in that capacity until 1858, when the court was reformed under responsible government. He retired to London and passed away in 1866. According to Judge D.W. Prowse, writing many years later, Des Barres, who was the son of the celebrated military surveyor Joseph F. W. Des Barres, “was a most prudent and correct man.” The police and government of the early 1830s might have disagreed with that assessment. Des Barres’s public contempt for the police and magistracy, obstruction of justice, and falsifying court orders shocked many observers. For constables, this kind of treatment from a judge was unusual, but the not guilty verdicts were all too common – consistently in the nineteenth century, citizens who physically and verbally abused policemen were acquitted by local juries or got off with relatively small fines. In terms of the law, however, this case demonstrates that the St. John’s Constabulary was doing its job, actively patrolling and monitoring conditions on city streets, reporting transgressors of the Nuisance Act to the Sessions, executing summonses, attending the Sessions as officers of the court, and reporting Des Barres’s attempts to obstruct justice to the magistrates. They stood up to the Supreme Court judge and incurred his wrath by explaining that as policemen they answered to the magistracy, not to him personally.[5]


Keith Mercer is an Historian and the Cultural Resource Manager for Parks Canada in Mainland Nova Scotia. He is based at Halifax Citadel National Historic Site. This blog, reproduced with the kind permission of Flanker Press, is an excerpt from his new book, Rough Justice: Policing, Crime, and the Origins of the Newfoundland Constabulary (St. John’s: Flanker, 2021), 383-87. The book was commissioned by the Royal Newfoundland Constabulary Historical Society. Its official publication date is 31 March 2021. See Flanker’s website for more details. 


Notes:

[1] 3 Will. IV, c. 8 (1833), in Acts of the General Assembly of Newfoundland (St. John’s: Ryan and Withers, 1833), 45-48; The Consolidated Statutes of Newfoundland (St. John’s: F. Winton, 1874), 354-57; Journal of the House of Assembly of Newfoundland (JHA) (St. John’s: William R. Shea, 1840), 181-84; JHA (1841), A126-27; JHA (1850), A28, 58, 63, 69, 73; E.M. Archibald, Digest of the Laws of Newfoundland (St. John’s: H. Winton, 1847), 193-94; P.W. Carter and C. Simms to Colonial Secretary, 29 June 1840, in Minutes of Evidence taken before the Select Committee appointed to inquire into the State of the Colony of Newfoundland (London: House of Commons, 1841), Appendix, Considerations upon Political Position, 5; A Ferryland Merchant-Magistrate: The Journal and Cases of Robert Carter, Esq., J.P., 1832-1852, eds. Gerald Barnable, Christopher Curran, and Melvin Baker, 3 vols. (St.John’s: Law Society of Newfoundland and Labrador, 2013), Journal: 2, 15 July 1833, 35, 37; Ferryland Sessions: 2 Sept. 1833, 339.

[2] Cochrane to R.W. Hay (with enclosures), 23 May 1834, National Archives of the United Kingdom (NAUK), London, CO 194/87, 197-268; R v. Des Barres, 25 Jan. 1834, Provincial Archives of Newfoundland and Labrador, The Rooms, St. John’s, GN 5/36, Supreme Court Minute Book, 1834-36; JHA (1835), 1: 5, 8-11, 17.

[3] Cochrane to Hay; Boulton to J. Crowdy, 25 Nov. 1834, NAUK, CO 194/88, 368-81; JHA (1838), 1: A87-105; Hereward and Elinor Senior, “Boulton, Henry John,” Dictionary of Canadian Biography.

[4] Privy Council Report, 1834, NAUK, CO 194/88, 311-19; Cochrane to Lord Glenelg, 4 May 1835, NAUK, CO 194/91, 191-94; G. Grey to Des Barres, 27 July 1835, NAUK, CO 194/93, 214-20; Glenelg to Gov. Henry Prescott, 30 July 1835, NAUK, CO 194/93, 224-28; Prescott to Glenelg, 1 Oct. 1835, NAUK, CO 194/91, 49-51.

[5] The Newfoundlander (St. John’s),12 March 1866; D.W. Prowse, A History of Newfoundland: From the English, Colonial, and Foreign Records (London: Macmillan, 1895), 423, 484-85; R.J. Morgan, “DesBarres, Joseph Frederick Wallet,” DCB. Robert Carter, a long-time magistrate and merchant in Ferryland, dealt with Des Barres regularly when he visited on the Supreme Court’s southern tour. On 21 Oct. 1833, a month or two before the incident in St. John’s, Des Barres gave a judgment that shocked Carter: “…a most extraordinary charge was given by Judge DesBarres from the Bench, most certainly strongly biased in favour of the prisoner, and such language was then held forth by him as must have astonished everyone.” Des Barres acquitted Philip Bryan on two charges of assault and battery, including against Richard Sullivan, Ferryland’s senior constable. Perhaps coincidentally, the previous month Sullivan was busy rounding up loose swine on Ferryland’s roads, which the magistrates then sold at public auction under the recently-passed Nuisance Act. It is unknown whether Bryan assaulted Sullivan because of the policeman’s role in seizing nuisance animals, and if this might have been the reason for the judge’s tirade in court, but it is similar to what happened in St. John’s a short time later. Carter was not surprised when Des Barres was suspended from the Supreme Court because of his “abusive language towards the Magistrates.”

About The Acadiensis Blog

The Acadiensis Blog is a place for Atlantic Canadian historians to share their research with both a scholarly and general audience. We welcome submissions on all topics Atlantic Canadian. If you are interested in contributing to the blog, please contact Acadiensis Digital Communications Editor Corey Slumkoski at corey.slumkoski@msvu.ca.
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