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MACK, THEOPHILUS – Volume XI (1881-1890)

d. 24 Oct. 1881 in St Catharines

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
 

Popular Criticism

 

‘Public Justice ought to be equally administered’

St Thomas Resolutions

 

‘A race of attorneys … is arising …, crafty and subtle as regards their own private interests’

W.L. Mackenzie

 

‘The fundamental evil which retards the prosperity of this community, is the want of a regular system of jurisprudence adapted to their condition’

Commonweal

 

In the period from 1791 to 1813, contending factions waged political war within the framework of arrangements set down by the Constitutional Act of 1791. As an opposition coalesced around issues of common concern, it drew support from a broad range of groups. More important, it took its bearings largely from the political language of an Irish lawyer, William Weekes; an Irish judge, Robert Thorpe; and an Irish sheriff, Joseph Willcocks. No one had exclusive possession of the language of British constitutionalism and the rule of law, and the alliances crafted by these men within the assembly proved it. The administration of government and the judiciary had become ensnared in the very language they themselves promoted.

From the establishment of European settlement in western Quebec in the 1780s through the constitutional and legal developments of the 1790s – indeed, throughout the entire Upper Canadian period – there was another language of opposition. Possibly more popular, it had a range of complaints against the legal system, including the infrequency of the assizes, the inaccessibility of district administrative centres where court-houses were erected, the inscrutability of legal language, and the high-handedness of local court officials and magistrates. Yet another early flashpoint of discontent was high legal fees. They had been the focus of agitation in 1804 and again in 1809 and had been seized upon by two of the leading pre-war oppositionists in the House of Assembly, William Weekes and Joseph Willcocks.

The unusually high degree of agrarian interest in a number of legal issues – the seizure of landed property in cases of debt, Mallory’s battles with district court and legal officials, the dislike of high fees and imprisonment for debt,158 Cartwright’s and Hamilton’s criticism of the adoption of a complex legal structure, and the attacks by Charles Jones, John Willson, and Robert Nichol on the exclusionary powers of a self-governing, self-regulating legal profession – revealed the depths of displeasure. These grievances were a persistent feature of the colony’s legal landscape.

The agrarian populist critique (there was a substantial mercantile critique as well) was nurtured by the popular dislike of monopolies, itself an emerging form of emotional egalitarianism. Peter Howard, a second-generation loyalist living in the Brockville area, typified those who had no use whatsoever for the aristocratic emphasis of the British constitution. During the election of 1808, in a document written either by Howard or by one of his supporters, he depicted himself as ‘the poor mans friend’ and warned farmers to ‘Guard against the Combinations of the great … it is natural for them to oppress the Poor.’ He was particularly concerned about what he called the predominance of ‘Law characters’ in the assembly, lawyers who would conspire to ‘Enact Such Laws As would best Suit themselves.’159

The truth of Howard’s (or a Howardite’s) allegation had long been known to John Willson, but it touched on only part of the problem. In 1819 Willson memorialized the lieutenant governor for the judgeship of the Gore District Court. He noted that there was another suitable candidate in the person of James Crooks, a major local merchant. That was a problem to Willson’s mind:

He is a Mercantile gentleman of very extensive dealings an evil not thought of or felt by the People of the Country with respect to that office until the last year of the Late judge [Richard Hatt*, another large merchant] when he the said Judge thought proper to call for his debts and dues which was necessarily done through the Channel of a Superior Court to the great delay in the Collection of small debts and to the great addition of costs to many individuals.

Willson, a small, self-taught farmer, had ‘for Several years applyed myself with considerable attention to the study of the Laws and Constitution of England and to the attainment of the Knowledge of the Laws and Constitution of this province.’160 Farmers could look to neither lawyers nor merchants, since both groups were self-serving in terms of the administration of justice. Willson thus offered himself for the judgeship, unsuccessfully as it turned out – the position went to a lawyer. Several years later, in 1827, Willson again offered a glimpse of his view of the world. During a debate on whether to continue public support for reporting parliamentary debates, he pointed out its advantage to farmers. Without such reporting, the assembly would have been ‘composed of government officers, place-men, and pentioners’ and the consequence would have been ‘oppression.’ Even as it was, there were ‘too many lawyers’ in the house – there were seven or eight lawyers out of a total membership of forty-four – ‘for the good of the farmers.161

By the 1820s, government had been at least partially successful in coping with the demands of increasing population by erecting new districts and building new court-houses.162 Even so, the subject was still capable in the late 1820s of causing profound irritation. The selection of Hamilton in 1817 as the judicial/administrative capital of the newly erected Gore District met with sustained opposition until 1828 from overlooked communities, especially Dundas and Ancaster.163

When London was chosen in 1827 as the site for the new district court-house and jail in Middlesex County, the residents of St Thomas adopted a series of resolutions in favour of their own village. The principle, the petitioners argued, was that ‘Public Justice ought to be equally administered, and brought as near the doors of all classes of the King’s Subjects, as circumstances can admit.’ Since the majority of the population lay east of London, ‘such disproportionate distances, to travel in attainment of that end is unreasonable, and in the present instance, without any feasible excuse.’ Hence, the selection ‘was … contrary to the interest and expressed wishes of the great mass of the population of the said District.’164

The actions of magistrates either singly or in concert within quarter sessions were a perennial, deep-seated, province-wide grievance. Moreover, the overlap of judicial and municipal authority could, when abused, add to the charges of partiality. The instances are numerous; Mallory’s problems in the London District are an early example. In 1830 W.L. Daly, editor of the Spirit of the Times, noted in his paper that it was ‘high time that their Worships [the magistrates of the Niagara District] should be taught that a provincial statute is paramount to the prejudices of self-interested individuals and that the Judges of the Court of King’s Bench to say the least of them are “coeval with the profundity of their legal research.”’ At issue was a letter from ‘Z,’ ‘a very respectable source’ according to Daly. ‘Z’ complained that local magistrates had ignored the decisions of three juries and a mandamus issued by King’s Bench ordering them to follow a specific line for a road. Indeed, they specifically instructed the municipal pathmaster not to open the road ‘where the Juries formed it.’ ‘Z’ complained that such flagrant disregard not only of juries but also of King’s Bench ought not to be tolerated. The magistrates’ actions were ‘diametrically opposite to that most glorious principle of our unexampled constitution – that our Judges should administer Justice without fear, favour, or affection.’ He wondered when the justices of the peace would cease suffering ‘themselves to be dictated to by a … chairman, for the purpose of being possessed of a little authority, which he converts into a species of petit tyranny?’165

‘Z’’s letter and Daly’s editorial struck a responsive chord within parts of the local community. Subsequent issues of the Times and of other local papers advanced additional criticisms of the local magistracy, focusing on such events as the accidental death of a prisoner (Isaac Hoff) in the dungeon of the overcrowded Niagara jail. It was the magistrates’ ‘duty to examine the Gaol, and guard against any catastrophe of the kind.’ Other complaints in the Niagara District involved abuses by the local clerk of the peace and the high cost of justice (the table of fees established by the justices of King’s Bench).166 In York, Francis Collins reported Hoff’s death in the Canadian Freeman; the report was titled ‘Melancholy and Tyrannical.’167

By the 1820s, the law, the legal profession, and the judiciary were at the epicentre of a host of conflicts, each of which on its own might have been sufficient to hobble the administration of justice. Popular criticism of the legal system drew great strength from these various conflicts, but its thrust was continually blunted. It rarely, if ever, seriously altered the legal institutions or legal culture of Upper Canada/Ontario. Indeed, even when farmers and merchants combined, as in their attack upon Robinson’s Law Society Act of 1822, they were defeated.

In the flurry of charges and counter-charges, there was one fact upon which the critics and defenders of the legal system could agree: the supremacy of the legal profession, not only among all other professions within the province, but also over political institutions. The leadership of the political opposition, both parliamentary and extra-parliamentary, was dominated to a man by lawyers – W.W. and Robert Baldwin, Marshall Spring Bidwell, and John Rolph – and they had their own agenda, one that would not threaten the hegemony of their profession in the slightest. There were significant areas of disagreement among these men. W.W. Baldwin, for instance, defended primogeniture – a symbol of aristocracy constantly attacked in the 1820s, especially by M.S. Bidwell. But there was broad agreement on matters such as the repeal of the Sedition Act of 1804 (under which Robert Fleming Gourlay* was banished) and a bill (not passed until 1836) to provide statutory provision for full defence by counsel in criminal cases. It is significant that W.W. Baldwin, a leading member of the bar and one of the foremost critics of executive government in the 1820s, had strongly supported Robinson’s Law Society Act, as had Barnabas Bidwell*, Marshall Spring Bidwell’s father. Baldwin fully shared Robinson’s belief in an aristocratic order and he held that there was no higher calling than the law. Baldwin equated the bar with the rule of gentlemen, as did Robinson, and fiercely defended the prerogatives of the Law Society of Upper Canada on the grounds of its link to political stability. ‘Without it,’ he argued, ‘whose property was safe?’168

How little things had changed for the system’s popular critics is evinced by William Lyon Mackenzie*’s fulminations in 1830. The editor of the Colonial Advocate and a leading critic of the administration, he inveighed against the ‘race of attorneys, and other law practitioners … arising among us, crafty and subtle as regards their own private interests, and evidently lacking that manly spirit of independence, that disinterested love of country, which would seek first the happiness of their fellow citizens.’ Mackenzie decried the inability of good lawyers (his idea, no doubt, of an oxymoron) to ‘resist the torrent of legal taxation which seems about to mar the prosperity and corrupt the morals of the province.’ He urged legislative remedies to provide better (and by that he meant cheaper and simpler) ways of dispensing justice in the civil courts.169

A former employee of Mackenzie and now one of his chief critics, Bartemas Ferguson* had no qualms in echoing this denunciation. Indeed, Ferguson had an equally acute sense of the overweening power of the legal/judicial system. In 1819 his first attempt at a career as a printer and publisher in Upper Canada had been hobbled by a successful civil judgment against him, and then crippled by his conviction for seditious libel that same year. Commenting on local petitions to urge the legislative assembly to reduce the number of lawsuits, Ferguson lauded legislative enactment as a remedy for ‘reducing the grinding law expenses, by which thousands of our most industrious poor are plundered of their substance, and the best energies of the country paralyzed.’170

Three years later, Mackenzie denounced the administration of justice root and branch. The hand of the lieutenant governor through his prerogative (which gave him control of patronage) reached to every part of the legal system: the appointment of sheriffs who, in turn, selected grand and petit jurors; the appointment of the magistracy, which in its capacity as the municipal government had sole control over local revenue and in its legal capacity frequently committed outrages against criminal and civil justice; and the appointment of legislative councillors, who repeatedly rejected bills from the legislative assembly. Mackenzie also pointed to the restrictive libel laws; the lack of defence counsel in criminal trials; the failure to abolish primogeniture; and the favouritism given to the legal profession.171

So too, in 1834, one of Mackenzie’s correspondents, ‘Commonweal,’ having made the necessary bows to the British constitution, argued for a legal system in accord with the community that it served. He complained:

The fundamental evil which retards the prosperity of this community, is the want of a regular system of jurisprudence adapted to their condition, and the remedy is to be sought only in a thorough revision of the constitution and laws of the province – a revision which shall secure to us all our rights as British subjects, confirm to us the principles of the British constitution and establish such regulations as are applicable to our condition.172

To be sure, revisions had taken place – the criminal law of Upper Canada, for instance, had been significantly revised in 1833. But this sort of change was not what ‘Commonweal’ had in mind. The cri de cœur for a popular system of justice would not be answered.

 

Justice Blind or Justice Cock-Eyed?

 

‘There are no Laws demanding a more religious Observance than those which limit and define the Power of Individuals forming the Government over their Fellow Creatures’

Robert Baldwin, W.W. Baldwin, and John Rolph

 

‘A colony where the most unprecedented outrages have been perpetrated without prosecution’

John Rolph

 

‘We had hoped that the appointment of judges from England would redeem the character of the Provincial Judiciary’

M.S. Bidwell, speaker of the House of Assembly

 

Early in 1863, Sir John Beverley Robinson, a hereditary baronet, died. More than any other single individual, he had incarnated the hierarchical spirit at the heart of the rule of gentlemen. Francis Collins had, for instance, denounced him in 1827 as ‘the organ and representative of the Executive Government.’173 Robinson himself was privately unrepentant in defence of the order that he embodied. In 1851, in a letter to Strachan, now bishop of Toronto, the chief justice commented at some length on mutability in political affairs. He had nothing but uncompromising aristocratic scorn for the present social, religious, and political structure, but he held out hope for the future:

We shall have some years of coarse vulgar democracy, enough to worry us in our time – our sons, or at least our Grandsons will see the beginnings of a re-construction of the social edifice – more worthy of the human race – after the Church of England shall have obtained an undisputed ascendancy which in the progress of time I take to be inevitable – and after men have seen one fallacy after another in the democratic system exposed & have suffered enough from their mistake … In the mean time, it is no less the duty of all of us … to act honestly & fairly in our own convictions – believing that these difficulties & changes are appointed for our own trials – and never relinquish the hope that what is true & right will prevail.174

After Robinson’s death, an old enemy from the 1820s and 1830s wrote a letter of condolence to Robinson’s brother. The closest and most uncritical of friends could hardly have penned a more glowing tribute. Yet Marshall Spring Bidwell was careful to add to his eulogy celebrating Robinson’s life the qualification that ‘the differences between us on political questions while I was in Parliament precluded intimate or confidential relations.’175

Fifteen years earlier, Robert Baldwin had written a similar type of letter. It was to Robinson and had been occasioned by the death of Mr Justice Jonas Jones, possibly the most forthright (and that is saying a good deal) defender of the old regime among Robinson and his circle. Baldwin noted Jones’s ‘abruptness of manner which occasionally startled even those who knew him well and was often misunderstood by those who had not that advantage,’ extended his sympathy, and noted his admiration for the ‘vigor and industry with which he [Jones] applied himself to the administration of justice.’ Baldwin anticipated Bidwell’s caveat with the statement that he and Jones had been separated, not only by age and position, but also ‘by difference of political views.’176 And it was just these ‘political views’ and ‘differences’ between lawyers such as Robinson and Jones on the one hand, and Bidwell and Baldwin on the other, that led to the internecine war over the administration of justice in the 1820s.

Agitation had been commonplace in Upper Canadian society from the time of its founding. It had not, of course, occurred at every moment of every day in every part of the province, but it had been frequent enough for the observation to be deserving. ‘Vast in extent and split up by great barriers of forests and by Protestants’ was how Alexander MacDonell* of Scothouse, a Roman Catholic priest in eastern Upper Canada, described the province in 1801.177 No statement captures more neatly the sense of Upper Canadians that theirs was a deeply divided society. For this was not simply a colony or province of ‘two solitudes’ – it was a land of many solitudes, of autonomous communities separated by great barriers of politics, religion, ethnicity, sex, and geography. And often, the conflicts generated by the warring traditions within Upper Canadian society came to a head over differing conceptions of politics and religion. At the heart of these conflicts and conceptions, to a large extent, were questions about the British constitution, the civil rights of subjects, the rule of law, and the legal system.

An early generation of Upper Canadian historians such as John Charles Dent* and Aileen Dunham took seriously the charges against the administration of justice in the aftermath of the War of 1812; later historians were more inclined to overlook the various incidents and so-called outrages, or to dismiss the allegations as the work of political cranks and misfits. The earlier group, however, were building on the foundations of a tradition that had its genesis in William Lyon Mackenzie’s public attempts to weave the province’s political past into a discernible pattern.178 His story began only in the years immediately prior to the war, and he never knew that the complaints about both the structure and the administration of justice were rooted in the fabric of provincial society and were coeval with the founding of the judicial and political system. Criticism peaked and ebbed, but it did not abate.

The so-called alien question of the 1820s focused public attention on the attorney general and the administration in an especially intense way. It first surfaced in 1821, when certain members of the House of Assembly attempted to expel Barnabas Bidwell. Thereafter, the administration of Lieutenant Governor Sir Peregrine Maitland*, led by Attorney General Robinson, tried several times to pass legislation disenfranchising the late loyalists. These attempts caused a storm of protest and steady resistance, which cost the administration greatly.179

Apart from the alien question, there was also a series of incidents or outrages, some minor, some major, which caught the public eye, aroused local or provincial furore, and – one after the other – steadily eroded confidence in British constitutionalism and the rule of law among significant sections of the population. The first was the Maitland administration’s sustained effort against the Scottish agronomist and political reformer Robert Gourlay. The campaign culminated in Gourlay’s expulsion from the province in 1819 under the terms of the Sedition Act of 1804; his publisher, Bartemas Ferguson, was charged with seditious libel and imprisoned for eighteen months after a successful prosecution by Robinson.

There followed a succession of apparent abuses which damaged the credibility of Robinson and his administration: the prolonged persecution of Robert Randal* through the civil courts; the pettiness displayed against John Matthews*, accused – on evidence provided by one of Robinson’s students-at-law – of uttering treasonous statements; the depredations committed against William Lyon Mackenzie’s printing office (the so-called types riot); the trial and execution of Charles French*; the failure to prosecute the assailants of George Rolph (John’s brother); the libel charges against two newspapermen, Francis Collins and Hugh Christopher Thomson*; and – in 1828 – the persecution of William Forsyth*, the dismissal of Mr Justice John Walpole Willis*, and the execution of Michael Vincent. Here, then, was a stunning array of unjust practices which violated civil liberty and civil law, threatened and even took life in ways considered tantamount to judicial murder, undermined the liberty of the press, usurped the role of the jury, compromised the independent role of the judiciary, ignored due process, and turned a blind eye to the criminal behaviour of the magistracy or other leading subjects.

There was a measurable element of popular support for the allegations of partiality against the administration. Over 1,100 people, for example, signed the petition on behalf of Charles French in 1828. As significant, however, was the growing estrangement between the administration and such leading members of the bar as William Warren Baldwin. He acted unsuccessfully for George Rolph in the 1827 civil suit brought by Rolph against his assailants. In his address to the jury, Baldwin (then in his third term as treasurer of the Law Society) noted with disapproval that Rolph’s persecutors included local gentlemen, ‘persons holding responsible offices, even occupying the seats of Justice – one of them entrusted … with the sword of Justice.’180 When they were finally charged with assault, the cases came forward at the same assizes in 1828 at which Vincent was tried. When no one appeared against them, they were discharged. It was, thought the Gore Gazette’s pro-administration editor, ‘precisely the result which everyone … always anticipated.181

The events of 1828 definitely made that year a watershed with respect to the administration of justice. In January, William Forsyth, an aggrieved hotelier of dubious reputation from Niagara Falls, petitioned the House of Assembly for redress, complaining of Lieutenant Governor Maitland’s decision to use military force as a substitute for legal process in an attempt to resolve a dispute over access to the falls. As chairman of the house’s select committee investigating the petition, John Rolph lamented the state of ‘a colony where the most unprecedented outrages have been perpetrated without prosecution, and even followed, by the patronage of the local government, upon the wrong doers.’182 The committee’s findings precipitated a clash between Maitland and the assembly which resulted in the prorogation of the legislature on 31 March 1828.

The following month, Francis Collins appeared at the Home District assizes before Mr Justice Willis on four counts of libel. Collins defended himself and was allowed to make a statement before the court in which he levelled accusations against Attorney General Robinson, for failing – while acting attorney general in 1817 – to prefer charges against Henry John Boulton* and James Edward Small* for serving as seconds in the 1817 duel between Samuel Peters Jarvis* and John Ridout, and for failing – as attorney general in 1826 – to prefer charges against the looters of Mackenzie’s print shop.183 Willis directed Collins to lay the information before a grand jury. Charges were laid and in the ensuing trials Robert Baldwin, acting as prosecutor, was complimented by the presiding judge, Willis, for his ‘moderation and ability.’ The seconds were acquitted and the rioters received a small fine. When Robinson, who had brought libel charges against Collins, attempted to have them held over until the next assizes, Baldwin denounced the attempt, successful as it turned out, as ‘an unconstitutional infringement on its [the press’s] liberty.’184 At his fall trial, Collins was defended by Robert Baldwin and John Rolph.

In response to the specific charges of partiality, on 12 May 1828 Robinson issued a letter to leading members of the bar, including W.W. Baldwin, concerning the question of bias within his office. Baldwin replied in a lengthy missive, citing specific instances ‘wherein I thought you omitted your duty.’ The first was Robinson’s failure to discipline his clerks who had been involved in the types riot. Their conduct was, Baldwin reminded him, ‘quite unbecoming Gentlemen and still more unbecoming them as Students at Law.’ The reaction of the crown’s leading legal officers (Attorney General Robinson and Solicitor General Henry John Boulton) to the mob’s action at Hamilton in the case of George Rolph was also inexcusable in that they had not ‘promptly and vigorously turn[ed] the Law against the perpetrators.’ When Boulton, who had defended the culprits during the civil suit, later prosecuted them in the criminal action, Baldwin found the series of events ‘so subversive of justice that I fully partook of the public disapprobation of that scene.’ The final episode, and the earliest chronologically, involved the 1822–23 case of Singleton Gardiner, who had brought a civil suit against two magistrates as a result of a dispute over his performance of statute labour on roads. Baldwin was counsel for the plaintiff and Robinson (arguing that it was his duty to protect the justices) acted for the defendants. For his part, Baldwin took no exception to the attorney general’s principle ‘wherein they [the magistrates] are in the right; but my opinion also is that it is your duty to prosecute them wherein they are grossly wrong.’185

The wrangling over the legal/judicial system reached a climax on 16 June 1828 in the Court of King’s Bench. Chief Justice Campbell was absent; only Willis and Mr Justice Levius Peters Sherwood* were on the bench. Willis declared that King’s Bench required three sitting justices to function. The next day the Baldwins and Simon Ebenezer Washburn* enquired of Willis if he would ask Sherwood to render an opinion on the court’s constitutionality. If he declined to do so, they asked Willis to ‘withhold his Judgement’ in cases involving their clients ‘untill as their Counsel we be better advised as to the course to be adopted.’ On 23 June, the Baldwins and John Rolph remonstrated to Sherwood ‘against any Proceedings … until the Court be established according to the Provisions of the Provincial Statutes.’ It was not, they argued, merely a question of ‘the strictest Principles of Law.’ ‘There are no Laws,’ they wrote, ‘demanding a more religious Observance than those which limit and define the Power of Individuals forming the Government over their Fellow Creatures.’ On 24 June, Maitland dissolved the ninth parliament and called an election for the following month. Two days later, the administration moved to quell the unrest in King’s Bench by removing Willis. It miscalculated badly. William Warren Baldwin and Robert Baldwin now entered the electoral fray trumpeting the cause of constitutional/judicial wrong.186 Among the other candidates were George Rolph, John Rolph, Marshall Spring Bidwell, Robert Randal, John Mathews, and William Lyon Mackenzie, all of whom, like W.W. Baldwin, were subsequently elected. And Robert Baldwin would win John Beverley Robinson’s seat for the town of York upon the latter’s elevation to the chief justiceship in 1829.

The resolutions of the committees struck in York in July and August 1828 to protest the dismissal of Willis capture succinctly the language of civil rights and liberties of the subject which informed this position. When W.W. Baldwin addressed the July meeting, he spoke the language (and a masculine language at that) of British constitutionalism and the rule of law. The protesters were motivated not by ‘unworthy or womanish fears’ but by anxiety of ‘men and patriots jealous of their rights and anxious to guard their liberties … from arbitrary power.’ He derided legislative councillors, who ‘are placemen and pensioners, depending upon the Executive for a living, instead of being an independent gentry,’ and hoped, among other things, that the ‘laws [would be] impartially administered.’

A petition to the king, which resulted from the July meeting, complained that ‘misrule has at length become so bold, and power so indiscriminate of its victim’ that a ‘judge, without impeachment and even without a charge, can be so ignominiously amoved from his high office.’ ‘Notwithstanding defects in the law defining our constitution, we are,’ the petitioners wrote, ‘nevertheless warmly attached to it, and view with just fear every attempt to amend it, without the intervention of our Provincial Legislature, which is the constituted guardian of our rights and liberties, and which, considering the great distance of the Imperial Legislature, can best understand our necessities, and apply the proper remedies.’ Of the petitioners’ eleven enumerated grievances, six specifically concerned the administration of justice, from the ‘undue influence which the mingled duties of Legislative and Executive advice, have on the judicial function’ to ‘our present imperfect jury system.’ The appointment of judges was, they argued, the ‘most conclusive evidence of the health of the great body politic.’ Willis, whose presence on the bench had presaged, or so the petitioners had thought, ‘a new era in the administration of justice,’187 was replaced two days after his dismissal by Hagerman; the latter’s only qualification, Collins argued in the aftermath of Vincent’s execution, was ‘sycophancy.188 The turmoil surrounding the administration of justice resulted in almost irreparable damage. A political/constitutional wedge had been driven through the heart of the legal profession.

During the spring and summer of 1828, assaults on the administration of justice – symbolized most poignantly, perhaps, by the case of Michael Vincent – reached new heights and were launched within a more comprehensive critique of the origins and nature of ‘misrule’ in Upper Canada by four of the leading practitioners of the bar: William Warren Baldwin, Robert Baldwin, Marshall Spring Bidwell, and John Rolph.189 On the day of Michael Vincent’s execution, M.S. Bidwell wrote to W.W. Baldwin suggesting a meeting, which would include Rolph, to confer ‘on the measures to be adopted to relieve this province from the evils which a family compact have brought upon it … The whole system and spirit of the present need to be done away.’190 The cumulative weight of past injustices (now brought together and seen as evidence of systematic abuse) imparted a biting sense of grievance to the various denunciations, which called into question the impartiality of the administration of justice, supposedly one of the most sacrosanct blessings of English political and legal culture, and its relationship to the governance of the province. Just how caustic this sense of executive misrule was may be gleaned from a comment in the recollections of Charles Durand. A renowned barrister (he had been enrolled in 1836), he claimed in his 1897 Reminiscences that ‘lynch law with these Tories of 1828 was as bad as lynch law now in the wicked Southern States committed on poor black men.191

When the tenth parliament met in January 1829, W.W. Baldwin introduced resolutions aimed at ‘separating the administration from its advisors, as they were the persons most to blame.’192 The problems of the administration of justice could be redressed by such a political solution. A governor could be brought to account at great expense by seeking redress in England; but in Upper Canada, ‘it was the practice to refer matters to the Executive Council, that Council was within our reach, they were responsible to us, and we might in his [Baldwin’s] opinion be their Constitutional accusers.’ Accordingly, he called upon the assembly to place itself ‘on the same footing with the House of Commons in England’ and declare its right to impeach public officers.193 After heated exchanges and a lengthy rebuttal by Attorney General Robinson, the house on 16 March 1829 adopted a resolution moved by John Rolph. The address to the king declared that the exercise of the royal prerogative was ‘consonant to British justice’ yet ‘that assurance, while it is grounded upon the continued dependency of our Judges can afford no sufficient and practical remedy against the abuse of Your Majesty’s Royal prerogative by the provincial administration. This abuse … has been flagrantly manifested by the late violent, precipitate and unjustifiable removal of … Willis from the Court of King’s Bench in this province.’ The assembly asked the king to heal ‘the wound inflicted upon the Justice and Constitution of the Country’ by inquiring into ‘this overbearing and despotic proceeding’ and punishing the transgressors. In the event that the king chose to disregard this plea, Upper Canadians would be ‘excluded from sharing its [the British empire’s] equal and exalted justice.194

In the attempt to remedy the situation, oppositionists emphasized the role of the assembly as the guardian of the constitution and the liberties that it bestowed. When on 3 September 1841 the famous resolutions on responsible government were introduced in the first parliament of the united assembly of Upper and Lower Canada, Robert Baldwin departed from previously established reform strategy and put his own resolutions on record: ‘That the most important, as well as the most undoubted, of the political rights of the people of this province, is that of having a Provincial Parliament, for the protection of their liberties, for the exercise of a constitutional influence over the Executive Departments of their Government.’195

Upper Canada was a fractious, brawling society in which the politically engaged, more often than not, depicted each other in rhetorical extremes.196 Yet even with a due allowance for hyperbole, both the level and the intensity of the criticisms concerning the rule of law by leading members of the bar, by large numbers of the legal profession, and by significant portions of the public at large were without precedent. The political crisis of 1828, to that point the most serious in the colony’s short history, was at bottom a crisis of confidence in the administration of justice. So thoroughgoing was it that hitherto disparate opposition groups, fearful that the very constitution had been suspended, were welded together in a broad, loosely organized, semi-permanent alliance. Small wonder, then, that in 1834 one anonymous critic reviled the administration of justice as the ‘fundamental evil’ undermining provincial prosperity.197

 

A Lasting Impression

 

‘An innocent man … executed unjustly’

Michael Vincent, gallows address

 

In many respects, Upper Canada was a child of counter-revolution, conceived by the loyalist opposition to the American revolution and shaped by hostility to the French one. The Constitutional Act of 1791, with its provisions for appointed legislative and executive councils, an established church, and a hereditary aristocracy, provided the constitutional and political bastion for successive provincial élites both to rally to and to sally forth from. The absence of an aristocracy, to say nothing of the lesser ranks of English landed society, doomed the Upper Canadian counter-revolutionary experiment to failure. The essentially pluralistic nature of loyalist settlement dashed the possibility from the outset.

Yet the structure of government, in itself, imparted sufficient power to the constitution’s non-democratic elements to render them unassailable for decades. In the absence of an English landed social structure, the judicial/legislative/administrative élite pinned its hopes for a quasi-aristocratic, hierarchical society on the myth of the British constitution and the impartial rule of law. The judiciary articulated the myth from the bench; the chief justice, in his capacity as president of the Executive Council (until 1831) and president of the Legislative Council (until 1840), supplied a critical link between the legislative/executive and judicial functions; and, by 1821, the attorney general (and oft-times the solicitor general as well) acted as the provincial administration’s leader or manager in the House of Assembly. Finally, the rise of the bar and its increasing wealth, along with the social pre-eminence and the political dominance of the legal profession by the mid-1820s, would secure lawyers in a respectable, and respected, position.

Certain of the blessings of the British constitution and the Constitutional Act, sure of the impartiality of justice and equality before the law, the lower orders of society would emulate the ‘regularly bred.’ Thus, a love of order would be instilled throughout society, property would be secured, the rule of gentlemen would be assured, and the Constitutional Act (with its appointed, non-democratic elements) would be maintained.

It was not to be. From the outset of sustained European settlement in the 1790s, all aspects of monopolies of power (commercial, religious, and political) were under attack. The legal profession was not spared. From 1791 until 1840 the judiciary, in the person of the chief justice, was tied, usually intimately, to the executive and legislative councils. This link brought the judiciary within the framework of opposition criticism of executive misrule. Judicial independence thus became a touchstone of opposition rhetoric. These problems were exacerbated by the state of the judiciary itself. It was, more or less, fractious until Thorpe’s suspension in 1807. Afterwards, it was regularly diverted by intra-élite rivalries until Powell’s retirement in 1825, and then it was sidetracked à la Allcock and Thorpe by Willis in 1828. The ascension of Hagerman that same year did nothing – to put it mildly – to divert the controversy: the continuing link in the person of the chief justice between the judiciary and the legislature and the executive was a continuous object of reform and opposition grievance.

As for the legal profession itself, it was deeply divided on the leading political/constitutional questions. By Hilary Term 1828, the incoming treasurer of the Law Society of Upper Canada, John Beverley Robinson, and the outgoing treasurer, W.W. Baldwin, in their persons symbolized perfectly the extent and nature of those divisions. Moreover, through the 1820s, Robinson, as attorney general and de facto government house leader, pursued legal reforms that were often the antithesis of those sponsored by opposition leaders such as M.S. Bidwell and John Rolph. The points of difference were sharpened by the perception, generated by the cumulative weight of specific instances of alleged abuse, that the very administration of justice itself was partial and yet another symptom of colonial irresponsibility and executive misrule.

On a popular level, too, the colony’s legal system had been under sustained assault and continuous suspicion by farmers since the 1790s. Here the grievances focused on an overly centralized, overly complex, overly remote, overly expensive system of laws and professional administration. With the establishment of new districts and the building of new court-houses, justice became somewhat less remote but the furore continued to rage against a self-regulating, seemingly all-powerful legal profession distinguished – it was argued – in the main by pettifoggery, obfuscatory language, and filthy lucre. None the less, the passage of the 1822 amendments to the Law Society Act and the centrality of lawyers within the legislature assured professional paramountcy. To be sure, there would be future challenges to their professional hegemony later in the century, once again from the province’s farm community under the ‘watchword’ of ‘no lawyers, more farmers and machinists.’ William Lyon Mackenzie led one such famous, and nearly successful, attack in 1851.198 But, by the end of the 1820s, there was no longer any possibility of implementing serious alternatives. The legal causes célèbres of 1828 may have offered an opening for radical change; nothing, however, came of them.

Yet some of the changes that ultimately ended the bitter controversy over the administration of justice were already in place in the 1820s. Imperial fiat removed the chief justice from the presidency of the Executive Council in 1831, and the Union Act of 1840 ended the chief justice’s role as speaker of the Legislative Council. The separation of the judicial from the executive and legislative functions allayed the charges of arbitrariness which had resulted from that connection. The sporadic gestures towards a responsible executive council from 1836 until formal realization in 1848 ended, by definition, the old allegations of misrule, irresponsibility, and maladministration, particularly with respect to executive patronage and executive abuse of civil rights.

It is sometimes asserted that the language of rights disappeared from Canadian political culture following the defeat of the Canadian rebellions in 1837–38. Consigned to the fringes of the political spectrum, the discourse of rights, it is said, did not enter the mainstream again until the 1980s and the debate over the Charter of Rights and Freedoms. This view has been justifiably criticized, and one of its most glaring weaknesses is its blindness to the enduring images left by Upper Canadian conflicts. In the hands of succeeding generations of historians, the stories of legal/judicial abuse were passed down over the years, damning and redamning the perpetrators. So thorough was the condemnation that it was not until S.F. Wise’s efforts in the 1960s that Canadian historians considered the ‘church and state’ adherents of the Upper Canadian period fit objects for study.199

In January 1831 John Rolph (Michael Vincent’s counsel in 1828) found himself becoming ‘less and less efficient’ in ‘Law matters.’200 Disgusted by recent parliamentary proceedings and wary of a fickle electorate, he had ‘no ambition’ to be a ‘political Don Quixote.’ Rolph longed for ‘a peaceable and quiet life.’ Within two months his interest had shifted from law to medicine. His time was now ‘wholly occupied in medical practice.’ ‘I think of no other pursuit,’ he wrote, ‘I engage in no other.201 The following year, Rolph gave up law altogether.

Rolph’s two adversaries at the Gore assizes in 1828 lasted much longer in the law. Robinson held the post of chief justice until 1862. He retired from the bench only in January 1863, the month of his death. Hagerman served as a temporary justice on King’s Bench until 1829, when he became solicitor general. In 1837 he was promoted attorney general before ascending the bench again in 1840. He died seven years later while planning for his retirement.

When old John Ryckman in 1880 cast a backward glance at Hamilton’s past, he did not mention Rolph, Robinson, and Hagerman or their roles in Vincent’s trial. In fact, Ryckman thought the execution had occurred in 1810 but he was not sure and qualified the date with ‘about.’ The precise date of the trial had faded with time but the reason why he remembered the case had not: Vincent – in his mind and that of others – was innocent. Rolph’s legal exertions on Vincent’s behalf were in the end unable to sway either the jury or, perhaps more important, the judge; he did sway the public, or at least a goodly part of it. By 1831 John Rolph may have thought himself ‘less and less efficient’ in ‘Law matters,’ but it might be said that, in a certain sense, on 5 September 1828 no one was more efficient.

 

 

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