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BLANCHARD, HIRAM – Volume X (1871-1880)

d. in Halifax, 17 Dec. 1874

Confederation

Responsible Government

Sir John A. Macdonald

From the Red River Settlement to Manitoba (1812–70)

Sir Wilfrid Laurier

Sir George-Étienne Cartier

Sports

The Fenians

Women in the DCB/DBC

The Charlottetown and Quebec Conferences of 1864

Introductory Essays of the DCB/DBC

The Acadians

For Educators

The War of 1812 

Canada’s Wartime Prime Ministers

The First World War

‘All the privileges which Englishmen possess’: Order, Rights and Constitutionalism in Upper Canada
 

The Rise of Lawyers

 

‘Lawyers must … become the most powerful profession’

John Strachan

 

‘The gentlemen who composed the bar … were men of learning, honour, and inviolable integrity’

W.W. Baldwin

 

Irish-born and trained in medicine at the University of Edinburgh, William Warren Baldwin arrived in Upper Canada in 1799 ready to make his way in the New World. He settled on a farm in Clarke Township with his father, but life in the backwoods was not all that he wished, either professionally or socially. He moved to York in 1802; medicine, however, was not a path to preferment. That same year, he advertised the opening of a classical school. The real change in his fortunes came the following year when he became an attorney and was admitted to the bar. This self-taught young man – he had borrowed a set of Sir William Blackstone’s Commentaries on the laws of England – had found a profession worthy of his ambition and had gained special entrance to it. Within three years, he garnered the first of several government legal positions. His practice grew steadily, even spectacularly. By 1819 he was clearing £600 per annum from his practice alone. The following year, he had a partner and three articling clerks, and was beginning the second of his four terms as treasurer of the Law Society of Upper Canada. William Warren Baldwin the lawyer had most definitely arrived.75

Baldwin had chosen wisely. In a colony whose population was growing steadily, York was, and would remain, the largest town. Moreover, as J.K. Johnson has demonstrated in his study of the members of the House of Assembly, law provided the ‘best possible background for a wide range of jobs.’ Johnson found that, of the forty-seven lawyers who sat in the assembly during the Upper Canadian period, more than 74 per cent held one or more government offices. Law offered, by far, the highest overlap with government preferment of any profession.76
 

When the first district courts of common pleas were established in 1788, there were only two lawyers with legal training in the province. Others practised but without the benefit of training.77 There were certain advantages to the courts of common pleas located in each district. They offered suitors a comfortable mixture of tolerance for both English and French civil law; they were decentralized and able to meet many local needs, particularly close proximity; and certain judges such as Richard Cartwright* exhibited a preference for the interests of justice over the prerequisites of procedure (at least insofar as justice served the interests of large merchants). None the less, there were complaints. For one, the judges were too closely identified with the emerging mercantile class of men. After the establishment of the new province in 1791, officials such as Lieutenant Governor Simcoe and Chief Justice Osgoode were determined to reorganize the colony’s legal structure on English models.78

Between 1792 and 1794, Simcoe and Osgoode (through executive and legislative initiative – Osgoode, as chief justice, was president of the Executive Council and speaker of the Legislative Council) overhauled the administration of justice in Upper Canada. The essentials of the new order were the reception of English law in matters of property and civil rights (with the exception of the poor and ecclesiastical laws), the introduction of trial by jury, and the establishment of courts of request (organized on a district basis) to handle debt in matters not exceeding 40s. Other acts set up district courts to handle sums above 40s. but less than £15, as well as a court of probate and district surrogate courts.

The centrepiece of judicial reform was Osgoode’s so-called Judicature Act of 1794 instituting the Court of King’s Bench, which consisted of a chief justice and two puisne justices. The old district courts of common pleas were replaced by King’s Bench as the single superior court of both criminal and civil jurisdiction for the whole province. There was no provision for a court of chancery until late in the Upper Canadian period (1837); before then, chancery cases were administered by the master in chancery. Justices of King’s Bench travelled on several circuits a year hearing cases in the districts under commissions of assize and nisi prius (for civil cases), and of oyer and terminer and general gaol delivery (for criminal cases).79

Within the space of two years, the administration of justice was reorganized upon English models using, for the most part, English forms and procedures. Moreover, its management had been centralized at the capital, York, in the hands of crown officials consisting of the attorney general, the solicitor general, and their tiny administrative staffs, and the justices of King’s Bench and their small staff (superintended by the clerk of the crown and the common pleas). These changes erected a significant district legal structure and established an important area for the exercise of the crown’s control of patronage in local matters. Just as critical, this patronage was beyond the control or suasion of the assembly. The list of local appointments relating to the administration of justice included: district court judges, surrogate court judges, clerks of the peace (who handled the administration of the district courts of quarter sessions), sheriffs (who were responsible for grand juries, jails, writs of the local courts, and the execution of sentences), and magistrates. The justices of the peace sitting in general courts of quarter sessions of the peace acted as an inferior court of first instance in cases of petty crime (usually drunkenness and minor assault and battery); in addition, they performed an equally important function, that of providing municipal government.80

Four short, but crucial, points need to be made about these changes. First, in a manner somewhat similar to that of the Constitutional Act, significant English models were transplanted to a colonial setting.81 Secondly, there was bitter yet percipient reaction to their imposition, particularly to the Judicature Act, from Richard Cartwright (a loyalist merchant and legislative councillor) and Robert Hamilton (a merchant and legislative councillor). They objected basically to the inherent complexity and centralization of the so-called reforms, their inappropriateness, as it were, to the conditions of a young colony.82 (It would not be the last time that this charge was voiced; Cartwright and Hamilton were, possibly, slightly more prescient and certainly more self-interested than most.83) Thirdly, the new legislation gave rise to a substantial number (by comparison with what had preceded it) of crown appointments within each district. Fourthly, the new edifice could not possibly be managed or maintained without the development of a professional class of lawyers.

The necessity of the latter was recognized in a 1794 act authorizing the lieutenant governor to ‘licence practitioners in the law.'84 The point was to alleviate immediately the paucity of lawyers. Three years later, the legislature passed an act establishing the Law Society of Upper Canada, an act that among other things introduced the distinction between barristers and attorneys, and allowed the new body to draft rules for its own governance.85 A further act was passed in 1803 to empower the lieutenant governor, once again, to ‘licence practitioners in the law.’86 W.W. Baldwin was licensed under this act, an act which was justified by the belief that ‘unless the number [of lawyers] can be speedily increased, justice will in many places be with great difficulty administered.’87 The colony’s population in 1806 was approximately 46,000. The number of attorneys admitted by 1810 was thirty-five, while the number of barristers enrolled was forty-two (almost all attorneys were barristers as well).88

The importance of the legal profession, reflected in W.W. Baldwin’s stature by 1821, was recognized early in the 1820s by changes to the 1797 act. In 1821 Attorney General John Beverley Robinson and Archibald McLean* introduced a bill in the assembly to incorporate the Law Society. The purpose, according to Robinson, ‘was principally to prevent persons from Great Britain and Ireland practicing in this Province, without conforming to the rules of the Law Society … and to enable the Society as a body corporate, to hold a [piece of] land for the erection of a hall, and other buildings for the use of the Society.’ The rules deemed that a student-at-law spend five years serving with an attorney, pay £10 on being bound, and £20 on being admitted to the books of the Law Society. W.W. Baldwin was ‘favorable to the general provisions,’ noting that practitioners from Great Britain and Ireland ‘were generally of good education and talents, and could not fail to be an acquisition to the country.’ If they met the provisions of the bill, they should be admitted.89

Others would not support it. The bill was publicly attacked in John Carey’s York Observer, and assemblymen of independent and critical mind had difficulty with several aspects of the measure, such as its awarding of potentially exclusionary powers to the Law Society, its giving the society the right to set fees, and its omitting a clause limiting how much the society could raise to buy land and erect a building. Charles Jones*,90 for instance, a Brockville merchant irritated by the imposition of martial law during the War of 1812, was determined to define by statute the Law Society’s power to set fees and to determine who should be allowed admittance. What would stop it, he suggested, from charging students-at-law £10,000, thus preventing persons ‘from coming forward at all.’ As he said, he ‘felt suspicious.’ Jonas Jones*,91 a lawyer and a friend and classmate of Robinson, deemed his brother Charles’s arguments ‘ridiculous.’ Even were the Law Society to draft ‘an improper rule’ of that sort, the Court of King’s Bench would ‘not allow it.’

Charles Jones, however, remained unconvinced. He wanted the Law Society to be ‘respectable but he would keep them under the laws,’ the justices of King’s Bench notwithstanding. ‘To give this power to such a society of men was dangerous.’ In spite of the reassurances of the attorney general that everything was ‘correct and proper,’ Jones reiterated the major thrust of his opposition – that the Law Society ‘should be governed by law’ and that ‘this bill did not sufficiently explain their [the society’s] privileges.’ The assembly, he thought, ‘should provide against every contingency, and define the power of the Society so that they should not demand unreasonable terms.’ Jones even suggested that, because the present Law Society was so small in numbers and most of its members were friends, it might ‘exclude all others’ by setting high fees for entry and admission. Christopher Hagerman was simply incredulous at Jones’s final statement. Did he think, Hagerman asked, that the ‘Law Society could make such rules as to prevent gentlemen from practising?’92 Even were such rules made, the judges would, as Jonas Jones had stated, set them aside.

John Willson*, a populist farmer and Methodist preacher from Winona, was equally critical of what he considered the bill’s exclusionary provisions. Willson maintained a lifelong suspicion of lawyers, judges, and the entire administration of justice, basing his attitude on the populist, agrarian position that justice was too centralized, too class-divided, too slow, too expensive, and too complex in its language. He had heard that the real intent of the bill was exclusion and ‘wished to watch with a jealous eye any innovations coming from this society.’ The bill ‘goes to give a monopoly which should not be tolerated.’ He had ‘a suspicion of the Law Society … Upper Canada would be ruined at last by the Lawyers’ through giving them the power to exclude those already properly qualified for admittance.

Baldwin, as noted, felt no reluctance in supporting the bill. In the first instance, a building was necessary in order that lawyers outside York would have an ‘office and a library’ when they came to town. As it now stood, although they had ‘the most important affairs of the country entrusted to them,’ they had ‘to enter into public bar-rooms, & in taverns, a most unfit place for gentlemen, who pledged themselves to the interests of their Clients, by the most solemn oath.’ The bill would add to the ‘importance and respectability’ of the Law Society. Baldwin was ‘sure that there was no Society for which the country should feel so deep an interest, as for the Law Society. Without it, whose property was safe? Whose life could be ably defended?’ For Baldwin, it was essential that the society have the power to exclude those either unqualified or unsuitable for admittance: ‘Great Britain abounded with Attornies, who were described [as] petty foggers, they engaged in low practice, and were looked upon as low … and if they were admitted to practice in our courts, it would be an injustice to the bar, and to the children of the country. The gentlemen who composed the bar of this country, he was happy to assert[,] were men of learning, honour, and inviolable integrity.’

In the assembly, the bill passed by a margin of nineteen to twelve and became law in 1822. The power of controlling admittance to the legal profession had been turned over more fully to the lawyers themselves. And they now enjoyed the privilege of raising funds, without limit, for the purposes of the Law Society. The leading assemblymen who had spoken in favour of the bill were all lawyers and included such a politically diverse group as Robinson, Baldwin, Jonas Jones, Hagerman, and Barnabas Bidwell. The mercantile and agrarian interests as represented by Charles Jones and John Willson respectively lost the day.

The following year, Robert Nichol*, a merchant from Port Dover and one of the leading opposition figures in the assembly, introduced a bill for the relief of John Boswell.93 Boswell was a recent immigrant who had practised as an attorney in London, England, with the Court of King’s Bench and as a commissioner in the Court of Chancery. Upon his arrival, he had applied to the Law Society for admittance as a barrister and was refused. To Nichol’s mind, Boswell should have been allowed to practise his profession and ‘not be expected to go into the Woods and cut down trees.’94

Baldwin defended the Law Society’s decision. The act of the previous year had been intended ‘to secure to this Province … [an] honourable Profession, which would protect the rights, liberties, and persons of the Country.’ Boswell’s application ‘was made in direct opposition [to] that statute.’ For the assembly to support him ‘would be overturning this Session what they established last.’ Nothing, Baldwin asserted, could be ‘more dangerous to the honour and respectability of the Society than to open a door for innovation.’ Jonas Jones agreed. He had been one of the benchers who had made the decision. There was no objection to admitting Boswell as an attorney if the legislature thought it proper. But it was ‘not expedient to call him to the bar to practice as a barrister.’

Nichol took issue with Baldwin and Jones. The history of the Law Society was a history of exceptions such as the acts of 1797 and 1803 appointing barristers by executive fiat. Baldwin replied that when those bills were passed ‘there was a scarcity of Lawyers … and in order to supply the deficiency,’ they were enacted. Now, however, circumstances were different; ‘lawyers were to be found in every district.’ Parents were ‘educating their sons at a great expense for the profession of the law’ and it would be a ‘great injustice’ therefore ‘to admit gentlemen coming from other Countries.’

David McGregor Rogers, a loyalist assemblyman, raised the old popular concern that ‘Counsellors fees were very large’ and the Law Society was trying to keep as much for its members as possible. Although Boswell would be entitled to an attorney’s fees, ‘he should enjoy,’ Nichol thought, ‘the full benefit’ of a barrister’s fees as well. James Crooks*, another merchant, observed that gentlemen of the bar gladly encouraged immigrants ‘to cut down wood, and for other purposes, but they would not admit Lawyers.’ A committee, chaired by Nichol, met with the Legislative Council to secure its concurrence. The council made several amendments that were supported by the assembly and the bill ultimately passed.95 Boswell was admitted as an attorney almost immediately (on 24 April 1823), but the benchers of the Law Society insisted that his name stand on its books for five years before he could be admitted as a barrister. After waiting a suitable period, he was enrolled as a barrister in Trinity Term 1825 along with Robert Baldwin, son of William Warren. In spite of legislative intervention on Boswell’s behalf, the Law Society had, as one historian put it, ‘saved its face.’ More important, the benchers asserted ‘their fixed determination to resist all future examinations for admission contrary to the existing Laws of the Province.’96

Between 1821 and 1830, 94 barristers were entered on the Law Society’s rolls; from 1797 until 1841, a total of 285 men became barristers. In the same period, 322 were admitted as attorneys.97 As the debates of 1821 made clear, the framers and supporters of the act envisaged a respectable, self-regulating profession of gentlemen. To patricians such as W.W. Baldwin, lawyers had a particular responsibility to uphold what the constitution secured, property and civil rights. Baldwin shared these beliefs with the man who introduced the 1821 bill, Attorney General John Beverley Robinson. From the 1820s on, lawyers, more than any other profession, dominated political leadership in Upper Canada/Ontario. In the minds of Robinson and others, lawyers (and the word, as the 1821 debate demonstrated forcefully, was synonymous with gentlemen) could be counted on to fill the gap in the social structure caused by the absence of an aristocracy. As Strachan put it in 1826: ‘Lawyers must, from the very nature of our political institutions – from there being no great landed proprietors – no privileged orders – become the most powerful profession, and must in time possess more influence and authority than any other.’98

 

The Law, the Constitution, and Rights

 

‘Proceedings, heretofore sanctioned by authority, and yet no less derogatory to the prerogative of the Crown than invasive of the privileges of the subject’

Grand jury, London District

 

‘The practice of the Court is unjust, oppressive, and influenced’

J.M. Jackson

 

‘Who would overturn the constitution, and subvert the law’

Joseph Willcocks

 

British constitutionalism and the mythology of the rule of law was more pervasive than anyone imagined. And its content was more broadly defined than anyone in the colonial administration would have wished. The constitutional and legal structures of Upper Canada had been established, if not in the face of popular opposition, then at least against popular expectations. Loyalists, to the extent that they expressed themselves, had no desire for the constitutional package thrust upon them in 1791. The Judicature Act of 1794 was passed at gubernatorial insistence over significant opposition in the Legislative Council. It is safe to assume that the late loyalists, those non-loyalist American settlers who flooded into the province after Simcoe’s offer of free land to ‘such as are desirous to settle on the Lands of the Crown,’99 could hardly have been enamoured of either development. By 1796 the population had swelled to 25,000 and ten years later reached 46,000; the increase was largely non-loyalist.100 The late loyalists lacked even an emotional attachment to the crown or Pettit’s unspecified commitment to the ‘british Constitution.’ Typical of the American response to the offer of free land was a petition of 229 Americans who had ‘a Wish to embrace the earliest Opportunity … [to] form a settlement.’101

The 1790s witnessed three great popular demonstrations of political opinion that drew their support from loyalist and non-loyalist alike. All were outpourings of hostility to monopoly. The first was a province-wide furore over a contract from the British treasury to supply military garrisons. Agents were appointed in Montreal and Quebec and these merchants, as a result of lobbying in London, subcontracted the supplying of Upper Canadian military posts to four merchants exclusively. Although limited to two years’ duration, the monopoly contract aroused almost universal opposition. Concerted pressure at the constituency level was so widespread and sustained that it could not be ignored. Assemblymen were determined to do something and only Simcoe’s intervention kept them from acting collectively within the legislature. Instead they petitioned the king in their individual capacities. On 9 July 1793, fifteen of the sixteen members signed a remonstrance protesting ‘that all Monopolies in a Young Country are highly injurious’ and urged the monarch to action. With Simcoe’s blessing the monopoly contract was cancelled the following year.102

The second eruption was more local in nature but just as important. It occurred in the Niagara peninsula, one of the first and primary areas of loyalist settlement. There, the leadership provided initially by the officer corps of loyalist military units had been quickly supplanted by a largely Scottish and non-loyalist mercantile élite dominated by Robert Hamilton of Queenston. He had been one of the four merchants connected to the monopoly contract at the centre of the 1793 furore. Six years later, he and two other merchants sought assembly permission to improve the road between Queenston and Lake Erie, and to build a canal linking lakes Erie and Ontario. As recompense for their expenditures, the merchants demanded a monopoly over tolls. An imbroglio ensued. In the election of 1800 the local mercantile candidates, despite their concerted efforts, were defeated by a coalition of aggrieved interests – farmers, petty merchants, and former loyalist officers. After the election, four petitions of varying size – the largest had over 1,000 signatures – were tabled in the assembly. The language of one petition denouncing the merchants’ proposal ‘as monopolous and oppressive’ was typical.103

The third outbreak was simultaneous with the campaign against Hamilton’s bid for a canal. In this case, the disdain for mercantile monopolies and the friction resulting from a perceived antagonism between farmers and merchants was replayed within the legal realm. At issue was the judgment of the Court of King’s Bench on a writ of execution against the lands and tenements of the plaintiff in the case of Daniel Bliss v. Samuel Street. Argued before Chief Justice John Elmsley* and puisne justices Henry Allcock* and William Dummer Powell*, the case had aroused intense interest among farmers and merchants alike. The crux of the matter was a process that had, according to Powell, been normal procedure for twenty years.104 The controversy might even have sputtered and died had the court’s decision been unanimous. Elmsley and Powell upheld what the latter alleged was established practice; Allcock, however, recorded his dissent that the ‘plaintiff … cannot take out execution against the defendant’s lands.’105

Allcock was only defending the landed basis of an aristocratic society,106 but his dissent provided farmers with a possible legal barrier against the seizure of landed property for debt and the effect rippled through the agrarian community.107 In the columns of the Canada Constellation ‘Acres’ observed that, ‘if lands are taken by execution, it will ruin this country.’ ‘A Friend to Justice’ replied in the Gazette, denying any moral difference between landed and movable property. Britain was a commercial country with great wealth and only a few landed proprietors, whereas, ‘Canada … is merely an agricultural country; the wealth of the generality of its inhabitants consists solely in their lands.’ He admitted that the property of a farmer and a merchant were ‘nominally different,’ yet ‘in effect’ they were ‘the same, and should consequently be liable to attachment for their bona fide debts.’ The rule of law must apply, he declared, to ‘every species of property.’ The stake of merchants in the decision was fundamental in a colony such as Upper Canada: ‘Where landed property is so general, where so much is transacted on the credit of lands, they may be considered as its immoveable staple, or a species of currency; and on one part the guarantee in all cases of debt, or considerable transactions of the general internal commerce.’108

Politics, law, and the structure of the social order overlapped as heretofore largely inchoate undercurrents of popular opinion began to find a political voice, albeit at times in odd places. At this juncture, Allcock’s decision made him an unlikely tribune in the election of 1800; he was elected in a campaign that witnessed ‘Cato’ defending ‘eminence of station’ as a proper attribute for political candidates, and ‘Farmer’ extolling the merits of an ‘honest, upright and just man.’109 Allcock’s election was contested and he was ultimately unseated. His successor, Angus Macdonell* (Collachie) – a lawyer, one of the counsel in Bliss v. Street, and a self-styled ‘Friend of the People’ – saw at work in society a struggle for the rights of the people, farmers and mechanics, against a coalition of officeholders, placemen, and large merchants. Here was something new: the old and common antipathy to higher orders, a thread that seems to have cut across religious denominations and ethnic groups, married to the political language of rights.

Collachie was one of the unfortunates drowned in the sinking of the Speedy in 1804.110 A significant figure in the political landscape of early Upper Canada, he helped to articulate the political language of opposition around which a fluctuating coalition of opposition assemblymen coalesced between 1805 and 1812. Interestingly, his ideas were shared even by a political rival. William Weekes*, a quixotic Irish lawyer and client of Allcock, was one of Macdonell’s unsuccessful opponents in the election of 1804. In his election broadside, Weekes drew upon the language of rights as well as the constitution, claiming himself to be ‘unconnected with any party, unsupported by any influence, and unambitious of any patronage, other than the Suffrages of those, who consider the impartial enjoyment of their rights.’111

Ideas were not only useful to political action, they were expressions of the reasons and motivations for political action. Under the banner of these clusters of ideas, diverse interests within the assembly coalesced. Political opposition within the assembly and the discussion of rights and the constitution were coeval; their emergence was not simply a matter of coincidence. Politics was transformed as individual opposition gave way to collective action and the assembly became a place of political initiative rather than merely political reaction. The politics of personalities was replaced by a politics dominated by opposition, issues, and questions of rights. Most important, the political/constitutional language of opposition developed within the framework of the phrase, the king and the constitution. The opponents of successive Upper Canadian administrations emphasized preservation of the king’s prerogatives and the people’s privileges. The crucial middle ground mediating between a monarch and his people – the aristocracy – was either ignored or attacked.

Following Collachie, first Weekes and then an Irish judge of the Court of King’s Bench, Robert Thorpe*, defined the colony’s problems within the framework of constitutional rights. For example, in an election broadside of 1805 (a by-election to replace the drowned Macdonell) Weekes elaborated a need for the ‘vigilance of the legislator over the rights and privileges of his Constituents’ and for an impartial and mild administration of justice. Specifically, Weekes attacked the Sedition Act of 1804 as an infringement upon the ancient liberties of Englishmen. Those who ‘maintain the immunities of the people,’ he reasoned, ‘do more than render a temporary benefit to the Country, inasmuch as that a security against arbitrary or oppressive measures tends not only to preserve the tranquillity, but also to promote the prosperity of the State.’112 One of the salient features of this language was the assembly’s inherent right to custodial care and protection of constitutional rights. This insistence dominated the rhetoric of oppositionists such as the Baldwins in the 1820s and the 1830s.

Language of this kind struck a responsive chord in the experiences of the aggrieved. Three examples will suffice to demonstrate the emerging relationship between the opposition within the assembly and that group’s use of the language of British constitutionalism, the prerogatives of the people, the privileges of the people, and the rule of law. The touchstone of grievance was the perception of arbitrariness. What was considered arbitrary? – first, executive initiative on matters of immediate concern to ordinary settlers. Between 1798 and 1804, the successive administrations of Peter Russell* and Lieutenant-General Peter Hunter* implemented changes designed to facilitate the reform of government departments. Hunter, who as commander-in-chief was often away in Lower Canada, formed a committee to handle routine administration on those occasions. This novelty, combined with his personal aloofness and desire for greater efficiency in government, had the effect of concentrating power in the hands of a few, select advisers. Russell noted that three and occasionally a fourth ‘are the only persons of his Cabinet.’113 Two of the crucial three were Scots; one of them was Attorney General Thomas Scott, another Chief Justice Allcock. The effect was to tie the governor and his intimate aides closer together, both in fact and in public perception. The situation also demonstrated a close connection between the first law officer of the crown, the attorney general, and the first officer of the court, the chief justice. Rightly or wrongly, the perception was that the separation between executive and judiciary had been undermined.

Hunter’s attempt at ‘bringing into order the Land Granting Department, and … clearing away the very large arrears of Business,’ as Allcock later put it,114 caused no end of grief. There was a backlog, the natural result of patents costing more than what the officials responsible for issuing them were allowed to charge. Hunter simply raised the fee schedule, to universal howls from a society in which everyone wanted land and as cheaply as possible. He also moved to limit the number of free grants on which fees were not payable. Loyalists and military claimants were his main targets. The free grant was a symbol of the crown’s bounty, a reward for faithful service, a mark of the covenant that existed between the crown and its loyal subjects. His inspector general struck 900 names from the uel list. A time-limit was imposed for the submission of loyalist claims, and Hunter even ordered that only personal submissions to the Executive Council would be considered.115 The loyalists cried their displeasure at the seeming abrogation of their entitlement. A leading loyalist and major Kingston merchant pointed out to Hunter, with classic understatement, that ‘discontents are prevailing on this subject.’116

Secondly, large numbers of the population could not tolerate the privileges that accrued to the Church of England as a result of the Constitutional Act and the restrictive laws passed by the legislature in 1793 and 1798. The first limited the right to perform legal marriages to Anglicans; the second extended it to Presbyterians and Lutherans. In 1802 alone three petitions were tabled in the assembly urging redress. A group of Methodists claimed that their churches and congregations ‘are numerous and a large number of the principal members are of those people called U.E. Loyalists or their descendants … your petitioners trust their loyalty in the defence of the rights of the best of Sovereigns would be as conspicuous as it heretofore has been.’117 They complained that they had the same duties as subjects of other denominations had but were denied similar rights; specifically, they did not enjoy ‘an equal participation … in their religious rights,’ particularly in solemnizing the ‘religious rites of marriage.118 Four years later, as a member of the assembly, Weekes tabled an almost identical petition of some 238 Methodists seeking the right for their preachers to perform legal marriages.119

The third example concerns one individual rather than a group or a denomination. Yet it illustrates the transformation of private grievance into public action, action framed by the language of civil liberties and the constitution. Benajah Mallory* had prospered in Burford Township, London District, as a merchant, businessman, innkeeper, and land speculator.120 A man clearly on the rise in local affairs, he had a powerful patron at York in the person of Surveyor General David William Smith*. The latter had secured for Mallory a captaincy in the militia and later recommended him for the magistracy. Mallory, however, clashed with the local officeholding élite (an élite established, at least in part, as a result of the legal restructuring of 1792–94) as represented by two exemplars of loyalism, Samuel Ryerse* and Thomas Welch*.121

Like many people in the province, Mallory was disenchanted with the operation of district courts and, particularly, the schedule of fees. His criticism of personal maltreatment suffered at the hands of Ryerse, the judge of the district court, brought him into direct conflict both with Ryerse and with Welch, also a leading local official of the court. The prospect of an open breach displeased Welch, who tried to forestall developments with the hope that the ‘Religious, the Humane Capt. Mallory’ did not ‘mean … to advance your Popularity by impeaching the Conduct of the Judge of this District, and his Clerk.’122

In fact, Mallory headed a challenge to the loyalist officeholders. In 1804 he took his challenge into the political arena, contesting the local riding against Ryerse. Lord Selkirk [Douglas*], observing the campaign, noted that ‘electioneering seems here to go on with no small sharpness.’123 Mallory won a convincing victory, 166 votes to 77, thereby setting the stage for an escalation of the factionalism which was, by now, the defining political characteristic of the London District. His entry into the assembly was a case of personal spite and local politics. The district élite, when challenged, responded with denunciations of the Mallory-led group as seditious Methodists determined to undermine ‘good Order.’ Welch related a conversation with one of Mallory’s adherents, who declared that the province would become ‘a very good Country after we have adriven out of it all the old Tories and Half Pay officers, and have a new Constitution like that of the United States.124

Although never a major participant in the assembly, Mallory epitomized the American immigrant castigated by Lieutenant Governor Gore as retaining ‘those ideas of equality & insubordination much to the prejudice of this Government.’ These people, he thought, would become ‘internal enemies’ and would be ‘very much to be dreaded’ in the event of war.125

Ensconced in opposition from 1804 until his defeat in 1812, Mallory felt the wrath, or so he and others thought, of a vengeful executive supported by a compliant judiciary. In 1803 Richard Cartwright had financed the expansion of Mallory’s Burford enterprises with a large loan. On 15 January 1807 Cartwright won a judgment against him for debt of £1,887 17s. and costs. Mallory could not pay. As soon as the question of execution against landed property was settled in mid-1809, writs were issued against his land and two parcels were subsequently seized and sold at auction. Thus, he was one of the first to feel the effect of the resolution of that particular legal controversy. In 1810 he was charged with assault against Sheriff Thomas Merritt* of the Niagara District, but was acquitted. Late in 1811, he suffered another judgment against him for debts of £1,000 and costs. He later claimed it had cost him ‘near’ $2,000 just to defend himself during these years.126 During the summer election of 1812, Mallory entreated the electorate to ‘repell oppression accompanied with tyrenhy’ and blasted the ‘most blackest and unConstitutional Designs’ against him.127 He lost and it was later asserted that the executive had fixed the election against him.128

As the case of Mallory demonstrates, the rise of an opposition in the years prior to the War of 1812 was a reaction to threats, either real or perceived, from an executive considered abusive of its power. The challenge to an irresponsible executive drew upon the popular antipathy to monopolies and the aversion of one nationality for another; it gained strength from groups aggrieved over their seeming lack of rights, and also capitalized on the bitterness of other groups smarting from the recent loss of privileges; and finally, it offered an explanation why individuals felt abused when their civil liberties were infringed upon or jeopardized. In this manner, executive action on loyalist grants, legislative inaction on Methodist rights, judicial upholding of merchants’ interests over farmers’, and individual injustices were drawn together. Since many key officeholders and executive councillors were Scots, Mr Justice Robert Thorpe, for one, loudly railed against the ‘scotch Pedlars, that … have so long irritated & oppressed the people … this Shopkeeper Aristocracy.129 This language could be easily extended – and was, by both Thorpe and William Weekes – to abuses in the public accounts130 and within the administration of justice.131

Men such as Weekes and Thorpe had a good sense of the real grievances of Upper Canadians; in Weekes’s case it came from experience, in Thorpe’s it was acquired (probably from Weekes).132 Weekes, as a lawyer, was concerned largely with civil cases involving both debt and land. He was also, as indicated earlier, a client of Allcock, the dissenting judge in Bliss v. Street. Interestingly, Weekes defended William Willcocks* in the celebrated case of Gray v. Willcocks, which reopened the social and legal issues thought to have been settled by the judgment in Bliss. Willcocks’s case came before the Court of King’s Bench in 1803 but judgment was not rendered until 10 January 1806. Mr Justice Powell adhered to his original decision that landed property could be seized in cases of debt. Mr Justice Thorpe, who seems to have learned what he knew of the province from Weekes, followed the argument developed by Allcock. The split necessitated an appeal to the king and his council and was not finally resolved until 1809, when the original decision of 1799 was upheld.133 Like land-granting and the extension of religious rights, this issue touched ordinary lives directly. And Upper Canadians knew it. The Upper Canada Gazette commented on the extraordinary interest in the case:

As the question excited much anxiety, as well in the Landed as in the Commercial interest; a number of the most respectable persons in the Town [York] and its vicinity, attended to hear the judgment of the Court, and Mr. Justice Thorpe on delivering his sentiments, entered into the consideration of soccage tenures, and the exposition of the Statutes, in a manner which afforded the highest gratification to every admirer of the English language and the Law.134

The interplay of interest, grievance, and constitutional rhetoric was evident in the Home District petition presented by Weekes to Lieutenant Governor Gore in August 1806. The signatories expressed their ‘unshaken loyalty and attachment’ to the king and his government, and affirmed their ‘zealous attachment to the constitution.’ They criticized the extent to which ‘prerogative and privilege have been indiscriminately sacrificed at the shrine or arbitrary imposition.’ Their foremost concern was the restoration of, and adherence to, the constitution. They claimed:

The institution of the Government, from which we receive our hereditary protection, has antiquity for its origin and the wisdom of ages for its support – That it has gained celebrity with time and perfection with experience, and that any deviation from its principles must be an abandonment to our ruin; but we trust it may not be deemed irrelevant to suggest, that many among us have supported it at the hazard of their lives, and at the expense of their property – that others have resorted to it from choice and … that it is the common concern of all to transmit it unimpaired from age to age.135

Here was proof, if any was needed, that the mythology of the rule of law and British constitutionalism had a range and a currency unlike any other. On his fall circuit in 1806 through the London, Western, and Niagara districts, Thorpe urged the grand juries to venerate the constitution. In the London District the grand jury’s response showed how quickly the language of rights had percolated to the populace. It hoped that the new administration of Lieutenant Governor Gore ‘may tend to bury in oblivion, the remembrance of proceedings, heretofore sanctioned by authority, and yet no less derogatory to the prerogative of the Crown than invasive of the privileges of the subject.’136 Thorpe was encouraged.

At Niagara, while arguing before Thorpe, Weekes indulged himself in a wide-ranging tirade. His most passionate abuse was reserved for the late lieutenant governor, Peter Hunter. So violent were the denunciations that Weekes’s opposing counsel, William Dickson*, challenged him to a duel which was fought on 10 October 1806 on the American side of the Niagara River. Weekes was mortally wounded. Thorpe was stunned. He moved into Weekes’s house at York and even won his assembly seat in a by-election the following year. When the polls opened, Thorpe painted a picture of Weekes ‘looking down from Heaven with pleasure on … exertions in the cause of liberty.’137

The significance of the Niagara assizes, however, extends beyond Weekes’s untimely death and Thorpe’s subsequent election. A case that came before Thorpe at Niagara in October 1806 highlighted the concern over executive abuse of individual rights. Earlier that year Mathias Hawn (Haun) had been arrested by magistrate John Warren* on a charge of seizing goods from a wrecked ship. At his trial, defence counsel William Weekes denounced Warren as a petty tyrant, and the presiding judge, Mr Justice Powell, dismissed the case owing to ‘the Irregularity of the Crown’ (although he later claimed to have been unhappy with his decision since Hawn ‘merited a capital punishment more than imprisonment’).138 Hawn then launched a civil suit against Warren for trespass, assault, and false imprisonment, Weekes again acting as his counsel. The suit was heard before Thorpe on 3 October.139

Robert Hamilton, a magistrate himself and lieutenant of the county, was outraged. Warren’s conduct, he alleged, ‘was such as we are all free to say would most probably have been imitated by any of us. We might perhaps be mistaken in the Law, or we might deviate from some of its forms, but we have been always taught that Magistrates erring from want of knowledge when the intentions were pure would be treated with indulgence and would meet the protection of higher Courts.’140 Hamilton spoke to Mr Justice Thorpe before trial, but to no avail. After the appearance of witnesses such as Ralfe Clench, Isaac Swayze, and Alexander Stewart, Thorpe found in favour of Hawn, who was awarded damages and costs of £137 8s. 6d.141 According to Hamilton, the magistrates had conducted themselves ‘uniformly … with integrity and moderation’ and did not deserve ‘the appellation of Petty Tyrants.’ ‘If the Bonds of respect from the People to the Magistrates are once broken,’ Hamilton declared, ‘there is an end to all order and to all well doing.142

The forum where contending political visions were most in evidence was the House of Assembly. After 1807 Thorpe not only took Weekes’s seat in the assembly, he took up his fight as well. The house led by Thorpe and backed by loyalist assemblymen such as Thomas Dorland, Peter Howard, and Ebenezer Washburn took collective initiative on a variety of issues, always in opposition to the administration.143 Richard Cartwright thought Thorpe had artfully ‘seduced’ his followers: ‘They were in fact acting merely as dupes … in his [Thorpe’s] attempts to create confusion.’144 Lieutenant Governor Gore was convinced that ‘revolutionary principles’ underlay his troubles with the assembly.145 And the assembly was symptomatic of the province as a whole. Gore complained to his counterpart in Lower Canada that most settlers were from the United States ‘and of consequence retain those ideas of equality & insubordination, much to the prejudice of this Government so prevalent in that country.146

As Gore became more frantic and used increasingly harsh language to defame his opponents, they, in turn, were increasingly precise in defining their position. Under the pseudonym of ‘A Loyalist,’ Thorpe set out his case in the columns of Willcocks’s Upper Canada Guardian. Opposition, loyalty, and constitutionalism cohered:

Loyalty I conceive to consist in a faithful and fervent attachment to our King and his Government … a proper observance of the Laws, combined with a firm, independent and manly determination to support the Constitutional rights and immunities of the people. If then I understand the true meaning of loyalty and have given a proper definition of it – why are we said to be disloyal and rebellious? when, or where have we shewn any dereliction of those principles?147

He was, he wrote, only trying to maintain the ‘privileges of the people,’ impartial justice, and the constitutional rights of juries. He was, in short, a man of the ‘most loyal and patriotic motives.’148 There was a notion that ‘to be loyal, is to support any system the Government may adopt, whether consistent with, or subversive of the Constitution.’ But, on the contrary, Thorpe argued:

True loyalty is, to be faithful to your King; to guard his prerogatives … to protect inviolably the constitution of which he is the head, and to obey and uphold the law which he has sworn to administer and maintain; but surely it would not be loyalty to assist a monarch in rendering himself absolute, who would overturn the constitution, and subvert the law? If that were the case our hardy ancestors who opposed the strides of arbitrary power, and raised the fabricks of our glorious constitution, which they cemented with their blood, must have been REBELS … The true loyalist will obey and defend to the last moment of existence the prerogatives of the Crown, the rights of the people, the Law and the Constitution.149

The battle extended into the literary domain, too. John Mills Jackson*, an English immigrant to Upper Canada who had close ties with Weekes and Thorpe, returned to England in 1807 full of a profound sense of grievance. Two years later he published a pamphlet entitled A view of the political situation of the province of Upper Canada. It was not the work of an agitator attempting to foment discord. As an English gentleman, well connected politically, Jackson appealed to the fount of all authority, sprinkling his pamphlet with familiar encomiums on ‘our inestimable laws and unrivalled constitution.’ Like Thorpe, he raised the spectre of republicanism as the alternative to reform (perhaps restoration would be closer to his meaning).150 One of his specific targets was the administration of justice, which he criticized for its partiality. His catalogue of ‘impolitic and tyrannical proceedings’ included the Hawn affair of three years previously.151 First, Jackson claimed, an attempt had been made to set the case aside in King’s Bench (probably a reference to Hamilton’s conversation with Thorpe). When that ploy failed, the crown lawyer ordered the clerk of the court not to issue a writ of execution.152 ‘The practice of the Court,’ he concluded, is ‘unjust, oppressive, and influenced.’153

There were several attempts to undercut Jackson’s argument. The text of Strachan’s pamphlet on King George III, mentioned earlier, was an absurd combination of sugary images of royalty and hard-edged declarations of counter-revolutionary politics. His tendency to overkill unchecked, Strachan indulged in excesses not even a crazed monarchist could take seriously. To extol the virtues of the king was one thing; to uphold the characters of the royal princes required the suspension of disbelief. Strachan’s favourite pupil, Robinson, dismissed the pamphlet; few would have given it credence. A more considered effort was Richard Cartwright’s Letters, from an American loyalist, released and put on sale at York, Niagara, Queenston, and Kingston in the fall of 1810.154 Cartwright’s purpose was to reassure loyalists that, ‘under an Epitome of the English Constitution, we enjoy the greatest practical political Freedom.’ The touchstones of that constitution, property and civil rights, had been secured and the influence of the executive upon the assembly was as ‘little … as the most thorough paced Democrat could wish.’155

But the combined efforts of Strachan and Cartwright fell upon deaf ears. Political debate was not stifled, political opposition was not cowed; indeed, it continued to grow even under the shadows of war. The battle raged over language, and that language was of civil rights and liberties, the rule of law, and the British constitution. So strong was it that during the summer of 1813, with the colony at war, Joseph Willcocks and Benajah Mallory crossed the Niagara River and joined the Americans. In the aftermath of the imposition of martial law and the suspension of habeas corpus, Willcocks founded the Company of Canadian Volunteers, whose purpose, he said, was ‘to assist in changing the government of this province into a Republic.’156

Willcocks and Mallory were among those convicted in absentia at the treason trials held at Ancaster in 1814. Robinson, then acting attorney general, prosecuted. The flavour of Strachan’s constitutionalism had taken a slightly new emphasis, the gist of which was captured in his advice to his former student just prior to the trial: ‘Remind the Court that the public have rights as well as the Prisoners, that if frivolous objections are allowed to defeat substantial Justice, Society cannot exist.’157

 

 

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