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

A Symbol


‘An innocent man … executed unjustly’

Michael Vincent, gallows address


‘Bears, Wolves, Indians and Unbroken Forest’ – this heading captured the gist of John Ryckman’s recollections of the Hamilton area’s early history. ‘A hale, lively old gentleman of 82 winters,’ he had ambled into the offices of the Hamilton Spectator on 30 September 1880, pulled up a chair, and reminisced with a reporter about the early days. For the most part Ryckman, a justice of the peace of impeccable loyalist parentage, stuck to this and related topics. But one subheading (‘Unpleasant Recollections’) offered the newspaper’s readers a more pungent slice of history – his memories of two executions. The first was the mass hanging in 1814 of War of 1812 traitors; the second was the execution of Michael Vincent, convicted in 1828 of the murder of his wife.

Hamilton, Upper Canada, 8 September 1828. The day was warm and sunny. By 10 a.m. a crowd had already formed around the still only partially constructed gallows. Three hours later, several thousand onlookers milled about in expectation of the day’s event. A squadron of cavalry moved forward to hold the pressing throng at bay. Hawkers, in expectation of a lucrative day, mingled with the crowd peddling their wares. About 1:30 p.m., the appearance of a grim procession of local worthies signalled the beginning of the first public execution in Hamilton since the hangings for treason in 1814: the grand jury, the magistrates of the Gore District, and other leading men of Gore marched out from the court-house in double file. Minutes later, the convicted murderer, Michael Vincent, made his appearance accompanied by the district sheriff and a local minister, George Sheed. The crowd strained for a better view.

Most executions in Upper Canada offered spectators a gallows address by the condemned, usually contrite, felon exhorting them not to follow in his or her path.1  Under strong and repeated pressure to conform to custom, Vincent consistently refused, steadfastly maintaining his innocence. Upon the scaffold, he asked permission to address the throng and the sheriff consented. The rope was adjusted around Vincent’s neck; he gathered his thoughts and, ‘in a firm voice,’ declared: ‘Gentlemen, you see before you an innocent man who is about to be executed unjustly – the witnesses against me have sworn falsely – I die innocent of the crime alledged [sic] against me – I declare before Almighty God, I am not guilty of the crime for which I am to suffer.’ Sheed pressed him to recant and ‘implored him to reflect on the consequences of dying with a falsehood on his lips.’ Vincent, however, reiterated his innocence, this time as an oath before God. The clergyman then recited the Lord’s Prayer. When he reached ‘forgive us our trespasses,’ the executioner let the trapdoor fall. As was often the case, the execution was bungled; the rope slipped under Vincent’s chin, causing further suffering; he convulsed for about fifteen minutes before dying. His body was left hanging for an hour before being cut down and handed over to local surgeons for dissection.2

Public executions were intended as compelling symbols of the potency of the law and its administration, and were considered powerful deterrents to crime.3 Michael Vincent’s execution was certainly symbolic but the message derived from it was not altogether the intended one. It was beyond the ability of either crown officials or the judiciary to mould the public’s response. Whether the grisly spectacle left the desired impression upon those who witnessed, heard, or read about it is not known. What is certain, however, is that the execution and, more important, the trial were both perceived and depicted by important reform-minded journalists, and others as well, as symbols – not of the impartiality of the judicial system – but rather of its failings and partiality. And it was this image that endured, not only in the journalists’ accounts, but also in the minds of some witnesses. Fifty-two years after the event, the octogenarian John Ryckman, a magistrate himself, told the Spectator’s readers that he ‘and many others were of opinion that he [Vincent] was innocent.’4

Why Ryckman believed Vincent’s claim of innocence is not known. His reasons may have been connected to the disturbing suggestion expressed in some newspapers, such as Francis Collins*’s Canadian Freeman, that Vincent had lost his life probably as a result of a dramatic departure from judicial custom by the neophyte trial judge, Christopher Alexander Hagerman*.

Hagerman’s apparently stunning judicial novelty occurred during his address to the petit jury. Nearing the end of his summation, he observed that if the jurors agreed with Vincent’s counsel, John Rolph*, that Mrs Vincent had died during ‘a fit,’ they should acquit Vincent. Then, Hagerman boldly declared, ‘I shall be always ready to share the responsibility with the jury … my opinion is that the evidence is strongly against the man, and that you will see no possibility of returning a verdict of not guilty.’

Francis Collins reported that Rolph, ‘seeing the Judge’s charge so decidedly against the prisoner, with great humanity threw in a parley in favour of him.’ Noting how ‘irregular’ it was ‘to say any thing at this time,’ Rolph was, none the less, impelled to do so because ‘an unfortunate man’s life was at stake.’ The judge was ‘impatient’ and ordered counsel to be seated. Rolph, however, ‘persisted’ with his own deviation from customary behaviour, claiming that, ‘from his knowledge of the [medical] profession’ – Rolph was not only a leading member of the bar, but also an eminent medical practitioner – the evidence by the two doctors who had testified for the crown ‘went to show that the deceased died of a fit.’

Hagerman dismissed this sally with the comment that his own ‘opinion was quite the contrary, and the jury might give such weight as they pleased to their [Hagerman’s and Rolph’s] respective opinions.’ After about an hour, the jury returned its verdict. Hagerman’s position had won the day.5 Three days later, Vincent was hanged.

Collins damned Hagerman, without reservation, for usurping the jury’s role and thereby ‘mis-construing the existing code with a view to increase its faults.’Bartemas Ferguson*, the determinedly moderate editor of a local Hamilton paper, the Gore Balance, also castigated Hagerman for his actions. A former critic of government in the late 1810s, Ferguson himself had stood before the courts and suffered during his subsequent incarceration. Although he had abandoned many of his earlier causes, he remained keenly interested in the administration of justice. Even in cases where the guilt of the accused was certain, the content of Hagerman’s charge to the petit jury was, Ferguson thought, ‘without example.’Three years later, an unrelenting Collins reminded both his readers and Hagerman of the judge’s responsibility for Vincent’s execution: ‘Let Mr. Hagerman remember, as a consoling thought when he lays his head upon his pillow, the charge that he delivered against an unhappy fellow who protested his innocence with his last breath.’8 The image conveyed by this rhetoric was powerful. It arose from Vincent’s claim to innocence from the moment of his arrest, and seems to have lasted for years after his execution.

The vaunted hallmarks of the British constitution and English justice had failed to protect the life of a man, possibly innocent. This course of events, in the mind of Francis Collins, was an indictment of the very system itself. Hagerman’s place on the bench and his actions in Vincent’s case illustrated the partiality that many believed undermined the rule of law in Upper Canada. The familiar nostrums regarding the superiority of British justice provided scant solace either to Vincent or to the system’s critics. The trial had locked together in judicial combat the leading adversaries in the legal/constitutional/political battles that racked the province’s political communities – Attorney General John Beverley Robinson* had prosecuted the crown’s case; John Rolph, a leading assemblyman and oppositionist, and one of the foremost members of the bar, had defended Vincent; and ‘Kit’ Hagerman, a bumptious Kingston lawyer, had presided on the bench. Within weeks of the trial, Rolph – recently re-elected to the House of Assembly in July 1828 – was planning a coordinated strategy for the reform-minded coalition of lawyers and politicians that included himself, the Baldwins (William Warren* and Robert*), and Marshall Spring Bidwell*. The following year Robinson was elevated to the chief justiceship. Hagerman’s appointment to the Court of King’s Bench was not confirmed in England; he stepped down from the bench and became solicitor general.

The major figures in the Vincent case had all been party to various disputes during the 1820s (some of only several months’ standing) concerning the alleged partiality of the legal system. The trial was another lost battle in a war waged both in the legislature and in courtrooms across Upper Canada.9 At no other point in this province’s history has the judicial system been so embattled, so mired in controversy, so liable to the charges of partiality and maladministration, and so lacking in broad public legitimacy.10 And, more often than not, critics seized upon trials such as Vincent’s both to prove and to assert their claims.


Loyalism and the Constitutional Context


‘Vive Ie Roi’

J.B. Robinson


‘Making a due provision … for that legal Aristocracy’

John Graves Simcoe


How did Upper Canada reach this state? What explains the wars that raged around its political and legal institutions? Part of the answer can be found through an exploration of the colony’s constitution, the aristocratic and hierarchical intentions that underlay it, and their subsequent defence by succeeding generations of political and administrative élites.

Paris, France, 24 August 1816. John Beverley Robinson, the young solicitor general of Upper Canada, walked in the gardens of the Tuileries palace. A crowd had gathered there hoping to catch a glimpse of the restored Bourbon monarch, Louis XVIII. Young Robinson, who as acting attorney general had prosecuted those charged with treason at the Ancaster Assizes in 1814, ‘waited patiently among the rest.’ When the king finally appeared at a window, ‘hats were all taken off & I joined in the cry of “Vive le Roi.”’11 Robinson was at a young age already prominent in his profession; he would become the most important legal and judicial figure in Upper Canadian history. The scene, as related in his diary, of him heartily cheering the apotheosis of the so-called ancien régime, a Bourbon monarch, evokes the purposes enshrined in the Constitutional Act of 1791. This statute gave Upper Canada its constitution, one that lasted fifty years. Although it is possible to exaggerate the significance of a youth caught up in the enthusiasm of the moment, Robinson’s act embodies the monarchical and aristocratic faith of many members of the Upper Canadian élite and their commitment to a hierarchical social order.

The political traditions attached to the Constitutional Act were largely imported into the colony by the first lieutenant governor, John Graves Simcoe*, and the administrators surrounding him such as Chief Justice William Osgoode*. But the structure of the old regime was not easily realized in the wilderness of Upper Canada. The attempt to impose an aristocratic polity met with deep resistance from the outset of settlement. The political faith of the loyalists was hostile to hierarchy, the so-called late loyalists lacked even the attachment to monarchy that characterized their namesakes, and there was little in the subsequent waves of immigration to alter this attitude. The process of settlement in an uncleared land lacking even the basic rudiments of internal communication would, in itself, have presented an almost insurmountable obstacle to the planting of the old regime in Upper Canada. Emigrants came from different societies at different times. Only rarely was anything resembling an intact and hierarchical social structure imported. Moreover, in England the aristocracy had its economic basis in large landed estates maintained by a tenant class. In Upper Canada land was plentiful and cheap, if not free. The economic conditions for aristocracy were altogether lacking, there was no established social structure, and the closest thing to a native political tradition was a disdain for monopoly, political or otherwise, which was evinced by most settlers, loyalist or otherwise, from the beginning.

The foremost historian of the political culture of British North America, S.F. Wise, perceived in the colonial origins of Canadian society an underlying conservative (a word, incidentally, unknown in the colony before 1828 and rarely used before 1836) consensus, a tradition informing the Canadian political fabric to the present. Central to Wise’s thesis was the hothouse effect of Upper Canada’s geography and demographics upon its political culture. Because of the colony’s close geographical proximity to the United States, its political tradition was formed, he suggested, by the convergence of ‘two streams of conservatism’: ‘One that was brought by the Loyalist founders of the colony: an emotional compound of loyalty to King and Empire, antagonism to the United States, and an acute, if partisan sense of recent history. To the conservatism of the émigré was joined another, more sophisticated viewpoint, first brought by Simcoe and his entourage, and crystallized in the Constitutional Act of 1791: the Toryism of late eighteenth century England.’12

This perceptive account delineates the shadings within the ‘spectrum’ of loyalist political opinion and recognizes a common and ‘distinctively American attitude towards government and authority.’ But on the essential point, Wise was adamant; the muted tones of American liberalism notwithstanding, the political language of loyalism was conservative. Most loyalists were, he thought, inclined to the government side and ‘the liberal strain was rapidly subordinated to the values of the official political culture.’ At the heart of this ethos were ‘loyalty, order, stability.’13

For anyone who has read the loyalists’ claims for compensation (from the British government) or their later petitions for free land grants (from the Upper Canadian Executive Council), there is a familiar, if undistinguished, pattern of language. Most loyalists were small farmers, often semi-literate, whose explanation of their decision to risk life, property, and family during the American revolution is probably subsumed in Nathaniel Pettit’s declaration of ‘his Sturdey Attachment To his most Gratious majestye and the british Constitution.’14 The idea of loyalty to the crown is straightforward enough. It is possible, however, that this loyalty was sustained more by emotional attachment than by constitutional preference. What a man such as Pettit meant by the ‘british Constitution’ is not entirely clear.

Other loyalists were more illuminating. In January 1784 a group of Associated Loyalists from New York petitioned the governor of Quebec, Frederick Haldimand*:

In as much as the said Associated Companies have for years past nobly contended for the support of that Constitution or Form of Government under which they have long Enjoyed Happiness, & for which they have at last sacrificed their All … when they arrived at the Place destined for their Settlement would [Haldimand] be Pleased to Establish among them, a Form of Government as nearly similar to that which they Enjoyed in the Province of New York in the year of 1763.15

Here was a specific loyalist constitutional model taken neither from theory nor from English example but from the experience of pre-revolutionary provincial New York.

In the summer of 1784 parties of loyalists moved out of their refugee camps in the province of Quebec to the virtually uninhabited region of western Quebec (present-day southern Ontario).16 Settling primarily in the areas of Cornwall and Kingston (then known as New Johnstown and Cataraqui), they were not content to live under the laws and institutions of Quebec. In 1785 loyalist leaders petitioned the king to the effect that: ‘They were born British Subjects, and have ever been accustomed to the Government and Laws of England. It was to restore that Government, and to be restored to those Laws, for which from Husbandmen they became Soldiers.’17 They wanted the ‘Establishment of a liberal System of Tenure, Law, and Government in this new Settlement,’ by which they meant British (to be more exact, English) rather than French institutions and civil law. Two years later, another loyalist petition urged the government, yet again, to bestow upon them the ‘blessings of the British Constitution.’18 By this phrase, they meant primarily that ‘their Lands [be] granted according to English tenures’ rather than French seigneurial tenure. In addition, they asked for assistance for the churches of Scotland and England, and help in establishing schools and in other matters relating mainly to local improvement.

The general thrust of loyalist constitutional concern, then, could be met by the simple introduction of English land tenure, civil law, and representative government. To the extent that it can be measured, loyalist sentiment had little to say about the desirability of an aristocratic hierarchy. If anything, the earliest manifestations of loyalist sentiment on this question were less than prepossessing. For instance, in the 1780s an aggrieved land surveyor, Patrick McNiff*, was able to exploit discontents which erupted in the New Johnston area between ‘Gentlemen officers enjoying half-pay from the Crown, and the Comonality.’19 When in 1788 the government of Quebec erected four new administrative districts in the western part of the province, it was welcomed as a gesture in the loyalists’ direction. Three years later, the establishment of the western portion as a separate colony with its own constitution satisfied general expectations with respect to separation from Quebec and its civil law. But with respect to their constitutional aspirations, the loyalists got something they had not bargained for.

The Canada or Constitutional Act of 1791 gave the new province of Upper Canada a constitution forged in the fires of English counter-revolutionary hopes. The French revolution, after all, was only two years old and England was its leading antagonist. The model for the act was not the New York colony in 1763; rather it was England, and the constitution conferred was the so-called mixed or balanced constitution composed of the three classical forms of polity: monarchy, aristocracy, and democracy, represented respectively by a lieutenant governor, an appointed legislative council, and an elected legislative assembly. These elements brought together within a system of checks and balances would, it was believed, prevent the natural tendency of political regimes to degenerate into their unconstitutional forms: tyranny, oligarchy, and anarchy. A proper aristocratic emphasis would allow the newly erected colonies to hold the democratic element of the constitution in check as had not been the case in colonies such as New York prior to the other revolution, the American one.

From a continental European perspective, the hallmark of this uniquely English constitutional arrangement was liberty, yet in an ‘age of democratic revolution’ the Constitutional Act, with its emphasis on monarchical and aristocratic elements, was counter-revolutionary. Wise insisted on the emotional impact of loyalism and the political tendencies that flowed from it. There is good reason, however, to emphasize the American aspect of loyalism in Upper Canada and its sustained impact. As it turned out, not all loyalists voted on the government side.20 The strength of the counter-revolutionary experiment derived almost exclusively from the Constitutional Act. The loyalist experience may have had at its core a concern for order and stability but there was no intrinsic constitutional preference embodied in it. Powerful, non-loyalist merchants such as Robert Hamilton* of Queenston were just as insistent upon the necessity of order and far more specific, in political terms, about its structure.21

Successive adherents of the counter-revolutionary tradition, whether English officeholders such as Chief Justice Osgoode or native-born administrators and politicians such as Robinson, breathed fire and force into the Constitutional Act and struggled consciously against hostile social reality to maintain it; for without it, there was no hope for what John Macaulay* of Kingston referred to in 1850 as a ‘government of gentlemen.’22 Crucial to this creed and to the constitution’s ultimate success was aristocracy. Lieutenant Governor John Graves Simcoe took measures, as he expressed it, for ‘making a due provision of Power for that legal Aristocracy which the Experience of Ages has proved necessary to the Ballance and Permanency of her [Great Britain’s] inestimable form of Government.’23 To that end, he established lieutenants of counties (modelled on English practice) and conferred the office upon those ‘who seem most respectable … for their property, Loyalty, Abilities, and Discretion … and who from a Combination of such Possessions and Qualities acquire that weight, respect, and public confidence which renders them the natural support of Constitutional Authority.’24 But county lieutenants such as Joel Stone* of Gananoque were little more than semi-literate country bumpkins compared with their English equivalents.25

The undercurrent of popular animus against so-called ‘noble’ pretensions, first manifest in Patrick McNiff’s machinations in the 1780s, erupted again. This time it was at the western end of the province. François Baby*, a member of an old, wealthy, and powerful family, and an exemplar of a Roman Catholic, French-Canadian gentleman, protested to Simcoe. It seems that the congregation of Notre‑Dame‑de‑l’Assomption bridled at his claim to a ‘place of honour’ – a pew granted him (in the manner of the French regime) as deputy lieutenant of the county. The congregation went so far as to have the ‘distinctive pew’ removed.26

The popular sentiment evident in the McNiff and Baby episodes would be a recurrent theme. Isaac Swayze*, a loyalist of unsavoury repute, boasted in 1800 that he had been elected to the House of Assembly in 1792 by the ‘farmers and general classes’ who regarded him as their champion rather than the local ‘nobles.’27 Although the experiment with county lieutenancies was of brief duration – barely surviving the War of 1812 – it, like Robinson’s cheer at the Tuileries in 1816, captured the essence of the counter-revolutionary tradition in Upper Canada, the attempt to found a traditional hierarchical polity, characteristic of both England and Europe in the early modern period, which revolution had forestalled in the Thirteen Colonies and destroyed in France.

In point of fact, the assumptions underlying the Constitutional Act were as old as Aristotle’s Politics.28 For the ancients, natural inequality was an invariant condition of human nature and the foundation for political inequality. The counter-revolutionary tradition further secured subordination by blessing it with the stamp of providential design and emphasizing the symbiotic relationship between throne and altar, sceptre and mitre.29 The Constitutional Act also provided for an established church, the Church of England. As Robinson later expressed it, ‘Religion is the only secure basis on which civil authority can rest.’30 Above all, the order of society required the maintenance of a graded social structure and that structure’s continuance was inseparable from aristocracy. The anomaly of the Upper Canadian situation was the want of an aristocracy. In the 1790s (and for several decades afterwards) the colony lacked a settled province-wide, as opposed to local or regional, social structure of any sort.31 As the social order took shape, however, it became all too clear to Robinson, for instance, that the great experiment had been an abject failure. He observed in the late 1830s that recent English electoral reforms had occurred in spite of ‘the vast patronage of Government … with all the influence of ancient and venerable institutions, and the traditionary respect for rank and family – with all the substantial power of wealth, and the control of numerous landlords over a grateful tenantry.’ If the combined power of these institutions could not frustrate democratic forces in England, then how would Upper Canada fare with, as Robinson put it, ‘none of these counteracting checks.’32

The Constitutional Act established a political basis for an aristocracy in the appointed legislative council and made due provision for hereditary titles, although in the latter case little came of it. But in England the House of Lords represented the political, economic, and social reality of the aristocracy; indeed, the entire political structure including the House of Commons was highly restrictive and represented little more than John Macaulay’s ‘gentlemen.’ The property limitations on the franchise ensured that representation in the House of Commons was largely confined to them.

In the absence of an indigenous hierarchy, proponents of church and state such as Robinson regarded the Legislative Council as the colony’s best, if not only, hope. Any extension of the elective principle to the council would destroy it. Without gentlemen in the council, society would be deprived of countervailing institutions to democracy. The elective principle would preclude the crown ‘from appointing a gentleman of high character, of large property, and of superior information’ to the council.33 Only the royal prerogative over council appointments maintained intact would provide a political role in society for the ‘most worthy, intelligent, loyal, and opulent’ inhabitants of the province.34 Robinson argued that a reconstructed council with its power diminished would destroy its basis for independence. It was precisely because the council was not hereditary that the crown prerogative was vital. The Constitutional Act and the English constitutional example demanded the separation of the upper branch of parliament from the lower, as did – according to Robinson – the nature of monarchical government.35

Although there were restrictions upon the franchise in Upper Canada and even greater restrictions in other colonies such as New Brunswick, the availability of abundant, cheap land ensured a much more ‘extensive’ use of the franchise than in England.36 The framers of the Constitutional Act had expected it to bring political stability to the Canadas and to avoid the political turbulence which, they thought, had led to the American revolution. But in Upper Canada, regardless of the exact percentage of political participation, the extent of the franchise, the pluralistic and local nature of colonial society, the absence of an aristocracy, the lack of sufficient executive-controlled patronage to manage the Legislative Assembly, and the internecine conflict between several political traditions rendered the political structure unworkable and, hence, unstable. It would take over fifty years to work out a new contractual basis for political stability, an essentially middle-class stability that would overturn the Constitutional Act and everything it represented and put into place a new political arrangement recognizing the essential minimum requirements of British North American pluralism – responsible government (meaning the responsibility of the executive to the assembly), the separation of church and state, and the separation of the judiciary from the executive and legislative functions of government.

In recent years Upper Canadian historians have focused on the attempts by early élites to foster myths surrounding the loyalists and the role of the militia in the War of 1812 in their collective search for a glue to hold together Upper Canadian society.37 The loyalist myth, like that of the militia, enjoyed its greatest popularity in the mid and late nineteenth century. Astute participants in the life of early Upper Canada, such as John Strachan*, the Church of England rector of York (Toronto), saw the potential in such myths. For instance, in 1813 Strachan wrote a short life of a British army officer, Cecil Bisshopp*, recently killed during a raid upon an American fort. The raiding party consisted of British regulars, Upper Canadian militia, and natives. Strachan had hopes of turning Bisshopp’s death to political favour, but little came of it.38 Loyalism and the militia ultimately failed to justify the rule of élites before the Act of Union. Their real appeal was to a later age.

A more compelling myth with much deeper roots both in Upper Canadian society and in the Anglo-American political inheritance was British constitutionalism and the rule of law. This myth had great appeal to officialdom, the judiciary, and their supporters. It proffered a constitution that was itself the legacy of, and sanctioned by, the ages; it boasted of individual rights, it enshrined the language of liberty, it assured the equality of all subjects before the law, and it trumpeted the Solomon-like role of the judiciary as the impartial guardian of the constitution and its benefits.

One of the first to give public expression to the myth was Strachan. In 1810 he penned a long pamphlet, ostensibly on the virtuous character of King George III. It was, as his former student Robinson observed, an attempt ‘to make the disaffected among us loyal and contented.’39 Although it met with ‘little regard,’ it was a notable attempt to defend the constitution from the ‘wicked spirit of party.’40 The body of the text consisted of adulatory pap about the character of the king and the royal family, whereas the footnotes contained incisive comments about the province’s political institutions and recent history. Strachan’s intended readership is uncertain but it is likely he had taken aim at the doubtful sympathies of a significant segment of the loyalists. Loyalist assemblymen such as Thomas Dorland*, David McGregor Rogers*, Ralfe Clench*, Peter Howard*, and Ebenezer Washburn* had figured at various times in the opposition to Lieutenant Governor Francis Gore*.41 In the columns of Joseph Willcocks*’s Upper Canadian Guardian, such prominent loyalist families as the Secords of Niagara had disputed the administration’s interpretation of loyalism, an interpretation that robbed it of its oppositionist content.42

Strachan’s task was to delineate the true meaning of liberty in relation to the constitution, a constitution that secured both liberty and property to all British subjects. It is not surprising that he thought liberty was best secured by the restraints of law, tradition, custom, religious education, and duty.43 In a revolutionary age Britain alone had hallowed liberty in its constitution, a constitution that had received the approbation of the ages. He concluded that, guarded by a magnanimous king in the due exercise of his monarchical prerogative, the British nation was the freest on earth, sure in its property and rights.44 The rallying standard was the constitution. ‘It is not,’ Strachan wrote, ‘the work of a day; it rests upon old and tried foundations, the more durable, because visionary empiricks have not been allowed to touch them. No fine spun theories of metaphysicians, which promise much and end in misery, have shared in its formation; such men may destroy, but they can never build. All the privileges which Englishmen possess are ours.’45 Abstract rights could never provide what the British constitution had already delivered to Britons, and Upper Canada in its constitution possessed Britain’s constitution. All that was needed was to protect it from its enemies and to guard the crown’s prerogative. That sense was never lost. As late as 1840, Robinson, then chief justice, claimed publicly that Upper Canada possessed a ‘constitution and laws better calculated than those of any other country to secure the best interests and promote the happiness of the human race.’46

In 1822 Mr Justice William Campbell* addressed the grand jury of the Home District on the nature of the judicial trust. He noted that ‘of all human concerns, the task of administering Justice between man and man, and the power of deciding on the rights, the liberties, the reputation, and even the lives of our fellow subjects, is the most important and at the same time the most honorable trust that can be confided to any man or set of men, &c that the upright and impartial discharge of it, is the greatest benefit that can be conferred on society.’ If equality did not exist in nature and could not exist in society, it could, and did, exist before the law.47 Four years later, Chief Justice Campbell proclaimed that ‘our free constitution does not permit that the life, liberty, or reputation of any subject should be put in jeopardy, on surmise, or on slight or doubtful evidence.’48 His utterance on this occasion was a commonplace of judicial charges in Upper Canada. Indeed, these assumptions about the British constitution and the rule of law had deep roots, not only among the Upper Canadian populace but also in Anglo-American political/constitutional thought.

Robert Stanton*, publisher of the U.E. Loyalist, a paper strongly supportive of the administration in Upper Canada, noted in an 1826 editorial that the ‘administration of Justice, under the British Constitution, confers more privileges upon us as a people, than any system of Government the world has ever devised.’49 Laudatory echoes of this sentiment were ubiquitous. The following year, in his charge to the grand jury of the Home District, Campbell described trial by jury as the ‘Bulwark of British liberty’ and the ‘Palladium of the British Constitution.’ It was, he thought, ‘an Institution admirable in itself, and the best calculated for the preservation of liberty, and the administration of Justice that ever was devised by the wit of man.’50

The language of constitutionalism cut across several political traditions, and the judges of the Court of King’s Bench had ample opportunity on their circuits to deliver their version with both frequency and force. Through charges to district grand juries, which were often published in local newspapers, the judges had an ideal platform to underscore the salient features of this myth: the superiority of the British constitution and laws above all others, the constitutional enshrinement of civil and religious rights, the basis for those rights in the protection of property, the elevation of the laws and the constitution above arbitrary power, constitutional provision for the right of all to have a voice in the making of the laws, equality before the laws, and, finally, the impartial administration of the law. On these points, the strongest case could be, and was, made from the bench and elsewhere for the preservation of the Constitution of 1791, particularly its provision for appointed councils, and the maintenance of the constitutional status quo. That it failed to thwart the criticisms and agitation of the 1820s, or indeed of earlier periods, is testimony to even more compelling elements of the same mythology, such as the concern for the separation of the judicial from the legislative and executive functions of government, the sensitivity to infringements of rights that naturally resulted from the conjunction of those interests, and the destruction of justice’s cherished impartiality by systematic abuse.

For men such as John Beverley Robinson and his mentor, John Strachan, the natural order of society was unequal, hierarchical, and aristocratic. That order was protected and sanctified by the British constitution, the rule of law, and the protection of property. Strachan once dismissed the observation of the French political commentator Alexis de Tocqueville concerning the inevitable triumph of democracy over aristocratic states as a fanciful ‘theory that there is an irresistible tendency among mankind to Democracy & equality of condition.’51 He characterized the ‘doctrine of primitive equality’ as a radical notion that ‘never did and never can exist[,] for the distinctions of Society … are essential portions of the dispensations of Providence.’52 Equality was possible spiritually but ‘not an equality of ability state or condition.’53

In 1842 John Strachan told a friend that his former pupil Robinson was ‘wiser than I am – to him I give up in most things, but to no other.’54 Of all of Strachan’s students who held office during the Upper Canadian period, Robinson was easily the most important and probably the brightest. By the 1830s – at the very latest – the percipient Robinson was all too aware that Upper Canada lacked, and would never possess, the native aristocracy and landed class which were essential to the hopes for hierarchy expressed in the Constitutional Act. Given the ever-present threats to the colony, both from without – as the experience of the War of 1812 had demonstrated so vividly – and from within – another striking manifestation of the wartime experience – Robinson and others increasingly pinned their hopes not on a nascent social structure but on the Constitutional Act and its provision for an appointed legislative council, and on the rule of law, the security of private property, the magistracy, and the legal profession. These institutions provided the best, and seemingly the only, defence of order in Upper Canada, without which no social blessing could be enjoyed. After becoming chief justice of the Court of King’s Bench in 1829, Robinson had ample opportunity to expound on such favourite themes in his charges to district grand juries.

‘Order,’ he once intoned, ‘is heavens first law.’ Moreover, there was a direct relationship between order and social structure. ‘Among the most powerful securities for the maintenance of order in a community,’ he declared, ‘is the good conduct of those, to whom the great body of the people naturally look up to, for advice and example.’

It is happy for such persons, & for others, when this influence is beneficially exerted, and … they are found supporting the best interests of society by showing a ready & implicit obedience to the laws of the land, & by a correct observance of their relative duties – It would be a waste of words, if I were to enlarge upon the advantage … the necessity of maintaining the authority of the law, in its full force, and upon all occasions – Whatever earthly good we may choose most to value, we can have no satisfactory enjoyment of it, if over life, or over personal freedom, over property or over reputation we held only the arbitrary pleasure of any individual, or of any number of persons – There can exist no liberty – at least no secure rational liberty except under the protection of law – & the liberty of the people in any Country is but a name without the substance, from the moment that the authority of the Law ceases to be supreme – … Submission to the laws must, where freedom is valued, be prompt & unqualified – That submission need not proceed from the conviction that, the laws in force are absolutely perfect nor does it imply a servility in the slightest degree unbecoming.55

‘Order, stability, peace [and] security’ constituted ‘the great blessings of social existence.’56 If Wise is right about the degree to which the loyalist ethos was imbued with the concern for order and stability, then the myth of the rule of law and British constitutionalism could serve as the primary means of attaching loyalists to that order.

Disorder had its roots in human nature. This was the visible ‘meaning’ of the moral world. Human beings were tainted by the corruption of original sin and the subsequent fall from grace. Early religious and moral instruction and the union of church and state provided the first great supports of society against the natural tendencies of human nature. Society was further buttressed against disorder by the inequality of the natural social order which limited power to those fit to rule. In a society such as Upper Canada where the wealthy and well born were few in number, the rule and force of law was critical, at times, to deter or to restrain human nature.57 As the colony became more populous and complex, the problem of social structure would be exacerbated. Then, more direct and drastic forms of social control such as police forces would become necessary to ensure order.58

In the meantime, however, provision for the maintenance of order within the colony fell upon a middle ground of custom, habit, and tradition which lay between aristocracy and hierarchy on the one hand and police forces on the other. Without the ‘Counteracting influence of an ancient Aristocracy, of a great landed interest or even of a wealthy agricultural class,’ there was, Robinson thought, ‘little in short but the presumed good sense, and good feeling of an uneducated multitude, (which may be too much tempted) to stand between almost universal suffrage and those institutions, which proudly and happily distinguish Britons from the subjects of other monarchies, and no less so, from the Citizens of that Great Republic [the United States].’59

The appeal to the good sense of the uneducated multitude depended not upon its rationality but rather upon impressions formed by customs and traditions which inculcated order through example and influence. Here (after religious instruction) the leadership provided by gentlemen, society’s social superiors, was vital.60 As Robinson put it:

Among the most powerful securities for the maintenance of order in a Community, is the good conduct of those, to whom the great body of the people naturally look up, for advice and example … it will always be found that a very considerable influence attaches itself to those who possess the advantages of education, and of superior natural intelligence, and of wealth, and of respectable stations in society, whether arising from public employment, or, from the exercise of the liberal professions.61

The ‘less reasonable & respecting will be improved,’ Robinson argued, ‘by their [gentlemen’s] example.’ Gentlemen, or the ‘regularly bred’ as he once called them,62 were those ‘possessed of that degree of intelligence, respectability, & property which naturally confers upon them a salutary influence in Society.’63 Order depended upon their role in society and their rule over it.

By and large, it was assumed that the unequal possession of property conferred upon its owners influence, standing, independence, and a stake in society. During a discussion in the legislature about the selection of grand jurors, Christopher Hagerman argued that they should be ‘taken from the number of persons of the greatest figure and standing in the country … such are more likely to be obtained … from among those persons possessed of the greater amount of property.’64 Thus, the rule of gentlemen was at one with the possession of property.

If property was essential to the order of society, it was secured by the British constitution and, in Upper Canada, by the imperial connection and the Constitutional Act. Robinson declared with satisfaction in 1834 that Upper Canadians ‘live in the enjoyment of a system of Criminal law, of Jurisprudence of what we may say with truth that none more just or rational has yet been produced by the wisdom of mankind – the general principles and the leading [illegible word] which govern its administration have become venerable from antiquity, having received the sanction & approbation of ages.’ The chief justice further remarked that the 1833 reform of the criminal laws of the province had ‘relieved’ ‘this system … from the reproach of an apparently indiscriminate severity in awarding Capital punishments.’ ‘It is most satisfactory,’ he reported, ‘to find that the security of life & property does not appear to be diminished by withdrawing the terror of an ignominious death.’65 Robinson noted further that, ‘in respect’ to capital punishment, few ‘were … so punished.’ As for the Constitutional Act, ‘That statute was framed in a wise spirit of adherence to the well established principles of British government. It discovers no distrust of the sufficiency of British institutions for protecting the liberties and promoting the happiness of the people. I know not what deviation from it is likely to be found an improvement.’66

If, for these reasons – the protection of liberty and happiness – the constitution was inviolable, then property was the bulwark of constitutional liberty. Strachan was explicit on the point:

Does any person doubt whether the British be the freest nation on earth, let him tell me where property and its rights are so well protected. This is the life and soul of liberty. What shall oppression seize when property is secure? Even a tyrant will not be wicked for nothing; but the motives and objects are removed, and the seed of oppression destroyed, when property is safe. By this, life and liberty are rendered sacred.67

The British constitution enshrined the rule of law as paramount over the will of men. To be governed by laws, not by men, and to have a voice in the making of those laws were recurrent themes in Robinson’s charges: ‘To be governed by Laws, and not by the arbitrary will of any man or number of men, & to have the privilege of choosing those who are to have a voice in making the laws are the distinctions of a free people.’68 The glory of the constitution and the laws lay not only in the security afforded property, life, and liberty. Equality of rank, station, and condition may have been radical will-o’-the-wisps, but equality before the law was not. It was a feature of the constitution and a central aspect of its mythology.

In one of his earliest charges, Robinson emphasized that ‘we have … laws which know no distinction either in principle, or practice, between the rich & the poor – laws to which no man can be afraid to appeal, and which in regard to the protection of the person … are accessible to the most indigent, as they are indeed to all without cost.’69 The only distinction before the law, he once commented, was ‘between those who observe the laws of the land & those who violate them.’70 There was simply ‘no Country, where the laws are more just in principle, or more mild in their actual administration, none in which the innocent are more effectually & certainly protected, in which the distinction between the rich & the poor, the powerful & the humble has less weight in the scale of Justice – I need not have said less weight, for I should not be warranted in conceding that it has any.’71

The administration of justice was the foundation of the ‘security’ of both individuals and society. Moreover, it depended ‘wholly upon the supremacy of the Laws; upon maintenance of the social system in such a state that no man … be afraid to claim the protection of the law of the land, or shall fail to find it honestly & fearlessly enforced to maintain his rights.’72 No power ‘above the law’ could be tolerated. Such a constitutional arrangement could be ensured only by taking ‘scrupulous care that the whole population shall be brought up in the constant & habitual submission to the civil authority.’73 The guarantee of that submission was the commonly held belief that all stand before the law ‘upon an equal footing.’ And the ‘permanent tranquility of the Country … can hardly be seriously endangered so long as a general confidence exists in the unprejudiced and impartial dispensation of Justice .’74


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