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

1 A classic of the genre is A short account of the life and dying speech of Joseph Bevir, who was executed at Kingston, (Upper Canada) on Monday, the 4th day of September, 1815, for the murder of Mary Bevir, his daughter. Written by himself while in prison (Kingston 1815). The Kingston Gazette of 5 September 1815 noted that he ‘addressed the numerous spectators in a very impressive manner, and acknowledged that he merited all that he was about to suffer. He appeared to die very penitent.’ Other examples are discussed in R.L. Fraser, ‘Cornelius Albertson Burley*’ and Elizabeth Abbott-Gibbs, ‘William Kain*.’

2 Gore Gazette, 6 September 1828. Publication was delayed ‘in order to give an account of’ the trial and execution.

3 In 1814 Sir Gordon Drummond, president of the Upper Canadian administration, expressed this conviction neatly, offering the hope that the ‘impression made on the Public mind’ by the forthcoming execution of traitors would ‘be Strong and lasting’ (Archives of Ontario [ao], rg 4, a-I, 1, Drummond to Chief Justice Thomas Scott, 9 July 1814). The executions took place in Hamilton on 20 July near the present-day intersection of York and Locke streets.

4 Spectator, 4 October 1880. A brief entry on John Ryckman appears in Dictionary of Hamilton Biography (DHB), 4 vols. to date (Hamilton 1981–99), 1:174–6.

5 The foregoing is based on Canadian Freeman, 18 September 1828.

6 Ibid.

7 R.L. Fraser, ‘Michael Vincent,’ DHB, 1:203-6.

8 Canadian Freeman, 20 January 1831. Hagerman never gave an explanation for his behaviour in this case and, given his temperament, probably never thought one was necessary. Upper Canadian judges regularly reported to the lieutenant governor’s office on the calendars at the assizes. They generally referred to all capital cases. Hagerman, like John Beverley Robinson, preferred to extend to judges as much discretionary judgment as possible. Ten years later, as attorney general, Hagerman was pressed by John Macaulay, the lieutenant governor’s civil and private secretary, for advice on delaying execution of a particular sentence for murder. Hagerman was reluctant and charged the lieutenant governor’s office to leave the question ‘to the discretion of the Judge – who in all cases would give opportunity for application for Mercy, where it could properly be granted.’ For his part, Hagerman thought ‘any departure from long established practice in matters connected with the administration of Criminal Justice dangerous and inexpedient.’ National Archives of Canada (nac), rg 5, aI, 114811–13, Hagerman to Macaulay, 21 October 1838.

The lieutenant governor’s office, which was usually quite scrupulous in overseeing capital cases and their disposition, seems to have been content with Hagerman’s charge to the jury and his subsequent sentence, in spite of the controversy in the press. However, John Strachan, rector of York and one close to the inner machinations of government in the 1820s, was convinced that the administration of Lieutenant Governor Sir Peregrine Maitland and his civil secretary, Major George Hillier*, had become decidedly remote from its closest provincial advisers in 1828.

Hagerman was not precipitate in all capital cases. Earlier on the circuit, he had reported to Hillier, ‘I have so far had no very pleasant duty to perform, nothing has occurred worthy of particular note’ (nac, rg 5, aI, 49698–701, Hagerman to Hillier, 11 August 1828). A clue to his impetuosity in Vincent’s case is gleaned from his comments upon passing sentence: murder was ‘a crime dreadful under any circumstances, but in the case rendered still more atrocious by the fact that your unfortunate victim was one whom you had solemnly sworn at the altar to cherish and protect.’ Canadian Freeman, 18 September 1828.

Vincent had shattered the sacred bonds of matrimony, and Hagerman was outraged. He had enjoyed a distinguished record as counsel for women in two recent cases, one involving seduction, the other separation and battery (Kingston Chronicle, 15 September 1826). Constance Backhouse provides ground-breaking coverage of both cases in Petticoats and prejudice: women and law in nineteenth-century Canada ([The Osgoode Society 1991]). In 1829, at Perth, Hagerman tried a case similar to Vincent’s. Thomas Early had murdered his pregnant wife and four children. It was, Hagerman wrote, a murder ‘of greater atrocity than any I have ever heard or read of – the annals of crime afford no example of a deed so horrible and inhuman.’ He dismissed Early’s story as ‘improbable,’ noting that ‘Providence however would not suffer so much wickedness to pass unpunished … He was left for execution and doubtless suffered [it] yesterday.’ nac, rg 5, aI, 53274–7, 25 August 1829.

In Early’s case, as in Vincent’s, Hagerman saw no legal cause for respiting sentence and referring the case to the lieutenant governor. Hagerman, whether as a lawyer or as a judge, had a particular dislike of men who seduced, battered, or abused women. In violation of their sacred oaths, Vincent and Early had gone even further in their brutality. Hagerman was without sympathy for them. He was a naturally aggressive and forceful man. These traits marked his career as a lawyer, customs official, politician, and crown official. It is hardly surprising that they marked him as a judge as well. In Vincent’s case, Hagerman’s desire to see him punished impelled the judge to overstep his judicial authority and to lay claim to a shared responsibility with the jury.

9 Fraser, ‘Vincent.’

10 There is an interesting and varied body of literature on this issue of the partiality/impartiality of the administration of justice in Upper Canada during the 1820s and 1830s. Paul Romney, himself one of the leading participants in the debate, has written a perceptive introduction both to the issue and to the literature on it; see ‘Very late loyalist fantasies: nostalgic tory “history” and the rule of law in Upper Canada,’ in W. Wesley Pue and Barry Wright, Canadian perspectives on law & society: issues in legal history (Ottawa 1988). 

11 ao, Robinson papers, diary, 1815–16, ‘Tour on the continent,’ 82.

12 S.F. Wise, ‘Upper Canada and the conservative tradition,’ in Edith Firth (ed.), Profiles of a province (Toronto 1967), 20. 

13 S.F. Wise, ‘Liberal consensus or ideological battleground: some reflections on the Hartz thesis,’ Canadian Historical Association (CHA), Historical Papers (1974), 1–9, 12–13. Graeme Patterson has expanded on Wise’s perceptions. Patterson takes great pains to show how cultural and national customs reinforced older political traditions – traditions that were ultimately forgotten as the political history of Upper Canada came to be written in terms of the struggle for responsible government. To his mind, political/constitutional conflict in the province was a ‘struggle between warring conservative traditions that came into contact when transplanted from Europe and other parts of North America to the new colony.’ See Graeme Patterson, ‘Whiggery, nationality, and the Upper Canadian reform tradition,’ Canadian Historical Review (CHR), 56, no.1 (March 1975), 44. A refinement of these insights is presented in R.L. Fraser, ‘Contexts of loyalty: the king’s prerogative, the people’s privileges, and Yankee spirits – the politics of Upper Canada, 1792–1814,’ unpublished paper (presented to the Ontario Historical Society, 1984); see also Fraser, ‘David McGregor Rogers,’ DCB. For a recent discussion that summarizes much of the recent literature, see Peter J. Smith, ‘Civic humanism vs. liberalism – fitting the loyalists in,’ Journal of Canadian Studies, 26, no.2 (summer 1991), 25–43.

14 nac, rg 1, 418:p, misc/95d.

15 E.A. Cruikshank (ed.), The settlement of the United Empire Loyalists on the Upper St. Lawrence and Bay of Quinte in 1784: a documentary record (Toronto 1934), 40–2.

16 The best introduction to the loyalists in western Quebec/Upper Canada is Bruce [G.] Wilson, As she began: an illustrated introduction to loyalist Ontario (Toronto and Charlottetown 1981).

17 Adam Shortt and A.G. Doughty (eds.), Documents relating to the constitutional history of Canada, 1759–1791, 2 (Ottawa 1918), 773–7.

18 Ibid., 949–50.

19 Quoted in E.K. Senior, From royal township to industrial city, Cornwall, 1784–1984 (Belleville 1983), 60.

20 See, for example, Fraser, ‘Rogers’; Neil MacKinnon, This unfriendly soil: the loyalist experience in Nova Scotia, 1783–1791 (Kingston and Montreal [1986]); and D.G. Bell, Early loyalist Saint John: the origin of New Brunswick politics, 1783–1786 (Fredericton 1983).

21 Bruce G. Wilson, ‘Robert Hamilton,’ DCB; see also his Enterprises of Robert Hamilton: a study of wealth and influence in early Upper Canada, 1776–1812 (Ottawa 1983).

22 ao, Strachan papers, Macaulay to Robinson, 22 February 1850.

23 E.A. Cruikshank (ed.), The correspondence of Lieut. Governor John Graves Simcoe, with allied documents relating to his administration of the government of Upper Canada, 1 (Toronto 1923), 245.

24 Ibid.; see also J.K. Johnson, ‘Hazelton Spencer*,’ for a terse discussion of the lieutenancies of the counties.

25 Elizabeth M. Morgan, ‘Joel Stone,’ DCB.

26 E.J. Lajeunesse (ed.), The Windsor border region: Canada’s southernmost frontier (Toronto 1960), xcviii, 145–7, 150–3.

27 Niagara Herald, 13 May 1801.

28 R.L. Fraser, ‘“Like Eden in her summer dress”: gentry, economy, and society: Upper Canada, 1812–1840’ (phd thesis, University of Toronto 1979).

29 The classic formulation of providentialism in Upper Canada is S.F. Wise, ‘Sermon literature and Canadian intellectual history,’ United Church Archives, Committee on Archives, Bulletin (Toronto), 18 (1965), 3–18. Reservations as to the extent of Wise’s claims are found in Fraser, ‘“Like Eden,”’ chapter 2, 47–103. See also Fraser, ‘John Burns*.’

30 J.B. Robinson, Canada and the Canada Bill: being an examination of the proposed measure for the future government of Canada (London 1840), 42–3.

31 Glengarry County, for instance, may well have had a local social structure that was imported more or less intact from the Highlands of Scotland. See Marianne McLean, The people of Glengarry: Highlanders in transition, 1745–1820 (Montreal 1990); see also Allan J. MacDonald, ‘John McDonell* (Aberchalder).’

32 Robinson, Canada and the Canada Bill, 122.

33 Ibid., 144.

34 Ibid., 145.

35 Ibid., 143.

36 The adjective is Gail Campbell’s. Her work on the operation of the franchise and voter participation significantly revises older assumptions about a broad, near universal, male suffrage in the British North American colonies. See, for example, Gail G. Campbell, ‘The most restrictive franchise in British North America? a case study,’ CHR, 71, no.2 (June 1990), 159–88.

37 S.F. Wise, ‘Introduction,’ in S.F. Wise, D. Carter-Edwards, and J. Witham (eds.), “None was ever better …”: the loyalist settlement of Ontario ([Cornwall] 1984), and David Mills, The idea of loyalty in Upper Canada, 1784–1850 (Kingston and Montreal 1988).

38 [John Strachan], The John Strachan letter book: 1812–1834, ed. G.W. Spragge (Toronto 1946), 4–9.

39 ao, Macaulay papers, Robinson to Macaulay, 25 November 1810.

40 Ibid., Robinson to Macaulay, 15 February 1811.

41 Biographies of all these figures are found in the DCB.

42 nac, mg 11, 313/2, extracts from the Upper Canada Guardian, 353, 24 August 1807; 333–9, ‘A Loyalist’ to the editor, 6 August 1807.

43 John Strachan, A discourse on the character of King George the Third addressed to the inhabitants of British America (Montreal 1810), 18–19.

44 Ibid., 20–2.

45 Ibid., 39–40.

46 Robinson, Canada and the Canada Bill, 23.

47 Charge to the grand jury, Home District, 18 March 1822, printed in the Kingston Chronicle, 12 April 1822.

48 U.E. Loyalist, 21 October 1826; see also Greg Marquis, ‘Doing justice to “British Justice”: law, ideology and Canadian historiography,’ in Pue and Wright, Canadian perspectives.

49 U.E. Loyalist, 28 October 1826.

50 Ibid., 20 October 1827.

51 ao, Strachan papers, package #1, no.10, ‘Prospects of the United States.’

52 Ibid.

53 Ibid.

54 Private archives, John and Robert Cartwright papers, 1828–81, Strachan to John Solomon Cartwright, 10 January 1842 (microfilm at ao).

55 ao, Robinson papers, Charge to the grand jury, Western District, 1836. When I read Robinson’s charges they were still in his manuscript collection; they were subsequently moved.

56 Ibid., Charge to the grand jury, Kingston, 20 September 1841. Fraser, ‘“Like Eden,”’ wrongly attributes a long quotation concerning ‘a love of Order’ to Robinson. In fact, it comes from one of John Strachan’s sermons (ao, sp, sermons, ‘Now the Lord is that Spirit and Where the Spirit of the Lord is there is liberty,’ 4 February 1821 [he preached it again on 29 March 1829 and 5 February 1837]). Patrick Brode repeats this misattribution in Sir John Beverley Robinson: bone and sinew of the compact (The Osgoode Society [1984]), 175–6, in a chapter titled (unhappily, it would now seem), ‘A Love of Order.’

57 Ibid., Charge to the grand jury, Picton, 28 September 1835.

58 Ibid., Charge to the grand jury, London District, 12 August 1830. To a large extent, Robinson’s politics were rooted in an aristocratic landed order. Yet he was capable of adapting to the exigencies of Upper Canadian circumstances. His struggle to develop the agricultural economy brought him into conflict with wealthy commercial interests as represented by Thomas Clark* and William Dickson and with large land speculators such as William Warren Baldwin. The point at issue was a land tax, anathema to large landed interests in England. He was even willing at one point to contemplate an income tax. Likewise, on the issue of police forces, he overcame the customary aristocratic reluctance about such institutions when faced by the utter absence of traditional checks on popular disorder. See Fraser, ‘“Like Eden,”’ 238–9.

59 Charles Rupert Sanderson (ed.), The Arthur papers; being the Canadian papers mainly confidential, private and demi-official of Sir George Arthur, K.C.H., last lieutenant-governor of Upper Canada, in the manuscript collection of the Toronto Public Libraries, 2 (Toronto 1957), 62, Robinson to Lord Normanby, 23 February 1839.

60 Robinson, Canada and the Canada Bill, 25 and 146.

61 ao, Robinson papers, Charge to the grand jury, Western District, 1836.

62 ao, Macaulay papers, Robinson to Macaulay, 12 June 1824.

63 ao, Robinson papers, Charge to the grand jury, Picton, 28 September 1835; see also Canada and the Canada Bill, 34.

64 Patriot, 6 March 1835 (debate of 28 February).

65 ao, Robinson papers, Charge to the grand jury, Brockville, 20 August 1834.

66 Robinson, Canada and the Canada Bill, 156.

67 Strachan, A discourse, 21.

68 ao, Robinson papers, Charge to the grand jury, Toronto, 25 May 1841.

69 Ibid., Charge to the grand jury, Brockville, 1831.

70 Ibid., Charge to the grand jury, [Bathurst District], 11 August 1834.

71 Ibid., Charge to the grand jury, Prince Edward District, 16 September 1834.

72 Ibid., Charge to the grand jury, London District, 30 August 1836.

73 Ibid., Charge to the grand jury, Toronto, 1836.

74 Ibid., Charge to the grand jury, [n.p.], 1837; see also Charge to the grand jury, Cornwall, 25 September 1837.

75 R.L. Fraser, ‘William Warren Baldwin,’ DCB.

76 J.K. Johnson, Becoming prominent: regional leadership in Upper Canada, 1791–1841 (Kingston and Montreal [1989]), 10, 23.

77 Frederick H. Armstrong, Handbook of Upper Canadian chronology (Toronto 1985), 120.

78 The best work on the early civil courts is William N.T. Wylie’s tightly argued and incisive ‘Instruments of commerce and authority: the civil courts in Upper Canada, 1789–1812,’ in David H. Flaherty (ed.), Essays in the history of Canadian law, 2 (The Osgoode Society [1983]), 3–48.

79 For the general structure of the courts, see Margaret A. Banks, ‘The evolution of the Ontario courts, 1788–1791,’ in Flaherty (ed.), Essays in the history of Canadian law, 2:492–572; Wylie, ‘Instruments of commerce and authority’; and W.R Riddell, The bar and the courts of the province of Upper Canada, or Ontario (Toronto 1928). S.R Mealing is without equal on the 1790s; see his biographies of Simcoe and Osgoode in the DCB. The act 34 gIII c.II is reprinted in A.G. Doughty and D.A. McArthur (eds.), Documents relating to the constitutional history of Canada, 1791–1818 (Ottawa 1914), 146–57.

80 Armstrong’s Upper Canadian chronology is indispensable for students of Upper Canadian history. Among its many useful features are the careful outlines and thumbnail descriptions of the various structures of government at all levels. For a discussion of crime at the district level, see John Weaver, ‘Crime, public order, and repression: the Gore District in upheaval, 1832–1851,’ Ontario History, 78, no.3 (September 1986), 175–98. For an exploration of magisterial life in a district, see David R. Murray, ‘The cold hand of charity: the Court of Quarter Session and poor relief in the Niagara District, 1828–1841,’ in Pue and Wright, Canadian perspectives, 179–206.

81 S.R. Mealing, ‘William Osgoode,’ DCB.

82 Wylie, ‘Instruments of commerce and authority,’ 16.

83 The biographies of both men in the DCB are as substantial as they are good.

84 ao Report, 1910, 53.

85 The statutory history of the profession is set out in W.R. Riddell, The legal profession in Upper Canada in its early periods (Toronto 1916).

86 ao Report, 1910, 198.

87 Quoted in Riddell, The legal profession, 15.

88 The figures are compiled from Armstrong, Upper Canadian chronology. Not all these individuals, of course, were still alive by 1810.

89 The following discussion is based mainly on the Kingston Chronicle, 28 December 1821 (debates of 3 and 4 December).

90 Thomas F. McIlwraith, ‘Charles Jones,’ DCB.

91 R.L. Fraser, ‘Jonas Jones,’ DCB.

92 For a discussion of the idea of gentlemen and its relation to the politics of Robinson, Jonas Jones, Christopher Hagerman, and others, see Fraser, ‘“Like Eden,”’ chapters 5 and 6.

93 R.L. Fraser, ‘Robert Nichol,’ DCB.

94 The discussion which follows is based on the Gleaner, 22 February 1823.

95 ao Report, 1914, 270, 278–82, 291–2, 428.

96 Armstrong, Upper Canadian chronology, 122, 129; Riddell, The legal profession, 29–30.

97 The figures were compiled from Armstrong, Upper Canadian chronology, 122–32.

98 Reproduced in J.R.W. Gwynne-Timothy, Western’s first century (London, Ont., 1978), 428, as cited by G. Blaine Baker, ‘Legal education in Upper Canada, 1785–1889: the Law Society as educator,’ in Flaherty (ed.), Essays in the history of 99 Canadian law, 2:551.

99 ao Report, 1906, 174–5. The proclamation was promulgated on 7 February 1792.

100 Douglas McCalla, ‘The loyalist economy of Upper Canada,’ Social History, 16, no.32 (November 1983), 285.

101 nac, rg 1, l3, 283:l1, 1792–95/73.

102 Public Record Office (pro), co 42/317, ff.186–9, 191, 193–4, 197–205.

103 ao Report, 1909, 135–6. Douglas McCalla has taken issue with historians who seize upon the complaints against large merchants as a means of describing the economy. The point is well taken; obviously, this sort of evidence has limitations. But the political world of Upper Canada was shaped as much by perception as by reality. And the perception of monopoly and its equation with oppression was heady stuff. Merchant-bashing, or rather monopoly-bashing, was simply good politics. Its language had a calculated appeal and was used to manipulate voters for political ends. As crude a man as Isaac Swayze understood that much.

104 Upper Canada Gazette, 30 November, 7 December 1799.

105 Ibid.

106 Wylie, ‘Instruments of commerce and authority,’ 26–7.

107 Upper Canada Gazette, 30 November, 7 December 1799.

108 Ibid., 2 May 1800 (‘A Friend to Justice’).

109 Edith G. Firth (ed.), The town of York, 1793–1815: a collection of documents of early Toronto (Toronto 1962), 157–60.

110 The tale of the Speedy is eloquently told by Brendan O’Brien in Speedy justice (The Osgoode Society 1992).

111 Upper Canada Gazette, 17 March 1804.

112 Ibid., 25 January 1805.

113 ao, Russell papers, Russell to Osgoode, 22 July 1802.

114 pro, co 42/342, f.167, Allcock to William Windham, 16 May 1806.

115 Upper Canada Gazette, 27 October 1804 (notice of 25 October). The rule was applied to the sons of loyalists only; daughters and wives were exempted (M.M. Quaife [ed.], The John Askin papers (Detroit 1928–31), 2:516–17, Alexander Grant to Askin, 9 May 1806). Hunter’s successor, President Alexander Grant, rescinded the order on 16 May 1806 in an attempt to deflect some of the criticism. Upper Canada Gazette, 17 May 1806.

116 ao, Cartwright papers, typescript letterbook, 1787–1808, 220. Cartwright enclosed a list of some 100 people who were to be charged full fees on grants, although they were either uels or children of uels. He did not ‘enter into the merits of these cases but … I know it is your wish to be made acquainted with everything that can give reasonable cause of public dissatisfaction.’

117 ao Report, 1909, 265, 11 June 1802.

118 Ibid.

119 Ibid. 1911, 63–4, 10 February 1806.

120 R.L. Fraser, ‘Benajah Mallory,’ DCB.

121 Daniel J. Brock, ‘Samuel Ryerse,’ DCB, and ‘Thomas Welch,’ DCB.

122 Norfolk Historical Society, 982–93 (draft), Welch to Mallory, 3 January 1803.

123 [Thomas Douglas], Lord Selkirk’s diary, 1803–1804; a journal of his travels in British North America and the northeastern United States, ed. P.C.T. White (Toronto 1958), 305.

124 ao, Russell papers, Welch to Russell, 31 January 1805.

125 Fraser, ‘Mallory.’

126 ao, gs 1822, Burford Township, Brant County, abstract of memorials, 1800–52, ff.1, 144, 183, 247; rg 22, series 131, King’s Bench docketbook, 2 (M–Z), 1797–1830, ff.7, 13–14; Upper Canada Gazette, 27 February 1811, 4 May 1812.

127 nac, rg 5, b25, 3 (election papers): 52, Benajah Mallory to the free and independent electors of the counties of Oxford and Middlesex, 23 May 1812.

128 Liberal, 29 November 1823 (editorial).

129 Public Archives of Canada (pac) Report, 1892–3, note d, 57, Thorpe to Sir George Shee, 1 December 1806. It was alleged by Lieutenant Governor Francis Gore that the letters from ‘A Loyalist’ in Willcocks’s Upper Canada Guardian were written by Thorpe. pro, co 42/347, f.242, Gore to George Watson, 4 October 1807.

130 It was a loyalist assemblyman, Thomas Dorland, who introduced resolutions on this matter in 1806. Moneys spent by the executive without parliamentary authorization ‘violated’ the ‘rights and privileges of the Commons.’ ao Report, 1911, 101–2, 28 February 1806.

131 pac Report, 1892–3, note d, 105, Thorpe to the secretary of state, 14 August 1807.

132 Thorpe himself had a civil suit for debt brought against him successfully. ao, rg 22, King’s Bench docketbook, M–Z, 1797–1830, f.218.

133 ao, rg 22, series 125 (Court of King’s Bench, termbooks), 18 November 1803, 6 November 1805, 10 January 1806; 2:147.

134 Upper Canada Gazette, 18 January 1806.

135 pac Report, 1892–3, note d, 52.

136 Ibid., 53.

137 Ibid., 63.

138 pro, co 42/350, f.175, Gore to Liverpool, 23 April 1810.

139 ao, rg 22, series 3, 153:92–3.

140 pro, co 42/350, ff.76–7, Hamilton to William Halton, 20 January 1807; ff.78–9, Representation of the magistrates of the District of Niagara, 19 January 1807.

141 ao, rg 22, King’s Bench, docketbook, M–Z, 1797–1830, f.249.

142 pro, co 42/350, ff.76–7, Hamilton to Halton, 20 January 1807.

143 R.L. Fraser has written biographies of all three men for the DCB.

144 ao, Cartwright papers, typescript letterbook, 1787–1808, 264–7, Cartwright to Gore, 2 April 1807.

145 pro, co 42/341, f.59, Gore to William Windham, 13 March 1807.

146 nac, rg 5, a1, 2802–21, Gore to Sir James Henry Craig, 5 January 1808.

147 pro, co 42/350, ff.223–6, Upper Canada Guardian, 6 August 1807.

148 Ibid.

149 Ibid., Upper Canada Guardian, 27 August 1807.

150 [John Mills Jackson], A view of the political situation of the province of Upper Canada (London 1809), xi and 3.

151 R.L. Fraser, ‘John Mills Jackson,’ DCB.

152 pro, co 42/350, f.12.

153 Jackson, A view of the political situation, 12.

154 [Richard Cartwright], Letters, from an American loyalist in Upper-Canada, to his friend in England, on a pamphlet published by John Mills Jackson, esquire: entitled, A view of the province of Upper Canada (Halifax [1810]). Often attributed to Mr Justice Powell, the pamphlet was Cartwright’s work; see George Rawlyk and Janice Potter, ‘Richard Cartwright,’ DBC. Information on the pamphlet’s publication can be found in Upper Canada Gazette, 14 November 1810.

155 Cartwright, Letters, 3–5.

156 As quoted in Fraser, ‘Mallory.’

157 Private archives, Sir John Beverley Robinson papers, 106–7, Strachan to Robinson, 2 June 1814 (microfilm at nac, mg 24, 69).

158 See the assembly debates on this persistent issue in Western Mercury, 26 January 1832 (debate of 3 January), and Correspondent & Advocate, 29 May 1834.

159 R.L. Fraser, ‘Peter Howard,’ DCB.

160 nac, rg 5, a1, 21787–94, Willson to Major George Hillier, 4 October 1819.

161 Canadian Freeman, 18 January 1827.

162 Districts were the basic unit of municipal government in the province until 1850, when they were abolished. Four districts were established in 1788 and by 1841 there were 20. See Armstrong, Upper Canadian chronology, 158–61. Between 1791 and 1841, the province’s population grew from approximately 14,000 to 450,000. For the former figure, see Douglas McCalla, ‘The loyalist economy of Upper Canada,’ 285; for the latter, see J.L. Finlay, Pre-Confederation Canada: the structure of Canadian history to 1867 (Scarborough [1990]), 265.

163 R.L. Fraser, ‘Peter Desjardins*’ and ‘John Willson,’ DCB.

164 U.E. Loyalist, 6 October 1827.

165 Spirit of the Times, 26 June 1830.

166 Ibid., 25 August 1830. This was not an isolated occurrence. On 17 September 1825, for instance, Henry Hamilton, a murderer awaiting execution on 7 October, succumbed to a fever which had lasted two weeks. He had contracted the illness while in Brockville’s jail and, ‘although every attention was given,’ he expired. The verdict of the inquest was that Hamilton’s death came ‘by the visitation of God.’ Nothing was discovered ‘to lead to a suspicion that the deceased had come to his end by any improper means.’ From the Brockville Recorder as cited in the Weekly Register, 29 September 1825. The most notorious jail incident occurred on 31 March 1835 when James Owen McCarthy* died after an altercation with the jailer – one day before his conditional pardon (the condition was banishment) was to be granted. See R.L. Fraser, ‘James Owen McCarthy.’

167 Canadian Freeman, 29 July 1830.

168 Fraser, ‘W.W. Baldwin.’

169 Colonial Advocate, 13 May 1830.

170 Gore Balance, 7 January 1830.

171 Colonial Advocate, 25 April 1833.

172 Ibid., 24 April 1834.

173 Canadian Freeman, 8 November 1827.

174 ao, Robinson papers, letterbook, private letters of Sir J.B. Robinson, 1814–62, 164–8, Robinson to Strachan, 8 April 1851. There are different historical positions as to whether the church-and-state tradition represented by Robinson had any continuity with the political culture of mid- and late-nineteenth-century Canada. My own argument in brief is that there was no essential continuity. Some of the impulses continued, to be sure, but in altered form, and the public philosophy represented by this tradition did not survive the 1840s. Robinson’s epistle is nothing more than wishful thinking and just how wishful is revealed by the insistence that not only the old social and political order would be restored, but also the privileged position of the Church of England.

The arguments necessary to making this case take one beyond the usual territory of historians. It is necessary to grasp the core of Western philosophical developments since the fifteenth century. The relationship between the tradition (embodied at least partially by Robinson) and public conservatism is beautifully captured in George Grant’s writing. There are relevant chapters in both Lament for a nation: the defeat of Canadian nationalism (Toronto 1970) and Technology and empire (Toronto 1969).

175 ao, Robinson papers, part ii, private letters from family and friends, 1814–62, 249–56, M.S. Bidwell to W.B. Robinson, 24 February 1863.

176 Metropolitan Toronto Reference Library (mtrl), Robert Baldwin papers, R. Baldwin to J.B. Robinson, 3 August 1848.

177 Archives de l’Archevêché de Québec, 320 cn iii:3–8, MacDonell to the bishop, 20 April 1801. On the enduring quality of regionalism within Ontario, specifically in its rural areas, see Chad Gaffield, ‘Children, schooling, and family reproduction in nineteenth-century Ontario,’ CHR, 72, no.2 (June 1991), 167. Gaffield’s happy phrase is ‘a differentiated collection of regions.’

178 Mackenzie surveyed the province’s legislative past in the Colonial Advocate in 1828 and again in 1833.

179 Paul Romney, ‘Re-inventing Upper Canada: American immigrants, Upper Canadian history, English law, and the alien question,’ in Roger Hall, William Westfall, and Laurel Sefton MacDowell (eds.), Patterns of the past: interpreting Ontario’s history (Toronto and Oxford 1988), 78–107; and Romney’s Mr Attorney: the attorney general for Ontario in court, cabinet, and legislature, 1791–1899 (The Osgoode Society [1986]), 82–104.

180 Fraser, ‘W.W. Baldwin.’

181 Gore Gazette, 13 September 1828.

182 Report of the select committee on the petition of William Forsyth, in Great Britain, Parliament, House of Commons paper, 1833, 26, no.543:7.

183 Canadian Freeman, 17 April 1828.

184 Ibid., 24 April 1828.

185 Fraser, ‘W.W. Baldwin.’

186 Ibid.

187 mtrl, Broadsides, 1828 petition; 1828 meeting.

188 Canadian Freeman, 18 September 1828. The Constitutional Act makes no mention of the appointment of judges to the councils. Osgoode, the first chief justice, was appointed president of the Executive Council and speaker of the Legislative Council and that tradition continued. Puisne judges occasionally sat on the councils. The assembly passed a resolution in 1825 urging that the judges become as ‘independent of the Crown and people as are the judges of England.’ The following year, Lord Bathurst, the colonial secretary, noted that ‘it does not appear that there is anything peculiar in the state of the Province … which should make it advisable that this system should be changed.’ See Patrick Brode, ‘Of courts and politics: the growth of an independent judiciary in Upper Canada,’ Law Society of Upper Canada, Gazette, 12, no.3 (September 1978), 265 and 267. The issue was also raised in Lower Canada and there it was decided to exclude the puisne justices from the councils (pac Report, 1930, 193–5). Continuing pressure prompted Lord Goderich to state in 1831 that ‘there is no Branch of Our Civil Polity which has been more fully proved to be conducive to these Great Ends [stability of government and welfare of the people], than the Establishment of Judges independent at once on the Royal Authority and on the pleasure of the popular Branch of the Legislature.’ He directed Lieutenant Governor Sir John Colborne* to declare ‘that the Commissions of all the Judges of the Supreme Courts shall be granted to endure during their good behaviour and not during the Royal Pleasure.’ No judges would be appointed to the councils, with one exception. The chief justice could remain in the Legislative Council ‘in order that they may have the benefit of his assistance in framing Laws of a general and permanent character.’ Goderich to Sir John Colborne, 8 February 1831, pac Report, 1935, 257–8. The sole proviso was that the assembly grant a permanent civil list.

189 The starting point for the literature is Paul Romney, ‘From the types riot to the rebellion: élite ideology, anti-legal sentiment, political violence, and the rule of law in Upper Canada,’ Ontario History, 79, no.2 (June 1987), 113–44. The biography of W.W. Baldwin in the DCB covers some of the ground on the events and the language of opposition in the late 1820s.

190 mtrl, W.W. Baldwin papers, b104, M.S. Bidwell to Baldwin, 8 September 1828.

191 Charles Durand, Reminiscences of Charles Durand of Toronto, barrister (Toronto 1897), 265.

192 Kingston Chronicle, 24 January 1829 (debate of 10 January).

193 Ibid. The attempt to define ministerial responsibility and to assert the legislature’s control over irresponsible ministers was made by Robert Nichol in 1820. Careful to exempt the crown from wrongdoing, he had ‘no intention of charging the head of Government with malpractices, it was his advisers who were the responsible characters … The king could do no wrong but wicked ministers lost their heads, and wicked and corrupt Governors were brought to trial.’ Fraser, ‘Nichol.’

194 Kingston Chronicle, 28 March 1829 (debate of 16 March).

195 Elizabeth Nish (ed.), Debates of the Legislative Assembly of United Canada, 1 (Montreal [1970]), 790.

196 W.W. Baldwin, for instance, adopted increasingly harsh and inflexible rhetoric between 1820 and 1840. The experiences of the 1820s transformed and hardened his political language; he never turned back from it. For a discussion of this point, see Fraser, ‘W.W. Baldwin.’ By 1820 Baldwin no longer held out hope for government preferment or patronage. This may explain, in part, his flowering as a trenchant critic of, and oppositionist to, the administration of Sir Peregrine Maitland during this period.

197 Colonial Advocate, 24 April 1834 (‘Commonweal’).

198 Michael S. Cross and R.L. Fraser, ‘Robert Baldwin.’

199 An early example of this writing is Charles Lindsey’s handling of the trial and execution of Charles French. See his Life and times of Wm. Lyon Mackenzie, 1 (Toronto 1862; reprinted 1971), 117–20.

200 mtrl, Robert Baldwin papers, a67, Rolph to R. Baldwin, 19 January 1831.

201 mtrl, W.W. Baldwin papers, b105, Rolph to W.W. Baldwin, 24 March 1831.

 
 
 
ROBERT L. FRASER

Editor, Dictionary of Canadian Biography

 

Robert L. Fraser, All the privileges which Englishmen possess: Order, Rights, and Constitutionalism in Upper Canada, in Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography. Toronto: University of Toronto Press, 1992.

 

 

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