Canadian State Trials, Volume II: Rebellion and Invasion in the Canadas, 1837-1839 9781442620889

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CANADIAN STATE TRIALS VOLUME II REBELLION AND INVASION IN THE CANADAS, 1837–1839

This second volume of the Canadian State Trials series focuses on the largest state-security crisis in Canadian history, measured in terms of political prosecutions: the rebellions of 1837–8 and the associated patriot invasions in Upper and Lower Canada (Ontario and Quebec). Historians have long debated the causes and implications of the rebellions but until now they have done remarkably little work on the legal aspects of the insurrections and their aftermath. Given that over three hundred and fifty men were tried for treason or equivalent offences in connection with the events, this volume is long overdue. The essays collected here break new ground in the existing historiography of the rebellions by presenting the first comprehensive examination of the legal dimensions of the crisis. The essays, written by leading historians, legal scholars, and archivists, examine the trials and court martial proceedings as well as their political, social, and comparative contexts, including the passage of emergency legislation and executive supervision of legal responses, the treatment of women, and the plight of political convicts transported to the Australian penal colonies. This volume contributes significantly to the ongoing reassessment of the rebellion period. The exploration of the rich record of legal responses to real and perceived state-security threats also sheds light on important themes in our political, constitutional, and legal history. (Osgoode Society for Canadian Legal History) The late F. MURRAY GREENWOOD was associate professor emeritus of history at the University of British Columbia. BARRY WRIGHT is professor of legal studies and director of the Institute of Criminology and Criminal Justice at Carleton University

CANADIAN STATE TRIALS VOLUME II REBELLION AND INVASION IN THE CANADAS, 1837–1839

PATRONS OF THE SOCIETY

Aird & Berlis Blake, Cassels & Graydon LLP Davies Ward Phillips & Vineberg LLP McCarthy Tétrault LLP Osler, Hoskin & Harcourt LLP Torkin Manes Cohen & Arbus LLP Torys WeirFoulds

The Osgoode Society is supported by a grant from The Law Foundation of Ontario.

The Society also thanks The Law Society of Upper Canada for its continuing support.

Canadian State Trials v o l u m e ii

Rebellion and Invasion in the Canadas, 1837–1839 Edited by F. M URRAY G REENW O O D and B ARRY WRI G H T

Published for The Osgoode Society for Canadian Legal History by University of Toronto Press Toronto London Buffalo

© Osgoode Society for Canadian Legal History 2002 Printed in Canada isbn 0-8020-3748-8

Printed on acid-free paper

National Library of Canada Cataloguing in Publication Canadian state trials / edited by F. Murray Greenwood and Barry Wright. Includes bibliographical references and index. Contents: v. 1. Law, politics and security measures, 1608–1837 – v. 2. Rebellion and invasion in the Canadas, 1837–1839. isbn 0-8020-0913-1 (v. 1 : bound). isbn 0-8020-7893-1 (v. 1 : pbk.). isbn 0-8020-3748-8 (v. 2) 1. Political crimes and offenses – Canada – History. I. Greenwood, F. Murray (Frank Murray), 1935–2000 II. Wright, Barry, 1957– III. Osgoode Society for Canadian Legal History ke226.p6c35 1996

345.71v009v03

c96-931135-4

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through its Book Publishing Industry Development Program (BPIDP).

This volume is dedicated to the memory of F. Murray Greenwood

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Contents

Foreword Acknowledgments Contributors Maps Abbreviations

Introduction: Rebellion, Invasion, and the Crisis of the Colonial State in the Canadas, 1837–9 f. murray greenwood and barry wright

xi xiii xv xvii xix

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Part One: Upper Canada 1 Trying the Rebels: Emergency Legislation and the Colonial Executive’s Overall Legal Strategy in the Upper Canadian Rebellion 41 rainer baehre 2 The Toronto Treason Trials, March–May 1838 paul romney and barry wright

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3 The Treason Trials of 1838 in Western Upper Canada colin read

100

4 The Kingston and London Courts Martial barry wright

130

5 The Prince Affair: ‘Gallant Colonel’ or ‘The Windsor Butcher’? f. murray greenwood

160

6 Patriot Exiles in Van Diemen’s Land cassandra pybus

188

Part Two: Lower Canada 7 ‘This Ultimate Resource’: Martial Law and State Repression in Lower Canada, 1837–8 jean-marie fecteau

207

8 State Trial by Legislature: The Special Council of Lower Canada, 1838–41 248 steven watt 9 The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison f. murray greenwood

279

10 The Montreal Court Martial, 1838–9: Legal and Constitutional Reflections f. murray greenwood

325

11 ‘Women’s Work’: Women and Rebellion in Lower Canada, 1837–9 beverley boissery and carla paterson

353

12 The Punishment of Transportation as Suffered by the Patriotes Sent to New South Wales beverley boissery

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Appendices: Archival Research and Supporting Documents A In Pursuit of Rebels at the National Archives of Canada: Beyond the Usual Round-up of Suspect Sources patricia kennedy Tables of National Archives Sources with Commentary (P. Kennedy) B. Archival Sources in Quebec Relating to the Legal Suppression of the Rebellions of 1837 and 1838 in Lower Canada james lambert

405

416

428

C. Rebellion Trials Sources in Ontario Archives susan lewthwaite

452

D. Supporting Documents

459

Index

487

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Foreword THE OSGOODE SOCIETY F OR C A N A D I A N L E G A L H I S T O R Y

The publication of the second volume in the Canadian State Trials series is a poignant moment in the history of the Osgoode Society. We were saddened by the death of Murray Greenwood while the volume was proceeding through the editorial process. Murray initiated the Canadian State Trials series and for many years, in association with Barry Wright, guided it with a sure hand, both by his leadership in the organizational and editorial processes and by contributing many admirable essays himself. His leadership was inspirational and his friendship of great importance to the small community of scholars labouring in this field. He is sorely missed. The Society thanks his wife, Beverley Boissery, who did so much to bring his work to fruition, and his co-editor, Barry Wright, who was determined to make this an outstanding book in tribute to a valued friend and colleague. This volume focuses on the largest state-security crisis in Canadian history, measured by the number of political trials: the Rebellions of 1837–8 and the associated Patriot invasions in Upper and Lower Canada. Historians have long debated the causes, events, and implications of the rebellions, but until now they have done remarkably little work on the legal aspects of the insurrections and their aftermath. Given that over 350 men were tried for treason or equivalent offences in connection with the rebellions, this volume is long overdue. The essays collected here break new ground in the existing historiography of the rebellions by presenting the first comprehensive examination

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of the legal dimensions of the crisis. The essays, written by leading scholars in the field, place the trials and court-martial proceedings fully in their political, social, and comparative contexts. The purpose of The Osgoode Scciety for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, a former attorney general for Ontario, now chief justice of Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research-support program, a graduate student research-assistance program, and work in the fields of oral history and legal archives. The Society publishes volumes of interest to the Society’s members that contribute to legal-historical scholarship in Canada, including studies of the courts, the judiciary, and the legal profession, biographies, collections of documents, studies in criminology and penology, accounts of significant trials, and work in the social and economic history of the law. Current directors of The Osgoode Society for Canadian Legal History are Robert Armstrong, Jane Banfield, Kenneth Binks, Patrick Brode, Brian Bucknall, Archie Campbell, Kirby Chown, J. Douglas Ewart, Martin Friedland, Elizabeth Goldberg, John Honsberger, Horace Krever, Vern Krishna, Virginia MacLean, Wendy Matheson, Roy McMurtry, Brendan O’Brien, Peter Oliver, Paul Reinhardt, Joel Richler, James Spence, Richard Tinsley, and David Young. The annual report and information about membership may be obtained by writing: The Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario. m5h 2n6. Telephone: 416-947-3321. E-mail: [email protected] R. Roy McMurtry President Peter N. Oliver Editor-in-Chief

Acknowledgments

Sadly, the editors’ acknowlegments must reflect a single hand. Murray Greenwood, Rhodes Scholar, lawyer, and historian, as well as a mentor, colleague, and friend of mine, died in December 2000. While I will attempt to do justice to the many debts that we both accumulated while assembling this volume, I must begin by expressing gratitude to Murray. Murray recognized the need for a comprehensive examination of Canada’s rich historical record of political trials and state-security measures and conceived the Canadian State Trials project. I was fortunate and honoured to be asked to assist him with it. Our first volume, covering the period 1608–1837, was published in 1996. This second volume bears his indelible stamp because, quite apart from his originating the series and contributing new essays, we had both managed to complete detailed editorial comments on a full draft of the manuscript before he passed away. His legacy will continue with plans for two further volumes (from the period of the Fenian invasions to the First World War, and from the Winnipeg General Strike to the October Crisis of 1970 and possibly beyond). Murray would have been concerned by the legal responses to the recent terrorist attacks in the United States but heartened to see his great project continue. He sought tirelessly to increase awareness of past experiences and to demonstrate their relevance to current concerns. The scholarship that Murray produced and inspired will be of lasting importance, not only for historians and political, constitutional, and legal specialists, but for all Canadians concerned about civil liberties. Both Murray and I owe an enormous debt of thanks to our contributors. They responded to our suggestions with diligence, good nature, and a

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great deal of patience. They helped to shape the volume beyond their individual contributions. Their inspired support and dedicated efforts in the months following Murray’s death reflected a common desire to make the volume the best possible tribute to Murray. In particular I wish to mention Beverley Boissery and Chris Greenwood, who provided invaluable help as we revised Murray’s essays, and Jean-Marie Fecteau, whose help was similarly invaluable as I assembled documents for Lower Canada. Colin Read also supplied documents and his maps in the Historical Atlas of Canada Volume Two provided the jumping-off point for the simple representations of the location of major engagements and trial venues presented here. There are many others who also provided help along the way and their assistance is noted in the individual essays. Meredith and Edward Wright were remarkably patient and provided much encouragement. The Osgoode Society provides enormous support for Canadian legalhistorical scholarship and has helped the Canadian State trials project in a number of practical ways. Editor-in-Chief Peter Oliver has led these efforts and spent a good deal of time reviewing and offering constructive criticism of the volume essays as they evolved into their final form. Marilyn MacFarlane, as always, and despite the disruption of building renovations, coordinated effectively, offered sage advice mixed with good humour, and kept up our morale. Len Husband at the University of Toronto Press also kept us on track and I am grateful for his enthusiastic support. The anonymous reviewers produced reports that reflected careful consideration and sound judgment. I took the liberty of incorporating many of their insights and suggestions. It is unfortunate that Murray did not see the ample, unqualified praise for the final manuscript in the reports written for the University of Toronto Press and the Humanities and Social Sciences Federation. Our copy editor, Curtis Fahey, further polished the manuscript and yet again brought order to our scholarly anarchism. Michael Bunn, Laurie Campbell, and Anne Laughlin of UTP provided valuable help as the book was prepared for production. We thank the Social Sciences and Research Council of Canada for a generous research grant in support of the editors’ scholarship and research expenses. The funds were particularly helpful for Murray’s research trips and for the employment of our research assistants, Chris Greenwood, Jim Opp, Tim Riordan, Alessandra Iozzo, and Ugo Ukpabi. Finally, we wish to acknowledge that this book has been published with help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. Barry Wright

Contributors

rainer baehre is an associate professor at Sir Wilfred Grenfell College, Memorial University. His publications include Outrageous Seas (McGillQueen’s University Press 1999) and a variety of writings on the social, medical, and legal history of early-nineteenth-century British North America. beverley boissery is the author of A Deep Sense of Wrong: The Treason Trials and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion (Osgoode Society/Dundurn Press 1995) and is currently visiting scholar in residence at Regent College, University of British Columbia. jean-marie fecteau is professor of history at the Université du Québec à Montréal and director of the Centre d’histoire des régulations sociales. His recent publications include Enfance et justice au XIXe siècle: Essais d’histoire comparée de la protection de l’enfance 1820–1914 (Presses Universitaires de France 2001) (in collaboration) and ‘L’histoire comme expérience de la violence,’ Regards divers sur la violence (Institut de recherche sur le développement social des jeunes 2001). f. murray greenwood, deceased, was associate professor emeritus of history at the University of British Columbia and originated the Canadian State Trials series, the first volume of which was published in 1996. His other publications include Legacies of Fear: Law and Politics in the Era of the French Revolution (Osgoode Society/University of Toronto Press 1993) and (trans./ed.) Land of a Thousand Sorrows: The Australian Prison Journal, 1840–2, of the Exiled Canadien Patriote, François-Maurice Lapailleur (University of British Columbia Press 1980).

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patricia kennedy is an archivist in the Manuscript Division of the National Archives. She has spent the past three decades developing her expertise with the records of the civil administration during the British regime, becoming the senior specialist in the field. james lambert has been an archivist at the Division des archives de l’Université Laval since 1989. He was a manuscript editor at the Dictionary of Canadian Biography/ Dictionnaire biographique du Canada (DCB/ DBC) and wrote and edited DCB/DBC biographies of individuals involved in the rebellions of 1837–8 in Lower Canada. susan lewthwaite is research coordinator at the archives of the Law Society of Upper Canada and co-edited (with J. Phillips and T. Loo) Essays in the History of Canadian Law Volume 5: Crime and Criminal Justice (Osgoode Society/ University of Toronto Press 1994). carla paterson is a lecturer in the Foundations Program at the University of British Columbia and is currently engaged (with Beverley Boissery) in a study of rebellion reparations. cassandra pybus is an Australian writer and historian whose recent books include The Devil and James McAuley (University of Queensland Press 1999), The Woman Who Walked to Russia (Thomas Allen 2000), and (co-authored with Hamish Maxwell-Stewart) American Citizens, British Slaves: Yankee Political Prisoners in an Australian Penal Colony (Michigan State University Press 2002). She holds an Australian Research Council Professorial Fellowship at the University of Tasmania and is currently a visiting Fulbright Professor at Georgetown University (2002). colin read is professor of history, Huron University College, University of Western Ontario. His publications include The Rising in Western Upper Canada, 1837–8: The Duncombe Revolt and After (University of Toronto Press 1982) and (co-edited with R. Stagg) The Rebellion of 1837 in Upper Canada (Champlain Society 1985). paul romney is author of Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (University of Toronto Press 1999) and numerous other publications on nineteenth century Canadian law and politics. steven watt is completing a PhD thesis on collective petitioning in nineteenth-century Lower Canada and Maine at the Université du Québec à Montréal. His MA thesis (McGill University 1997) dealt with the Special Council of Lower Canada and its impact on Lower Canada politics. barry wright is professor of legal studies and director of the Institute of Criminology and Criminal Justice at Carleton University. His publications include (co-edited with F. Murray Greenwood) Canadian State Trials Volume One: Law, Politics and Security Measures, 1608–1837 (Osgoode Society/University of Toronto Press 1996).

Map 1. Upper Canada, c. 1837–9

Map 2. Lower Canada, c. 1837–9

Abbreviations

ANQ AO CHR CIHM CO BL DCB EHR LSUCA NA NAI IUP OH PRO RHAF SLC SUC TA TRL UCA RPAC

Archives nationale du Québec Archives of Ontario Canadian Historical Review Canadian Institute for Historical Microreproductions Colonial Office (records, Public Record Office) British Library Dictionary of Canadian Biography English Historical Review Law Society of Upper Canada Archives National Archives of Canada National Archives of Ireland Irish University Press Ontario History Public Record Office (U.K.) Revue d’histoire de l’Amérique française Statutes of Lower Canada Statutes of Upper Canada Tasmanian Archives Toronto Reference Library United Church Archives Report, Public Archives of Canada

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CANADIAN STATE TRIALS VOLUME II R E B E L L I O N A N D I N VA S I O N I N T H E C A N A D A S , 1837–1839

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Introduction: Rebellion, Invasion, and the Crisis of the Colonial State in the Canadas, 1837–9* F . M U R R A Y G R E E N W O O D and BARRY WRIGHT

Demonstrate loyalty or rebel in arms? In the Canadas, in 1837–9, ordinary people often had to choose between the two. For governments, the choices were equally difficult. Follow the rule of law and British precedents or innovate to contend with local conditions so that mistakes in dealing with the crisis would be kept to a minimum? The essays that follow tell how governments and individuals alike responded to the dilemmas facing them. The Canadian State Trials series examines incidents where the law was used to protect the security of the state against real or perceived threats ranging from dissent and protest to insurrection and military invasion. This volume on the rebellions of 1837–8 in Upper and Lower Canada and associated ‘patriot’ invasions deals with what is arguably the most serious state-security crisis in Canadian history. It is certainly the largest one when measured by legal proceedings: over 350 persons were tried for treason and equivalent political offences punishable by death. While there is an extensive historiography on the causes, events, and implications of the rebellions, the legal dimensions have been relatively neglected. This volume offers the first comprehensive examination of the trial proceedings and related legal aspects of the crisis. As the most recent * Barry Wright is grateful to Jean-Marie Fecteau and Paul Romney for their comments while the final version of this essay was completed after Murray Greenwood’s death in December 2000.

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reassessments of the period suggest, the official responses to the rebellions entailed much more than movement towards parliamentary democracy. In the short term, the crisis of the colonial state was met by classic trials for treason and the court martial of civilians, a legally regulated but nonetheless violent suppression of security threats accompanied by much human suffering. The controversies stirred by this response added to long-standing local complaints about the partisan administration of law. Legal issues were placed on the international stage as British imperial administrators, Parliament, and the courts attempted to deal with matters ranging from the treatment of armed American invaders during peacetime to transportation of convicts from the Canadas to New South Wales and Van Diemen’s Land. In the longer term, the crisis of the colonial state was met by institutional transformation and new means of managing social order, including modern security measures crafted from the experience of the rebellion period. d e fi n i t i o n o f t e r m s a nd a na ly t i ca l ov erv i ew The introduction to our previous volume examined the historical literature concerning English ‘state trials,’ cases of crimes against the state, which emerged after the conflicts of the seventeenth century. The series initiated by William Cobbett and edited by Thomas Howell and his son from 1809 to 1826 epitomized the genre, where the dramatic illustrations of political and constitutional struggles in the courts were embraced as salutary reminders of the importance of libertarian checks on government repression and abuses of the law. These checks included the Habeas Corpus Act 1679; the Treason Act 1696 (as amended in 1708), which included the right to make a full defence through counsel, a ten-day advance look at the crown’s case including indictment, witnesses and jury panel, and the two-witness rule); and the more general achievements of the ‘Glorious Revolution’ of 1689 and the 1701 Act of Settlement (for example, the right to be tried for all offences by a jury of peers, limits on crown prerogatives including public prosecutions, and limits on executive manipulation of the bench by placing judicial tenure on good behaviour assessed by Parliament rather than royal pleasure). Matters such as toleration of organized political opposition parties, limits on judicial participation in government councils, jury nullification, and freedom of the press remained, in the eighteenth and early nineteenth centuries, as objectives to be struggled for in the legal and political arenas.1

Introduction

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Our introduction to Volume I also outlined the basic English legal doctrines of treason, sedition, and habeas corpus and the complex issues of reception and the colonial administration of English law, all matters of important legal context to the proceedings examined in this volume. Volume I essays explored the adaptations of the received state-security laws in early British North America according to local circumstances and understandings. Despite colonial diversity we identified a common theme: the conflict between the actions of executive-dominated colonial governments and courts on one hand, and constitutional and ‘rule of law’ claims on the other. These claims were frequently used by the targets of government repression and were derived from late-seventeenth to earlynineteenth-century British constitutional struggles. The first volume covered a broad period and geographic area and everything could not be examined.2 The same is true of this volume because, despite its much more limited time-frame, it cannot hope to cover every facet of the more than 350 trials for treason and equivalent offences in 1837–9. Volume I’s Introduction explored possible definitions of a ‘state trial’ (the English state trials series were so-named because the proceedings were prosecuted by the crown in an era when routine offences were privately prosecuted). Certainly, a definition confined to the trial of offences against the state is too narrow, especially as our interests move into the mid-nineteenth century. The Howells series, which includes treason and sedition cases and related measures such as parliamentary-privilege proceedings for contempt, suspensions of habeas corpus, and the resort to courts martial, provides a useful starting point. We have modified it to take into account Canadian conditions and new legal responses developed since the early nineteenth century which began to displace the classic political offences of treason and sedition. The term ‘state trials’ is of important provenance but becomes something of a misnomer after the period examined in this volume. Our series, then, examines trials for offences that allegedly threatened the safety of the state and other legal responses to officially apprehended or professed threats to internal or external state security. Our concern is with the full range of legal measures to deal with state-security concerns. We do not claim to confront all the complex interactions of law and politics such as partisanship in the ongoing administration of law or politics in the more diffuse sense of the social ordering that arguably takes place as the result of the routine business of the courts. The state-security responses examined are nonetheless valuable illustrations of how gov-

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ernments used the law, adapted to local circumstances and to their best advantage, to defend themselves and their particular conception of how society should operate. The biggest departure from the state-trial genre is in presentation. The English series are compilations of trial records (annotated with valuable editorial comments in the case of the Howells). We present, instead, interpretative essays by historians, legal scholars, and archivists, supported by illustrative primary documents. This approach results from necessity (authoritative or full case reports do not exist for much of early British North America) and, more important, from the emphasis we place on offering accessible, contextualized, and comparative examinations of a wider range of state-security measures. These objectives could not be achieved by a selection of trial proceedings left largely to speak for themselves. While the subject matter naturally raises concerns about the fragility of liberties during state-security crises, we are sensitive to the dangers of teleological judgment, and so, beyond setting terms of reference, we do not insist on a homogenous interpretation or theoretical perspective from the contributors. Some general observations may nonetheless be made about the significance of the measures examined and the nature of the relationship between law and politics in early-nineteenth-century Canada. The sheer number and patterns of political trials in British North America examined in this and the previous volume defy their easy dismissal as exceptional or marginal cases. One of our aims is to draw critical attention to the prominence of the courts as a pre-confederation political battlefield and to explore the meaning of the ‘rule of law’ and other constitutional principles as they have developed in Canadian political culture. On the other hand, the critical reductionism that presents such cases as simple illustrations of legal manipulation by political elites fails to engage the complexity of our subject. Colonial governments, and the elites that dominated them, lacked sufficient solidarity, popular support, and autonomy from the imperial centre to be relentlessly repressive (although they were comparatively more so than the governments of Britain or the United States). Perhaps more important, the law itself could not be conveniently manipulated, as demonstrated by examples of prosecutorial failures which clearly embarrassed and frustrated governments. There are many examples, in Volume I as well as this one, of the rhetorical and tactical prominence of formal legal and constitutional claims. Governments employed themes such as the rule of law and British liberties to justify, to the broad public and to imperial overseers, their

Introduction

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necessary acts of justice to protect the constitution. The same themes were used by accused and their supporters, for whom state-security proceedings were acts of repression, to widen support for their criticism of government and to contest the measures used against them. These themes, notably popular expectations around the formal claims of the rule of law, limited the repressive potential of the law, demonstrating E.P. Thompson’s argument that, in order for the law to legitimate effectively the exercise of authority, it cannot be seen to be manipulated. Thompson’s insight helps to explain the advantages and limits of legal repression. The calculated utility of proceeding against a state-security threat by legal rather than military means is that greater legitimacy is lent to the government’s actions. This comes at a cost: the need to maintain the appearance of adhering to the formal claims of the system, claims that also provide opportunities for contesting such repression.3 The broad choice between expedient military interventions and legally regulated responses in the regular courts certainly preoccupied governments during the crisis of 1837–9. As we shall see, temporary martial law and the replacement of the regular legislature by the Special Council in Lower Canada were belated responses to the 1837 rebellion. Lack of confidence in the regular courts led to the large-scale court martial of civilians after the subsequent outbreak in 1838. In contrast, regular trial proceedings continued in Upper Canada well past the end of the rebellion until the autumn of 1838, when conflict on the American border was deemed to justify partial suspension of civil authority. The extended maintenance of the regular administration of justice reflected greater confidence in local juries and a provincial legislature which readily passed temporary expedients that strengthened the government’s hand. Such legislated expedients obviously reduced the ability of defendants to use established legal claims and procedural rights to contest their prosecutions. But they did not create the appearance of irregular or special justice to the same degree as military trials, where little more than abstract constitutional arguments could be made. Whatever legal options were pursued, governments in both provinces were acutely mindful of levels of public toleration and of the danger that obvious manipulation of legal process would compromise the very advantage of proceeding through the law in the first place: the acquiring of greater legitimacy and popular support for their actions. The continuation of regular government and legal processes is also an important measure of the stability of the state and of the confidence of those who dominate it. The rapid deterioration in Lower Canada placed

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the crisis of the colonial state in stark relief. As Jean-Marie Fecteau puts it in his essay in this volume, tension between the ‘will’ of the governing elite and the basic rules that governed the state reached a breaking point when radical action rendered the existing legal system and traditional means of preserving order inoperable. Although the Upper Canada courts martial were a belated response driven by external threats, the limits of that government’s confidence in the law had already been suggested by its complicity with informal ‘rough justice’ against Reformers throughout the 1820s and 1830s. This approach was given legislative sanction when loyalist acts in suppression of rebellion were placed above legal liability and indemnified. The rupture of the rebellions opened the way not only to political change in the form of union and responsible government, but also, as historians influenced by the recent ‘state formation’ literature also note, to wider institutional and cultural transformations. Phillip Buckner, Allan Greer, Ian Radforth, Brian Young, and others have noted that responsible government, the more liberal and accountable order that emerged, helped to legitimate a state that also developed new executive powers and wider reach. A more effectively policed order evolved, with modern institutions, agencies, and legal strategies that better regulated sources of potential disorder.4 While changes to the law and its administration began to emerge before 1837 (notably utilitarian-inspired reforms such as professional policing, the reduction of capital offences, and the construction of the Kingston Penitentiary), they accelerated in the wake of the crisis. However, the immediate legal response to the rebellions and patriot invasions represented a reversion to the older system of bloody example and discretionary mercy. As we will see in future volumes, although treason and sedition prosecutions continued to be resorted to (for example, during the Fenian invasions, the North-West rebellions, the First World War, and the Winnipeg General Strike), sophisticated new state-security measures and means of enforcement were developed. They improved the state’s ability to manage perceived security threats, notably, to identify and assess more readily sources of disorder and thereby reduce reliance upon the prosecution of the classic political offences in the courts.5 t h e ‘ s t o r i e s ’ a nd hi st o r i o g r a p hy o f th e r ebelli o n s Before the 1950s, anglophone historians tended to portray the rebellions as the interruption of the legitimate ambitions of moderate Reformers for full British constitutional liberties by radical republicanism and Tory

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intransigence. These ambitions were vindicated after the crisis thoroughly discredited the forces of violent change and reaction. Among the early francophone historians, conservatives like Lionel Groulx approved of the struggle for cultural and national identity but condemned the patriotes’ anti-clerical republicanism. Historians have since directed attention to neglected areas of social and economic life in the period, and among Quebeckers, the crisis has been embraced more positively as an important period in the struggle against anglophone hegemony. The most recent interpretations constitute an ongoing reassessment of the period. Allan Greer notes that the older literature fails to place the rebellion struggles within the wider international currents of what Eric Hobsbawm describes as ‘the age of revolution.’ A number of states faced similar crises before falling, as suggested earlier, under more liberal yet more effectively policed orders. Greer also calls for more integrated and nuanced approaches, away from the tendency to segregate the study of Upper and Lower Canada and the simplistic portrayal of events as either violent, criminal attempts to overthrow the constitution or examples of heroic popular resistance.6 We concur. Quite apart from the emerging challenges of governance or statecraft, many of the rebellion leaders in the Canadas were heavily influenced by such contemporary events and movements as Jacksonian democracy, the European revolutions of 1830, and Chartism. Many, especially in Lower Canada, drew more inspiration from 1776 and 1789 than from 1689 or 1832. As Greer points out, there are more similarities between the two provinces than differences – the pre-industrial farming economies and tensions with mercantile interests, ethnic, cultural, and sectarian divisions, and similar constitutional and political struggles. By 1837, many Upper Canadians closely followed events in Lower Canada, seeing their conflicts mirrored in more extreme form and fearing a similar fate.7 Although Greer does refer to the uses and abuses of the law during the crisis, we would simply emphasize that its comprehensive study deserves a central place in the invigorated, more complex, and nuanced scholarship called for. The governments’ responses to the rebellions were structured around the law and the law continued to play a central role as the colonial state was transformed after the crisis.8 By way of further addendum, Greer’s apt criticism of textbook historians, who commit the chronological faux-pas of treating the Upper Canadian uprising first, does not apply to the state trials studied here. More prisoners in Upper Canada faced trial or court martial, and faced these proceedings at an earlier point, than in Lower Canada. Upper Canada

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underwent more than sixty treason or political-felony trials (resulting in three executions) before the first political trial in Lower Canada (four men acquitted of the Chartrand murder in September 1838),9 although Lord Durham’s merciful summary justice was more proximate (the 28 June 1838 ordinance where over 150 prisoners were released and eight rebel leaders were exiled to Bermuda). The courts martial at Kingston and London (184 tried and 181 convicted, resulting in 17 men executed and 78 transported) had finished well before their counterpart in Lower Canada (106 tried and 99 convicted, resulting in 12 executions and 58 transported). Although martial law in Lower Canada overlapped in part with Upper Canada’s emergency legislation (passed January and March 1838), the Toronto legislation antedated the first state-security ordinances passed by the Special Council and Colborne’s more drastic measures of November 1838. For these reasons, we open the volume with the Upper Canada essays. Nevertheless, because the ‘stories’ of the rebellion, familiar to specialists on the Canadas, may be less so to other readers, we will here turn first to events in Lower Canada. The brief overviews that follow set out the broad picture and help to minimize repetition of the main events in the volume’s essays. Lower Canada The crisis in Lower Canada fell into three phases. The first was marked by the initial rebellion in the fall of 1837 followed by the government’s struggle to develop a response in the context of an intransigent legislature and its lack of confidence in regular jury trials. The imposition of martial law, followed by the replacement of the legislature by an appointed special council, opened an interlude period, characterized by Lord Durham’s lenient but nonetheless arbitrary measures that attempted to administer justice without the courts. In the final phase, Special Council ordinances under Colborne became increasingly repressive, and the second rebellion in the autumn of 1838 was met by the General Court Martial in Montreal. Politics in Lower Canada had been embittered by ethnic and constitutional strife for more than a generation.10 An English-speaking, Protestant, mercantile minority confronted a French-speaking, Roman Catholic, communally minded majority comprised mainly of near-subsistence farmers and their families. The former claimed the ‘rights’ of conquerors; the latter remembered the British Conquest with resentment. For thirty years, influential English residents had openly advocated the anglification of the Canadiens in the interest of progress as they saw it. Such

Introduction

11

things as language, seigneurial land tenure (a variant of feudalism), which inhibited land transfer, and the Canadien civil law, which valued the claims of family before those of creditors, were to be swept away. Anglification would not only benefit business but also make the colony secure for Britain, a priority for the English community, which from the 1790s on had imagined revolutionary plots stimulated by undercover agents from France and the United States. Constitutionally, the English defended the powers of the governor. Their political spokesmen and a few tame Canadien seigneurs dominated the higher ranks of the public service, the governor’s appointed executive and legislative councils. This political oligarchy, later known as the Chateau Clique, hoped to destroy the little, mainly negative power the Canadien majority was able to exercise through the elected House of Assembly. Favoured solutions included union with Upper Canada, overrepresentation of the English, and outright abolition of the elected lower house. Most governors since 1810, and some British politicians, had listened seriously to these proposals. Union had come very close to realization in 1822. Arrayed against the Chateau Clique and its supporters were the (mainly) francophone politicians in the assembly, known as the Canadien or Popular Party and, after 1826, as the patriotes. These men defended Canadien institutions and customs from attack and ridicule. The patriotes battled the councils over such matters as patronage, parliamentary privilege, and control of government appropriations. They angered the merchants by opposing measures thought to promote commercial development, imposing taxes on imports rather than land, and refusing to provide subsidies to improve navigation on the upper St Lawrence River. Political or constitutional crisis had been almost a yearly event from the turn of the century. By the 1830s, the patriotes were on a collision course with the imperial Whig government. Constitutionally, they wanted to replace the appointed upper house (which vetoed many dozens of assembly bills in the decade) with an elected council like the American Senate and to control the governor through the power of the purse. By 1834, they envisaged an independent republic. Although the idea of responsible cabinet government was known in Lower Canada, Louis-Joseph Papineau and his close colleague, E.B. O’Callaghan, thought the system would be used to co-opt patriotes into a governor-directed Executive Council. Except for a lastminute request for it, there was no dialogue on this possible ‘British’ reform, which the London government, particularly Commons house

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leader, Lord John Russell, distrusted in any case.11 Papineau, a disciple of Voltaire, also advocated separation of church and state, a step that profoundly alienated the Roman Catholic priesthood and probably doomed any chance of a successful revolt. The mass of the Canadien people (the habitant farmers and their families) tended to be intensely conservative, steered clear of politics except when the clergy directed them to it, practised the ancient two-field method of wheat farming, and avoided modern education. Most did not share the patriote philosophy but did have their own, very substantial grievances. Recent historical work does lend greater complexity to this general picture, revealing technical innovation at farms near urban areas and support for the patriotes among village petit bourgoisie.12 Although largely near-subsistence farmers, the habitants enjoyed a rough plenty down to about 1820. Most were able without difficulty to accumulate three ‘funds’ vital to peasant or peasant-like societies: the caloric, the replacement (for example, equipment), and the ceremonial (for example, dowries, weddings).13 In addition, they usually managed to accumulate a rare ‘succession fund,’ saving a sufficient surplus to establish a succession of non-inheriting sons on farms of their own. During the 1820s and 1830s, the situation changed drastically at least in the Montreal District, the area of the rebellions, where the rural population was most heavily concentrated. A series of poor harvests, caused by soil exhaustion and pests, reduced many to near starvation. The seigneurs, particularly the English ones, raised rents and imposed more onerous conditions. New grantees might find themselves liable to pay an annual rent which had been doubled if they found available land (several seigneurs held huge blocks off the market for speculation). Those farmers attempting to buy plots for their sons also faced the lods et ventes, a mutation tax of onetwelfth the value payable to the seigneur. These practices, mainly of dubious legality, enraged the habitants, as did the increasing number of evictions for debt. Some had borrowed heavily to purchase farms for their sons. Others subdivided their land into uneconomic plots. Most sons, however, were forced to join the swelling ranks of a rural, landless proletariat. The boiling point was reached in 1837. The Russell Resolutions, passed by Parliament, summarily rejected all patriote constitutional claims and imposed ‘taxation without representation’ by authorizing the governor to spend public money without legislative approval. Mass protest meetings held throughout the Montreal District inflamed audiences with resolutions on the Lockean right of revolution, popular election of magistrates

Introduction

13

and militia officers, and heady visions of American support. Canadien women sewed liberty flags; young patriotes, the ‘Sons of Liberty,’ began to drill.14 Street brawls erupted. Warrants for the arrest of Papineau and his colleagues were issued. In November, two patriote prisoners being escorted to Montreal were liberated on the south shore, giving Sir John Colborne, commanding the British army, the pretext to attack patriote camps hastily assembled on the Richelieu River. There was less determination among the patriotes. Despite the urging of Dr Wolfred Nelson, in charge of military operations, Papineau refused to risk a declaration of political independence or a general call to arms. Papineau’s hesitation owed much to his ambivalent personality.15 He did, however, have a rational strategy: to twist the ‘lion’s tail’ by forcing virtual independence, which would soon evolve into a republic with himself as president. If it came to war, December, with the St Lawrence frozen, would be the earliest militarily convenient month. In the meantime, if the British attacked, the bloodshed and any patriote failure could be put down to a government plot to provoke insurrection. This, of course, was exactly what happened. Papineau later wrote about a bureaucratic plot, although leading lieutenant Denis-Benjamin Viger referred to the rising as strictly defensive, as did lawyer Charles Mondelet in the critical Chartrand murder trial of September 1838.16 The nationalist historian Gérard Filteau, in his influential Histoire des Patriotes, devoted two chapters to the plot thesis.17 There seems some justification for these allegations. The magistrates did not even try to execute the Montreal warrants, allowing the city’s radicals to congregate in a threatening manner on the Richelieu. The two prisoners escorted towards Montreal were taken slowly by local volunteers through the most politically rabid areas. When liberated, there was an army detachment nearby, with orders not to interfere.18 Lord Durham wrote in August 1838 that the rising had been ‘precipitated by the British from an instinctive [and worthy] sense of the danger of allowing the Canadians full time for preparation.’19 As a prominent seigneur and social conservative, Papineau opposed the abolition of feudal tenure recommended by many of his radical followers like Dr Cyrille Côté and the Nelson brothers, Drs Wolfred and Robert. Many habitants, quite naturally, were not clear about what they were fighting for except to save their leaders from unjustified arrest.20 Nevertheless, an indeterminate number must have been influenced by hopes for abolition of seigneurial dues, a question recently agitated in such places as L’Acadie, Vaudreuil and Sainte-Rose. In the middle of

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November 1837, Colborne wrote, with some truth but much exaggeration, that the farmers throughout Lower Canada ‘refuse to pay their rents; as they have been informed by the leaders of the Revolutionists ... that the Seigneurial rights and tithes are to be abolished. Thus they are all interested in the success of the menaced revolt.’21 Armed resistance was confined to two areas: the villages of Saint-Denis and Saint-Charles on the Richelieu and Saint-Eustache just north of Montreal Island. The patriotes, about 3,500 activists in all, won an initial skirmish under Wolfred Nelson at Saint-Denis, but ancient muskets, makeshift ammunition, and pitchforks could not prevail against British regulars. Two attacks at Saint-Charles and Saint-Eustache in late November and mid-December crushed the rising. Dozens fled to the United States, but Nelson and hundreds more were arrested. The army and militia volunteers acted with ferocity. Dozens of patriotes were easily picked off by rifle shot as they escaped through broken windows after the church at Saint-Eustache was torched. A few men were summarily executed as the battles there and at Saint-Charles were all but over. The military set several houses and one entire village (Saint-Benoît) aflame. These actions remained bitterly fresh in the minds of many Canadiens for months, with patriote atrocities often conveniently forgotten.22 The next year, during the period of martial law and the Lord Durham interlude, as an attempt was made to deal effectively with numerous prisoners from the insurrection months before and as Durham gathered information for his famous report, the patriotes in exile south of the border laid plans for another revolt. Leadership passed to the radical wing led by Dr Côté and Robert Nelson, who had broken with Papineau on the question of abolishing seigneurial dues. Papineau took no part in their rebellion, but the new leaders used his name widely in the countryside.23 Money was raised, arms purchased, and largely unsuccessful attempts made to recruit American sympathizers. Secret societies with military levels of command, known as the Frères Chasseurs, were established throughout the province. Nelson and Côté also drafted a Declaration of Independence, promising a republican, democratic constitution similar to that of New York, with equality rights, universal male suffrage, and separation of church and state. Obstacles to modern commerce such as married woman’s customary dower and seigneurial tenure and dues were to be reviewed or abolished. Seigneurial debt was to be voided for those who supported the patriotes in arms, giving many farmers something tangible to fight for. This time there was a military plan, devised by Nelson. The Chasseurs

Introduction

15

in the area south of the city would rise and cut communications with Montreal and then join up with Nelson and Côté and a force of exiles and Americans at Chambly, where the fort would be taken. The patriotes would then move on to Sorel at the mouth of the Richelieu, take the fort, and cut communication with the capital, Quebec. A rising in Terrebonne, just north of the Montreal Island, was planned to isolate further Montreal and the area to the south. With ample territory held by the patriotes, Americans would flock in, being able to claim prisoner-of-war status if captured. The revolt was set for 3 November 1838. Again there was initial success. At least thirteen thousand men willingly or under coercion were persuaded to fight. Several camps of a thousand or more patriotes were established. The detested Beauharnois manor house owned by Whig MP Edward Ellice, an absentee landlord and master of exploitation, was seized.24 The mail and passenger steamer Henry Brougham was captured and dismantled. Nelson read the Declaration of Independence at Napierville on the 4th to an audience of over 3,000. But, once more, organization was lacking. Few American recruits materialized and Côté and Nelson were unable to transport more than a fraction of their arms. In many areas, men rose, discovered promised reinforcements were lacking, and dispersed to their homes. Battles at Camp Baker (Sainte-Martine), Lacolle, Odelltown, and Beauharnois ended in rapid and total defeat. Hundreds of arrests followed and reprisals this time were even more severe than the previous year: massive burnings at the onset of winter, pillage, and rape. The Scottish Glengarry Volunteers from Upper Canada were alone responsible for almost a quarter of a million American dollars worth of damage in but three parishes.25 By 10 November, the second Lower Canadian rebellion was over. Much of the English elite eagerly contemplated the severest of punishments and cultural annihilation. Greer has wisely stressed that major differences in aims among distinguishable social groups do not make an insurrection into two separate risings. He aptly points to the United Irish rebellion of 1798, in which poorer Catholics wanted lower rents and the abolition of tithes payable to the Anglican Church of Ireland while the bourgeois leaders of the ‘Union’ in Belfast and Dublin aimed for French republican democracy and an escape from imperial mercantilism. However, the Catholic peasant ‘Defenders’ also knew that, to be successful, they had to meld with or actively support the Union leaders, and the merchants of the two main cities repeatedly promised redress for rural grievances.26 Lower Canada was similar. True, the professionals among the patriotes

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sought republican, anti-clerical democracy and their habitant followers had little understanding of these matters. They did, however, in hard times deeply desire the abolition of seigneurial rents and lods et ventes. As in Ireland, not only did the leaders play to the Canadien peasants in the Montreal District, but the latter widely understood by November 1838, when matters had clarified, that the British government had to go and that the clergy acted at times like enemies to their flock. Control of schools, elected vestries, and other aspects of contemporary anti-clericalism did not interest them any more than the virtues of the elective principle, but priestly condemnation of the first rebellion and the insistence on tithing (one-twenty-sixth of all crops) in times of poverty hurt.27 This is supported by examples of habitant attitudes drawn from the report on the General Court Martial held at Montreal in 1838–9 and other sources. Farmer Jacques-David Hébert of Saint-Cyprien, was among those who cheered Nelson’s reading of the Declaration of Independence at Napierville on 4 November 1838. As for details, Hébert remarked in his voluntary examination that what struck him was ‘the exemption from all seigneurial rights and the abolition of tithes.’28 In the first Beauharnois trial (number 5 heard), an English merchant testified that the peasants attacking the manor house ‘wished to abolish the lods et ventes and ... were now for Nelson and Papineau [!] and were resolved to succeed or die.’ Lawrence Brown, Ellice’s land agent, swore that the insurgents, loudly if vaguely, yelled, ‘We have suffered long enough – we want no more of the present government – the Canadians must have their rights.’29 Many a habitant apparently believed that the movement aimed to establish a Canadien monarchy.30 In the second Beauharnois trial (8), witnesses quoted Dumouchelle on the goals of the rebellion: ‘They intended to abolished the lods et ventes, make the country free, do away with the rents, and clip the gowns of the clergy.’31 The events of November 1838, then, reflected a single uprising, albeit with greatly differing priorities. There is both truth and exaggeration in Lord Durham’s famous aphorism that the Lower Canadian rebellions represented a clash of races, not political principles. It could hardly be otherwise, considering the course of politics from the early nineteenth century and the fact that the forces of anglification and survivance had repeatedly clashed in the 1820s and 1830s over such issues as commerce versus agriculture, registry offices, British immigration, civil laws, language, tenure, and Canadian union. Le Canadien, the Quebec City newspaper of Etienne Parent – a patriote who broke with Papineau only at the point of violence – took as its motto, ‘our language, our institutions, our laws.’

Introduction

17

However, it was also recognized by the patriote leaders that liberal English, Scottish, or Irish residents in both Canadas, Americans in general, and British reformers and parliamentarians like J.A. Roebuck were important sources of support. The annual celebrations of the Société Saint-Jean-Baptiste became narrowly nationalist only after the rebellions.32 Papineau and his men attacked specific groups of official and mercantile English Lower Canadians, not anglophone shopkeepers, artisans, or labourers. It is also true that a great many Canadiens of the upper ranks were concerned after the first rebellion about new projects of anglification.33 Virtually all Canadiens resented the atrocities committed by the local volunteer militia, as well as regulars. Stewart Derbishire, who reported to Durham on opinions in the countryside outside Montreal, wrote in May 1838 that resentment of the soldiers was almost universal among the habitants and villagers and that they had been taught that ‘the English wanted to take from them their laws, drive them from their lands, and make them ‘labourer les terres pour leur profit.’34 Thus, an ethnic animus clearly affected the second rebellion, and no doubt, more mildly the first, but examples taken from the 1838 uprising itself indicate that the farmers wanted land reform more than ethnic vengeance. Certainly, the leaders Côté and Nelson were motivated much more by hopes of independence with radical constitutional change. According to the Declaration of Independence, in the new state, all men, including natives, were to be equal, certain mercantile grievances removed, religious freedom guaranteed, and official bilingualism practised. Upper Canada William Lyon Mackenzie, who promoted extraparliamentary political union meetings from late 1836, was attempting, by the autumn of 1837, to persuade Reformers that armed resistance was necessary and inevitable. His efforts culminated in the ill-fated march on Toronto and associated risings in other districts, notably those led by Charles Duncombe in the London and Gore districts. The patriot disturbances along the American border marked the second phase of the crisis, commencing with the rebel occupation of Navy Island on the Niagara frontier at the end of 1837. The disturbances intensified with the patriot assault on Bois Blanc Island/ Amherstburg on the Windsor frontier, the seizure of the patriot schooner Anne in January, and the patriot assault on Pelee Island in late February. Raids extended eastwards with the patriot destruction of the boat Sir

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Robert Peel in May followed by the Short Hills invasion on the Niagara peninsula in June. With one exception, prisoners from these conflicts faced regular jury trials for treason and equivalent offences. The external crisis culminated in the bloody battles near Prescott in November and Windsor in December, resulting in the Kingston and London courts martial.35 The political roots of provincial grievances went back to the formation of the colony and the Constitutional Act of 1791, passed in midst of mounting anxieties about the French Revolution and determination not to repeat the mistakes made in the American colonies. Despite rhetoric of enjoying the benefits of the ‘image and transcript’ of the British constitution, the province was tightly governed by appointed councils that also dominated the administration of law and local affairs. As we saw in some of the essays in Volume I, government concerns about revolutionary intrigues and the effects of rebellion in Ireland grew in the early nineteenth century with the emergence of a well-organized political opposition movement supported by increasingly disaffected non-Loyalist American settlers. The experience of the War of 1812 deepened government anxieties about American immigrants, and measures to supplement the 1804 Sedition Act (which, unlike wartime security measures, remained in force) were introduced to deny them land and the right to hold office. By the mid 1820s, the divisive ‘alien question’ spilled over into related issues such as land and economic development, religion, and education, compounding grievances around the domination of the state by the governing elite (which became known as the Family Compact).36 By the late 1820s, Reformers formed the majority in the House of Assembly, although majorities swung back to the Tories at the beginning of the 1830s and on the eve of the rebellion. Divisions existed within Reform, notably between the Baldwins (who advocated responsible government under the British constitutional system) and William Lyon Mackenzie (who increasingly embraced American-style republicanism), as well as within the Tory or government party. In 1836 the new lieutenant governor, Sir Francis Bond Head, brought Reformers into his council but they soon resigned. When an assembly select committee called for responsible government, Head dissolved the house and the Tories won the ensuing election, after attracting a broad coalition of support (Catholics, Orangemen, and Methodists led by Egerton Ryerson) as well as engaging in election fraud. Reformers were quickly purged from official positions and were drawn to the extraparliamentary political unions that were active in the Home and London districts. Petitions of protest presented by Robert Baldwin and Charles Duncombe to the British govern-

Introduction

19

ment were ignored by Colonial Secretary Lord Glenelg. By March 1837, Lord Russell’s ‘Ten Resolutions,’ which opened the way for government by executive decree in Lower Canada, had dashed hopes of positive imperial intervention.37 Economic difficulties contributed to the growing crisis. Credit was tightened in 1836 following British and American economic expansion, a move that, combined with crop failures, put smaller farms in great difficulty and aggravated ongoing tensions with the commercial sector. Colin Read and Ronald Stagg note that, while the rebels and their supporters have tended to be portrayed as ignorant farmhands of largely American origin, they in fact represented a fairly broad cross-section of society. Many of the leading rebels had no evident religious affiliation although many rebel supporters were dissenters. However, a significant proportion of the disadvantaged (especially Orangemen, natives, and blacks) were in fact loyalist. Significant popular support for the government cause is demonstrated by the large militia turnouts after the risings and during the invasions from the United States.38 By the summer of 1837, Mackenzie was drawing parallels with American grievances at the time of the revolution in his newspaper and suggesting coordinated political unions, including a large convention where Lower Canadian reformers would be invited. At a meeting at Doel’s Brewery in late October, Mackenzie openly advocated the idea of rebellion. Receiving little support for his idea of a surprise coup d’état committed by dedicated radicals, Mackenzie attempted to draw a larger group of Reformers into rebellion. Although Reform leader Thomas Morrison openly opposed the idea at the meeting, he and John Rolph later appear to have been open to the idea of direct action if provided adequate evidence of strong popular support and if decisive radical action occurred in Lower Canada. On this basis, Mackenzie claimed backing from prominent Reform leaders for his plan, which helped him to recruit the rank and file of insurrectionists. Jesse Lloyd, sent to Montreal to ascertain the situation there, was instructed to tell Lower Canadian radicals that Toronto was ready to be seized. At a further meeting in the third week of November between Mackenzie, Lloyd, Silas Fletcher, and rural men of influence such as Samuel Lount and Peter Matthews, agreement was reached to march to Toronto on 7 December. Arms and leading officials would be seized and John Rolph appointed as head of a provisional government. Mackenzie’s ability to execute the plan failed to match his considerable though somewhat mendacious powers of persuasion. The date of the ris-

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ing was advanced in response to rumours that the government was planning to call up the militia and arrest radical leaders. Supporters were told to assemble at an inn owned by John Montgomery north of the city where they would receive food, arms, and instructions. Local loyalists sent reports into the city, although Colonel Robert Moodie was killed as one group passed the guard at the inn. Another group of men, held by the rebels, escaped with a concealed pistol and the only rebel there with military experience, Anthony Anderson, was killed. The government finally heeded James Fitzgibbon, who had been trying to organize the defence of the city, although the militia would not be ready for some days. Confusion on the government side was more than matched by the state of the rebel force at Montgomery’s. Between three and five hundred rebels found themselves without food and arms and they were unable to press any advantage under Mackenzie’s erratic leadership. A march on Toronto ended initially when a wagon thought to be a cannon was sighted, and when it recommenced, the rebels were met by a government delegation. Reformers John Rolph and Robert Baldwin, under a flag of truce carried by a third Reformer, were sent to find out rebel demands. They spoke with Lount and then Mackenzie, who agreed not to advance while the lieutenant governor’s offer of an amnesty was obtained in writing. Rolph, who later fled the province, pointed out a loyalist onlooker who was seized by the rebels and, allegedly (what occurred during the encounter has been cloaked in controversy), encouraged William Ketchum to spread news of great rebel strength and advised Lount to continue the march. In the meantime, despite Lount’s opposition, Mackenzie ordered the nearby house of Dr Robert Horne burned and, after returning to Montgomery’s, where a student of Rolph’s informed him that the way was clear, led another advance on the city. By this point, the government had a better sense of rebel intentions and Mackenzie’s force was met by a picket set up by Fitzgibbon. The front rank of the rebels returned the loyalists’ fire and dropped to the ground as instructed, while the remaining rebels, thinking the rank had been shot, fled in a disorganized retreat. At this point, many rebels simply went home although others arrived at Montgomery’s, including Anthony Van Egmond, now the only rebel with a military background, and a big group headed by Peter Matthews. As the men searched for food and set out to intercept the western mail, Mackenzie, in another much-disputed encounter, met reformer Charles Durand bound for Hamilton. On the third day, the date originally scheduled for the revolt, Van Egmond advised retreat but Mackenzie decided

Introduction

21

instead to send Matthews and some men to burn the Don bridge and cut off communications eastwards. The rebels were beaten back, and Head issued a proclamation. Ambiguously worded, it offered a free pardon to accomplices of identified leaders if they assisted the government and had not committed arson or murder and suggested lenient treatment for all who returned to their allegiance. On the fourth day of the revolt, Fitzgibbon’s force marched directly on Montgomery’s, dispersing the remaining rebels. Head ordered the inn burned along with David Gibson’s house, and after lecturing them on duty released a number of the captured rebels.39 Within a week, around four hundred men were in custody in the Home District. Mackenzie, Fletcher, Gibson, and Lloyd were among the rebels who fled across the American border. Van Egmond (who later died in custody), Lount, and Matthews were not so fortunate. Colin Read’s book on the rising in western Upper Canada examines events there in detail.40 Misleading rumours of Mackenzie’s success reached the west of the province and revolt was organized by Eliakim Malcolm and William McGuire in the village of Scotland, south of Brantford, and by Charles Duncombe in the village of Norwich, with men arriving from surrounding townships because of family connections or the promise of rewards. Mackenzie had already been defeated, and the Tory counter-attack led by Allan McNab (who had assisted Fitzgibbon in the Home District) was supported by five hundred volunteers and militia from Brantford, Simcoe, and London. Duncombe fled across the border but over a hundred rebels turned themselves in after hearing of Head’s 7 December proclamation implying amnesty. Dozens of other were arrested and by Christmas well over five hundred rebels were in custody. Although the east of the province was largely preoccupied with events in Lower Canada, Mackenzie’s revolt did have some impact, as Betsy Boyce’s recent study of the rebels in the Midland District, and Hastings county in particular, demonstrates.41 When official word was received at Fort Henry of Mackenzie’s gathering at Montgomery’s tavern, arms were distributed to all militia regiments in the district and magistrates arrested twenty-three known dissidents. Fifty-three were later arrested when Hastings men marched to join New York patriots on Hickory Island planning to attack Kingston in late February. Patriot raids first focused on western Upper Canada and included the occupation of Navy Island where Mackenzie temporarily set up a base, the assault on Bois Blanc Island/Amherstburg in January and on Point Pelee Island in February, and the Short Hills battle in June. In the east, the

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aborted plan to invade Kingston was followed by the raids of the ‘pirate’ Bill Johnson, including the destruction of the Sir Robert Peel in late May and attacks on the Thousand Islands and Bay of Quinte areas.42 Towards the end of the year, the patriot invasion near Prescott represented the biggest engagement of the crisis, followed by the battle of Windsor which capped the patriot difficulties.43 Aftermath Over two hundred were killed in both provinces and hundreds more were exiled. Despite colonial requests for more regular troops, the British military commitment was substantial (the largest between the Napoleon Wars and the Indian Mutiny) and was well supported by local militias. Although Upper Canada suffered more frontier attacks and saw more men face legal proceedings, convicted, and executed or transported, ethnic tensions and seigneurial exploitation made the Lower Canadian rebellions deeper. Greater violence was experienced in Lower Canada, as reflected in the larger number of insurgents and casualties as well as the degree of repression through military responses. In the longer term, although union was widely unpopular in much of Upper Canada, the measure was directed at the majority of Lower Canadians, seen as the most serious source of potential political disorder. Before the dust had settled in both provinces, controversy about causes, events, and consequences broke out. Given the depth of the crisis and the human toll, it is little surprise that many of the early narratives were deeply partisan efforts. As suggested at the beginning of this section, the professional historical scholarship in English, which emerged towards the end of the nineteenth century, situated the crisis within struggles for responsible cabinet government and greater British North American union. Radical change and Tory reaction were discredited, and the way was paved, helped by Durham’s imperial intervention, for orderly British-style reforms pursued by moderate leaders such as Baldwin and LaFontaine.44 This whiggish interpretation was displaced by the middle of the twentieth century, as scholarly interest shifted from political and constitutional issues to economic, social, regional, and cultural ones.45 More recently, as suggested earlier, there has been a return to institutional matters but from a more critical perspective. The suppression of the rebellions did kill off republican political radicalism in central Canada. George-Étienne Cartier had fought at Saint-Denis; by confederation, he had become a fervent monarchist adamantly opposed

Introduction

23

to all things American. In Lower Canada the failure of the rebellions and discrediting of rebel aims reinforced the hegemony of the Roman Catholic Church’s nationalism of a conservative hue, which powerfully influenced public policy until the 1960s, and there would be no significant independence movement until the Quiet Revolution of that decade. There would be no rights written into fundamental law as envisaged by Nelson’s Declaration until the Charter of Rights. Lord Durham’s report, Lord Sydenham’s ‘harmony system,’ British free trade, and the struggles of the Reformers did help to bring more moderate political change but also, more ominously, new projects of anglification with the union of the Canadas and the reconfigured, increasingly interventionist colonial state. These transformations had obvious impact on Upper Canada/Ontario as well. There, the literature has moved away from the older Toronto-centric focus which portrays Mackenzie’s rising as the essence of the crisis (years later, Mackenzie re-established himself in the province, rejecting the American model he had earlier embraced). The older caricatures of the ruling oligarchy have also been broken down, raising questions about the post-rebellion ascendancy of Reform and illuminating the persistence of the Tory tradition in English-Canadian political culture.46 The increased rigour and complexity found in the recent historiography of the period is beginning to extend to the study of law and its administration and some of the contributors to this ‘new’ legal history appear here. Again, the present volume offers the first comprehensive examination of the legal dimensions of the crisis. Unfortunately, the brief narratives of a handful of trials in the older literature lack sophisticated insight into the complex relationship between law and politics, tending to reduce matters to just convictions for criminal acts or egregious repression through readily manipulated law. For the most part, these examinations of selected proceedings either lack adequate archival research or suffer from insufficient examination of related legal issues and context.47 l e ga l t he m e s a nd i ss u es The overview of events and scholarship in the previous section is intended as background to our main concern: the legal treatment and deposition of hundreds upon hundreds of prisoners captured after the uprisings and invasions. About ninety underwent jury trials before judges, proceedings that sometimes exhibited bias, usually against the accused, but in a very few cases – where juries were not intimidated – against the crown as well. Many more faced their political enemies sitting

24 f. murray greenwood and barry wright

in judgment on courts martial. Following the Battle of Windsor, five were summarily put to death under the orders of Colonel John Prince, murdered as ‘bandits’ under the false colours of law. The measures and proceedings cannot be adequately understood in isolation from their immediate political context and social impact or from the broader background sketched out in the previous section. To underscore the former, we have framed our in-depth examinations of the trials, the heart of this volume, with studies that explore the interactions of the law with political processes and social experiences. The essays by Rainer Baehre, Jean-Marie Fecteau, and Steven Watt that open the Upper and Lower Canada sections deal with the immediate political context of ‘lawmaking.’ They examine the political dilemmas, the production of security measures by legislative and executive processes in response, and the strategies formulated in government councils to implement and supervise the administration of the measures. Upper Canada’s Executive Council enjoyed the compliance of the House of Assembly, actively managed the legal response, and closely monitored the progress of cases in the courts. In Lower Canada, temporary martiallaw decrees were followed by ordinances of an appointed special council, which replaced the regular legislature and enhanced the executive’s control over the production of state-security measures. The essays that close the sections on Upper and Lower Canada deal with some of the direct social consequences of ‘law-administering,’ notably the experiences of families of rebels and the majority of those convicted of the most serious political offences. The essay by Beverley Boissery and Carla Paterson illuminates the largely neglected role of women in the Canadian rebellions and in the legal proceedings that followed.48 While there is more extensive literature on the experiences of transported political convicts, the essays by Cassandra Pybus and Boissery highlight some of the legal issues directly associated with the experiences of those prisoners from the Canadas.49 Upper Canada The Upper Canada section divides its examination of proceedings into four discrete subjects, representing the most important groupings of classic ‘state trials’ (the Toronto treason trials examined by Paul Romney and Barry Wright and the western trials by Colin Read), the increasing official repression that culminated in the courts martial of civilians at Kingston and London (Barry Wright’s essay), and Colonel Prince’s extralegal but

Introduction

25

officially sanctioned summary justice (Murray Greenwood). There are other proceedings (for example, the court martial of Thomas Sutherland in March 1837, the treason trials in Kingston in the summer of 1838, and the belated Toronto trials of the Point Pelee raiders in 1839) examined in passing in the above-mentioned essays by Wright and Greenwood. The Toronto and western trials warrant separate treatment, not only because of the sheer number of trials but because of the particular local circumstance and challenges faced at the trial venues. The Toronto trials set the public tone of the government’s legal response, notably with Chief Justice John Beverley Robinson’s grand jury address which offered a comprehensive explanation of the law of treason and its applicability to the circumstances of the rebellion. Nonetheless, as Read illustrates, the Hamilton and London trials proved to be of a somewhat different character, and although there were allegations and some evidence of judicial bias and jury packing, these defects were less obvious than in Toronto. The later trials of the Short Hills raiders were harsher, reflecting the view that earlier proceedings had failed to deter effectively the problem of patriot invaders, and new legal issues also came to the fore. We see that the Upper Canadian government’s response was comparatively more repressive than during the War of 1812, when the numbers charged with treason were much lower and no civilians were tried by courts martial. It had a freer hand: the emergency legislation passed quickly in the winter of 1838 by a Tory majority, strengthened by the arrest or expulsion of several leading Reform members, whereas legislative intransigence had been a problem in the first few months of the war. Like the earlier conflict, there was awareness that the official response would have greater legitimacy if criminal trials rather than military repression were resorted to. Commitment to regular jury trials and accompanying legal forms is evident at the Toronto and western trials and in the official reluctance to embrace courts martial until the invasions at the end of 1838. However, legislative expedients and close coordination between the executive and the judiciary made regular justice a reliable, or at least feasible, option for the government by enhancing its chances of success. While the province’s attorney general, Christopher Hagerman, attributed the suppression of rebellion and the large numbers in custody (over 800 by early 1838) to a loyal community,50 widened powers of arrest, detention, and government support for loyalist rough justice undoubtedly helped matters too.51 Many had also surrendered in response to Lieutenant Governor Head’s proclamation of 7 December expecting amnesty,

26 f. murray greenwood and barry wright

only to face the prospect of trial. Rainer Baehre’s essay surveys the emergency legislation and examines how the large numbers of prisoners were managed by Vice-Chancellor Robert Jameson’s Treason Commission, which set aside the most serious cases for trial. Baehre also shows the close coordination between the executive and judicial branches of the state in the proceedings that followed, with extrajudicial opinions obtained throughout the crisis from judges Robinson, Jonas Jones, James Macaulay, Archibald McLean, and L.P. Sherwood. Two statutes passed in 1838 were particularly controversial and figure prominently in the other essays on Upper Canada: the Pardoning and Lawless Aggressions acts. Once indictments were found against prisoners identified as leading rebels by the treason commissioners, the numbers actually tried were further reduced by the pardoning legislation (1 Vic. c.10). It gave the accused the option to petition for a pardon prior to arraignment before a trial jury. This, in effect, created a process of summary justice where the prisoner confessed in return for favourable consideration for clemency. As seen in the essay by Romney and Wright, the act was put to particularly effective use in Toronto, reducing the number of full trials to a tenth of the total number indicted for treason. This administrative expedient gave the government wide discretion over the fate of men facing trial for their lives. At least three prisoners at Toronto (Samuel Lount, Peter Matthews, and John Anderson) had their petitions denied, only to face trials that had become mere formalities because of their earlier confessions. Although upheld by the British law officers, the Pardoning Act’s encouragement of guilty pleas and the discretionary arbitrariness in the granting of petitions were constitutionally suspect, violating the spirit of procedural protections set out in the Treason Act, 1696. Unfairness extended beyond the obvious cases of the Lount and Matthews, who were convicted and executed, to successful petitioners who had conditions placed on their pardons. Lieutenant Governor Sir George Arthur, formerly governor of Van Diemen’s Land, and his council favoured transportation as an appropriate punishment short of death for the most serious offenders among the petitioners and convicts. Those petitioners who faced transportation as a condition of their pardons were eventually released in England en route to Australia because they were mistaken or misled into thinking that they had applied for amnesty in accordance with Head’s December proclamation. Although prisoners later convicted by trial or court martial were landed in Australian penal colonies, Cassandra Pybus notes that Canadian reliance on transportation contradicted

Introduction

27

clear British policy. She also suggests that this punishment, imposed by way of the Pardoning Act’s reliance on the local exercise of the royal prerogative of mercy, raised questions about the extraterritorial effect of colonial legislation similar to those that had led to the disallowance of Lord Durham’s Bermuda Ordinance. The extraterritorial effect of colonial legislation was also an issue with the controversial Lawless Aggressions Act (1 Vic. c.3), which expanded liability for political offences committed by foreigners and bypassed some of the perceived limitations of treason law. Treason is an offence related to allegiance, and although the doctrine was occasionally stretched to cover British-born foreign nationals or foreigners temporarily residing under British protection, these constructions were deemed inappropriate for dealing with the pressing local problem of armed invaders from a country at peace with Britain. The Lawless Aggressions Act created a new political felony, applicable to foreign ‘brigands,’ and courtmartial offences, applicable to foreigners and allied British subjects. Read’s essay examines the act’s first sustained application at the Niagara trials of the Short Hills raiders which resulted in the third execution of the rebellion trials after Lount and Matthews, that of James Morreau. The Wright essay examines the application of the separate court-martial provisions of the act after the Prescott and Windsor invasions. This resulted in the execution of seventeen more men and the bulk of prisoners transported, joining a handful of Short Hills convicts in Van Diemen’s Land, all examined in the Pybus essay. Although the Lawless Aggressions Act envisaged the possibility of courts martial at the beginning of 1838, actual resort to the procedure was a belated response to the problem of patriot invasions. An early ‘test case,’ the Toronto court martial of Thomas Sutherland in March 1838, was ruled defective by the British law officers and judge advocate general. The Wright essay demonstrates that, while great care was taken to avoid similar irregularities at Kingston and London, courts-martial inherently offered far fewer procedural protections than those found in regular trial. This was a particularly glaring injustice for British subjects tried under the Lawless Aggressions Act: the regular courts continued to function in the province, and had they been tried for treason, they would have been entitled to the important rights set out in the 1696 Treason Act. There were other factors, in addition to the Sutherland fiasco, that contributed to the government’s reluctance to resort to courts-martial procedure until the invasions at Prescott and Windsor. These complex events and legal issues are explored in Murray Greenwood’s essay on the Prince affair, including

28 f. murray greenwood and barry wright

the British law officers’ recommended disallowance of the Lawless Aggressions Act, which was objected to strenuously by colonial officials. The ruling jeopardized the Short Hills convictions and delayed the Toronto trial of the Point Pelee invaders until 1839 but the British government did not act on the recommendation in the end, indicating that court martial of invaders was appropriate. The protracted uncertainties about the Lawless Aggressions Act and the seemingly intractable problem of foreign invaders contributed to the building loyalist outrage that culminated in Colonel John Prince’s bloody but officially sanctioned summary justice. Lower Canada Martial law, legislative fiat, and the court martial of civilians were adopted as the means of dealing with the Lower Canadian crisis. As a result, the range of legal issues there is somewhat narrower than in Upper Canada. We have already referred to Jean-Marie Fecteau’s thesis about the limits of the law and his essay focuses on the initial response to the first rebellion in 1837, highlighting the contradictions between martial law and the formal claims of the British constitution and the rule of law. Fecteau also provides an overview of the other forms of authority exercised through the remainder of the crisis (the replacement of martial law by Special Council ordinances, which opened the Durham interlude of lenient but arbitrary power, and the resort to courts martial after the second rising). These responses contrast with the situation in Upper Canada, where the ideological utility accompanying the regular administration of law was more fully exploited. Fecteau draws attention to the importance of distinguishing the forms and character of repressive power exercised at different stages of the crisis in Lower Canada, a necessary qualification to the argument that 1837 and 1838 rebellions constitute a single crisis. Steven Watt’s essay opens with the second period described by Fecteau. He examines the Special Council security ordinances passed under Durham and Colborne and the ongoing, growing lack of confidence in the courts. Durham’s Bermuda Ordinance, which administered summary justice directly to prisoners remaining in custody from the 1837 rising, is examined as one attempt to bypass this concern. Watt also examines how ordinances became increasingly arbitrary under Colborne, especially after the acquittals in the Chartrand murder trial, including the dismissal of judges and another disallowed ordinance which attempted to declare that the 1679 Habeas Corpus Act had never been in effect in the province.52 The ordinance had been initially challenged by judges Elzéar Bédard and

Introduction

29

Philip Panet as ultra vires the powers of the Special Council, a position that threatened to undermine the constitutional validity of the court-martial ordinance itself. This sets the scene for Greenwood’s in-depth studies of the Montreal General Court Martial as well as Watt’s own thesis: the Special Council continued to respond to the crisis by evolving from a body that enacted emergency measures to an instrument of anglification, representing a state trial writ large of Canadien Lower Canada. Murray Greenwood’s studies of the General Court Martial held at Montreal in 1838–9 continues our emphasis on comparative legal history, wherever feasible. Greenwood’s first essay on Montreal provides an overview of the proceedings, examines selected cases, and makes direct comparison with the courts martial held in Ireland after the United Irish rebellion of 1798. His second essay assesses the legality and constitutionality of the Montreal tribunal. Like the Irish courts martial, the Montreal tribunal fell well below common law and statutory standards of procedure and evidence. There was a wider use of torture in Ireland but not the same glaring irregularity of retroactivity. Ireland saw higher execution rates but also higher acquittal rates than Lower Canada. Notable in the Montreal proceedings was the complete lack of supervision by the governor or the Queen’s Bench to protect the most basic interests of the accused. Civilians tried by courts martial shortly after rebellion do not face anything close to impartial trials unless military courts are rigorously supervised. Although many of the defects in Montreal were avoided in Kingston and London, the courts martial of civilians in the Canadas were four decades after the Irish experience, a time during which capital punishment and public executions were curtailed and responsible cabinet government and the 1832 Reform Act were implemented. Beverley Boissery and Carla Paterson break new ground examining legal questions around women’s involvement in the rebellions. As noted earlier, although the role of women in rebellions is beginning to be illuminated, only a few works have dealt with questions of liability and legal treatment. Women were far from passive on the rebel side in the Canadas, but Boissery and Paterson explain that trials of women were avoided because of the dominant view of politics as a male preserve. The female participants and supporters of male rebels were tested in other ways. The Lower Canada section closes with Boissery’s essay on the transportation of Lower Canadian prisoners to New South Wales. A different interpretation of legality is offered from the one put forward by Pybus, focusing on the pardoning process and the administrative tensions

30 f. murray greenwood and barry wright

between the Colonial Office and Colborne. Boissery suggests that the Lower Canadians’ transportation experience was unique when compared to other convicts. Archival Surveys A number of documentary collections have been published in recent years on the rebellions in both provinces (notably by Colin Read and Ronald Stagg on Upper Canada and the numerous collections by Georges Aubin on Lower Canada). This has had the positive effect of increasing the accessibility and visibility of records, in marked contrast to the situation concerning the topics examined in our first volume. Our selection of supporting documents is consequently fairly slim. However, greater weight is placed on our overview surveys, with separate essays on archival holdings nationally and in Quebec and Ontario. These place primary sources – both those used here and those in other published collections – within their documentary context and suggest strategies for historical researchers interested in further work on legal issues in this period. Patricia Kennedy of the National Archives follows up on her study in our first volume by explaining research problems and possible solutions, as well as offering a concise overview of relevant holdings in Ottawa on the rebellion period. Insights abound: how the calendars reflect prevailing attitudes towards women, natives, and visible minorities and the complexities of the pardoning process are examples. James Lambert presents the most comprehensive existing review of the massive archival holdings in Quebec relevant to the legal suppression of the uprisings. His many peregrinations have taken him from all locations of the huge Archives nationales du Québec to various large ecclesiastical collections, Montreal court records, and obscure private holdings, such as the Henry S. Chapman Papers held by McGill University. His notes give valuable information on the form of the documents, the whereabouts of originals or copies, and which documents have been published. Although the National Archives records for the Upper Canada situation are extensive, Susan Lewthwaite’s review reveals important judicial sources and private papers available only in Ontario holdings. co nc l u si o n This book’s examination of the legal responses to the rebellions, its interpretations of the trial proceedings and their contexts of ‘lawmaking’ and

Introduction

31

‘law-administering,’ and its discussion of archival sources are intended to fill a significant gap in the historical literature. We hope that the volume helps to cast new light on themes and debates in the Canadian political, constitutional, legal, and social history of this period. However, we also hope that our work yields something more than fresh insights into abstracted patterns of the past. Tragic human experiences were at the centre of events examined here, and we seek to cast some light on the human face of these events, both for those directly affected by the law and for those charged with administering it. For instance, a close look at the proceedings deepens our understanding of the conflicted decision making of John Colborne and George Arthur and of John Beverley Robinson’s determined defence of the existing order as reflected in his wide-ranging extrajudicial activities. And there are other important participants in these real-life dramas who were neither accusers nor accused, figures like John A. Macdonald, whose risk-taking as defence counsel helped rather than hindered his rise to prominence. It is a commonplace that in rebellion or war the victors dictate the administration of laws by which the losers are judged. The essays in this volume demonstrate the degree to which this was true in the Canadas 1837–9 and the degree to which official justice conformed to then-prevailing legal and constitutional standards. Legal responses to recent terrorist events in the United States also remind us that some of the issues raised here more than a century and a half ago are with us still.

NOTES 1 The Introduction to our first volume examines state trials as a genre, beginning with the libertarian-inspired collections of Thomas Salmon and Sollom Emlyn in the early eighteenth century and culminating with the Howells series and the disintegration of the genre over the course of the nineteenth century. This disintegration was marked by the sanitized ‘new’ state trials series, sponsored by the British government, and the misnamed American state trials series, with its orientation towards famous and/or scandalous trials. See F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Law, Politics and Security Measures, 1608–1837 (Toronto: Osgoode Society/University of Toronto Press 1996) (hereafter Canadian State Trials I). 2 For instance, because of space constraints we did not examine many aspects of the Acadian expulsion (one late consequence of the diaspora was a New Brunswick sedition conviction in 1827 following an attempt to set up an inde-

32 f. murray greenwood and barry wright

3

4

5

6

pendent republic and the ‘Aroostook War’). Nor did we deal with what was arguably western Canada’s first state trial: the prosecutions taken in Montreal, Quebec, and York in 1818 resulting from the killing of Lord Selkirk’s settlers by Nor’westers at Seven Oaks in the Red River colony (Manitoba) two years earlier. See Edward P. Thompson, Whigs and Hunters: The Origins of the Blact Act (London: Allen Lane 1975). On the formation of public attitudes towards law and politics in Upper Canada, see Jeffrey L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press 2000). See Brian Young, ‘Positive Law, Positive State: Class Realignment and the Transformation of Lower Canada,’ in A. Greer and I. Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada (Toronto: University of Toronto Press 1992, 50; also, Greer and Radforth, ‘Introduction,’ Greer, ‘The Birth of Police in Canada,’ 17, and Radforth, ‘Sydenham and Utilitarian Reform,’ 64, in the same volume. More generally, see P. Corrigan and D. Sayer, The Great Arch: English State Formation as Cultural Revolution (Oxford, U.K.: Blackwell 1985). Professional policing facilitated wider legal enforcement of unlawful assembly and riot and supported new measures to address the collective unrest reflected in political meetings, rebellion-losses riots, sectarian violence, and the activities of emerging organized labour. Special security branches were developed to monitor lawful activity and collect and assess intelligence about potential security threats. Eventually, measures such as legislation governing breach of official trust (the Official Secrets Act) and emergency executive enabling laws (the War Measures Act) helped governments effectively bypass legislative and judicial scrutiny. For some of the literature that begins to engage with this transformation from reliance on the classic political offences, see M. Lobban, ‘From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c.1770–1820,’ Oxford Journal of Legal Studies, 10 (1990), 305; Carol Wilton, ‘“Lawless Law”: Conservative Political Violence in Upper Canada, 1818–41,’ Law and History Review, 13 (1995), 125, and ‘A Firebrand amongst the People: The Durham Meetings and Popular Politics in Upper Canada’ CHR, 75 (1994), 346; Susan W.S. Binnie, ‘The Blake Act of 1878: A Legislative Solution to Urban Violence in Post-Confederation Canada,’ in Binnie and L. Knafla eds., Law, State and Society: Essays in Modern Legal History (Toronto: University of Toronto Press 1995), 215; and Scott W. See, Riots in New Brunswick: Orange Nativism and Social Violence in the 1840s (Toronto: University of Toronto Press 1993). See A. Greer, ‘1837–38: Rebellion Reconsidered,’ CHR, 76 (1995), 1 at 6–13. See

Introduction

7 8 9

10

11 12 13 14

15

16

33

also Greer, ‘Rebels and Prisoners: The Canadian Insurrections of 1837–38,’ Acadiensis, 14 (1984), 137 at 145. Greer, ‘Rebellion Reconsidered,’ 8–13. Ibid., 16. See F. Murray Greenwood, ‘The Chartrand Murder Trial: Rebellion and Repression in Lower Canada, 1837–1839,’ Criminal Justice History: An International Annual, 5 (1984), 129–59. The case, referred to in a number of the essays in this volume, is not strictly speaking a state trial, although the offences tried were committed during the uprising and confirmed government reservations about the unreliability of the regular courts, thereby helping to set the stage for the Montreal Court Martial. Besides hundred of primary documents, this segment is based on the following secondary sources: Donald Creighton, The Empire of the St. Lawrence (Toronto: Macmillan 1956); S.D. Clark, Movements of Political Protest in Canada, 1640–1840 (Toronto: University of Toronto Press 1959), ch. 15; W.H. Parker, ‘A New Look at Unrest in Lower Canada in the 1830s,’ CHR, 40 (1959), 209; F. Murray Greenwood, Land of a Thousand Sorrows: The Australian Prison Journal, 1840–1842 of the Exiled Canadien Patriote, François-Maurice Lepailleur (Vancouver: University of British Columbia Press 1980), ‘Introduction’; Fernand Ouellet, Lower Canada 1791–1840 (Toronto: McClelland and Stewart 1980), ch. 8–12; Jean-Paul Bernard, ed., Les Rébellions du 1837–1838: Les Patriotes du Bas Canada dans la Memoire Collective et Chez les Historiens (Montreal: Boréal 1983); F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: Osgoode Society/University of Toronto Press 1993); Allan Greer, The Patriotes and the People: The Rebellion of 1837 in Rural Lower Canada (Toronto: University of Toronto Press 1993); Greer, ‘Rebellion Reconsidered.’ See F. Murray Greenwood, ‘Les patriotes et le gouvernement responsable dans les années 1830s,’ RHAF, 33 (1979–80), 25. See e.g., Greer, The Patriotes and the People. See Eric Wolfe, Peasants (Englewood Cliffs, N.J.: Prentice-Hall 1966). See Louis-Georges Harvey, ‘Le mouvement patriote comme projet de rupture,’ in G. Bouchard and Y. Lamonde, eds., Québécois et Américains: La culture québécoise aux 19e et 20e siècles (Montreal: Fides 1995), 89–112, for external democratic influences. See Fernand Ouellet, ‘Louis-Joseph Papineau,’ DCB, 10: 564. Papineau later escaped to the United States during or immediately after the loss at SaintCharles. ‘Histoire de l’insurrection du Canada,’ Revue du Progès (Paris), May 1839; Norah Story, ed., ‘Stewart Derbishire’s Report to Lord Durham on Lower Can-

34 f. murray greenwood and barry wright

17 18 19 20 21 22

23 24

25

26 27 28 29 30 31 32 33 34

ada, 1838,’ CHR, 18 (1937), 48 at 54. For Mondelet, see Greenwood’s first essay on the General Court Martial, Montreal. 3 vols. (Montreal: Éditions Modèles/Éditions de l’A.C.-F. 1938–42), vol. 2, bk. 5, ch. 3, 4. Sydney Bellingham, Some Personal Recollections of the Rebellion of 1837 in Canada (Dublin[?]: 1902). Durham to Glenelg, 9 Aug. 1838, RPAC, 1923, 316 at 318. See references in nn.12–15 above. Clark, ‘Movements of Political Protest,’ 320–2. Lieutenant George ‘Jock’ Weir, a courier, was hacked to death by rebels on the eve of the battle of Saint-Denis, while government informer Joseph Armand (called Chartrand) was executed by a ‘kangaroo court’ of patriotes well after the battle of Saint-Charles. See Greenwood’s first essay on the General Court Martial, Montreal. The killers of each were exempted from Lord Durham’s Amnesty Proclamation. DCB, 10: 576. All manner of abuse was practised by Ellice (e.g., rack renting, imposing novel conditions, and evicting squatters after they had made improvements). From 1822 to 1838, his profits from the seigneury rose by almost 600 per cent and he was keeping almost 100,000 acres of farmland off the market for speculative purposes. For more detail, see the essay by Beverley Boissery and Carla Paterson in this volume and Boissery, A Deep Sense of Wrong: The Treason Trials and Transportation to New South Wales of the Lower Canadian Rebels after the 1838 Rebellion (Toronto: Osgoode Society/Dundurn Press 1995), ch. 7. See Greenwood’s first essay on the Montreal General Court Martial in this volume. See, e.g., Clark, Movements of Political Protest, 322–3. 7 Dec. 1838, Événements de 1837–1838,’ no.2437, ANQ (hereafter Évén). Authors’ translation. Report of the State Trials before a General Court Martial Held at Montreal in 1838–9, 2 vols. (Montreal: Armour and Ramsay 1839). Robert Sellar, The History of the County of Huntingdon and of the Seigniories of Chateauguay and Beauharnois (Huntington, Que.: Canadian Gleaner 1888), 529. There were, of course, exceptional habitants who, having become somewhat literate, disputed political and religious issues: Story, ‘Derbishire’s Report,’ 61. DCB, 9: 485–6 (Jean-François-Marie-Joseph MacDonnell). For an example, see Pierre-Hector Morin to P.-H. Morin, Jr., 11 March 1838, Évén. 2546. Story, ‘Derbishire’s Report,’ 57–8.

Introduction

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35 Colin Read and Ronald Stagg provide an excellent overview of the causes and events of the rebellion phase in their collection of documents and the brief account of events which follows in this section borrows heavily from it (Read and Stagg, ‘Introduction,’ The Rebellion of 1837 in Upper Canada [Ottawa: Carleton University Press 1985], esp. xix–cv. Edwin Guillet’s study is most useful on the immediate aftermath and the patriot invasions; see E.C. Guillet, The Lives and Times of the Patriots: An Account of the Rebellion in Upper Canada, 1837–1838 and of the Patriot Agitation in the United States, 1837–42 (1938 repr.; Toronto: University of Toronto Press 1968). 36 Aileen Dunham, Political Unrest in Upper Canada, 1815–1836 (1927 repr.; Toronto: McClelland and Stewart 1963)); G.M. Craig, Upper Canada: The Formative Years, 1784–1841 (Toronto: McClelland and Stewart 1963); P. Romney, ‘Reinventing Upper Canada: American Immigrants, Upper Canadian History, English Law, and the Alien Question,’ in R. Hall, W. Westfall, and L. Sefton Macdowell eds., Patterns of the Past: Interpreting Ontario’s History (Toronto: Dundurn 1988), 78; F. Murray Greenwood and B. Wright, ‘Parliamentary Privilege and the Repression of Dissent in the Canadas,’ B. Wright, ‘The Gourlay Affair: Seditious Libel and the Sedition Act in Upper Canada,’ and P. Romney, ‘Upper Canada in the 1820s: Criminal Prosecution and the Case of Francis Collins,’ all in Greenwood and Wright eds., Canadian State Trials I, 409–521. 37 See Read and Stagg, ‘Introduction,’ xxiv–xxx. 38 In the Home District, about half the rebels were of American origin, and in the west the proportion was yet higher. See Read and Stagg, ‘Introduction,’ lvi– lvii, lxv–lxvi. 39 See Read and Stagg, ‘Introduction,’ xxxvi–lvii. 40 Colin Read, The Rising in Western Upper Canada, 1837–8: The Duncombe Revolt and After (Toronto: University of Toronto Press 1982). See also, Read and Stagg, ‘Introduction,’ lviii–lxvi. 41 Betsy Boyce, The Rebels of Hastings (Toronto: University of Toronto Press 1992). 42 See Guillet, Lives and Times, 153–61; Boyce, Rebels, 107–112; G.F.C. Stanley, ‘William Johnson, Pirate or Patriot,’ Historic Kingston, 6 (1956), 13–28. See most recently in the more popular literature: Colin K. Duquemin, Niagara Rebels: The Niagara Frontier in the Upper Canada Rebellion, 1837–8 (St Catharines, Ont.: Norman 2001) 43 Stanley, ‘Invasion, 1838’ OH 54 (1952), 237; R.A. Douglas, ‘The Battle of Windsor,’ OH, 61 (1969), 137; Guillet, Lives and Times, 132–52. See most recently in the more popular literature: Donald E. Graves, Guns across the River: The Battle of the Windmill, 1838 (Toronto: Robin Brass 2001). 44 This historiographical tradition is reflected in J.C. Dent’s classic study of the Upper Canada rebellion, The Story of the Upper Canadian Rebellion: Largely

36 f. murray greenwood and barry wright

45 46

47

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Derived from Original Sources and Documents (Toronto: Robinson 1885), and is epitomized by George Wrong’s work in particular. Donald Creighton’s Laurentian thesis was an important influence on this shift in scholary orientation. See, e.g., Read, Rising, and Boyce, Rebels; S.F. Wise, God’s Peculiar Peoples: Essays on Political Culture in Nineteenth Century Canada, A.B. McKillop and P. Romney, eds. (Ottawa: Carleton University Press 1993). The two relatively recent scholarly surveys of political trials in Canadian history make passing reference to the rebellion proceedings and the older literature on them: F. Murray Greenwood, ‘L’insurrection appréhendée et l’administration de la justice au Canada: le point de vue d’un historien,’ RHAF, 34 (1980–1), 57; Kenneth McNaught, ‘Political Trials and the Canadian Political Tradition,’ in M.L. Friedland, ed., Courts and Trials: A Multidisciplinary Approach (Toronto: University of Toronto Press 1975), 137. More recent work on Lower Canada that begins to address legal issues more rigorously include Bernard, Les Rebellions du 1837–1838; Boissery, A Deep Sense of Wrong; Jean-Marie Fecteau, ‘Measures d’exception et règle de droit: les conditions d’application de la loi martiale au Québec lors des rébellions de 1837–1838,’ McGill Law Journal, 32 (1987) 465; F. Murray Greenwood, ‘The Chartrand Murder Trial,’ and ‘The General Court Martial of 1838–39 in Lower Canada: An Abuse of Justice,’ in W. Pue and B. Wright, eds., Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press 1988), 249; Greer, The Patriotes and the People. On Upper Canada, see Read, Rising; Read and Stagg, The Rebellion of 1837 in Upper Canada; Boyce, Rebels; B. Wright, ‘The Ideological Dimensions of Law in Upper Canada: The Treason Proceedings of 1838,’ Criminal Justice History, 10 (1989), 131, and ‘Harshness and Forbearance: The Politics of Pardons and the Upper Canadian Rebellion,’ in C. Strange, ed., Qualities of Mercy: Justice, Punishment and Discretion (Vancouver: University of British Columbia Press 1996). This neglect has begun to be addressed, notably in Lower Canada in Allan Greer’s The Patriots and the People, and indirectly through sources such as Maria Wait’s letters. See M. Brown and M. Cross, eds., The Waite Letters (Erin, Ont.: Porcepic 1976). See, e.g., George Rudé, Protest and Punishment: The Story of Social and Political Protesters Transported to Australia, 1788–1868 (Oxford, U.K.: Clarendon 1978); Greenwood, Land of a Thousand Sorrows; Boissery, A Deep Sense of Wrong; Brown and Cross, Waite Letters; C. Pybus and H. Maxwell-Stewart, American Citizens, British Slaves and Yankee Political Prisoners in an Australian Penal Colony. (Melbourne: Melbourne University Press 2002). A recent, more popular study is J. Cahill, Forgotten Patriots: Canadian Rebels on Australia’s Convict Shores (Toronto: Robin Brass 1998).

Introduction

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50 Executive Council Minutes 31 March 1838, enclosure 2 in Arthur to Glenelg, 14 April 1838, CO 42/446, PRO; see also ‘Remarks [J.B.Robinson] upon certain acts passed during the last session of the legislature of Upper Canada in consequence of the insurrection,’ enclosure 8 in Arthur to Glenelg, 23 April 1838, CO 42/446. 51 As a result, numerous outrages – all unpunished – were committed against persons connected to Reform throughout the province. Abuses in the Home District involved, among others, the Cameron brothers, whose case is discussed in P. Romney and B. Wright’s essay, and James and William Leslie, who later petitioned the British government directly for redress. On abuses in the west, see e.g., Read, Rising, 118–21. Less formal measures were resorted to as well, including dismissals from office (J.L. Howard was removed from his position as postmaster for Toronto for alleged sympathy with Reform and reluctance to take up arms in defence of the province), orders to postmasters to intercept seditious publications, and ‘secret services.’ See Glenelg to Arthur, 19 April 1838, with Howard’s petition of 23 February, and Glenelg to Arthur, 29 May 1838, with depositions, RG 7 G 1 (Governor General’s Office, Despatches from the Colonial Office), vol. 85, NA; enclosures in Arthur to Glenelg, 25 June 1838, CO 42/448; RG 5 A 1 (Upper Canada Sundries), vol. 186 (14 February) and 187 (20 March), NA; RG 1 E 3 (Executive Council Submissions), vols. 33 and 193, NA. 52 Greenwood, ‘The Chartrand Murder Trial.’

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P A R T ON E Upper Canada

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1 Trying the Rebels: Emergency Legislation and the Colonial Executive’s Overall Legal Strategy in the Upper Canadian Rebellion RAINER BAEHRE

The outbreak of rebellion in Upper Canada in early December 1837 caught imperial and colonial authorities largely by surprise. Lieutenant Governor Francis Bond Head, the Executive Council, the commander of the forces, and the chief justice recognized that considerable discontent existed, particularly among settlers of American origins, but they chose to ignore the degree. In his address to a grand jury on 14 March 1838, Chief Justice John Beverley Robinson commented revealingly that it was ‘incomprehensible’ why anyone living in Upper Canada would want to rebel, and he confessed that he was ‘among the last who could believe it possible.’1 Conversely, he showed little surprise that rebellion had broken out in Lower Canada. Robinson, like most colonial authorities, had apparently convinced himself, indeed correctly, that most Upper Canadians would remain loyal. Yet he had also seriously misjudged the existing levels of colonial disaffection, let alone the willingness of hundreds to engage in an armed uprising.2 The executive government’s decision of late November and early December to send away its troops to crush the rebels of Lower Canada, rather than to maintain some military presence as a preventative measure, is symbolic of its faith in its own judgment. Its misperception proved pivotal. With characteristic arrogance, Bond Head had refused to take proper security precautions, believing somewhat idiosyncratically that ‘moral force’ would ensure the British connection.3 As Colin Read and others have suggested, the Upper Canadian rebellion might never

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have broken out had these troops not left.4 Rebel leaders used this miscue as their window of opportunity; it proved an ill-fated one. To worsen matters, the colony’s leaders had not envisaged repeated frontier raids by fugitive rebels assisted by sympathetic Americans. They were therefore astonished when, on 14 December, rebels invaded Upper Canada at Navy Island on the Niagara River and crossed Lake Erie in the new year to land at Pelee Island, opening a series of invasions throughout 1838 supported by the American Hunters’ Lodges. With the relative acuity of hindsight, historians have interpreted the confusion and the anxieties roused by these unexpected bids to overthrow the government as evidence of a certain laxity of preparedness, that Bond Head and his successor, George Arthur, and Chief Justice Robinson responded to the crises in an ad hoc and piecemeal fashion, and that they failed to resolve the legal problems engendered by these events. Further, this oligarchical regime has been characterized as one often resorting to ‘lawless law’ and ‘conservative political violence’ to ensure continuing hegemony.5 The truth is more complex than this impression of shortsightedness and deliberate circumvention of the rule of law to carry out an elite political agenda. The government’s response, at least until the autumn of 1838, represent quintessential state trials more than examples of lawless law6 and most of the temporary expedients adopted were similar to the usual emergency legislation seen in other security crises in British history. There are, for example, parallels to the British response in the Irish rebellion of 1798: emergency laws were introduced, the merits of the British constitution and English law were widely proclaimed, a combination of ‘firmness and lenity’ was implemented, and a handful of leading figures were executed while others were sent into exile.7 Nonetheless, some of the provincial emergency measures proved to be contentious, executivejudicial relations compromised then-prevailing British constitutional principles of judicial independence, and civilians were ultimately tried by courts martial. The government of Upper Canada’s organized response to the crisis went beyond emergency laws and included a preliminary legal strategy, worked out by a Treason Commission which issued a comprehensive initial report on how trials were to be conducted and how rebels and their followers were to be treated. The Queen’s Bench judges and the attorney general responded to the commission’s recommendations in reports of their own, and all of this material was then directed to the Executive Council. Together, it became the blueprint for a coordinated executive

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and judicial response. While these steps did not go as far as the actions taken in Lower Canada, where regular government was suspended and a Special Council instituted, they did enhance the executive’s management of the administration of justice. The government’s overall strategy was modified when challenged by unforeseen legal complications, imperial disapproval,8 and the continuing threat of invasion, but this did not mean that its response was disorganized. In short, the outbreak of rebellion necessitated immediate deterrent measures and an organized response to obviate any future security threats. Such a studied response does not necessarily represent a lack of understanding of the rule of law, maladministration, or cynical political manipulation. Rather, it tends to confirm Murray Greenwood’s argument that a Baconian legal approach, which placed loyalty to the crown above the value of legal impartiality, characterized the culture of those who dominated colonial government and the administration of justice. The placement of political imperatives above the rule of law in times of crisis was, by no means, confined to the governments of the Canadas. It was evident among Federalists in early post-revolutionary America and by British colonial administrators in Ireland following the 1798 rebellion. As Robert Saunders points out, Upper Canada’s elites often evoked the rule of law; indeed, ‘throughout the 1820s Robinson had demonstrated a legalistic and constitutional approach to the solution of problems which the opposition had handled in a more openly “political” fashion.’9 The following discussion is divided into two related sections. An overview of the emergency legislation is followed by an examination of three reports that shaped the early- to mid-term legal response, though the plans they set out were compromised in practice – sometimes in unexpected ways. EMERGENCY LEGISLATION

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On 7 December 1837 Sir Francis Bond Head issued a proclamation denouncing the rebellion, calling upon loyal subjects to do their duty, offering a hefty reward for anyone who apprehended designated rebel leaders, and suggesting that those persons who were led astray and voluntarily returned ‘to their duty to their Sovereign – to obey the Laws’ would find themselves treated indulgently and justly.11 Rewards and the prospect of amnesty did little to resolve matters and, consequently, three important statutes to combat the rebellion further were passed. They all received sanction on 12 January 1838 when the Upper Canadian legisla-

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ture voted in their favour by easy majorities.12 This outcome was hardly surprising given that some Reform members of the House of Assembly were in custody for treason and related charges (Thomas Morrison, Robert Alway, Elias Moore, and Findlay Malcolm) while others were expelled from the legislature after fleeing the province (Charles Duncombe, John Rolph, and David Gibson). Intended to remain in effect for only one year, the first legislative measure was ‘An Act to Authorize the Apprehending and Detention of Persons Suspected of High Treason, Misprision of Treason and Treasonable Practices’ (1 Vic. c.1), which placed the disposition of cases in the hands of the governor-in-council and effectively suspended habeas corpus. In addition to denying bail to accused traitors, except under a lieutenant governor’s warrant, this legislation extended to persons suspected of misprision, in other words, of having knowledge of treasonable activities and not reporting them. The heart of the measure contradicted the act’s general declaration that anyone charged with treasonous offences be given the ‘benefit and advantage of all laws ... relating to or providing for the liberty of all subjects.’ Chief Justice Robinson pointed out that the law was not unprecedented, describing it as ‘similar to one passed in this province in 1814 ... and it follows closely the forms of enactments in the British statute both for the same purpose.’13 An accompanying statute, ‘An Act to Provide for the Effectual and Impartial Trial of Persons Charged with Treason and Treasonable Practices Committed in this Province (1 Vic. c.2), created further procedural expedients on a temporary basis by allowing the selection of juries and trials out of district, limiting legal challenges to prospective jurors, and extending the penalties of forfeiture. Like the preceding legislation, this measure resembled an earlier act passed during the War of 1812. Robinson again compared it with other precedents such as measures that had governed treason trials in England in the wake of the Jacobite-led Scottish rebellion of 1745.14 Judge James B. Macaulay’s also made comparisons with Ireland in 1798 in his address to the jurors at London.15 The most unusual and controversial measure passed on that day proved to be ‘An Act to Protect the Inhabitants of this Province against Lawless Aggressions from Subjects of Foreign Countries at Peace with Her Majesty’ (1 Vic. c.3 – see app. D, U.C. doc.1). Lord Brougham later described the measure as ‘absurd,’ and the British law officers encouraged its disallowance.16 The Lawless Aggressions Act, as it was known, was directed at invading foreign brigands and British-subject supporters who had blatantly disregarded existing treaties between two countries at

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peace: the United Kingdom and the United States. Foreigners could be tried by a regular court for a felony, as done in some of the cases reviewed in the Colin Read essay, or, along with British subjects, by court martial, as examined in Barry Wright’s essay. The complex legal issues raised by the statute, including the liability of foreigners for political offences, is discussed at length in Murray Greenwood’s essay on John Prince. Chief Justice Robinson’s initial justification of the Lawless Aggressions Act focused on the need to deter Americans and their supporters, to put them on the same footing as British subjects charged with treason. Admitting that it was of ‘questionable propriety,’ he explained: There was much reason to fear, from the extraordinary excitement prevailing on the American frontier, that great numbers would join this piratical army; there was no military force in the province, and it was uncertain whether any soldiers could be spared from Lower Canada ... The legislature thought it necessary to act promptly in this emergency, their intention was to deter the people of Canada from uniting themselves to these foreign invaders, by subjecting them to court martial ... thus holding out the prospect of more prompt and certain punishment. And, on the other hand, it was thought it might have salutary effect in repressing the eagerness of American citizens to join in this warfare, if they were placed upon the same footing in respect to trial and punishment, as the rebels with whom they might be associated. It is true that these Americans were liable to be even more summarily dealt with, for no principle of law would be violated by punishing them capitally, without any form of trial ... The Act may be thought one of questionable propriety as it applies to foreigners, but it will be found salutary, if it can be suffered to remain in force ... This provision extends the prompt punishment of a military court, where it is much required, while, at the same time, the ordinary law of the land is left in force for all other purposes.17

The political and legal stakes were again raised in the next wave of frontier disturbances during February and March 1838. The subsequent legislative wave saw five acts passed on 6 March 1838, the first of which was the ‘Act to Provide for the More Speedy Attainder of Persons Indicted for High Treason, Who Have Fled from this Province, or Remained Concealed Therein, to Escape from Justice’ (1 Vic. c.9).’ It provided for a more efficient process for convicting suspects in absentia, thus facilitating the confiscation of their estates, a thorny matter after the War of 1812.18 As Chief Justice Robinson commented, the intention here was, in light of so many laws having been passed, to deal quickly with the pro-

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cess of outlawry, now ‘dilatory and troublesome.’ Under the act, the courts could indict suspected rebels for high crimes, demand in a public proclamation that they surrender themselves, and, if they did not, within three months, find them ‘attainted of the crime expressed’ and make them ‘suffer and forfeit,’ accordingly. An accompanying piece of legislation, ‘An Act to Enable the Government of this Province to Extend a Conditional Pardon in Certain Cases to Persons Who Have Been Concerned in the Late Insurrection’ (1 Vic. c.10 – see app. D, U.C. doc.2), became, like the Lawless Aggressions Act, particularly controversial. It allowed indicted prisoners (only those involved in the ‘late insurrection,’ not those captured in subsequent disturbances) to petition for a pardon before arraignment. The pardon was to be routinely exercised as a delegated prerogative by the lieutenant governor when the governor general was outside the colony, although, in cases of murder and treason, final decisions remained in the hands of the British government.19 The act empowered the lieutenant governor to pardon more expeditiously and to specify conditions such as imprisonment, banishment, and transportation where warranted. Together with the recommendations of the Treason Commission, the Pardoning Act, as the measure was known, made it possible to process more effectively the hundreds facing charges. The essay by Romney and Wright shows that most of the Toronto prisoners facing trial petitioned, undoubtedly influenced by Head’s proclamation of 7 December 1837 which implied lenient treatment or amnesty, not appreciating that in so doing they were admitting guilt without any guarantees. Although by late spring it had become widely known that petitions could be denied and that punitive conditions could be placed on pardons, Head’s successor issued yet another proclamation offering ‘Royal mercy and forgiveness’ to ‘deluded and misguided Subjects’ in the form of clemency, as a symbol of the government’s ‘gracious amnesty, pardon and forbearance.’20 In explaining the act, Robinson drew parallels with measures taken after the Irish rebellion of 1798 and stressed that the act was both expedient and humanitarian in light of nearly four hundred prisoners facing charges, the great number of trials consequently necessary which would take well into the next summer to conduct, and the further delays of awaiting final disposition from the British government. Apart from the considerable expense, Robinson emphasized the prospect of prisoners contracting diseases and possibly dying during extended custody. Anticipating objections, Robinson also drew parallels with the exercise of local discretion in the crown’s decision to prosecute, suggesting that the end

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results would be similar.21 As noted in this volume’s Introduction and elsewhere, encouraging pre-trial confessions in treason cases to relieve pressure on the courts ran contrary to the spirit of the procedural safeguards enacted in the Treason Act, 1696, under the shadow of the Bloody Assize of 1685, when Judge George Jeffreys, in facing more than 1,300 cases, had duped prisoners into pleading guilty in order to dispose of them more expeditiously.22 The act helped to avoid the possible impression, if charges were dropped pre-trial, that the government lacked confidence in securing convictions (here the chief justice was not entirely candid in drawing a parallel with the crown’s forbearing prosecution). This summary justice also reduced the risk of trial-jury acquittals and allowed wide discretion on punishment through conditions on pardons.23 In addition, as Cassandra Pybus suggests in her essay, the local assumption of pardoning power included the imposition of transportation, raising questions about the extraterritorial effect of colonial legislation.24 Another measure passed on 6 March was described by Robinson as a variant of existing laws. ‘An Act to Prevent the Unlawful Training of Persons to the Use of Arms, and to Practise Military Revolutions and Exercises, and to Authorize Justices of the Peace to Seize and Detain Arms Collected or Kept for the Purposes Dangerous to the Public Peace’ (1 Vic. c.11),’ empowered any justice of the peace, constable, or persons assisting the latter to disperse an unlawful meeting or assembly and arrest and detain participating members. They could also seize arms and weapons –‘any pike, pike-head or spear ... dirk, dagger, sword, pistol, gun, rifle, or other weapon’ – dangerous to the public peace from any ‘suspicious person’ and arrest them for a misdemeanour even if it meant forcibly entering their property. Loyalists who acted beyond the law on behalf of the government enjoyed special immunities. ‘An Act to Indemnify Persons Who since the 2nd of December 1837, Have Acted in Apprehending, Imprisoning or Detaining in Custody, Persons Suspected of High Treason or Treasonable Practices, and in the Suppression of Unlawful Assemblies, and for Other Purposes Therein Mentioned’ (1 Vic. c.12 – see app. D, U.C. doc.3), protected persons who had acted on behalf of the government since 2 December 1837. They were absolved from legal repercussions, even though some of their actions, while ‘just and necessary,’ ‘may not have been strictly legal and formal.’ Civil suits remained possible, but those who sued risked having to pay the defendants double the costs, as well as having the proceedings stayed or summarily dismissed. On the criminal side, a legal discharge could be awarded to any person found guilty of an

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offence committed while defending the crown. In effect, unofficial enforcers of state rule were placed above the rule of law. The measure sanctioned what some have characterized as ‘lawless law.’ Similar acts had been passed in Ireland and Lower Canada. The final legislation of 6 March, ‘An Act to Authorize the Appointment of Commissioners to Investigate the Claims of Certain Inhabitants of this Province for Losses Sustained during the Late Unnatural Rebellion’ (1 Vic. c.13), provided for the appointment of commissioners to inquire into losses suffered by innocent victims of the rebellion, as sworn under oath, and to report their findings to government. The implications of these inquiries and the matter of restitution proved highly controversial and volatile in the years following the rebellion, leading in some cases to serious rioting.25 The new lieutenant governor, Sir George Arthur, arrived in late March 1838. He carried with him instructions expressing the British government’s concern about the colonial government’s measures (rumours of measures of ‘unusual severity’ against persons ‘in any way implicated in the insurrection in the province’). Yet Arthur was unwilling to decline assent to the legislation passed on 6 March. Although Arthur immediately sent the chief justice’s collected remarks on the legislation to the Colonial Office in mid-April, copies of the acts themselves were not sent until 5 May. Robinson’s prominent role in drafting the emergency measures and as special adviser to the government involved a constitutional conflict of functions that had previously attracted controversy. Arthur justified Robinson’s legislative role and executive consultations on the grounds of his ‘high character and great experience’ as well as ‘his presence and assistance’ which ‘were likely to be eminently useful, both to the prisoners and to the Government.’26 Likewise, after arriving in England at the end of 1838, Robinson emphasized that, had he not intervened actively, delays would have caused injustice to the prisoners.27 The chief justice’s role in this respect was met with unwavering disapproval from the British government, in particular from James Stephen, the undersecretary of legal affairs in the Colonial Office, who was familiar with earlier controversies concerning the judiciary and the partisan administration of justice in the province. Stephen was particularly concerned about the Lawless Aggressions and Pardoning Acts.28 ex e c u t i ve l e g a l st rat e g i es The unanticipated rebellion and frontier disturbances posed unavoidable further challenges for civil authority: what was to be done beyond the

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formal public response of legislation? Inside government, a fresh legal strategy needed to be discussed and formulated. The first official but confidential document, which provided a detailed plan on how to handle the rebels in custody, was submitted in April 1838 in the form of the ‘Report of Commissioners Appointed to Inquire into Charges of Treason and Felony’ (henceforth, ‘Trials for Treason Report’). It was authored by the vicechancellor of the Court of Chancery, Robert Jameson, who had stepped down as attorney general in March 1837, and two members of the Executive Council, Alexander Wood, a Scottish-born brewer and magistrate, and John Spragge, a surrogate judge of the Home District. They had been appointed members on 11 December by Head, merely days after the outbreak.29 In submitting their recommendations, the commissioners were undoubtedly influenced by Lord Glenelg’s despatch recommending ‘great circumspection’ in resorting to capital punishment for political offences.30 While their report did not delay or prevent the executions of Samuel Lount and Peter Matthews,31 it nonetheless provided an influential outline for the treatment of other rebels in custody. Most cases involved consideration of punishment for those who had confessed and successfully petitioned under the pardoning legislation. It also served as a reference point for the punishment of others who faced trial and were convicted. Two other reports on the disposition of rebel cases followed in direct response to the commissioners’ report. Judges Robinson and Jonas Jones, who presided over the Toronto trials, sent their own report and commentary (‘Judges’ Report’), which largely endorsed the commissioners’ findings, to Lieutenant Governor Arthur.32 The third report was from Attorney General Christopher Hagerman, whose observations were comparatively brief and less tempered.33 The lieutenant governor and Executive Council drew upon all three reports in making recommendations for continuing prosecutions and reaching decisions on pardons and punishment.34 As seen in the essays by Romney and Wright, and by Read, there was, as a result, some adjustment in the actual disposition of cases from the recommendations of the original Trials for Treason Report. The later invasions at Short Hills, Prescott, and Windsor forced the government to re-evaluate this preliminary strategy and a fourth report was issued on 10 December 1838 by three judges of the Court of King’s Bench, J.B. Macaulay, Jonas Jones, and Archibald McLean,35 with an attached minority report from S.P. Sherwood.36 This final report will be briefly examined at the end of this section.

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In their entirety, the reports illuminate the contours of a systematic approach to the handling of offenders, and even, one might argue, an organized strategy for reviewing political and legal considerations, coordinating the executive’s efforts with the judiciary, and thereby managing (though not determining) legal outcomes in order to preserve the political status quo. Yet one is also reminded that, as with the rebellion in Lower Canada, events were complex and, to a marked degree, ‘choices were made, actions taken, not as the inevitable result of metaphysical forces or of rigidly determining structures, but in response to rapidly changing circumstances.’37 The extent to which the strategy succeeded is explored in the essays that follow in this volume. Jameson’s Treason Commission The commissioners who produced the Trials for Treason Report were called upon to study the issue of commutation and the avoidance of trials for those who had engaged in the ‘insurrection.’38 Large numbers had been examined and discharged. One hundred and nineteen prisoners still under indictment were re-examined and classified into three categories. The commissioners also prepared abstracts describing to a greater or lesser extent each person’s background and activities in the rebellion.39 Their analysis of cases involving leading and lesser-known rebels reveals the extent to which political and ideological considerations shaped all efforts at prosecution and sentencing. Class 1 consisted of twenty-two individuals, whom the commissioners defined as ‘those whose guilt is of the highest and for whose character the least can be hoped’ and who were thus recommended for execution or transportation for life.40 They were among the leaders of the insurrection, though somewhat in the shadow of more prominent figures: William Lyon Mackenzie, Charles Duncombe, John Rolph, Samuel Lount, and Peter Matthews. In general, this group came from throughout the province and had exhibited one and usually more of the following traits: means and influences, dangerous or vicious behaviour, and political militancy combined with active recruitment of supporters. The group also included John Anderson, a little-known figure who had, like Lount and Matthews, confessed and petitioned under the Pardoning Act but been denied. Another obscure rebel was William Alves, a recently immigrated Scottish carpenter who was one of Samuel Lount’s riflemen, a participant with William Lyon Mackenzie and Lount in the robbery of the Western Mail, a witness to the burning of Dr Robert Horne’s house, and a guard of

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the prisoners detained at Montgomery’s tavern, where his conduct was described in ‘a very unfavourable light.’41 Far better known, of course, was John Montgomery, the owner of the tavern where Mackenzie’s troops had billeted prior to venturing down Yonge Street, a man ‘in easy circumstances’ and ‘a wealthy person,’ who did not bear arms but who had spread ‘disaffection and hatred of the Government’ among local farmers, supplying provisions to the rebels, confiding in the rebel leaders, and urging them on.42 Another was Walter Chase, a merchant, tavern owner, township roadmaster, and schooner owner from Port Stanley, who had earlier fled to Michigan and was now under suspicion for importing ammunition for the London District rebels; he had subsequently, as a patriot, carried the unsuccessful Amherstburgh invaders aboard his boat and was taken captive with their leaders, Edward Theller and Stephen Brophy.43 Yet another prominent figure was John Goldsbury Parker, an American-born settler and merchant holding ‘very considerable property’ but adversely affected by the mid-1830s economic downturn. According to the commissioners, who based their judgment on three ‘private’ letters of 6 and 7 November, he had claimed that four thousand men were organized, ‘ready to act in concert upon a moment’s notice in opposition to the Government,’ with 1,500 individuals from different parts of the province, ‘well organized’ and ‘ready to act with resolution, to attack a defenceless Toronto.’44 Colin Read and Ronald Stagg argue that Parker’s letter to Montreal merchant Thomas Brown constitutes the ‘only’ evidence of an organized effort at rebellion, and that its support was inflated by Mackenzie and Parker as a method of encouraging participation.45 The commissioners designated thirty-two Class 2 persons, of suspect ‘moral character’ and ‘hostility to the British government,’ as those who should be transported for ‘short periods’ to ensure the ‘future peace of the province,’ unless, upon reflection, banishment was more appropriate. Many were American settlers and the others were long and fervently associated with radicalism and disaffection. They had been active in the rebellion, being found armed and engaged in violent behaviour. All had successfully taken advantage of the pardoning legislation and confessed. Despite this, a serious form of punishment was warranted. The group included, among others, Ira Anderson, an American-born tavern keeper and gunsmith who repaired the insurgents’ weapons, having joined them at Montgomery’s tavern before making his way into Toronto to act on their behalf as a spy; and Percipher Hawke, from a family of American settlers, whose father and two brothers were rebels. He had participated

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in the battle of Yonge Street and was then captured while trying to escape to the United States. Family connections, as in Hawke’s case, were noted by the commissioners throughout these abstracts and were evident in the case of Joseph and Thomas Shephard, whose brothers Jacob and Michael were listed in Class 1. The commissioners pointed out that all four had committed similar offences but that it was impossible, presumably out of political considerations, to do more than select ‘a few examples from those who deserved severe punishment.’46 Another family link involved Seymour H.W. Stogdill, an American settler, armed rebel, and son-in-law of Jessie Lloyd, a rebel leader.47 ‘Class 3. Penitentiary’ was subdivided into two groups and constituted the largest category with sixty-five prisoners. The first group of ten was ‘chiefly Americans, generally strangers, entirely without property, anxious to plunder,’ and hardly political prisoners; they were to be treated as ‘ordinary felons’ to serve a penitentiary term at Kingston. Most had taken up arms at Montgomery’s. John Chapman Devins had been arrested at the outbreak of the rebellion on 7 December and was found to have broken into a neighbourhood home in search of weapons, as had Francis Robins.48 George Sumb (?), ‘active in arms to the end,’ had participated in robbing the mail, as had John Rummerfield and Peter Rogers.49 He had also joined Peter Matthews in the burning the Don Bridge, along with Asahel Hawley Scott and Colin Scott, two American brothers, who had sided with Peter Matthews and been present in arms at Montgomery’s. There was also the labourer John Wilkie who, the commissioners noted, ‘at first affected great stupidity but is evidently a cunning and dangerous man.’ The other subgroup consisted of fifty-five Upper Canadians who were ‘excited by seditious publications,’ joined the rebellion out of ‘fears,’ and clearly failed to understand ‘the object for which they had been seduced to assist in the insurrection, at all events without that virulent democratic feeling or want of principle which would render them insensible to an act of generosity on the part of the Government, and to whom the Queen’s gracious pardon might be extended, without forfeiture of property.’50 Their legal fate was contingent upon whether they had committed an ‘atrocity’ and were now willing to conduct themselves peacefully in the future. These abstracts allude only twice to purely selfish motives, once in the case American-born John Hating (?), who apparently hoped that he would be relieved from his responsibility of paying for land if the rebellion succeeded,51 and Timothy Munro, also American-born, ‘a disaffected person’ who advised his fellow rebels to rob his father-in law Major But-

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ton’s house of a large quantity of arms.52 Among the second subgroup ‘recommended for pardon, conditional or otherwise’ were numerous persons about whom little was said, except for their description as ‘not remarkable’ and the noting of their age; they included Joseph Matthews and Hiram Matthews, respectively the brother and son of Peter Matthews and George Fletcher, a nephew of rebel leader Silas Fletcher.53 Others were regarded as mere dupes, such as Richard Watson, ‘the son of honest and respectable parents ... seduced’ into taking up arms.54 Then there were those who exhibited only a limited degree of disloyalty or who fully admitted their guilt.55 The Judges Respond The constitutional controversy of obtaining extra judicial opinions for government prosecutorial and pardoning decisions is noted by Greenwood and Wright in Volume I of this series. Recognizing that the commissioners’ information was based on direct conversation with the accused, and hence was superior to the information they possessed, John Beverley Robinson and Jonas Jones agreed to follow closely the report’s recommendations56 while also fully deferring to Lieutenant Governor Arthur in cases of specific or special considerations. Their recommendations for punishment were: nineteen convicted or confessing through petition to high treason were to be transported for life; thirty-three were to be transported for a set of number of years; eleven were to be imprisoned in the Kingston penitentiary at hard labour; and the remainder were to be banished, though authorities might remit other parts of their sentences (including forfeiture of their estates). In reaching their decision, they recognized that transportation could be controversial, but the matter was left to the lieutenant governor. In their recommendations, Robinson and Jones also stressed public safety. Blaming American influences for ‘fomenting’ rebellion and the ‘misfortune of living close to the border,’ they suggested that perhaps the number of pardons should be limited to reduce the political risk of continuing agitation from abroad. Their support for harsher treatment appears to be based solely on this anti-American argument. Except for this pressing concern, they believed that the government ‘doubtless would feel less hesitation in being merciful to the utmost limit.’ This view suggests that the judges were influenced less by an ideological ‘Burkean’ rigour, as Kenneth McNaught has argued, than by pragmatic, geographical, and political considerations.57 Robinson and Jones willingly sup-

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ported commutation and pardon if it was ‘just and safe’ and if it was the accused’s first attempt at ‘open resistance to the crown,’ for then, they speculated, ‘a most generous and forgiving course’ was advisable and individuals who experienced the good will of the state ‘would live henceforward in contented obedience to a merciful Government, and enjoy their property in security and peace.’ The punishments meted out to the rebels must therefore create ‘a lasting impression,’ with an interjection of mercy based ‘on the principle of forbearance,’ warranted under some circumstances.58 This reasoning applied alike to those persons awaiting trial and to others already convicted and reprieved and awaiting a final decision of the crown. Having stated their general principles, Robinson and Jones wrote in detail about the application of specific types of punishment to those who warranted a pardon or commutation. In lieu of capital punishment, they regarded transportation for life, despite possible difficulties with its implementation, as ‘not less rigorous than death,’59 in representing ‘a civil death’ which separated the convict from his family and country and which subjected him to hard labour and severe discipline. Even when part of the sentence was remitted to a definite period of time, this judicial fate remained ‘an appalling punishment.’ To mitigate the harshness of transportation, the judges recommended that the number of rebels in Class 1 to be transported for life might be reduced from nineteen to six. This reduction marked their view of the legal dividing line between the clearest cases of high treason and the somewhat lesser crimes of which they stood accused. Such persons would instead face transportation for fourteen years. In turn, Class 2 prisoners, with some selected from Class 1, were to be sentenced to transportation for seven years, but Robinson and Jones wanted the total number of transportees to be thirty, with ten to twelve rebels sentenced to not less than seven years in the penitentiary. Collectively, these harsh punishments were necessary because the convicted rebels ‘might still agitate.’ While American-born rebels were to be banished for life, lesser offenders belonging to Class 3 should stay in the province and receive as full a pardon as the law allowed. This was to apply particularly to those who had responded to the lieutenant governor’s proclamation of 7 December and to those who had petitioned for mercy, including those who confessed but were not legally guilty of treason. However, there were no guarantees of amnesty. As will be seen in Romney and Wright’s essay, Lount, Matthews, and Anderson had their petitions rejected and large numbers of men who had their petitions accepted faced punishments as

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serious as transportation. Nonetheless, Robinson and Jones suggested that severe punishment should be implemented ‘only in plain and bad cases.’ Likewise, forbearance and ‘indulgence,’ or ‘compassion,’ were to be extended in cases of families with more than one person charged with treason, unless the offence was aggravated, such as with the Shephards and the Matthews. In taking this milder course, Robinson and Jones believed that the courts ‘would convince these unhappy people, and their friends, that the government is not influenced by any particular feeling of severity directed towards their family or connections.’ But the power to pardon absolutely, without conditions, for the highest offences against the crown, was also controversial and the matter was to be left to the lieutenant governor. The Attorney General Responds The matter of the limits of a lieutenant governor’s powers in issuing pardons was directly addressed by Christopher Hagerman, the prosecutor of Samuel Lount and Peter Matthews. Hagerman’s detractors have described him as a bully and tyrant who ‘closed his ears to the cry of mercy, and only regretted that the gallows had not more victims.’60 Although harsher in his recommendations, his legal opinion was careful and incisive. Hagerman reminded Arthur that the lieutenant governor could not grant unconditional pardons or commute sentences, unless approval came from Her Majesty’s government. However, he could, through an order-in-council, move convicts to the penitentiary to await the final disposition of their sentence. Finally, he recommended that Arthur consult with the chief justice and other judges, following reception of the commissioner’s report, before deciding on a general strategy.61 Epilogue During the summer months, the lists of men designated for execution and transportation were much modified – added to and reduced – as difficulties continued on the U.S. frontier. By May, most of the commissioners’ Class 1 and Class 2 prisoners knew that they had avoided trial with successful petitions under the Pardoning Act but the exact nature of the punishment they faced remained unclear. By July, Lord Durham had actively intervened with the Upper Canadian executive’s decisions on punishment for those who had successfully petitioned and those who had been convicted. Earlier concerns expressed by Stephen and Hagerman about

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the local exercise of the prerogative of mercy became academic when it was expressly delegated to Durham in the terms of his commission, a belated recognition by the British government that a policy of greater moderation (where executions were to be kept to a minimum and transportation was to be less heavily relied on) required direct implementation in the field rather than through general imperial instructions. Arthur and his council resented Durham’s disruption of their carefully crafted strategy. While too late to save James Morreau from the hangman, Durham’s interventions spared the lives of three other Short Hills invaders and reduced considerably the numbers to be transported.62 By early October, Arthur had agreed with Durham on the granting of amnesty to sixty-one persons who had initially fled the province, if they surrendered by 1 February 1839. This appeared in his proclamation of 25 October. Twentythree of the ‘most guilty and dangerous’ rebels remaining at large could expect transportation rather than amnesty.63 The unsettled state caused by continuing incursions from the United States culminated with the Prescott and Windsor invasions at the end of the year. By this point, as we see in Wright’s essay, Lieutenant Governor Arthur was convinced of the necessity of courts martial and his executive resolved to take a harder line. Following the Prescott invasion, he called upon judges J.B. Macaulay, Jonas Jones, Archibald McLean, and S.P. Sherwood to address again the ongoing questions of punishment and political deterrents. The majority report began with the claim that the former leniency shown rebel participants in Upper Canada had had no apparent effect on Americans. These invaders had undertaken a ‘planned invasion, well equipped in military array, to levy a cruel war.’ This had been such a blatant ‘unprovoked and wicked aggression’ that it constituted ‘a treacherous violation of subsisting international relations, a flagrant disregard of all moral and social obligations, a gross contempt of the solemn injunctions of their own government, and a criminal infraction of their own laws as well as ours.’ Because the matter was unequivocally international, the issues of punishment and deterrence had become pronouncedly more crucial and complex. The judges now called for much harsher measures against invading rebels of Canadian and American origin: ‘exemplary punishments, however painful and repugnant,’ to uphold public confidence in the government’s ability to ensure peace and order. Instead of emphasizing the merciful nature of government as a way of ensuring future loyalty, the judges relied more heavily on ‘coercion and fear.’ Severe punishment in the form of execution or transportation was to be

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now extended beyond the leadership to the rank and file who formerly could claim mitigating circumstances. The principal aim was to make a ‘public example’ of the prisoner, without reference to ‘age, comparative intelligence, influence or authority, former station in life and residence, [and] ferocity of character.’ Judge Sherwood differed from his colleagues over how many should be executed for the public good. He believed that only ten or twelve of the Kingston prisoners should face death, and that these men should be selected judiciously. In taking a different, more moderate stance, he argued that ‘frequent exhibitions’ of public executions were counterproductive, creating ‘pity’ in the minds of the public, who regarded executions as cruel and revengeful, especially for political offenders. Therefore, the number of executions and the nature of the convict should be perceived as being motivated by ‘necessity’ and by ‘distributive justice,’ in other words, a fair system of sentencing appropriate to the crime and its perpetrator. In approaching the trials in this manner, government and its political institutions would prove themselves to be ‘superior’ to American ones, a country where the ‘will of the multitude’ prevailed. In seeking to limit harsh sentencing, Sherwood also emphasized the need to consider personal elements. He thought that sentencing should be shaped by the accused’s influence on others, the cruelty of his conduct, and his experience and maturity. As we see in Wright’s essay, although the government allowed more executions than proposed by Sherwood, the moderate position involving explicitly utilitarian calculations appears to have been adopted, supported by assurances from the Colonial Office that transportation remained available, despite legal challenges in England by transported prisoners. Regardless of the hardening of feelings towards Upper Canadian rebels and the American invaders, the colony’s government did not acquiesce to the extreme Tory reaction of those like Colonel Prince who called for the broader use of severe punishments; it sought instead to pursue an organized legal response that struck a balance between ‘harshness and forbearance,’ to use Barry Wright’s words. This was achieved by close coordination among the executive, prosecutors, and judges, although subsequent events and outside intervention forced modifications to the government’s plans. In the end, some expedients set out in the emergency legislation, the mixing of judicial and political functions, and the resort to the courts martial of civilians, did compromise the rule of law and represented a departure from British constitutional standards. Nevertheless, the legal response in Upper Canada

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stood in sharp contrast to events in Lower Canada, where rebellion was followed by the suspension of representative legislative institutions and the implementation of martial law. The fact that the same degree of extreme political intervention was resisted suggests that Upper Canada’s experiences of ‘lawless law’ were balanced by examples of adherence to the rule of law.

NOTES 1 Christian Guardian, 14 March 1838. 2 An interesting overview of the government’s lack of preparedness, and the reasons for it, is contained in a letter to Colonial Secretary Lord Glenelg by the acting adjutant general of militia during the rebellion, Colonel James Fitzgibbon, 10 August 1838, Toronto, RG 5, A 1, vol. 201, at 111370–80, NA. Fitzgibbon argues that Lieutenant Governor Francis Bond Head refused both to listen and to act until the very last moment. 3 See R.C. Watt, ‘The Political Prisoners in Upper Canada, 1837–8,’ EHR, 41 (1926), 526. Head apparently believed in a ‘moral padlock’ to ensure social order and stability. See R. Baehre, ‘Imperial Authority and Colonial Officialdom of Upper Canada in the 1830s: The State, Crime, Lunacy, and Everyday Social Order,’ in L. Knafla and S. Binnie eds., Law, Society, and the State: Essays in Modern Legal History (Toronto: University of Toronto Press 1995), at 204–5. 4 Colin Read and Ronald J. Stagg write, ‘In Toronto all was confusion.’ In Colin Read and Ronald J. Stagg, eds., The Rebellion of 1837 (Ottawa: Champlain Society/Carleton University Press 1985), at xliii. 5 See Carol Wilton, ‘“Lawless Law”: Conservative Political Violence In Upper Canada, 1818–41,’ Law and History Review 13:1 (spring 1995), 111–36. 6 See Murray Greenwood and Barry Wright’s comments in the Introduction to this volume and in Canadian State Trials: Law, Politics, and Security Measures, 1608–1837 (Toronto: Osgoode Society/University of Toronto Press 1996), at 33 (hereafter Canadian State Trials 1). 7 R.B. McDowell, ‘The Age of the United Irishmen: Revolution and the Union, 1794–1800,’ in T.W. Moody and W.E. Vaughan, eds., A New History of Ireland, IV, Eighteenth-Century Ireland, 1691–1800 (Oxford, U.K.: Clarendon Press 1986), 361. 8 This difference of opinion pertaining to the rebellion over legal matters was not the only example of strains during the 1830s between Upper Canadian authorities and the law officers of the Colonial Office. See Rainer Baehre, ‘The Medical Profession of Upper Canada Reconsidered: Politics, Medical Reform

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14

15 16 17 18 19 20 21 22

23

24

25 26 27

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and Law in a Colonial Society,’ Canadian Bulletin of Medical History 12 (1995), 101–24. Robert E. Saunders, ‘Sir John Beverley Robinson,’ DCB 9, at 674. This section borrows heavily from an early paper by Barry Wright who has kindly and generously shared this material. Upper Canada Gazette, 7 Dec. 1837. Patriot, 12 Jan. 1838. ‘The Chief Justice’s remarks upon certain Acts passed during the last session of the Legislature in Upper Canada, in consequence of the insurrection,’ encl. 4, in Arthur to Lord Glenelg, Toronto, 23 April 1838, printed by order of the House of Commons, in British Parliamentary Papers, Affairs of Canada, Correspondence Relative to Upper Canada 1838–9, at 19 (hereafter ‘Remarks’). The response to the 1745 rebellion, in turn, reflected the Scottish treason trials in 1708. In fact Scottish treason laws were ‘kinder,’ and the English government introduced its own harsher statutes into the realm. See B. Lenman, The Jacobite Risings in Britain, 1689–1746 (London: Methuen 1984), 107–8. See Colin Read’s essay in this volume. See F. Murray Greenwood’s essay on Prince in this volume. See ‘Remarks.’ See Romney and Wright’s essay in Canadian State Trials I. Glenelg to Durham 2 April 1838, Report of the Public Archives of Canada, 1923. Upper Canada Gazette, 25 Oct. 1838. See ‘Remarks.’ See further discussion of this point in Romney and Wright’s essay in this collection and in their other essay in Canadian State Trials I. See also ch. 8 of Robin Clifton’s The Last Popular Rebellion: The Western Rising of 1685 (London: M.T. Smith 1985). These points are also raised by Barry Wright in ‘Harshness and Forbearance: The Politics of Pardons and the Upper Canada Rebellion,’ in C. Strange, ed., Qualities of Mercy: Justice, Punishment, and Discretion (Vancouver: University of British Columbia Press 1996), 77–103. See also James A. Gibson, ‘Political Prisoners, Transportation for Life, and Responsible Government in Canada,’ OH 67:4 (December 1975), 188; John Hirst, ‘The Australian Experience: The Convict Colony,’ in Norval Morris and David J. Rothman, eds., The Oxford History of the Prison (Oxford, U.K., and New York: Oxford University Press 1993), 288–9. Michael S. Cross, ‘Stoney Monday, 1849: The Rebellion Losses Riots in Bytown,’ OH 63 (1971), 177–90. Arthur to Glenelg, 30 May 1838, CO 42/447, NA. Robinson to Stephen, 7 and 10 January 1839, Robinson Papers, AO.

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28 Stephen to Grey, 25 May 1838, CO 42/446. Neither act was disallowed: see Greenwood’s essay on Prince for the disallowance controversy on the Lawless Aggressions Act. 29 RG 5, A 1, vol. 180 at 99090–3, and vol. 251 at 136543–9. 30 See R. Baehre, ‘Prison as Factory, Convict as Workers: A Study of the MidVictorian St. John Penitentiary, 1841–1880,’ in Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law Volume V: Crime and Criminal Justice (Toronto: Osgoode Society/University of Toronto Press, 1994), 442. 31 See Romney and Wright’s essay in this collection and Read and Stagg, ed., The Rebellion of 1837, at 380–4; Robert L. Fraser, ‘Jonas Jones,’ DCB 7 at 456–61. 32 RG 5, A 1, vol. 193 at 107311–22. 33 Hagerman to Sir George Arthur, Toronto, 28 April 1838, RG 5, A 1, vol. 192 at 100701–3. Also see Robert L. Fraser, ‘Christopher Alexander Hagerman,’ DCB 7, at 356–72. 34 Read and Stagg, ed., The Rebellion of 1837, at 385–7. 35 RG 5, A 1, vol. 211 at 116253–63. 36 RG 5, A 1, vol. 211 at 116242–52. 37 Allan Greer, ‘1837–38: Rebellion Reconsidered,’ CHR, 86:1 (March 1995), 4–5. 38 RG 5, A 1, vol. 251 at 136543. 39 RG 5, A 1, vol. 251 at 136550–99. 40 RG 5, A 1, vol. 251 at 136544. 41 RG 5, A 1, vol. 251 at 136550. Background on Alves can be found in James Alves, Toronto, to Alexander Alves, Somerset, 18 October 1838; John Alves, Cincinnatti, to Alexander Alves, Somersetshire, 19 February 1838. Letters in possession of Olaf Janzen, Corner Brook, Nfld. 42 RG 5, A 1, vol. 251 at 13566–7. 43 RG 5, A 1, vol. 251 at 136552. 44 See Read and Stagg, ed., The Rebellion of 1837, at 103. John G. Parker to Thomas Storrow Brown, Hamilton, 22 November 1837, CO 42/467, at 12, NA. 45 Read and Stagg, ed., The Rebellion of 1837, at xxxiv–xxv. ‘To use this isolated evidence as proof of a general movement is to make a general case from an exceptional one.’ More recent evidence suggests that support in the eastern part of the province has been underestimated. See Betsy Boyce, The Rebels of Hastings (Toronto: University of Toronto Press 1992); RG 5, A 1, vol. 251 at 513656. 46 RG 5, A 1, vol. 251 at 136580. 47 RG 5, A 1, vol. 251 at 136583. 48 RG 5, A 1, vol. 251 at 136584–5. 49 RG 5, A 1, vol. 251 at 136586.

Trying the Rebels 50 51 52 53 54 55 56 57

58 59 60

61 62 63

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RG 5, A 1, vol. 251 at 136545. RG 5, A 1, vol. 251 at 136584–5. RG 5, A 1, vol. 251 at 136585. RG 5, A 1, vol. 251 at 136588–91. RG 5, A 1, vol. 251 at 136599. RG 5, A 1, vol. 251 at 136596. 2 May 1838. K. McNaught, ‘Political Trials and the Canadian Political Tradition,’ in M. Friedland, ed., Courts and Trials: A Multidisciplinary Approach (Toronto: University of Toronto Press 1975), 137. RG 5, A 1, vol. 193 at 107309. RG 5, A 1, vol. 193 at 107311. Cited in S.F. Wise, ‘The Rise of Christopher Hagerman,’ in Wise, God’s Peculiar Peoples: Essays on Political Culture in Nineteenth Century Canada, A.B. McKillop and Paul Romney, eds. (Ottawa: Carleton University Press 1993), 62. Hagerman to George Arthur, Toronto, 28 April 1838, RG 5, A 1, vol. 192 at 107001–3. On the modifications of punishment and relations between Arthur and Durham, see Wright, ‘Harshness and Forbearance,’ 91–2. See Sir George Arthur to Sir John Colborne, Montreal, 11 Oct. 1838, in Read and Stagg, eds., The Rebellion of 1837, 431–2.

2 The Toronto Treason Trials, March–May 1838 P A U L R O MN E Y and B A R R Y W R I G H T

The Toronto trials were the first and, politically speaking, the most important proceedings arising out of the turmoil of 1837–8 in Upper Canada. Although supporters of the colonial government had won a big majority at the general election of 1836, by the end of 1837 the government was widely unpopular, and the high-handed conduct of some local officials charged with putting down the insurrection did not improve its credit. The trials gave the government an opportunity to improve its image and legitimize its authority in the eyes of colonial public opinion and imperial observers. It did so by appearing to act in conformity to the rule of law and by tempering justice with mercy.1 However, the government did not hesitate to load the dice with legislated procedural expedients surveyed in the previous essay. Nor did its concern for appearances prevent irregularities in the trials themselves. In the weeks following the rebellions, more than four hundred men were taken into custody in the Home District, most of them in connection with the Yonge Street insurrection led by William Lyon Mackenzie.2 Attorney General Christopher Hagerman attributed the high number of prisoners to the rapid quelling of the rising and the active loyalty of the community.3 The lieutenant governor’s proclamation of 7 December and the emergency measures surveyed in Rainer Baehre’s essay undoubtedly helped to swell the number. As Baehre also shows, the prisoners were examined by the commission of investigation headed by Robert Sympson Jameson, vice-chancellor of Upper Canada, and most were discharged by

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March 1838.4 At the special assizes that opened in Toronto in March 1838, 133 prisoners were indicted for high treason; there would have been more indictments had not more than thirty suspects absconded.5 Although, under the emergency act 1 Vic. c.2, the court’s jurisdiction was provincewide, the great majority of the defendants were local residents accused of taking part in Mackenzie’s march on Toronto. The authorities speeded the processing of these cases by printing blank forms of indictment.6 Jameson’s commission was one of two expedients that the government adopted to cope with what Lieutenant Governor Sir George Arthur called the ‘perplexity of dealing with the great body of persons daily apprehended on the charge of high treason.’7 The second was the special provincial Pardoning Act (1 Vic. c.10 – see app. D, U.C. doc.2). All but a few of the indicted prisoners confessed their guilt by petitioning for pardon under this act, and all but three petitioners succeeded in avoiding trial, though several received severe summary punishment. In the end, twelve cases went to trial, seven of which resulted in convictions. Except for Edward Theller, commander of the rebel schooner that had bombarded Amherstburg in January 1838, all the defendants were charged in connection with the Home District uprising. This essay describes the proceedings at the Home District special assizes and evaluates them both as a judicial and as a propaganda exercise. Other proceedings in Toronto, the court martial of Thomas Jefferson Sutherland in March 1838 and the long-delayed trial of five of the Pelee Island invaders in June 1839, are examined in other essays. t h e ho m e d i st r i c t sp e c i a l a s s i zes : p re l i m i na r y p ro ce e d i n g s The assizes opened on 8 March 1838 in an atmosphere of continuing crisis. Several hundred invaders had seized Pelee Island at the end of February and held it for a week before being dislodged by a force of regulars and militia on 4 March. This, and other lesser incursions, underlined the reluctance or inability of the American federal and state authorities to restrain patriot activity on the U.S. frontier. Inevitably, the border raids gave added weight to the exemplary function of the judicial proceedings. The chief justice, John Beverley Robinson, made pointed reference to these circumstances in his charge to the grand jury (see app. D, U.C. doc.4).8 A few malcontents, driven by ‘envy, jealousy, and a restless ambition,’ had plotted to exploit the breakdown of civil order in Lower Canada. On the outbreak of open insurrection in that province, they had

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mobilized several hundred followers in order to subvert the government of their sovereign and destroy the constitution of Upper Canada. The overwhelming loyalty of the inhabitants had quickly thwarted their designs, but their rebellion had encouraged ‘multitudes of foreigners on our border to intrude themselves violently into our country in the hope of plunder.’ Nothing could do more to right matters than ‘the just, firm, and unprejudiced administration of the law.’ This would demonstrate to all that, ‘while nothing is yielded from indifference or fear, so also nothing is urged in a harsh or vindictive spirit.’ Apart from this programmatic statement, and a short version of the standard Tory paean to the glories of the Upper Canadian state,9 the bulk of Robinson’s address dealt with the procedural and substantive law that would govern the proceedings. With regard to procedure, he mentioned the defendant’s right under the 1696 Treason Act to receive a copy of the indictment, and lists of the empanelled jurors and the witnesses for the prosecution, at least ten days before arraignment and trial, and also the common law right to challenge a much greater number of jurors than defendants in other cases, thereby requiring an unusually large jury panel. These special provisions, together with the court’s capacity to try offences committed anywhere in the province and the need to determine guilt or innocence as quickly as possible, were almost impossible to accommodate at a regular assize, necessitating a special commission of assize. Robinson’s remarks on the substance of the law were comprised in his definitions of high treason and misprision of treason.10 He offered an extensive and comprehensive explanation of high treason, starting with the law’s basis in the Statute of Treasons, 1352, which codified specific treasonable offences: compassing (plotting) the death of the sovereign, levying war, or adhering to enemies of the sovereign. The chief justice endorsed a wide construction of ‘compassing,’ declaring that the accused did not have to have an immediate and direct design on the life of the sovereign, since the sovereign was everywhere in her dominions, though in person Queen Victoria was 5,000 kilometres away. Robinson’s assertion that compassing included conspiracy to rebel or participation in a treasonable plot echoed the judicial and legislative constructive treasons adopted in Britain during the mid-1790s. However, Robinson went on to observe that the cases before the court were more likely to involve the offence of ‘levying war.’ Most of the accused had been apprehended in the act of taking up arms against the sovereign’s authority and so there was no need to inquire into their prior participation in any conspiracy that might have come under the compassing

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rubric. He also noted that the offence of levying war extended to accessories before or after the fact, although it was necessary in such cases to specify in the indictment the nature of the assistance given. Moving on to ‘adhering,’ Robinson noted that this offence covered anyone who joined with or aided foreign enemies, even from nations at peace with the sovereign. The act of actually encouraging foreign invasion constituted compassing, however. Robinson added that foreigners could not be tried for high treason unless, as residents, they owed local allegiance to the sovereign. He referred to the Lawless Aggressions Act (1 Vic. c.3 – see app. D, U.C. doc.1), passed to deal with this lacuna in the law, and noted that persons charged with treason faced the burden of proving that they were not British subjects. As to other evidentiary requirements, Robinson noted the statutory requirement for two lawful witnesses either to a single overt act or to two separate overt acts of the same treason, unless the accused had confessed to the offence. Mere treasonable words were not sufficient to condemn a defendant, nor were acts coerced by the immediate threat of death. It is interesting to compare Robinson’s charge with that of James Buchanan Macaulay to the grand jury of the Gore District, delivered the same day in Hamilton (see app. D, U.C. doc.5). The difference lay not so much in the legal exposition but in the rhetorical trappings. Where Robinson larded his discourse with Loyalist ideology, Macaulay employed the ideology of the British constitution. He made minimal reference to political matters and none at all to the Pelee Island incursion and other recent border troubles. Unlike Robinson, he emphasized the grand jury’s duty of impartiality, adjuring its members not to allow their consideration of the individual cases before them to be tainted by indignant emotions arising from recent events and reminding them that each prisoner was entitled ‘to the humane presumption of innocence.’11 Chief Justice Robinson noted in his charge that 149 prisoners were named in the calendar returned by the sheriff. In its subsequent review of the calendar, the Toronto grand jury exonerated only six.12 The high proportion of true bills is not surprising, since most of the cases involved men who had been caught red-handed and Vice-Chancellor Jameson’s commission had carefully selected those meriting further process. After the grand jury proceedings, however, the calendar was further curtailed by means of the special pardoning legislation. On arriving in Toronto, Lieutenant Governor Arthur questioned the legislature’s interference with ‘a prerogative so exclusively belonging to the Crown as that of par-

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doning offences’ and suggested that it might be preferable to simply instruct the attorney general to stay proceedings in the relevant cases.13 But he found himself confronted by a fait accompli. The Executive Council noted that many prisoners had already petitioned under the Pardoning Act, thereby exposing themselves to the penalty of attainder, which the legislation did not permit to be remitted; it would, therefore, be inequitable to stay proceedings against prisoners who had not petitioned.14 In the end, all but nine of the indicted prisoners petitioned for pardon under the act, and only three petitions – those of Peter Matthews, Samuel Lount, and John Anderson – were rejected.15 Three-quarters of provincial petitioners were Home District prisoners, reflecting a much higher ratio of petitions to trials than in the other districts; the latter, however, were to see somewhat higher acquittal rates.16 Most of the successful petitioners were released on giving security to keep the peace.17 Those who were citizens of the United States were banished from the province forthwith unless they had committed common crimes in the course of their action against the state, in which case they were sentenced to three years in the penitentiary before banishment.18 A significant handful of the British subjects had conditions placed on their pardons, notably transportation, for terms ranging from seven years to life. According to Lieutenant Governor Arthur, these were leaders rather than followers – ‘persons deeply implicated in treason, and crimes attending on it, the pardoning of whom, in the firm opinion of the Council, would be neither just nor safe. They are generally men of some property and influence, and of decidedly disaffected principles.’19 The reminiscences of Joseph Gould, however, suggest that property and principles could suffice to condemn a man no matter how minor his role in the uprising. Gould was a native and resident of Uxbridge Township, east of Toronto, who later filled several municipal offices and served, from 1854 to 1861, as a member of the Canadian legislature. He claimed to have been coerced into joining the rebellion by friends who accused him of cowardice for holding back after having so vociferously criticized the government. By his own account he did little but get shot at, but the Treason Commission was unfavourably impressed by his ownership of a sawmill and a small farm. ‘What more do you want that you should rebel?’ ViceChancellor Jameson reportedly asked. Gould claims to have answered, ‘I want my political rights,’ before launching into a rehearsal of the rebels’ grievances. In his post-indictment petition, Gould emphasized his political ignorance and ascribed his opinions to Reform propaganda, but his earlier loquacity earned him a sentence of fourteen years’ transportation,

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though this was soon commuted to nine months’ imprisonment. He was pardoned in October 1838, after eleven months in custody.20 The petitioning procedure was a highly ingenious device, well adapted to the conflicting goals facing the provincial authorities in the aftermath of the rebellion. Unlike the alternative that Arthur preferred – a simple stay of proceedings – it enabled the executive to meet the British government’s call for leniency towards the rebels without creating any impression of weakness or the suggestion that the crown doubted its ability to convince juries. Because the procedure was dependent on prior presentment for the capital offence of high treason, it created a strong incentive for accused prisoners to confess their crimes in the hope of saving their necks. It permitted great flexibility in punishment and avoided the administrative nightmare of bogging down the courts with numerous exceptionally timeconsuming and expensive trials. In the Home District, this process of summary justice reduced over 130 cases to a dozen trials. It entailed an unavoidable inequity, however, which was to compromise its legitimacy in the eyes of public opinion both in Upper Canada and in Britain. Among the successful petitioners, those who were punished claimed to have understood the Pardoning Act in terms of former Lieutenant Governor Sir Francis Bond Head’s proclamation of lenience for subjects who returned to their allegiance, a call they interpreted as an unconditional amnesty. t ri a l s Guilty Pleas The first prisoners to be arraigned, on 26 March, were Samuel Lount and Peter Matthews. Both men were popular and influential in their respective neighbourhoods. Lount had been elected to the legislature for Simcoe County in 1834, together with W.B. Robinson, the chief justice’s brother, and he and other Reformers had blamed his defeat in 1836 on sharp practice by the government. Born and bred in the United States, he had not settled in Upper Canada until 1815, though his father had emigrated four years earlier. Successful as a storekeeper and an industrial blacksmith (he helped to build the first steamboat on Lake Simcoe), he was the epitome of a self-made pioneer – certainly not the stereotype of the envious and ambitious politician that the chief justice had blamed for the rebellion in his charge to the grand jury. Neither was Matthews, a prosperous farmer of Loyalist antecedents who had served with distinction in the provincial militia during the War of 1812.21

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Unfortunately for both men, they were the leading active rebels in custody in March 1838. Lount had manufactured pikes in advance and, when Mackenzie informed him of the uprising, had assembled about one hundred men and led them to Montgomery’s Tavern. He was present when Colonel Robert Moodie was shot and tried to get medical assistance for the dying man against Mackenzie’s opposition. Despite growing misgivings, he continued to serve as Mackenzie’s lieutenant in the attack on Toronto. Matthews, for his part, had led the rebels from the Pickering area, east of Toronto, and commanded the force sent to intercept mail from the east and burn the Don Bridge. His party had killed a man and set some buildings on fire. Their social standing and leading roles in the rebellion marked out both men as an example to the disaffected. Both petitioned for clemency after indictment, but for them the provisions of the special pardoning legislation proved to be simply an inducement to sign their own death warrants. Their petitions were rejected and they were brought forward for trial as the most suitable candidates for hanging. Having confessed their guilt in their petitions, they could not plausibly plead not guilty to the charges.22 Sentencing offered Chief Justice Robinson a golden opportunity to exhibit the two men as an example, and he made the most of it. Observing that it might be of some public service to do so, ‘and possibly ... in a small degree assist in turning others from the path which you have followed to your destruction,’ Robinson dwelt at length on the iniquity and fatal folly of two prosperous individuals who, instead of being content with their lot, had fomented rebellion to the misery of themselves and many others, not least their own families. (Lount had seven children and Matthews eight.) In conclusion, while emphasizing that the law gave him no choice but to pass the sentence of death, he piously lamented his inability to offer the prisoners any hope of reprieve.23 In closing with an admonition to the two men to prepare themselves to meet their maker, Robinson was simply echoing the policy already determined by himself and other leaders of Upper Canada’s official class. They knew of the British government’s desire, plainly expressed by the colonial secretary, Lord Glenelg, that the defeated rebels in both Upper and Lower Canada should be shown the greatest possible clemency. However, the Executive Council informed Sir George Arthur, newly arrived as successor to Bond Head, ‘that it was almost universally expected ... that the severest penalty of the law would be visited upon all the leaders and most guilty traitors, in order to deter the disaffected

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section from ever again venturing to bring upon the community such a heavy calamity.’24 At least as regards Lount and Matthews, the council’s estimate of public expectation was belied by the thousands who petitioned for clemency for the two men. Even Attorney General Hagerman admitted that he would have preferred to hang others who had escaped capture. Of those in custody, however, Lount and Matthews were the pick. Hagerman noted that the rebels had killed loyal subjects, a crime normally punishable by death and hardly mitigated by its commission in furtherance of treason. ‘A necessity existed for the infliction of capital punishment in some instances,’ and he had brought Lount and Matthews first to trial as fittest for that fate.25 Chief Justice Robinson seconded Hagerman’s recommendation, and the two men were hanged in public and within view of the cells of the other prisoners.26 Apart from Lount and Matthews, the only prisoner to plead guilty was John Anderson. As with them, his petition for clemency under the Pardoning Act had been rejected, and in his case, as in theirs, it may be that the petition, with its signed confession of guilt, dictated the plea.27 Anderson, however, was not marked out for exemplary execution: he was brought up not with Lount and Matthews but two days later, and the chief justice hesitated to accept his plea. Robinson noted in the bench book that, ‘on being asked before plea recorded, whether he had understood the indictment & intended to plead guilty of traitorously levying war ag[ains]t the Queen, he sd. that was what he was advised by his Counsel to plead. I told him it was for himself to determine, & he then (before confession recorded) pleaded, not guilty.’ The following day, however, when brought up again, Anderson asked to change his plea.28 Anderson’s case has gone virtually unmentioned in secondary sources, and we know little about the man himself. Like Matthews and another convicted prisoner, John Montgomery, he was of United Empire Loyalist stock, and like Montgomery an innkeeper. He was not conspicuous in civic life, though he was probably the man of that name who unsuccessfully sought election to the Toronto city council in 1834. One aggravating feature of his case, perhaps, is that he had actually left the city on Tuesday, 5 December, to join Mackenzie’s force, though he claimed that he had gone up Yonge Street only out of curiosity and that Mackenzie had induced him to stay ‘by falsehood and persuasion and positive denial of liberty to return.’ He also admitted going with Matthews to the Don Bridge but claimed to have tried to prevent the burning of property there. According to evidence received by Vice-Chancellor Jameson’s commis-

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sion, however, Anderson was something of a leader on that occasion, acting as a guide and second in command to Matthews, and he is described as an intelligent and very dangerous man who usually took part in Mackenzie’s political activities. A later memoir records him and his brother marching down Yonge Street in the first rank of Mackenzie’s men (his brother Thomas had also joined the rebels from the city, toting a rifle).29 Jury Convictions Most of the cases that went to trial involved men who had not borne arms under Mackenzie’s command and had no obvious complicity in the uprising, or at best had been marginal accessories. This group comprises John Montgomery, Charles Durand, Thomas David Morrison, James Hunter, Robert Stibbert, and Ewan Cameron. These men did not attempt to avoid trial by petitioning, either because they felt themselves to be unfairly accused or because they hoped to persuade a jury that this was so. The other three defendants are a mixed bag. Of one, Robert MacDougal, we know almost nothing. An official document records his trial and acquittal, and this is confirmed by passing reference in two Toronto newspapers, but the special commission bench book contains not a syllable on the subject, though it gives a detailed account of all the other cases. Another, Edward Theller, was not involved in the Yonge Street rising but was captured in command of the schooner Anne after bombarding Amherstburg. He based his defence on his denial of British allegiance. This leaves Gilbert Fields Morden as the only prisoner among those indicted for bearing arms under Mackenzie who chose to confront the charge in court rather than petition for clemency. Why he did so is a mystery: he called no witnesses, and his counsel performed only perfunctory cross-examination of the crown’s witnesses and finally declined to address the jury. Not only that, but the prisoner, having been captured in flight on the Niagara frontier, had apparently confessed his complicity under examination. His was the easiest case for the prosecution, and perhaps for that reason, the first to be brought up after John Anderson’s. Morden was neither a public figure nor a leader of the rebellion. The newspapers did not report his trial, and historians have generally ignored it. He was a shoemaker, about forty years old, from Lloydtown, a centre of disaffection, and several witnesses from that locality testified to his acting during the rising in what might be called a subaltern capacity (as one said, he ‘did not seem to act as a private’). The final witness testified that

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Morden, after his capture, had confessed not only to being in arms at Montgomery’s Tavern but also that, when captured, he had been on his way to Ohio with a letter (presumably from Mackenzie) soliciting its addressee to raise a rifle company.30 Edward Theller’s case was equally clear as to the facts, and he rested his defence on the ground that, as a naturalized citizen of the United States, resident in that country, he was wrongfully accused of high treason. He declined to retain counsel and insisted on conducting his own defence even when the court appointed two lawyers to advise him, though he did consult his advisers. Unfortunately for him, after his capture, he had admitted his British (that is, Irish) birth to the examining magistrates. This brought him within the doctrine of perpetual allegiance, and it was on this basis that Attorney General Hagerman had charged him with high treason instead of assigning him to court martial along with his fellow commander, Thomas Sutherland. Theller claimed, probably falsely,31 to have emigrated to the United States about the age of nine and to have lived there since then, except for a short spell studying medicine in Montreal. In his summing-up, Robinson addressed the equitable considerations arising from this claim. He cited the leading case of Aeneas Macdonald, who had been convicted of high treason for his role in the Jacobite rebellion of 1745 even though he had been taken to France as an infant, brought up as a Frenchman, and when captured had been acting under the authority of the king of France as a commissioned officer in the French army. Despite this precedent, noted the chief justice, British-born members of the United States armed forces had not been tried for high treason when captured during the War of 1812 but had been treated as prisoners of war instead. Now, however, Britain and the United States were not at war. The court must apply the law, and any equitable considerations arising from Theller’s personal history were a matter for the executive to consider.32 In view of Robinson’s argument, it is noteworthy that Theller rested his case not merely on his naturalization but also on his having expressly abjured his British allegiance as a condition of taking public office. During the alien controversy of the 1820s, Robinson, then attorney general, had argued that the Reformer Barnabas Bidwell had, by a similar abjuration, forfeited his claim to British allegiance, and with it his right to be elected to the Upper Canadian legislature. In that instance it was Robinson’s opponents who had invoked the precedent of Aeneas Macdonald. One wonders if Robinson remembered in 1838 his contrary argument seventeen years earlier.33

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The only two convictions that seem dubious on the facts are those of John Montgomery and Charles Durand. Both cases involved serious conflicts of testimony, and both men claimed to have been victims of perjury. Apart from that, the summing-up of Chief Justice Robinson in Montgomery’s case at least may have been unduly prejudicial. Montgomery owned the inn north of Toronto that the rebels made their headquarters. Though a prominent Reformer, he was almost certainly not privy to the rebels’ plans: only three days before they turned up at his inn, in fact, he had handed over the tenancy to John Linfoot, a Tory butcher,34 in pursuance of a contract made in July. When the rebels arrived he was present only as a boarder, awaiting the completion of his new house nearby, and during their occupation he was busy moving his personal furniture to his new home.35 Witnesses for the prosecution testified to Montgomery’s active and passive collaboration with the rebels during the uprising. Several of the rebels’ captives, who were imprisoned at the inn, testified to seeing him through a window giving orders to carters, or conversing with Mackenzie and the other rebel leaders, but without hearing what was said. He was not confined with the captives, nor was he marched down Yonge Street with them on Tuesday, 5 December. He had not fled then, though the rebels left no guard. One witness, Linfoot’s hostler, claimed that Montgomery had procured oats for the rebels’ horses and that, when the loyalist forces advanced on the tavern, he had run to warn the rebels and urged them to fight hard. It also appeared that he had given a receipt for meat that the rebels had commandeered at a local butcher’s farm, and had subsequently procured other meat to feed the rebels. William Ketchum, a prominent Toronto Reformer who had conversed with Montgomery at the inn on the day the rebels advanced on the city, repeated what Montgomery had told him of the rebels’ plans.36 The crown also tried to prove Montgomery’s prior complicity in the rising. The main witness to this, one David Bridgeford, recounted an argument with Montgomery eight or ten days beforehand, when the defendant had accused him of being the head of a gang of Orangemen. Bridgeford testified that he had denied this and had added that he would always do all in his power to counteract revolutionary movements, to which Montgomery had replied that ‘they would not long have it in their power to carry on so.’ The other witness to Montgomery’s foreknowledge was a sheriff’s bailiff, who claimed to have seen Montgomery on the day of the rising looking northward expectantly. In his report on the case, Robinson noted that he had cautioned the jury against relying on the bai-

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liff’s testimony, but the warning is noted neither in his bench book nor in newspaper reports of the trial.37 Against this testimony the defendant called several witnesses to show that the carters had been engaged in moving his furniture, that Mackenzie had complained bitterly and with threats about his lack of sympathy and cooperation, and that he, Montgomery, had condemned the rising and advised participants to desist. One witness rebutted the hostler’s testimony that Montgomery had called the rebels to arms on Thursday; another, Ketchum, testified that Montgomery had concealed a gun from a rebel who was looking for arms. Ketchum agreed under cross-examination that Montgomery’s knowledge of the rebels’ plans was nothing that might not have been gleaned from casual conversations with or among the insurgents. John Linfoot, who was not under indictment, admitted under cross-examination that he too could have fled the inn on Tuesday but had not done so. One can say little about the addresses of counsel to the jury, because they were so poorly reported – especially those for the defence.38 One question that arose was the defendant’s duty to arouse the city at whatever hazard to his person and property. In his opening charge, Robinson had declared that nothing less than fear of death could justify active collaboration with traitors or foreign enemies. The defence argued, however, that Montgomery’s fear for his property justified his failure to take heroic measures to alarm the city (which, of course, he might well have supposed was already aware of the rebels’ presence). In this respect, at least, he was no more at fault than his tenant Linfoot. Altogether, the evidence may seem to have afforded reasonable ground for acquittal. None of the evidence of positive collaboration went unrebutted except that as to Montgomery’s assistance in provisioning, and even this seems to have been open to reasonable doubt. If Montgomery had laid in provisions in advance, there could be no doubt, but what he had actually done was very different. He had given a receipt for meat already seized by the rebels, and he had subsequently given orders for meat that could have been seized with equal ease. This could be construed as an effort to provide a measure of security to the farmer thus imposed upon, a man with whom he had a standing account. (There is no evidence that this defence was offered, but the newspapers ignored the details of counsel’s arguments.) Despite the conflicting evidence, however, and the likelihood that nothing that Montgomery had done or failed to do had had the slightest influence on events, the jury deliberated for only a few minutes before

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finding the prisoner guilty, though with a recommendation to mercy. On being sentenced, Montgomery is said to have maintained his innocence and denounced three crown witnesses as perjurers; he named William Guymer, William Crew, and David Bridgeford.39 Guymer, the hostler, had testified that Montgomery had sent men to find oats for the rebels’ horses and that later he had urged the rebels to resist the advancing loyalists; Crew, a prisoner at the tavern, corroborated this evidence by swearing that Montgomery had headed towards the stables, where the rebels were waiting, as the loyalist force approached. Defence witnesses directly contradicted both men;40 another, Amos Rochford, who had witnessed Montgomery’s quarrel with Bridgeford, denied under cross-examination that the defendant had spoken the words, ascribed to him by Bridgeford, that appeared to signify foreknowledge of the rebellion.41 When in such a case a jury returns a quick verdict but with a recommendation to mercy, it raises the suspicion that the jurors felt constrained not just by the evidence but also by the judge’s instruction as to facts and law. This raises the possibility of prejudice on Chief Justice Robinson’s part. In his report on the case for the government, he declared: ‘I had no doubt, upon the whole evidence [,] that the prisoner was assenting to the treason and participating in it, and that he did not act under constraint, though he endeavored to establish that defence.’ He had probably rendered more service to the rebel cause than many who bore arms.42 Since Robinson had presumably reached that conclusion before the jury returned their verdict, his statement raises a question as to the impartiality of his summing-up. There is little doubt that his remarks to the jury favoured the crown: as the Christian Guardian put it, he ‘charged the Jury at great length, explaining the law, in its application to the present case, and confirming the opinions offered by the learned Attorney General.’43 This impression is confirmed by his bench notes. After the prosecution had closed, and before the defence had begun its rebuttal, he jotted down some notes, evidently as a basis for his charge to the jury, which suggest complete acceptance of the crown case, both as to fact and as to law; they do not read as a mere summary of the case. By contrast, the brief notes made after the defence had closed read like a rebuttal of the defence counsel’s closing arguments. They assert, in brief, that all the evidence that Montgomery disapproved of the rising, and that he withheld assistance or gave it only grudgingly, was irrelevant. All that mattered was whether he had given any assistance at all without an immediate threat to his life, and whether or not he had striven to escape and warn the authorities.44

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Of course, the law is the law, and the law of treason was a medieval instrument designed to give the king’s subjects every incentive to disclose and resist treason at whatever risk to life and property. In summing up the case, Robinson’s duty as a judge required him to be judicial, not judicious. However, it can hardly have helped Montgomery when, in commenting on the evidence, Robinson launched into a diatribe against William Ketchum, who had testified to meeting John Rolph with Bond Head’s abortive truce party while returning from Montgomery’s tavern to the city.45 Rolph had urged Ketchum to exaggerate the rebels’ strength when he got back to town. Ketchum had not done so, but he had also not reported his observations to the authorities, being determined to remain neutral. Though this testimony was quite irrelevant to the case against Montgomery, Robinson ‘took occasion to comment severely’ on Ketchum’s conduct, declaring that his own words were sufficient to convict him of high treason. He then ‘took occasion to state, for the information of all who heard him, that any person obtaining intelligence, by any means, of a treasonable conspiracy having been commenced, is sacredly bound by his allegiance to make immediate disclosures, and that any failure to do so is alone sufficient to convict him of the capital offence of Treason, and to subject him to the fearful penalties of the law, as fully as if he had been found actually in arms against his Sovereign.’46 It is hard to understand Robinson’s reasoning, since Ketchum had at worst admitted failing to disclose knowledge of treasonable acts and intentions, a dereliction that amounted only to the misdemeanour of misprision. Nevertheless, Ketchum’s indictment on a count of levying war followed two days later.47 These indications of Robinson’s partiality are reinforced by four remarkable discrepancies between his notes of the evidence and newspaper reports of it. Two of them relate to Bridgeford’s testimony, which his bench notes appear to accept as proof of Montgomery’s prior knowledge of the rebellion. In the bench book, he noted Bridgeford’s testimony as follows: ‘Ab[ou]t 8 or 10 d[a]ys before W[itnes]s had told him [Montgomery] he w[oul]d do all he c[oul]d to put down rebellion. He s[ai]d W[itnes]s w[oul]d not long have it in his power.’48 In his report to the government, Robinson amplified this note: ‘About 8 or 10 days before, Witness was talking with prisoner about the disturbances in the Country, and witness remarked he would do all he could to put down rebellion – prisoner said, he would not long have it in his power.’49 Three days after the trial, the British Colonist printed the following version: ‘About eight or ten days

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before [Bridgeford] had a quarrel with prisoner, who accused witness of his [sic] being the head of an Orange party, which witness denied; prisoner said that they would not have it long in their power to carry on so.’ The following week, the Christian Guardian summarized Bridgeford’s words as follows: ‘About eight or ten days before [Bridgeford] had a quarrel with prisoner, who accused witness of his [sic] being the head of an Orange party, which witness denied. Witness told him he would always do all in his power to counteract revolutionary movements. Prisoner said they would not have it long in their power to carry on so.’ The discrepancies between these accounts are illuminating. The newspaper reports suggest that Bridgeford and Montgomery were quarrelling over disturbances caused by Orangemen and Bridgeford’s role in them, and that Montgomery had ended by saying that ‘they’ (the Orangemen) would not long have it in their power to carry on in such a fashion. By omitting the cause of the quarrel, by substituting the singular for the plural (‘he’ rather than ‘they’) in Montgomery’s final remark, and by omitting from it the final words (‘to carry on so’), Robinson made it appear as if the disturbances over which the two men quarrelled had been caused by Reformers, and that Montgomery had ended by saying that ‘he’ (Bridgeford) would not long have it in his power to resist rebellion. As we have seen, Montgomery denounced Bridgeford as a perjurer and the Christian Guardian reported Amos Rochford as denying that the innkeeper ever uttered the words to which Robinson ascribed such dire importance. But it is here that the third discrepancy appears; for Robinson, both in his bench notes and in his report to the government, records Rochford as saying only that he did not remember what was said.50 Finally, he compounded these three discrepancies by a fourth. In his bench book he noted that Montgomery, ‘by his conversation with Ketchum seemed to know [the rebels’] plans & to be assisting,’ but both the bench book and his report to the government omit all reference to Ketchum’s cross-examination, in which the witness had agreed that anyone at the inn might have gathered the rebels’ plans simply from overhearing their conversation.51 Robinson’s distorted record of the testimony, his apparent certainty as to Montgomery’s foreknowledge, and the general thrust of his notes and his summing-up as reported in the Christian Guardian – all these combine to evoke the suspicion that his belief in the innkeeper’s guilt was coloured by prejudice against a prosperous man, a United Empire Loyalist like himself, who was yet an outspoken Reformer. His treatment of the other dubious conviction, that of Charles Durand, raises a similar doubt.

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Like Montgomery, Durand was a prominent Reformer who was caught up in the rising rather than a willing participant. A young lawyer from Hamilton, he was the son and brother of former MPPs and had himself recently become conspicuous in Hamilton’s Reform politics.52 He had sailed to Toronto on 4 December, the first day of the rising, to conduct business at the Home District assizes. His mother-in-law lived up Yonge Street, and he had encountered Mackenzie and other rebels while staying with her overnight; but the indictment focused on other matters. First, there were two documents supposedly found in his house in Hamilton, which formed the basis of a charge of compassing. Secondly, there was his behavior after leaving Toronto on 6 December. This was made the basis of a charge of levying.53 The crown began its case by introducing the two documents and calling witnesses to identify the handwriting and signatures as Durand’s. One document was a political essay composed for Mackenzie’s newspaper the Constitution, which had published several similar writings by Durand. It purported to be by the son of a United Empire Loyalist (which Durand was not) and, after reciting the Reformers’ political grievances, called upon its readers to take up arms in defence of the constitution before it was entirely subverted by Tory tyranny. The other document was a letter to Mackenzie, allegedly dated 16 November (less than three weeks before the rising). It transmitted the names of some new subscribers to Mackenzie’s paper, including one Mills, a Hamilton gunsmith, of whom it noted that he would furnish one hundred rifles for $1,000.54 This evidence was reinforced by Mills’s affidavit that Durand had asked him about supplying that quantity of weapons, but the gunsmith was not on hand to testify in person, having been encouraged to leave the country under threat of indictment. Durand’s counsel allowed the affidavit to be read in court provided it was understood that his client declared it to be false, but the chief justice refused to accept it as evidence. The charge of levying was based on Durand’s conduct after the coach in which he was returning to Hamilton was held up by Mackenzie west of Toronto. The main witness was one John Schafer or Shaver, of whom nothing is known except that he lived in the Niagara District. Schafer testified that, when the coach was stopped, Durand had jumped out, greeted Mackenzie and conversed with him, telling him that the rebels need not be scared to go in and take Toronto since the defenders had only one field gun. His luggage had not been searched and seized, like that of the other travellers. Later, Durand and Schafer had walked together some way towards Hamilton. Durand had spoken favourably of the rising, which

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he hoped would introduce a government similar to that of the United States. He had exhorted several men whom they met en route that they ought to be ‘up and doing’ and go to Toronto. Schafer was the only witness to what Durand had said to Mackenzie, and the only witness to his conduct afterwards. The coach driver was called to testify that Durand had greeted Mackenzie cheerfully, that the two men had conversed, and that Schafer had stood nearby as they did so. The rest of the prosecution testimony concerned Durand’s subsequent arrest and examination as a suspicious character at Streetsville, where he had allegedly given an unsatisfactory account of his doings and tried to conceal his identity. (In his reminiscences, written in the 1890s, he explains that, having been warned that local Tories had raided his home, he had borrowed a horse and was trying to get back to his mother-inlaw’s house.) True or false, Schafer’s testimony was by its nature hard to rebut, and the best Durand could do was to call a few witnesses to his character and his expressed lack of enthusiasm for the uprising. Against this, of course, stood the text of his essay for the Constitution and his letter to Mackenzie, with its reference to the gunsmith Mills. The crown was unable to show that either document had been sent to Mackenzie, and for that reason Chief Justice Robinson instructed the jury that the charge of compassing could not be sustained. He noted, though, that the jury could take the documents into account as evidence of Durand’s opinions and motives in deciding whether or not to believe Schafer’s evidence.55 In his reminiscences, Durand protested his innocence and damned everyone connected with the affair: Schafer for perjury, Robinson for misdirecting the jury, Attorney General Hagerman for his ‘bullying pleadings,’ and his own lawyers, James E. Small and John Bell, for their ‘miserable management’ of his defence. As for the jury, it was packed. The whole affair was a frame-up masterminded by a professional and political rival, the Hamilton Tory Allan MacNab.56 Without undertaking minute scrutiny of an account published so long after the event, and which contains significant evasions or lacunae, one can certainly sympathize with Durand’s grievance against the chief justice. The ostensible fairness of Robinson’s instructions on the compassing charge is belied by his evident failure to caution the jury against relying on Schafer’s testimony. Even if true, this was a shaky basis on which to condemn anyone for a crime of such magnitude; and in any case, as Durand himself noted, the conviction made a mockery of the two-witness rule established by the 1696 Treason Act.57 In his report to the govern-

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ment (which seems to parallel his notes on his summing-up), Robinson himself asserted the opposite, yet he did so in words that themselves hint at a doubt as to the reliability of the evidence. ‘The evidence is sufficient to warrant the conviction,’ he wrote, ‘assuming that the Jury believed it to the full extent, and that they were satisfied that the prisoner’s conduct was influenced by treasonable motives, of which the letters in his hand writing afforded strong proof. I conclude that the Jury were convinced that he voluntarily and for a treasonable purpose gave to the leader of the rebels the information of the state of the city and its means of defence, and encouraged him to venture upon the attack; and that he was further aiding in the rebellion by endeavoring to incite those whom he met on the road to go down to Toronto, urging them “to be up, and doing.”’58 The circumspection of this language contrasts strongly with Robinson’s frank avowal of belief in Montgomery’s guilt, as quoted earlier. But while the chief justice may personally have doubted the evidence on which Durand was convicted, there is no reason to suppose that he regretted the conviction of an active Reformer who, like Montgomery, had opted for neutrality rather than springing to the defence of the embattled colonial state. Durand records an encounter with Robinson in 1844 in the parliamentary library, shortly after he had returned to Canada upon being pardoned. ‘He stood by me for a moment looking at me, and remarked, without my speaking a word, “Are you back again?” “Yes,” I said, and he walked away.’59 The Patriot’s report of the post-trial proceedings provides further evidence of Robinson’s disposition. Three days after the jury had returned its verdict, Durand’s counsel asked for it to be set aside on the ground that the compassing count had not been proved and the indictment did not specify, as it should have done in such a case, the acts that formed the basis of the levying count. The newspaper summary of Robinson’s response captures his attitude to the case with exquisite precision. He ‘observed that the Jury had placed implicit confidence in the evidence which had been adduced – that he had reflected upon the notes which he had made upon the trial, and was perfectly satisfied at the result [and] that it would be hurtful to entertain a doubt where none existed.’60 He then proceeded to pass sentence. Acquittals Montgomery was convicted on the basis of evidence that was ambiguous at best, and Durand’s conviction made a mockery of the two-witness rule.

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Comparing their cases with those of two prominent Reformers who were acquitted, James Hunter and Thomas Morrison, one may conclude that acquittal depended not just on a weak or dubious prosecution case but on an abundance of strong evidence for the defence.61 Hunter’s was one of three trials that occurred about the time that Matthews and Lount were hanged, all of which resulted in acquittal. The first, the day before the hanging, concerned an obscure person called Robert Stibbert, who boarded near the tollgate on Yonge Street north of Toronto and often assisted the gatekeeper, generally at night. Stibbert was alleged to have closed the gate on the night of 4 December after a special constable had told him to leave it open, but the more serious testimony came from witnesses who claimed to have seen him, armed and mounted, cooperating with a party of rebels at the tollgate on the following day. The defence called several witnesses to testify that Stibbert had been acting under duress, that he had taken an opportunity to release several of the rebels’ prisoners, and that he had been active in fighting the fire the rebels had set at Dr Robert Horne’s house.62 Another trial, that of John Macdougal, is a mystery because the presiding judge, Jonas Jones, left no record of it in the special commission bench book. Local history recalls Macdougal as the leader of a party of rebels from Albion Township, but the only official evidence of his trial comes from the return of prisoners, which lists him as ‘acquitted.’63 This is confirmed by a brief notice in the British Colonist, which reported on 19 April, with reference to Hunter and Macdougal, that, ‘after a patient investigation of their cases, the jury brought in a verdict of Not Guilty.’ Since Hunter’s trial took place on 12 April, Macdougal must be the unnamed prisoner whose trial and acquittal on the 16th is noted in the Toronto Mirror of 21 April.64 James Hunter, a physician from Whitby, east of Toronto, was tried two days after Lount and Matthews were hanged and Anderson, Morden, Montgomery, and Theller sentenced to death. Hunter had been arrested on information that he had tried at a public meeting to arouse the local inhabitants to go to the aid of the rebels attacking the capital. He was able to call several witnesses to testify that the meeting had been called in response to rumours that the colonial authorities were about to unleash a horde of Orangemen and Indians to pillage the town, and that its purpose was to organize a defence against the apprehended onslaught. There had been a similar meeting in a nearby township, where those attending had tried to protect themselves by adopting a proclamation of neutrality as between the government and the rebels! Hunter’s case was helped by the

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fact that he had publicly broken with Mackenzie in the weeks before the rebellion, and several witnesses declared that the crown case was based on false information given by individuals with a grudge against him.65 Thomas Morrison’s trial took place on 25 April and was the first – with the possible exception of Macdougal’s – since Hunter’s acquittal two weeks earlier. It was initially set for the 24th, the day on which the four remaining capital convicts were to be hanged. The scaffold was dismantled on the night of the 23rd, a dramatic signal that no further executions were contemplated. The British Colonist hailed the event as a gratifying display of official clemency,66 but it could as easily have been meant to reassure Morrison’s jury, after three successive acquittals, that conviction need not result in the convict’s death. Morrison’s acquittal was the biggest reverse the government sustained in the courts, and it was the more ironic in that he was at least marginally involved in the uprising.67 He was the most eminent Reformer who came to trial – a physician and MPP, recently mayor of Toronto. Justice Jonas Jones presided at the trial, Chief Justice Robinson having recused himself because, ten years previously, he and Morrison had been rival candidates at a general election. Loud applause greeted the verdict, and Morrison was escorted home (after more than four months in custody) by ‘an immense body of his fellow-citizens.’68 A local Reform newspaper celebrated the acquittal by publishing its report of the proceedings as a pamphlet. Morrison was first charged with levying, a charge resting on the testimony of three witnesses who claimed to have seen him with Mackenzie on Yonge Street on the night of 4 December. Subsequently a count of compassing was added – according to defence counsel, because the crown felt that the case for levying was so weak. Hagerman as good as admitted this in his opening address, saying that his three eyewitnesses might have been mistaken, but he was confident that the jury would not think so when they heard the evidence as to compassing.69 The compassing case had flaws of its own, however. It had two bases. One was a manifesto adopted by a Reform organization, the Toronto Political Union, on 31 July 1837 and published two days later in Mackenzie’s newspaper. Drafted by Mackenzie, but submitted to the meeting by a committee of leading Reformers chaired by Morrison, the manifesto rehearsed the misdeeds of the British government and its colonial minions, expressed solidarity with Lower Canada’s patriote opposition, and called for a convention ‘to take into consideration the political condition of Upper Canada.’70 The second basis was a private meeting of leading

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Reformers in Toronto in October, at which Mackenzie had broached the idea of a coup d’état. All British troops had been withdrawn from the capital to reinforce those in Lower Canada, leaving a stockpile of arms virtually unguarded in the city hall. Mackenzie had proposed seizing these weapons and deposing the provincial government.71 Neither event proved to be a strong basis for the charge. Hagerman had to explain why it was, if the manifesto was treasonable, that Morrison and his co-signers had not been prosecuted at the time of publication. He offered the excuse that a jury would have been unlikely to convict before subsequent events had revealed the manifesto in its true guise, as a call to rebellion.72 As for the October meeting, the crown’s efforts to use it against Morrison were thwarted by the testimony of several witnesses that, on hearing Mackenzie’s proposal, Morrison had at once denounced the scheme and threatened to walk out if Mackenzie persisted.73 The evidence for levying proved to be as porous as the crown had feared. It consisted of three witnesses who testified to fleeting encounters with Mackenzie and another man on Yonge Street on the moonless night of 4 December and who identified the other man as Morrison, though he had been muffled against the cold and had said nothing. One, the Orangeman Bridgeford, admitted to some uncertainty about the identification. He and his companion differed as to whether Morrison was wearing spectacles; Bridgeford thought so, but defence counsel pointed out that Morrison habitually wore sunglasses and would hardly have done so at night. The defence countered with fifteen witnesses who placed Morrison elsewhere at the time in question.74 The crown’s attempt to blame the rebellion on the Reform manifesto allowed, or compelled, counsel for the defence (Rolland Macdonald and George M. Boswell) to employ an overtly political rhetoric that would have been inappropriate in the other cases. They ridiculed the crown’s contention, arguing that the manifesto could at worst be considered as a call for a convention to promote political independence (not that they admitted that it was). This enabled them to name various prominent politicians who were currently advocating colonial independence in Britain without being prosecuted and various others, including Sir Robert Peel, recently prime minister, who had declared that Britain did not wish to maintain a connection with the colonies unless the colonists themselves desired it. How could colonial public opinion, professedly the touchstone of British policy, be ascertained if even to raise the question of independence was treason?75 To this, Macdonald added an example closer to home which was to fig-

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ure for decades in Reform inventories of Tory hypocrisy. This was the conduct of George Gurnett, mayor of Toronto at the time of the rebellion, who just before that event had received the plum job of clerk of the peace for the Home District. In 1833 the British government had dismissed Henry John Boulton and Christopher Hagerman as attorney general and solicitor general for leading the House of Assembly in its repeated expulsions of William Lyon Mackenzie. Gurnett, then editor of a newspaper secretly subsidized by the provincial elite, had responded to the news with an editorial declaring that loyal colonists, their minds unhinged by the rebuff, were beginning to ‘cast about in their mind’s eye for a new state of political existence.’ But had Gurnett been tried for high treason and promoted to the gallows? No, he had been made a major of militia and promoted to the clerkship of the peace.76 As for the actual language of the manifesto, the defence cited several celebrated English state trials from the 1790s to show that, even at the height of the French Revolution, English juries had refused to condemn far more violent words than those of the Reform manifesto.77 Moving on to the ground of legal doctrine, Boswell challenged the precept that compassing could occur in a place where the monarch was not physically present. The idea that the law contemplated the monarch’s political, and not merely physical, death was at best a legal fiction, and was Morrison ‘to be reasoned to death upon a fiction?’ Macdonald, for his part, condemned the very idea of hanging someone for mere words rather than treasonable acts.78 Despite the weakness of the case for levying, and the eloquence of Macdonald and Boswell on the compassing charge, the jury did not render a speedy verdict as they had done at Montgomery’s trial and were to do at Durand’s. The hearing lasted from 10 A.M. until 2 the next morning, yet the jury deliberated a full eight hours. Apparently, about half an hour into their deliberations, they asked the judge whether they could bring in a verdict for a lesser crime than high treason. Perhaps they were thinking of Morrison’s failure to inform on Mackenzie in October for proposing a coup. After hearing that it was treason or nothing, the jury deliberated for several hours more before deciding to acquit.79 The final acquittal, that of Ewan Cameron, brought the trials to an end on a semi-farcical note. Cameron and his brother Donald were arraigned together on 8 May, and Ewan was tried the next day after their counsel had requested that the two cases be separated. The brothers belonged to a largely Gaelic-speaking settlement in the sparsely populated township of Thorah, east of Lake Simcoe. They were accused of raising a party to aid

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the rebels attacking Toronto. The first two witnesses were so unhelpful that the crown abandoned the prosecution, and a nolle prosequi was entered in Donald’s case. The defence asked that a third witness be examined to clear the brothers’ name. This witness was Colonel Kenneth Cameron, the leading man in the locality.80 He testified that on 7 December he had received a letter from two magistrates reporting that the rebels had taken Toronto and asking him to raise a party to help resist them. He had sent Ewan Cameron to summon the people to a meeting for the next day. After the meeting, he had set off for Toronto with the seven men who were able to leave at once. It was implicit that Ewan and Donald Cameron had called the subsequent meeting for the same virtuous purpose as the first. Both brothers were immediately discharged. The Camerons’ case resembled that of James Hunter, in that both originated on the eastern fringes of the Home District, in places that in 1837 were represented by Reformers (Whitby’s MPP was Dr Morrison, Thorah’s a relative by marriage of William Lyon Mackenzie), and both arose out of public meetings called for purposes that may have been either misunderstood or misrepresented by the government’s informers.81 It is noteworthy that, in the Camerons’ case, the meeting had taken place on 11 December, four days after the rebels’ defeat. By then, news of the event was beginning to percolate through even the farthest reaches of the Home District. Accused by the British Colonist of anti-Scottish bias, the magistrate who had arrested the brothers told the paper that, having received the depositions against them, he had gone to Toronto and consulted the solicitor general, William Henry Draper. The Camerons were arrested, on Draper’s order, only on 11 January.82 t he j u ry Given the importance of trial by jury in the British ideology of the rule of law, no account of the treason trials would be complete without a consideration of the complaints of jury-packing that were advanced by some of the convicts and their partisans. During this period, the district sheriff enjoyed a free hand in selecting the jury panel for the assizes, and by 1837 bias in jury selection had long been a fixture in the Reformers’ catalogue of grievances.83 William Lyon Mackenzie condemned the jury that convicted Montgomery as ‘a mock jury selected of the basest, most dependant tories ... picked up by the sheriff at Hagerman’s order, through[out] the city.’84 Theller called his own jury ‘a packed jury of tories,’ and Durand in his memoirs repeatedly denounces his as ‘packed’ and ‘igno-

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rant,’ and in one instance as ‘strongly prejudiced.’85 Neither of the convicts could have been writing from personal knowledge, of course (indeed, Durand repeatedly complains of being convicted by a jury of strangers), but Mackenzie would have known most of the men concerned. On the other hand, four of the eight trials that went to the jury resulted in acquittal; and if two of the four convictions (those of Montgomery and Durand) were a little lacking in charity, we might surmise that a truly corrupt jury would not have scrupled to convict such prominent Reformers as Morrison and Hunter (although, to be sure, Morrison’s took its time about acquitting him). Eighty jurors were empanelled for the assizes, and we know the names of twenty-seven of them from reports of the trials. All but three of these can be adequately identified by linking them to contemporary municipal tax rolls, the Toronto city directory of 1836–7, and the manuscript census of 1842. There is also a good deal of information about their political leanings. In those days, voting was performed by oral declaration, not by secret ballot, and the voting records of the city of Toronto parliamentary elections of 1836 and 1841 survive, as well as a list of those who voted Tory in 1834. All in all, the data are sufficient to sustain some provisional conclusions about the integrity of the jury-selection process.86 There was obvious potential for bias in the fact that not merely Montgomery’s jury (as Mackenzie observed) but all of our sample lived in Toronto. This was inevitable, given the need for jurors who could be available from day to day for several weeks; however, the rebels were mostly country folk and the city had been the object of their attack. Not that the place was an absolute nest of Tories: Mackenzie had been mayor in 1834 and Dr Morrison in 1836; a Reformer (James E. Small) had won the parliamentary election of 1834, though only by eight votes, and even in 1836 he had polled 202 votes against the victorious Tory’s 287. Yet no Reformers appear in our sample. By contrast, of the twenty-four jurors who can be adequately identified, seven had voted Tory and another four appeared on a published list of those who had promised to vote Tory but were prevented by the poll’s early close when Small conceded the election.87 This political bias is reflected in other indices: occupation and religious affiliation. There was a pronounced occupational pattern to the voting in 1836, when the Reform candidate was supported by more than 60 per cent of those voters who were producers of non-luxury goods (a group comprising about one-third of all who voted). Of the twenty-two jurors whose occupations are known, twenty (including sixteen mer-

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chants) belonged to strongly pro-Tory groupings. Granted, the prospect of a long sitting placed a premium on jurors who could most easily quit their daily tasks – as it was, so many were absent on the day of Hunter’s trial that his challenges exhausted the list and Chief Justice Robinson made up the number from latecomers, that is, those who had arrived after their names had been called.88 Still, the oversupply of merchants hardly made for equity. Turning to religious affiliation, we find that only three of the sixteen whose attachment is known adhered to denominations that were strongly pro-Reform, and two of these three were atypical in that they had voted Tory.89 By the same token, there were four Tory voters and no Reform voters among the six jurors who are known to have adhered to the Church of Scotland, although that group had split evenly at the poll.90 In evaluating these data, we must remember that they pertain not just to members of the jury panel but also to persons actually selected as jurors. This matters because the defendants made extensive use of their right of peremptory challenge: Montgomery reportedly rejected twenty jurors, Morrison thirty-one, Durand twenty-nine, and Hunter (whose jury is not in our sample) his full allotment of thirty-five. The jurors in our sample thus represent what was left after the defence had weeded out those they saw as least sympathetic.91 There is, then, evidence of partiality in the jury-selection process. What we do not know is whether the bias in the panel reflects a special effort to pack the jury for these trials or whether, on the other hand, it reflected standard practice, thereby validating the perception that had made jurypacking a common Reform grievance. And we cannot fully appreciate the nature of the bias without considering our sample’s voting behaviour at the general election of 1841.92 By 1841, the determination of the British government to implement in modified form the recommendations of Lord Durham’s report on the government of the Canadas, with its strong repudiation of Upper Canada’s administrative elite, had radically altered the terms of provincial politics. The Reformers had rallied to the government, while the old elite and its commercial and Orange allies arrayed themselves against the new order. In Toronto in 1841, nine of our jury sample voted for the government-Reform ticket (the city was now to return two members) and only five for the Tory opposition; another juror voted for one candidate on each ticket. Of the eleven jurors who had been Tory voters or pledges in 1836, five voted for the government-Reform ticket and only three for the opposition ticket; a ninth was the ticket-splitter. The other four govern-

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ment-Reform voters, and the other two Tory voters, were men who had exhibited no known political preference during the 1830s. These data reflect the character of the Tory vote in 1836: a mixture of those who were committed to the ascendancy of the provincial elite and those who, on that occasion, subordinated their dislike of the elite to their loyalty to the British empire. After the rebellion, the latter were far from sympathetic towards the rebel leaders, but they were outspoken in blaming the disaster on oligarchic misrule.93 This suggests that, while the trial juries may have been packed, the packing was not a matter of loading the panel with minions of the provincial elite – with ‘the basest, most dependant tories,’ as Mackenzie put it – but of excluding those whose political affinities made them most likely to feel for the accused. c o n c lu si o n: ha rshne ss o r for bea r a n c e? The Home District special assizes closed as it had begun, with a ceremonial address by Chief Justice Robinson. On 10 May, after the court had disposed of objections to the conviction of Charles Durand, fifty-five prisoners filed into the courtroom to be solemnly lectured by the chief justice before receiving conditional pardons under 1 Vic. c.10. According to the Patriot, the prisoners were much affected by the occasion. ‘During the Address, which was delivered with that fine, clear, solemn, and forgiven [sic] tone, which together with its subject seemed to partake more of Heaven than of Earth, many a tear stood trembling in the corner of an eye, which would have darted scorn upon a gibbet.’94 Shortly afterwards, the liberated prisoners presented a grateful address to Sir George Arthur, and their ‘wives and near female relatives’ presented another. The men’s address clove to the official line by attributing their transgressions to ‘the artifice and chicanery of designing men, who availed themselves of every opportunity of imposing on the unsuspicious, by productions emanating from a mendacious and unrestrained press.’ It prayed that the royal clemency would be extended to their deluded brethren yet in prison and ended with a hearty (or at any rate capitalized) god save the queen! The women’s address was shorter and eschewed politics, as befitted their sex, but it too expressed the hope that clemency would be extended to those still in confinement. The lieutenant governor replied to both addresses, lecturing the men on the manly duty they owed to their queen and their families and exhorting the women to school their children in a dutiful submission to ‘Her Majesty’s mild, gracious and merciful government.’95

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Thus the Home District assizes passed by careful steps from bloody retribution to merciful forgiveness, but its deliberate and ostensibly impartial procedures did not deceive the knowing. As E.A. Theller records, it was well understood at the time that the Pardoning Act was forced on the government both by the practical impossibility of trying the large number of men in custody and by the perceived need to exhibit leniency.96 The discerning may also have noticed that the closing ceremony of forgiveness was made possible by the very legislation that had induced Lount and Matthews to sign their death warrants. And if it was ‘the law,’ that impartial engine of justice, that compelled Robinson to sentence Lount and Matthews to death, it was government policy, of which he was a principal architect, that prevented him from holding out any hope of reprieve.97 Half a century later, a commemorative article in Canada’s largest newspaper would recall ‘the cool-blooded murder, under forms of law, of some of the bravest and noblest of the patriots.’98 The persistence of such recollections suggest that the propaganda function of the special assizes was at best a partial success. Considered as a judicial exercise, the proceedings were marred by the bias in the jury panel and Chief Justice Robinson’s failings of judicial impartiality. Perhaps the gravest defect, however, lay in the Pardoning Act, an expedient that prevented the Toronto court from being bogged down with ten times the number of trials. Its requirement of self-incrimination clearly contravened the spirit of the procedural safeguards enacted in 1696.99 This is palpably true of Lount, Matthews, and Anderson, who were lured into confessing their guilt only to have their petitions denied, and it is arguably applicable to those whose ‘pardon’ came with conditions of transportation or imprisonment attached. The offence against due process was perhaps a worse defect than the inequity resulting from prisoners’ identification of the petitioning procedure with Sir Francis Bond Head’s earlier proclamation that referred to unconditional pardon.100 It was the offence against equity that aroused the greater concern, however, because it was more easily grasped by the prisoners themselves and by the public. As such, it was instrumental in securing freedom for nine prisoners, six of them from the Home District, who landed in England en route to Van Diemen’s Land and at once became beneficiaries of a liberation campaign by British radicals, principally Lord Brougham, Joseph Hume, and John Arthur Roebuck.101 The campaigners’ attempt to secure the prisoners’ release through applications for the writ of habeas corpus failed in the English courts of Queen’s Bench and Exchequer.102 By forcefully urging the inequity arising from

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the special pardoning practice, however, they eventually secured the prisoners’ release on condition that the latter were not to return to Canada or venture within fifty miles of the frontier.103 As for those who had been brought to trial in Toronto, Lount and Matthews excepted, the judgment of guilt or innocence made oddly little difference to their fate. Anderson, Morden, Montgomery, and Theller, their sentences commuted to transportation, all escaped from custody and fled to the United States. They were joined there by Durand, his sentence commuted to banishment. Two of those acquitted, Morrison and Hunter, fled across the border to avoid further attempts at judicial vengeance. They were preceded by William Ketchum, whose treatment at Montgomery’s trial left him understandably reluctant to try his own luck in the dock.

NOTES 1 A good overview of British government supervision and local executive deliberations based on the imperial correspondence is R.C. Watt, ‘The Political Prisoners in Upper Canada, 1837–8,’ EHR, 41 (1926), 526. The government’s attention to provincial public opinion and the British government is discussed at greater length in B. Wright, ‘The Ideological Dimensions of Law in Upper Canada: The Treason Proceedings of 1838,’ Criminal Justice History: An International Annual, 10 (1989), 131, and ‘“Harshness and Forbearance”: The Politics of Pardons and the Upper Canada Rebellion,’ in C. Strange ed., Qualities of Mercy: Justice, Punishment and Discretion (Vancouver: University of British Columbia Press 1996), 77. On public opinion, see also Paul Romney, ‘A Conservative Reformer in Upper Canada: Charles Fothergill, Responsible Government, and the “British Party,” 1824–1840,’ Canadian Historical Association, Historical Papers (1984), 58–61. 2 This was roughly half the provincial total until the Prescott invasion in November, and at least 294 of the Home District prisoners were in custody before the end of 1837. A comprehensive record may be found in ‘Return of the Names and Quality or Station of the Several Persons Arrested in Upper Canada, and Placed in Confinement in the Prisons in Toronto, and Other Places in the Province on a Charge of Insurrection or Treason,’ British Parliamentary Papers 34 (1839) (hereafter Official Return of Prisoners), enclosed in Arthur to Glenelg, 31 December 1838 (CO 42/452/434ff., NA). This shows 422 men held in the Home District, but at least thirteen of the names indicated were actually held and proceeded against in other districts while twenty-eight

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3 4

5

6 7 8

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others were arrested in connection with incidents outside the Home District and transferred to Toronto. Hiram Munn, Livingstone Palmer, and Martin Switzer, who fled and was later arrested upon returning in the summer to sell his farm, do not appear in the official return but are mentioned elsewhere: e.g., RG 1, E 3 (Upper Canada, Executive Council, Submissions), vol. 63, NA. Executive Council Minutes, 31 March 1838, encl. in CO 42/446 (Arthur to Glenelg, 14 April 1838). Jameson’s preliminary classification was modified after the Executive Council consulted with Jameson and Attorney General Hagerman: Arthur to Glenelg 14 April 1838, and encl. Executive Council Minutes, 24 March, 31 March, CO 42/446. RG 5, A 1 (Upper Canada Sundries), vol. 187, 104652–67, AO (‘Schedule of indictments against persons charged with treason or other offences growing out of the late rebellion and which indictments were preferred at the late session of Oyer and Terminer, held in the city of Toronto, in the Home District of the province of Upper Canada, 8th day of March 1838’), compiled by the Attorney General Hagerman (hereafter Schedule of Indictments). These were indictments where true bills were found (see n.12 below for rejected bills and discharged prisoners). The modification of Jameson’s recommendations by the Executive Council (ibid.) resulted in slight change to the numbers to be indicted. Colin Read and Ronald J. Stagg, eds., The Rebellion of 1837 in Upper Canada: A Collection of Documents (Ottawa: Champlain Society/Carleton University Press 1985), lxxxviii, estimate 134 indictments, adding that one man was in hospital and escaped before trial. The Official Return of Prisoners indicates yet more indictments, some of which may be dismissed as clerical errors. Discrepancies result from the fact that lists were compiled at different stages of the process. One can be found in ‘Court of King’s Bench,’ RG 22, Series 145, env. 4, AO. See Arthur to Glenelg 14 April 1838, CO 42/446. Charge of the Honorable John B. Robinson, Chief Justice of Upper Canada, to the Grand Jury at Toronto (Thursday, 8th March, 1838) on Opening the Court Appointed by the Special Commission to Try Prisoners in Custody on Charges of Treason (Toronto: Robert Stanton 1838), also printed in the following Toronto newspapers: Patriot, 13 March 1838, Christian Guardian, 14 March 1838, and British Colonist, 15 March 1838. See S.F. Wise, ‘Upper Canada and the Conservative Tradition,’ in Edith G. Firth, ed., Profiles of a Province (Toronto: Ontario Historical Society 1967), 20, and Terry Cook, ‘J.B. Robinson and the Conservative Blueprint for Upper Canadian Community,’ in J.K. Johnson, ed., Historical Essays on Upper Canada (Toronto: McClelland and Stewart 1975), 338. Robinson’s longest statement in

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11 12

13

14

15

16

17

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this vein is to be found in his Canada and the Canada Bill: Being an Examination of the Proposed Measures for the Future Government of Canada (London, 1840). The one indictment for misprision against George Lount (an offence of neglect or non feasance, involving a duty to report knowledge of treason or its concealment without acts of support) was ignored by the grand jury. British Colonist, 29 March 1838. Of the prisoners who were indicted, at least three were simply discharged, at least one escaped, and the attorney general entered a nolle prosequi in two other cases. See Schedule of Indictments. Lieutenant governor’s comments, 31 March 1838, on Executive Council Minutes, 31 March 1838, encl. 3 in Arthur to Glenelg, 14 April 1838, CO 42/446. Executive Council Minutes, 2–3 April 1838, encl. 6–8 (see also judge’s opinion expressing no objection to executive resolutions encl. 10), in Arthur to Glenelg, 14 April 1838, CO 42/446; Executive Council Minutes, 10 April 1838, RG 1, E 1, vol. 54 This is slightly fewer successful Home District petitions than estimated by Read and Stagg, who overlook Anderson’s rejected petition (see n.27 below) and indicate one fewer conviction and one more acquittal than we do here (lxxxxviii–lxxxix). Again, discrepancies may be due to inconsistencies in the Official Return of Prisoners. The abstract included in Arthur to Glenelg, 30 May 1838, CO 42/447/41–51 indicates 158 petitions province-wide, although there is some discrepancy between the Home District total indicated there (113) and in the Schedule of Indictments (121). As Read indicates in his essay, there were fourteen successful petitioners in Hamilton while four others were denied (three attempted to petition after arraignment), leading to twenty-six tried and ten convicted; in London, only one petition was denied out of approximately forty petitioners, leading to fifteen tried and six convicted – see also Colin Read, The Rising in Upper Canada 1837–38: The Duncombe Revolt and After (Toronto: University of Toronto Press 1982), 124–31. Petitioning was no longer possible at the Niagara trials in June because the Pardoning Act referred specifically to the ‘late treasonable insurrection.’ Fifty-six Home District petitioners were released on finding bail of £200 for good behaviour for three years – see order-in-council, 4 May 1838, encl. 2 in Arthur to Glenelg, 30 May (see also British Parliamentary Papers 32 (1839) and Official Return of Prisoners). Most were addressed directly by the chief justice after the Charles Durand’s trial, and were informed that the issue of property confiscation would be left to the British government for final decision. See British Whig, 26 May 1838.

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18 Sixteen Home District petitioners were banished and fifteen faced hard labour in the penitentiary. See encl. 3 in CO 42/447/119–24 (Arthur to Glenelg, 30 May 1838). 19 Twenty-six Home District men were to be transported (out of thirty-two in all). See Arthur to Glenelg, 30 May 1838 and encl. 3, ibid. 20 W.H. Higgins, The Life and Times of Joseph Gould (Toronto: C. Blackett Robinson 1887), 106–10; DCB 11: 365–6; Read and Stagg, ed., Rebellion of 1837 in Upper Canada, 116–18; Official Return of Prisoners, Home District, no. 116. 21 On Lount, see DCB, 7: 518–19; on Matthews, ibid., 596–7. 22 RG 5, A 1 vol. 188, 104970–7 (Petition of Peter Matthews, 15 March 1838); ibid., vol. 192, 107032–6 (Petition of Samuel Lount, 10 March 1838); MS 4 (John Beverley Robinson Papers), ‘Special Commission for Trial of Treason & Misprision of Treason committed in any District of the Province’ (hereafter Special Commission Bench Book), 26 and 29 March 1838, AO. The Pardoning Act formally excluded evidence of statements made in petitions. 23 Christian Guardian, 4 April 1838; also published as Address of the Honorable Chief Justice Robinson, on Passing Sentence of Death upon Samuel Lount and Peter Matthews (Toronto, 1838: CIHM no. 43223). 24 RG 7, G 1, vol. 84 (Governor General’s Office, Dispatches from the Colonial Office), Glenelg to Colborne, 6 Jan. 1838, encl. in Glenelg to Arthur, 30 January 1838; ibid., Glenelg to Arthur, 14 March 1838; Arthur to Glenelg, 14 April 1838 and enclosures (Minute of Arthur to the Executive Council, 31 March 1838; Executive Council Minutes, 31 March and 2 April 1838; Report of the Chief Justice, 29 March 1838; Report of the Attorney General, 2 April 1838) CO 42/446; RG 1, E 1 (Upper Canada, Executive Council, Minutes), vol. 57: 239, 241–5, 315, 517, NA. See also British Parliamentary Papers 39 (1837–8). 25 C.A. Hagerman to Sir George Arthur, 2 April 1838, encl. 5 in Arthur to Glenelg, 14 April 1834; see also other enclosures with this dispatch. 26 RG 1, E 3, vol. 50: 1–50, Report on the Case of Lount and Matthews; John Charles Dent, The Story of the Upper Canadian Rebellion, 2 vols. (Toronto: C. Blackett Robinson 1885), 2: 248–50. 27 See RG 5, A 1 vol. 188: 105119 (Petition of John Anderson, n.d.). A letter from Robinson to Arthur on the rejection of Anderson’s petition hints that Montgomery and Morden may also have petitioned: RG 42, vol. 447: 173 (Robinson to the lieut. governor, 18 April 1838). If so, their petitions do not survive, unlike those of Anderson, Lount, and Matthews. Theller identifies Montgomery as a petitioner and implies the same of Morden; he also says that Durand petitioned, an assertion for which there is no surviving evidence and which Durand does not confirm in his memoirs: E.A. Theller, Canada in 1837–38, 2 vols. (Philadelphia, Henry F. Anners 1841), 1: 179, 216–17; Reminiscences of Charles Durand of Toronto, Barrister (Toronto: Hunter, Rose 1897).

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28 Special Commission Bench Book, 28 and 29 March, 1838; CO 42/447/173 (Robinson to the governor, 18 April 1838). 29 ‘Commissioners’ report upon cases in the Home District,’ encl. 1 in Arthur to Glenelg, 30 May 1838, CO 42/447/51–112; Official Return of Prisoners; Patriot, 10 April 1834; E.C. Kyte, ed., Old Toronto: A Selection of Excerpts from Landmarks of Toronto by John Ross Robertson (Toronto: Macmillan 1954), 113–22. 30 Special Commission Bench Book, 30 March 1838. The final witness was the lawyer Robert Easton Burns, a friend of Robert Baldwin’s and later a judge (DCB, 9: 108–9). 31 Colin Read, ‘Edward Alexander Theller, the “Supreme Vagabond”: “Honest, Courageous, and True”?’ OH, 84 (1992), 2. 32 CO 42/446/271–86 (Robinson’s report on R. v. Theller, 11 April 1838, encl. 1 in Arthur to Glenelg 25 April 1838). See also encl. 3–6 with further opinions of Hagerman and Robinson, minutes of council, and Arthur to Glenelg, 5 May 1838, CO 42/446 referring the case to imperial authorities; Theller’s conviction was upheld as valid by the law officers – see Glenelg to Arthur, 1 June 1838, RG 7, G 1, vol. 86. Theller gives an entertaining but unreliable account of the trial in his Canada in 1837–38, 1: 200–25. It opens by getting the date wrong. 33 Paul Romney, ‘Re-inventing Upper Canada: American Immigrants, Upper Canadian History, English Law, and the Alien Question,’ in Roger Hall et al., ed., Patterns of the Past: Interpreting Ontario’s History (Toronto: Dundurn Press 1988), 85. Of course, Theller could not plead that the Treaty of Paris had relieved him of his allegiance, as Robinson’s party had asserted of Bidwell. 34 Charles Lindsey calls Linfoot a Tory in his The Life and Times of Wm. Lyon Mackenzie, 2 vols. (Toronto: P.R. Randall 1862), 2:81; Dent describes him as apolitical in Story of the Upper Canadian Rebellion, 2:48. Linfoot voted for the Conservative candidate, William Henry Draper, against the incumbent Reformer, James E. Small, in Toronto at the general election of 1836: Patriot, 1 July 1836. 35 A valuable account of Montgomery and his ordeal is E.A. Lacey, ‘The Trials of John Montgomery,’ OH, 52 (1960), 141–58; see also DCB, 10: 529–30. There are four primary sources for his trial: Special Commission Bench Book, 2 April 1838; CO 42/447/181–203 (Report of John Beverley Robinson, n.d.); British Colonist, 5 April 1838; Christian Guardian, 11 April 1838. Robinson’s report is an amplification of the notes in the bench book; the Christian Guardian’s report is reprinted in Patriot, 13 April 1838. 36 Ketchum was the son of the leading Reformer Jesse Ketchum. He had been a Toronto city councilman in 1836 and was a prominent supporter of Mackenzie’s policies in 1837, though not, apparently, of the rebellion itself. On the Ketchums, see E.J. Hathaway, Jesse Ketchum and His Times (Toronto: McClelland 1929).

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37 CO 42/447/188. 38 Both the Christian Guardian and the British Colonist were anti-Reform at the time of the rebellion. This was reflected in their coverage of the trials. For instance, in its report of Durand’s trial, the British Colonist (10 May 1838) completely omitted James E. Small’s closing speech for the defence but gave Hagerman’s for the crown at considerable length. On the other hand, the proprietors of the Mirror, a Reform paper, in their coverage of Morrison’s trial, reported the addresses of defence counsel at much greater length than Hagerman’s: Trial of Dr. Morrison, M.P.P., for High Treason, at Toronto, on Wednesday, April 24, 1833 (Toronto: Donlevy and McTavey 1838). 39 Edwin C. Guillet, The Lives and Times of the Patriots: An Account of the Rebellion in Upper Canada, 1837–38, and of the Patriot Agitation in the United States, 1837– 1842 (1938; repr. Toronto: University of Toronto Press 1968), 114, quotes an obituary notice in the Picton Times, 29 Jan. 1880. Dent, Story of the Upper Canadian Rebellion, 2:251, quotes the same source, but says: ‘I have altered the language where it does not correspond with fact, and where it had evidently been incorrectly remembered by the reporter.’ One of his ‘alterations’ is to substitute the name of Amos Thorne for that of William Guymer, a change that makes no sense, since Thorne was a witness for the defence. The complementary evidence of Guymer and Crew was crucial and was so strongly challenged by the defence that the crown felt obliged to recall both witnesses. 40 See testimony of Richard Thorp and Abraham Wilson. 41 See his evidence as reported in the Christian Guardian. 42 CO 42/447/203. 43 Christian Guardian, 11 April 1838. 44 Special Commission Bench Book, 2 April 1838 (pages 15 and 22 of typed transcript). 45 On the truce party, see Introduction to this volume. 46 Christian Guardian, 11 April 1838. 47 RG 22, Series 145, env. 2. 48 Ibid., 13. 49 CO 42/447/199. 50 Robinson’s formula is the same in his bench notes and his report to the government: ‘Don’t remember what was said.’ Unfortunately, the British Colonist provides no help: it severely curtailed its report of the later defence witnesses to save space and completely ignored Rochford’s cross-examination. 51 Special Commission Bench Book, 14–15; CO 42/447/192. 52 On Durand’s father, see DCB, 6: 229–30; on Durand himself, see his Reminiscences. 53 Three sources for the trial are Special Commission Bench Book, 7 May 1838;

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58

59 60

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63 64 65

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CO 42/447/211–25 (Report of the Chief Justice on the case of Charles Durand, 16 May 1838); and British Colonist, 10 May 1838. For Durand’s own account of the rebellion and his trial, see Reminiscences of Charles Durand, 280–359, passim. Patriot, 15 May 1838, prints both documents and provides a fuller account of the trial than the British Colonist. CO 42/447. Reminiscences of Charles Durand, 346–9. ‘If I had said what [Schafer] swore to it might be evidence of an overt act, but it would require additional evidence to make it so. Two witnesses or strong circumstances in addition are necessary to constitute an overt act ... The judge (if doing his duty, and Hagerman) should have so laid it down.’ Reminiscences of Charles Durand,’ 355–6. CO 42/447/221. Durand emphatically claimed in a letter to Mackenzie some months later that he had always differed with his tactics and was opposed to the rising. See Durand to Mackenzie 1 Oct. 1838, in Mackenzie-Lindsey Papers, AO. Reminiscences of Charles Durand, 357. Patriot, 15 May 1838. There is testimony to Durand’s conduct en route to Hamilton that was unavailable at his trial. In a statement made in September 1838, the Reformer Martin Switzer describes an encounter with Durand at an inn in the village of Nelson. Durand ‘told publicklie that he wass in the Mailstage when it wass taken by McKinzie and his partie, and he also stated that it was his belief that the Rebel army consisted of between four and five Thousand, and that Toronto wass in their poss[ess]ion at that time.’ If Durand urged his audience to take up arms in support of the rebellion, Switzer makes no mention of it. RG 5, A 1, vol. 204, 113188–93 (Petition of Martin Switzer, 5 Sept. 1838). Indeed, counsel for Morrison told the jury: ‘the present is certainly the weakest case that has as yet been brought before you, but fortunately for us we are not driven to rely upon the weakness of our adversary alone ...’ Trial of Dr. Morrison, 5 (italics in original). Special Commission Bench Book, 9 April 1838; Dent, Story of the Upper Canadian Rebellion, 2: 93–5. The tollgate stood where Bloor St now intersects Yonge St. Horne was an official of the Bank of Upper Canada, which was especially unpopular with farmers at the time owing to the credit crunch associated with the prevailing economic depression. Official Return of Prisoners, Home District, no. 176; Esther Heyes, The Story of Albion (n.p., 1961), 140. This citation was kindly supplied by Ronald Stagg. The authors thank Betty Jo Moore of the AO for help on this point. Special Commission Bench Book, 12 April 1838; Leo A. Johnson, History of the

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78 79 80 81 82

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County of Ontario, 1615–1875 (Whitby, Ont.: Corporation of the County of Ontario 1973), 120–2. British Colonist, 26 April 1838. Dent, Story of the Upper Canadian Rebellion, 2: 20–3; Read and Stagg, Rebellion of 1837 in Upper Canada, xxxvii–xxxix. Trial of Dr. Morrison, 26. On Morrison, see DCB, 8: 642–4, and Victor Loring Russell, Mayors of Toronto, vol. 1 (Erin, Ont.: Boston Mills Press 1982), 20–3. Trial of Dr. Morrison, 2, 9. Constitution, 2 Aug. 1837. Among the other signers of this document were James Hunter and William Ketchum. Dent, Story of the Upper Canadian Rebellion, 1: 378–80. Trial of Dr. Morrison, 1–2. Ibid., 2–3. Ibid., 3–5, 17–19. Most of The Trial of Dr. Morrison consists of the speeches for the defence. Macdonald’s is on 5–16 and Boswell’s on 19–26. Ibid., 11–12; Dent, Story of the Upper Canadian Rebellion, 1: 239–50. The editorial appeared in Courier of Upper Canada, 1 May 1833. Trial of Dr. Morrison, 10. Counsel quoted the writings of John Horne Tooke, Thomas Hardy, and John Thelwall, the Sheffield Constitutional Society’s Address to the British Nation, the address of the Society for Constitutional Information to the French Convention, and the declaration of the Friends of the People. Trial of Dr. Morrison, 20, 11. Ibid., 26; Special Commission Bench Book, 26 April 1838. Special Commission Bench Book, 8 and 9 May 1838; British Colonist, 10 May 1838. On both places, see Johnson, History of the County of Ontario. Official Return of Prisoners (nos. 307 and 308); British Colonist, 24 May, 7 June 1838. The paper wondered why the brothers had been held so long in custody,’ ‘unless, as has been represented to us, their imprisonment was dictated by the Magistrate who wished to gratify his vindictiveness against one of them, with whom he recently quarreled, a circumstance not unusual with many of the Magisterial Bench, as it is presently constituted in Upper Canada. We trust this case will be looked into, and when the facts are properly ascertained, that neither the suspension of the Habeas Corpus, nor the recent act for the protection of Magistrates in extraordinary cases, will shelter [him] from merited punishment ...’ Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 (Toronto: Osgoode Society/University of Toronto

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87

88 89 90

91

92

93 94

95 96 97 98 99

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Press 1986), 119, 155, 291, 294, 296; Read and Stagg, ed., Rebellion of 1837 in Upper Canada, 59, 60. The Caroline Almanac and American Freeman’s Chronicle for 1840 (Rochester N.Y., 1840), quoted in Lacey, ‘Trials of John Montgomery,’ 150. Theller, Canada in 1837–38, 1:202; Reminiscences of Charles Durand, 348–50 passim., 356. The following analysis is based on Paul Romney, ‘On the Eve of the Rebellion: Nationality, Religion and Class in the Toronto Election of 1836,’ in David Keane and Colin Read, eds., Old Ontario: Essays in Honour of J.M.S. Careless (Toronto: Dundurn Press 1990). The poll book and the list of Tory pledges were published in the Patriot, 1 July 1836. On Toronto in these years, see Paul Romney, ‘A Struggle for Authority: Toronto Society and Politics in 1834,’ in Victor L. Russell, ed., Forging a Consensus: Historical Essays on Toronto (Toronto: University of Toronto Press 1984). Special Commission Bench Book, 2 April 1838. One wonders if the absences were related to the hanging of Lount and Matthews just two days earlier. One was a Baptist, the other a Canadian Wesleyan. This is the one denomination that is over-represented in the jury sample, probably as a result of the over-representation of merchants (all six kept shops on King St). Christian Guardian, 11 April 1838; Patriot, 4 May, 15 May 1838; Special Commission Bench Book, 12 Apr. 1838. None of these sources mentions challenges on the part of the crown, although Mackenzie asserted that there were such challenges in Montgomery’s case: Lacey, ‘Trials of John Montgomery,’ 150. Theller, by his own account, took a stand consistent with his denial of the court’s jurisdiction and disdained to exercise his right of challenge: Theller, Canada in 1837–38, 1: 202. Two slightly different versions of the poll book were published: Toronto Commercial Herald, 25 March 1841, and The City of Toronto Poll Book, Exhibiting a Classified List of Voters at the Late Great Contest for Responsible Government (Toronto: Lesslie Brothers 1841). Romney, ‘Conservative Reformer in Upper Canada,’ 58–61. Patriot, 15 May 1838. Strictly speaking, the court met one last time six weeks later, but there was no business: Special Commission Bench Book, 27 June 1838. Patriot, 18 May 1838. Theller, Canada in 1837–38, 1: 174. See above, at page 68. Globe (Toronto), 10 Dec. 1887, 9: ‘Fifty Years Ago To-day.’ See Baehre’s essay in this volume and Robinson’s ‘Remarks upon certain acts

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passed during the last session of the legislature of Upper Canada in consequence of the insurrection’ encl. 8 in Arthur to Glenelg, 23 April 1838, CO 42/ 446). Encouraging guilty pleas to a charge of treason became constitutionally questionable after passage of the Treason Act, 1696 developed in the wake of the 1685 Bloody Assize, when Judge Jeffreys, facing more than 1,300 cases from Monmouth’s rebellion, reduced trials by duping prisoners into pre-trial confessions in return for favourable consideration for mercy. See also Romney and Wright, ‘State Trials and Security Proceedings during the War of 1812,’ in F. Murray Greenwood and Barry Wright, Canadian State Trials: Law, Politics, and Society Measures, 1608–1837 (Toronto: Osgoode Society/University of Toronto Press, 1996), 393). See petitions of I. Anderson et al. referred to in note 103 below. See also Theller, Canada in 1837–8, 1: 216–17. The prisoners were William Alves, Ira Anderson, James Brown, Robert Walker, Randal Wixon, and Leonard Watson (who escaped and was recaptured), all from the Home District, John G. Parker (who was indicted in the Gore District, escaped, and was recaptured), and Paul Bedford and Finlay Malcolm (both indicted in the London District but transferred to Toronto where they petitioned). Niagara convicts Linus Miller, James Grant, and William Reynolds, also applied for release. See Colin Read’s essay in this volume. Albert A. Fry, Report of the Case of the Canadian Prisoners, with an Introduction on the Writ of Habeas Corpus (London: Maxwell 1839); Glenelg to Arthur, 18 Jan. 1839 with enclosed affidavits of Hume and Roebuck and newspaper accounts; Glenelg to Arthur, 26 Jan. 1839, RG 7, G 1, vol. 91, and ‘Proceedings of the Court of Queen’s Bench England,’ RG 5, B38, NA. The attorney general simply relied on the British law officers’ opinion which upheld the Pardoning Act. The applicants focused on defects in the ship’s warrant from Quebec and in the gaoler of Liverpool’s return, the insufficiency of evidence concerning the prisoners’ circumstances as petitioners, and illegality of confinement outside the jurisdiction of a colony where there had been no judgment of a court. See also the essay by Cassandra Pybus in this volume for other questions about the measure. Pressed by Treasury solicitor George Maule before the Exchequer hearing, Lord Glenelg requested the prisoners’ petitions and affidavits outlining circumstances, pre-empting Roebuck’s request to Robert Baldwin for the same. After the hearing, the new colonial secretary, Lord Normanby, reassured Arthur that transportation could proceed (Glenelg to Arthur, 9 Feb. 1839, RG 7, G 1, vol. 91; Arthur to Glenelg, 3 April 1839, CO 42/457; Normanby to Arthur, 17 May 1839, RG 7, G 1, vol. 92), but he was later informed that the

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prisoners had been released because of Head’s proclamation (Normanby to Arthur [private], 10 July 1839; Normanby to Arthur, 23 July 1839, encl. Phillips to Stephen, 13 July 1839, notifying the colonial secretary of Lord Russell’s decision to pardon; prisoner petitions and affidavits), RG 7, G 1, vol. 92. Robinson maintained that prisoners freely applied for clemency, not amnesty (Robinson to Stephen, 7, 10 Jan. 1839, Robinson Papers, AO; Stephen to Robinson, 28 May and 9 June, Robinson Letterbook, AO), although there is evidence that petitioning was linked to Head’s proclamation which was understood as an amnesty. See Colin Read’s essay in this volume and his Rising in Western Upper Canada, 149–50, 154.

3 The Treason Trials of 1838 in Western Upper Canada* COLIN READ

Rebellion inflamed passions throughout Upper Canada in 1837. The most serious expression of revolt came in Toronto and environs, but farther to the west rebels mustered too. In the west, the state instituted proceedings at Hamilton and London in the late winter and early spring of 1838 against those accused of treason for their parts in the events of December 1837. This essay examines those proceedings and encompasses also the trials at Niagara (Niagara-on-the-Lake) in the summer of 1838. The latter involved prisoners thought to have participated in a fruitless attempt to incite widespread insurrection in the province by launching an attack on the Short Hills, back of St Catharines, in June 1838. Those scheduled for trial at Hamilton and London were far less likely than those at the provincial capital to petition under the contentious Pardoning Act (1 Vic. c.10 – see app. D, U.C. doc.2), designed, as the previous essays illustrate, to allow those accused of treason to petition for pardon before arraignment.1 Westerners were less likely to trust the mercy of the lieutenant governor and his council, who dealt with the petitioners’ cases, than were their Toronto counterparts. And, if most of the former calculated that they could safely throw themselves on the mercy of jurors, they were more nearly right than wrong. Only five of twelve tried at Toronto * I am especially grateful to F. Murray Greenwood for letting me read his informative unpublished manuscript, ‘“Brigands” and the Law of Treason in Upper Canada, 1837– 1839.’

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in the spring of 1838 were acquitted,2 while acquittals ran at seventeen out of twenty-seven at Hamilton and nine out of fifteen at London. For these and other reasons, the Hamilton and London trials were quite distinct from those in Toronto. The third set of prisoners tried in the west, those at Niagara in the summer of 1838, could not petition under the Pardoning Act, which was passed in March 1838 and referred to the ‘late ... Insurrection,’ thus applying only to the prisoners implicated in it. They also faced trial at a time when local officials were determined to end treason at home and invasion from abroad once and for all. The Niagara trials represented the first sustained application of the controversial Lawless Aggressions Act (1 Vic., c.3 – see app. D, U.C. doc.1). Sixteen heard juries pronounce verdicts on their cases, their overall situation being more like that of the Toronto than that of the Hamilton or London prisoners, with ten found guilty. All faced harsh punishments. t he ha m i lt o n t r i a ls The records of the western proceedings are uneven. Material from London is thin while that from Hamilton and Niagara is more robust. Among the surviving records of the first judicial proceedings in the west, those at Hamilton are the address of the presiding justice, James Buchanan Macaulay, to the grand jury and his bench book on the trials themselves. Macaulay, a member of the Court of Queen’s Bench since 1829, had previously flown conservative colours legally in defending the types rioters (1826) and in sharing in the decision to remove Judge John Walpole Willis from the Court of Queen’s Bench (1828). An assessment of his courtroom decisions found ‘the majority to be fair if cautious and rather more sensitive to social considerations than those of his fellow judges.’3 Nevertheless, some might have suspected that his prominent role in the defence of Toronto in December 1837 likely inclined him against the accused at Hamilton. On 8 March he charged the grand jury (see app. D, U.C. doc.5). He was, as one commentator has it, ‘exceptionally careful to explain precisely the meaning of the treason laws.’4 In this he was like John Beverley Robinson at Toronto but unlike Archibald McLean at Kingston later.5 His was an expansive view, although it did not go as far as Robinson’s. Notably, his explication of the crime of compassing the queen’s death involved the constructive treason of political death: taking steps ‘to force her [the queen] to concede certain demands and all like such notorious acts ...

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are overt acts of this Treason.’ He left no doubt that the crime could apply in Upper Canada, far from Britain. He observed that the question of whether compassing could be committed abroad was much discussed in Ireland during trials there in 1798 and was decided in the affirmative. It was also an issue in the McLane case in Quebec in 1797 and settled similarly by Chief Justice William Osgoode. Indeed, here Macaulay went beyond Osgoode, who had ventured his view at a time when Britain was at war with France.6 Macaulay was clearly occupying what has been termed a ‘Baconian’ position by offering wide latitude for judicial interpretation, in contradistinction to the ‘Cokean’ position, which argued for narrow constructions, for sticking as closely as possible to the actual wording of the relevant statutes.7 The crown was represented by Solicitor General W.H. Draper, known as ‘Sweet William’ for his courtroom eloquence. English-born, he had been called to the Upper Canada bar in 1828 and was a recent and reluctant convert to electoral politics, winning a seat in the House of Assembly in the general election of 1836. That December he had joined the Executive Council, becoming the solicitor general the following March. He, too, had played a notable role in Toronto in December, harbouring Lieutenant Governor Sir Francis Bond Head, who had fled to his residence for protection.8 He was to act for the crown in all the trials canvassed here, where his conduct can be seen as less vindictive and partisan than that of Attorney General Christopher Hagerman at the Toronto trials. He was later to become judge advocate at the Kingston courts martial where he was relatively impartial and indulgent to the prisoners, despite the questionable nature of the proceedings.9 Draper was not amused by what he found at Hamilton. ‘All’ was ‘in confusion & utterly unprepared for me.’ This, added to ‘a severe cold & bilious attack,’ put him ‘into as ill a temper as any Christian ought to confess to,’10 a temper not improved by finding ‘that many prisoners have been confined on charges; [sic] so indifferently supported by evidence as to make it appear a hardship that they have not been much sooner released.’11 He ‘found parties in Gaol, without either information, examination, or commitment, and in enquiring into the cases, [I] had to take Viva Voce statements of witnesses whom I sent for, in order to determine whether there was any ground for an Indictment.’12 When his illness overcame him, Hamilton lawyer Allan MacNab, speaker of the assembly, and the man pre-eminently responsible for the military defeat of the Mackenzie rebels, stood in his stead.13 The grand jury failed to find indictments against twenty-four men14 but

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did return true bills on charges of treason against a further fifty-one. Twenty-seven of the indicted eventually faced the court in fourteen different trials, a substantial number, given Draper’s earlier estimate that only three or four legitimate cases existed.15 In preparing the cases for trial, Draper lamented that ‘if the practice in England had prevailed here, a Solicitor would have been employed to get up these cases, and the brief for the Crown Officers would have contained every particular – Here however the whole duty is discharged by the Counsel for the Crown.’16 Hence, his was a rushed job, particularly since the trials ran for just eight days, from 27 March to 3 April. Unsurprisingly, the path of justice was not uniformly smooth, which likely contributed to the later notion of some that Draper was too zealous a prosecutor.17 Proceedings could be rather haphazard. For instance, six men were indicted together for levying war. One was Isaac Brock Malcolm, who had already petitioned under the Pardoning Act, which allowed the executive to grant pardons ‘upon such terms and conditions as may appear proper.’18 As the previous essays in this volume note, the statute was shrouded in controversy.19 For one thing, pleading guilty to high treason, as it required, violated ‘safeguards enacted in 1696’ to protect those accused of treason, passed after Judge George Jeffreys ‘had duped’ many into pleading guilty of treason at the Bloody Assize of 1685.20 Petitioner Malcolm was indicted but, since his petition had been accepted, he was not brought into court to face trial.21 Evidence suggests that the crown intended naming Isaac’s uncle John, not him, in the indictment served, but did not do so, allowing John to escape trial.22 Another uncle of Isaac, Peter Malcolm, also sought clemency under 1 Vic., c.10. Draper remarked that his case was an aggravated one and did not deserve consideration.23 Peter, perhaps the leading rebel held at Hamilton, was tried and found guilty. Though indicted with five others, he was tried separately.24 The question of petitions also arose in the case of four men charged jointly with compassing the queen’s death and levying war. At the outset of their trial, their counsel asked that three be allowed to withdraw their plea of not guilty and petition, but Macaulay correctly noted that the Pardoning Act forbade this25 – supplicants must petition before arraignment. Ironically, the three would-be petitioners, along with the fourth defendant, were all found not guilty. Less happy was another would-be petitioner – John Tufford, Charles Duncombe’s son-in-law. Tried and convicted, he claimed that he had wanted to petition but that his lawyer had told him that he belonged to

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that category of people who were not allowed to do so. He asserted that an officer of the court had since told him that his case had been prejudged. His lawyer, he charged, was part of the scheme to railroad him.26 Just as Tufford’s lament went unheeded, so did the argument against the doctrine of local allegiance advanced on behalf of Charles P. Walrath, a young man tried for levying war. Some months prior to the rebellion he had left his home in the republic, coming north to live with his brother in Norfolk. His lawyer urged that, ‘being an Alien,’ Walrath, though he had made repeated visits to the province, should not be placed ‘in the equivocal position of a Subject.’ Macaulay disagreed. He was at one with Osgoode, who had argued in the McLane case of 1797 that foreigners who had entered the province came under the protection of its sovereign and thus owed allegiance.27 Given the chance, the jury found Walrath guilty.28 Draper felt that the prisoner, who had unsuccessfully applied for protection from the governor of New York, W.L. Marcy, had been convicted ‘on clear evidence.’29 By the assizes’ end, twenty-seven men had been tried, with seventeen acquitted and ten found guilty. The Executive Council on 24 March had decided to compare the cases of the convicted across the province to ensure uniform treatment.30 A week later, Lieutenant Governor Sir George Arthur had drawn particular attention in the Executive Council to Colonial Secretary Lord Glenelg’s advice that ‘great circumspection will ... be requisite in carrying into effect any capital sentences.’ The council determined that it would distinguish between the leaders and their ‘deluded followers,’ with Arthur inviting the council to decide which prisoners across the province deserved ‘severe punishment.’31 On 14 April the Executive Council, reviewing the cases of those tried and found guilty at Hamilton, decided that no heinous crimes, beside treason, had been committed in the west. The guilty should suffer secondary punishment.32 t he l o nd o n t r i a l s Originally, the government planned state trials in just Toronto and Hamilton, but Tory MHAs Allan MacNab and Henry Sherwood argued successfully that proceedings should be held in London too. Sherwood noted that doing so would be a cost-saving measure, as well as a benefit to the London prisoners, who could the more easily prepare their cases.33 Accordingly, Draper found himself hurrying off to London. He was as discontented with things there as he had been at Hamilton, though, in

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truth, the magistrates at London, unlike those at Hamilton, had systematically examined the prisoners and let those out on bail they deemed least guilty. Nonetheless, Draper later grumbled that local authorities had done nothing to prepare the cases or indictments prior to his arrival and that he had had to work in considerable haste.34 Unfortunately, Allan MacNab, who was again on hand, fell ill before the cases came to trial and did not participate in them, though he did make a clerk available whom the solicitor general found of great assistance.35 The severe overcrowding of the London jail36 was eased greatly37 by the order-in-council of 10 April specifying that none who had been granted bail by the Treason Commission would be indicted unless he was a leader, involved in murder, robbery, or arson, had persuaded or tricked others into rebellion, had continued conspiring against the government after the defeat of the rebellion, or had absconded.38 On 14 April, after the executions of Lount and Matthews at Toronto, Arthur wrote to Glenelg to point out that the special commissioners had allowed prisoners bail, most of whom should receive ‘a free and unconditional pardon.’ No more need be executed, though the worst should be transported.39 After reviewing the evidence against those at London, Draper was able to report on 13 April that there were no cases in which prisoners had compounded treason with murder, robbery, or arson.40 By the 24th, after the grand jury had already returned true bills for high treason against nine people,41 he concluded that ‘an Example of some severity is in my opinion necessary in this district as well for the subduing [of] the spirit which even yet exists in some quarters.’42 As for those who had petitioned under the Pardoning Act, none was a suitable candidate for execution, ‘since I do not see any reason to believe that their cases are of a more heinous character than some of the convicts of Hamilton of whose guilt I have obtained much more enlarged and convincing evidence than I was enabled to adduce at their trials.’43 Relatively few London trial records are extant, prompting historian J.M. Gray to the erroneous conclusion that formal proceedings had been a rarity.44 But fifteen men were, in fact, tried, with six found guilty and nine acquitted.45 Levius Peters Sherwood, who had been one of four judges presiding at the treason trials in Toronto,46 sat at London. Son of a Loyalist, he had been called to the bar in 1803. In the 1820s he became a prominent Tory MHA, securing appointment to the Court of King’s Bench in 1825.47 All his notes in the cases of those convicted at London have survived, but those for just three of the acquitted have. Missing, too, is his charge to the grand jury, though, if his later reputation as a ‘conservative’

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jurist ‘not given to change’48 is deserved, he is unlikely to have favoured the accused in his remarks. The London trials began on 30 April and lasted for several weeks, leading the disgruntled editor of the London Gazette to note that it ‘seems impossible to get through with more than one trial a day.’49 Others were unhappy with proceedings also, but for different reasons. Local resident Elijah Woodman, who was to turn patriot raider and was later convicted at the London Court Martial where Sherwood’s son Henry was judge advocate (see Barry Wright’s essay), thought the juries packed.50 Another, more prominent Londoner, the United Secession Church minister, and known Reform sympathizer, the Reverend William Proudfoot, reflecting on the case of three of his neighbours who were among the nine acquitted, wrote that ‘the grand jury sat for two days endeavouring to make out an indictment against them, and when they were brought to trial, the charges were so frivolous, and so devoid of any thing [sic] like evidence, that they were all three dismissed. This was the general way of acting.’51 Certainly, some proceedings were unusual. Draper later discovered that one of those who had petitioned under the Pardoning Act, Isaac Moore, was actually ‘tried and acquitted [–] his name appeared among the List of Petitions received, but by misadvertance which I am unable to explain [,] the fact of his having petitioned was entirely overlooked by me, nor did he or his counsel raise any objection to his being tried.’52 While Moore’s case was embarrassing, more controversial was Alvaro Ladd’s. Ladd, a merchant from the village of Delaware, was accused of compassing the queen’s death by plotting rebellion with others in the socalled ‘Delaware conspiracy.’ At first, Draper had felt the evidence that people in and about London were communicating secretly with the rebels ‘is not very strong,’53 but he soon concluded that the alleged conspiracy, involving a presumed attempt to tamper with the loyalty of the natives of the local Chippewa, Muncey, and Oneida reserve, had been serious.54 Ladd was one of four men tried in the ‘plot.’ All the others were acquitted. Among the evidence available to the crown in preparing the case against Ladd were four depositions from individuals testifying to the events of December 1837 in Delaware Township.55 Draper also had a deposition of Ladd ‘made under circumstances which precluded my using it on [in?] his trial, but it serves to throw light upon the general nature of his case.’56 In the trial itself the crown produced eight witnesses. The burden of their evidence was that, at a meeting in Delaware on 2 December, Ladd had proposed both the non-payment of taxes and the establishment of

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a branch political union57 and had made ‘violent remarks against the government.’58 At a second meeting on 16 December, Ladd had called on those present to provide protection against the residents of the local reserve. Among the witnesses were two natives, accompanied by interpreters. George Walker testified that Ladd had told him that his people would do well to stay put and mind their own business. Mackenzie had already taken Toronto but the forthcoming rebellion would involve a lot of fighting.59 John Snake corroborated this, suggesting further that merchant Ladd had been hoarding powder. In addition, according to Snake, he had accused the lieutenant governor of cheating the natives, saying that if they remained quiet, they would get their lands back.60 The defence produced six witnesses who testified that the 2 December meeting had nothing to do with rebellion, everything to do with reform.61 One denied that it had established a branch political union.62 William Putnam, himself tried for treason and found not guilty, under crossexamination contradicted this,63 but declared too that reports that Mackenzie had led a rebellion at Toronto and that a large and well armed body of American natives was in the back townships had many fearing attack. Frightened residents had asked those on the reserve if they intended to join in depredations with their American cousins.64 A government employee working on the reserve, and two succeeding witnesses, recalled that American natives, the Black Hawks, had indeed been a subject of alarm,65 as had the possibility that they and their local brethren would attack the settlers.66 A Catholic priest who knew Ladd’s brother-in-law, Dennis O’Brien, well and who regarded Ladd as a ‘moral and upright man’ recorded that he had been present at Ladd’s trial and that he had been convinced ‘as most of all present were convinced, that nothing was elicited during a tedious examination of witnesses to implicate him in the least.’ Though the judge told the jury he did not think that they could find Ladd guilty, ‘to Our great surprise the Jury after a short deliberation Among themselves. [sic] returned a verdict for the Crown.’67 Ladd’s sister-in-law, Jane O’Brien, insisted, angrily, that he had been ‘convicted by a packed and partial Jury.’68 Draper was at a loss to explain the jury’s recommendation of mercy and rather regretted it, thinking that Ladd might properly be made an example of the bitter fruits of treason. 69 In his report of 16 May 1838 on the case to the Executive Council, Sherwood noted that he had reserved the case and had done so because he doubted ‘the sufficiency’ of the evidence. He had three questions about it: Was it enough to show that

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a conspiracy had been formed at the meetings of 2 and 16 December? Did it demonstrate that those present acted in concert with rebels elsewhere in Upper Canada? And did it prove any offence more than ‘seditious practices?’70 Official answers to these pertinent questions have not been discovered, but they must have all been decided, officially or not, in the affirmative because Ladd did find himself under sentence of death. On 30 August, however, the Executive Council eventually decided that he should be freed on bail since it had the Short Hills prisoners on hand to use as a warning to the treasonable-minded.71 Sherwood also had doubts about the sufficiency of evidence in the instance of two other men found guilty, Robert Cook and Ebenezer Wilcox. Wilcox had been tried for compassing and imagining the death of the queen and for levying war. Cook had been tried for the latter only; both had been found guilty but Sherwood reserved their cases for the judges since in each case there was just one witness in court testifying to the overt acts, as well as the confessions of the prisoners taken before two justices of the peace and proved before two witnesses. Sherwood wondered if this evidence could support a conviction, though his knowledge of the Treason Act, 1696 should have suggested to him that it could not. He pointed out that the legislation stipulated ‘that, no person shall be indicted, tried, or attainted of high Treason ... or misprision of such Treason, but upon the oaths of two lawful witnesses; with both of them [witness] to the same overt act [word illegible] of them to one, and another of them to another overt act of the same Treason’ unless the accused person confesses the act without violence in open court.72 The disposition of the cases of Wilcox and Cook, like that of Ladd, resulted in death sentences73 but they were ordered free on bail by the Executive Council.74 The question asked by Sherwood must have either been ignored or answered positively. Actually, legitimacy, as well as sufficiency, of evidence was an issue in six trials involving eight men, Cook and Wilcox among them. In at least four instances, the defence contention was that the accused had not sworn to and/or had not signed their examinations taken before the magistrates,75 and in each instance Sherwood allowed the evidence to be presented in court, though in one case, Cook’s, he declared his intention to refer the matter to the judges. On another occasion, Sherwood did deny the admission of evidence the crown wished to present. This came in the trial of Charles Latimer when witness E.A. Talbot refused to answer questions lest he ‘criminate himself.’ When Draper attempted to introduce his examination before the magistrates, it ‘was not admitted by the Court, as evi-

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dence, as the witness refused to confirm the facts it contained, in open Court.’76 The general willingness of Sherwood to allow the prosecution to present debatable evidence was reminiscent of Macaulay’s predisposition at Hamilton. The most egregious instance there involved Willard Sherman, accused of acquiring shot and rifles for the local radicals.77 Sherman’s statement before magistrate W.B. Vanevery had not been signed or administered under oath; nor was Sherman charged or told that he was being examined as an accused individual;78 and nor had his examination been made before two witnesses. Macaulay ruled that the statement was only ‘auxiliary’ evidence and that one witness to it sufficed. It had not been taken with a view to entrapment. Though he admitted that the procedures followed were irregular, he felt bound to admit the evidence.79 His other rulings on the admissibility of evidence systematically favoured the prosecution.80 The London trials saw six men found guilty of treason. ‘They must be removed, from the possibility of ever again attempting to drench the land with the blood of unoffending citizens,’ thundered the London Gazette on 19 May. Here, the editor was not at one with W.H Draper. The solicitor general, who prided himself on having treated all the accused fairly (see app. D, U.C. doc.6) 81 had argued that, since the leaders in the west had escaped and since none there had committed robbery, arson, or murder, no western rebels need be executed, especially when some guilty of more serious crimes in the Home District were left unhanged.82 In any case, Glenelg’s comment to Arthur on 30 May that he hoped no more executions would follow those of Lount and Matthews83 made it doubly unlikely that the Gazette would have its revenge. t he ni ag a r a t r i a ls The Short Hills raid of June 1838 was of a piece with other attacks launched on the province from the United States in the aftermath of the rebellion84 except that the Niagara incursion appears to have been more the work of exiled Canadians than its predecessors. Towards mid-June, twenty-nine men under the command of an American, James Morreau of Pennsylvania, crossed the Niagara River, moving into the Short Hills, the hilly country on the escarpment behind St Catharines. Three others later joined them across the line, as did a number of local inhabitants, though far fewer than the invaders had expected. Disappointed, they decided to

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strike a blow for freedom before dispersing. On the night of 20 June, they set upon the small village of St Johns, robbing the homes of a few residents and attacking an inn containing a troop of Lancers. After setting fire to the inn, they captured the troopers, who had put up a stiff resistance. They soon released them before scattering in various directions. Within a week or so, upwards of fifty men found themselves detained for involvement in the escapade. As noted in this volume’s Introduction and in Rainer Baehre’s essay, the Lawless Aggressions Act was passed in January 1838 to deal with patriot raiders. (Murray Greenwood’s essay on Colonel John Prince examines fully the complex legal and political issues raised by the controversial measure.) Lawless aggression was a rough equivalent to treasonable levying of war, and, although foreigners owed no allegiance, when they joined traitorous British subjects in armed hostilities, they could be tried for a felony offence in the criminal courts as several Short Hills prisoners were. As we see in the essay that follows, foreigners and subjects alike could be tried for the offence by court martial under separate provisions of the legislation. The Niagara trials saw the first sustained application of the act. Lieutenant Governor Arthur, thinking that the earlier case of raider Thomas Jefferson Sutherland had put court-martial proceedings into disrepute,85 decided, along with the Executive Council, to try the Short Hills prisoners indicted under the felony provision by regular criminal trial. Solicitor General Draper found himself justifying this decision to Lord Durham, who evidently wanted the raiders dealt with expeditiously.86 When the Court of Special Commission and General Gaol Delivery opened on 18 July at Niagara amidst cries for blood, Arthur had already confided his opinion to Sir John Colborne, commander of the forces in the Canadas, that ‘the Ringleaders must be punished with severity.’87 He had told Durham on 27 June that the prisoners should be decimated: about forty had been captured, at least four should be executed. Transportation of lesser convicts would subdue the like-minded.88 Before the trials, the Toronto Palladium had ‘no doubt that summary and capital punishment awaits these remorseless outlaws. A terrible example is now rendered absolutely necessary.’89 The St Catharines Journal later added, on 26 July, that the prisoners ‘richly merit the severest punishment the law can inflict,’ emphasizing that ‘the conduct of these pseudo Patriots would disgrace the veriest savages that ever prowled through the forests, and massacred helpless innocence.’ Jonas Jones presided at the Niagara trials. Born of Loyalist stock, he

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was an MHA when appointed to the Court of King’s Bench in March 1837. Like Judge Macaulay at Hamilton, he had been active in the defence of Toronto in December 1837.90 Draper, who had arrived early enough to help the magistrates with their examinations,91 was, once again, prosecutor for the crown. The records for the Niagara trials are quite good; indeed, for the more celebrated trials they are excellent, with at least three separate accounts extant of each – the judge’s notes, a report prepared for Sheriff Hamilton of Niagara, and stories in the Niagara Reporter. Five of those facing the court at Niagara were Americans, charged under the Lawless Aggressions Act. In his opening address to the jury, which was far briefer than Macaulay’s at Hamilton, Jones noted that the crime of treason had been referred to so frequently of late that he need not dilate upon it. But he did observe, in effect, that the prisoners’ motives could be categorized according to whether or not they were public. Had the raiders sought a change in government or the like, then their alleged crimes constituted treason; but had they merely sought personal profit, in the form of plunder for example, then their crimes were private and constituted felonies.92 The Americans among the attackers who had not been resident in the province, and hence who did not owe local allegiance, could, according to the laws of nations, ‘be treated as public robbers, and ... summarily dealt with by the law martial, as enemies.’ To ‘afford additional protection to the lives and properties’ of the colony’s inhabitants, however, the provincial legislature had passed legislation allowing foreigners taken in arms with traitorous subjects to be tried for a felony, punishable by death. The first raider brought up was twenty-three-year-old George Cooley, a man of unprepossessing appearance, or so thought Draper.93 He was tried as an American, but he had lived two years in Upper Canada before leaving after the failure of the rebellion and returning as a raider.94 Had he still family or property in the province he could probably have been tried for treason.95 Fellow raider Stephen Hart appeared against him, testifying that he had been part of the attack on St Johns, while various Lancers asserted that he had been there armed.96 In his trial, as in others, the crown had the benefit of documents found in the hands of two of the raiders, ‘major’ Benjamin Wait and ‘commissary’ Samuel Chandler, enumerating many of their fellows, including Cooley. The provision of the Lawless Aggressions Act under which Cooley was tried applied to Americans invading the province in company with British subjects. Cooley’s counsel, James Boulton of Niagara, who had taken up his defence at the court’s behest,97 argued that the crown, in presenting its case, had not shown that anyone, save Hart, was a British subject.

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Draper muddied the waters in utilizing the doctrine of local allegiance. He noted that it had been established that raiders Wait and Solomon Kemp were residents of the province and then evidently suggested that, since they lived in Upper Canada, they were British subjects.98 Jones then instructed ‘the Jury, to find this verdict – on those points against the Prisoner but directs a special verdict stating the circumstances.’99 Correspondingly, he did not pass sentence on Cooley, desiring the opinion of his brother judges before doing so.100 That opinion must have been favourable to Draper’s argument, for Cooley was one of those sentenced on 4 August to hang. Nonetheless, in the two succeeding trials of Americans, the crown was careful to establish that the defendants had been in arms with British subjects as required under the Lawless Aggressions Act. The second prisoner tried was a Pennsylvanian, thirty-two-year-old James Morreau, on the 21st. Draper spoke to the heinous offence of which the prisoner and his fellows were guilty and stated that the Canadians who took them prisoner might ‘justifiably’ have executed them. Mindful of the previous trial, he spoke to the Lawless Aggressions Act, indicating that it dealt with foreigners in arms with British subjects. It was not necessary that those subjects be British-born, for the doctrine of local allegiance obtained. He stated this, not because it was going to be an issue in Morreau’s case, but because the point had become a matter of discussion.101 The crown produced thirteen witnesses, including three raiders who had turned queen’s evidence – Edward Seymour, Stephen Hart, and James Wells Doan.102 They all testified that, as British-born subjects, they had been in arms with Morreau. Two, Seymour and Doan, offered mitigating circumstances for the accused. Doan noted that Morreau, objecting to the lack of local support, opposed the raid on St Johns and resigned his command as colonel before it took place,103 while Seymour said that Morreau had warned the raiders not to ‘touch any private property; the first man that does so shall be punished.’104 A captured Lancer, sergeant Robert Bailey, testified that he had seen Morreau in the attack and heard him called colonel. ‘He had a brace of pistols in his belt, a rifle in his hand, white ribbons on his hat, and an eagle on his side.’ The Lancers were freed on the word of the prisoner, ‘before which he had proposed making us swear not to take up arms against the patriot army.’105 The crown also introduced a proclamation of 7 June signed by commander-in-chief Morreau calling on Canadians to rally to the standard of the free. Read in court, the paper ‘excited considerable merriment.’106

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Defence counsel James Boulton satisfied himself with a few questions on cross-examination designed to show that witness Seymour, who had lied to authorities in his initial statement, was untrustworthy.107 He called no defence witnesses, ‘resting his case on the unconstitutionality of the act by which the prisoner was tried.’108 In summation, Jones stated that ‘the act was passed by the Legislature ... it had passed the three branches, was therefore the law of the land, and the Court was bound by it.’ He argued that ‘the prisoner and those leagued with him might have been summarily executed, they being no better than pirates or outlaws.’ His logic was questionable since the raiders’ political motivations, as his own address to the grand jury suggested, made them something other than mere ‘pirates or outlaws. ‘ On firmer ground, he also observed that ‘they might have been tried and executed by Court Martial.’109 As the Niagara Reporter had it, ‘His Lordship’ then ‘shortly adverted to the facts of the case, and the jury, not deeming it necessary to hear the evidence read, retired for about two minutes and returned with a verdict of guilty.’110 In response: Draper called for an immediate judgment against the prisoner. Mr. Boulton moved for an arrest of judgment on the ground that the act under which the prisoner was tried was unconstitutional. He contended that the Provincial Legislature had no power to pass such an act, creating as it did, an offence against Great Britain. It was well known that this opinion was entertained by many gentlemen of eminence at the bar, and as this was the first conviction under the act which had taken place in a court of justice, he hoped judgment would be stayed until the matter could be argued before the Judges. He cited Sutherland’s case in which no judgment had been given by the Court.

Jones correctly replied that ‘Sutherland’s case rested on no question as to the unconstitutionality of the act but merely on weight of testimony. He was not aware that the Judges in England had ever decided that a law was unconstitutional which had passed the three branches of the Legislature.’111 If here Jones meant to deny the ability of courts to review legislation, his argument was dubious at best.112 Boulton noted that he had omitted one very pertinent argument – the power of the crown to disallow any act of the provincial legislature. Jones observed that this would apply with equal force to every act of the legislature but he would mention the objection to the judges and executive government. Nevertheless, the three branches of the legislature had passed the act; it was ‘the law of the land and the Court cannot dispense

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with it.’ He evidently did not acknowledge the fact that the act had already been referred by the Colonial Office to the British law officers for an opinion on its constitutionality. Having called for silence, Jones addressed Morreau: ‘Your life was forfeited at the moment of your capture, but you have been preserved to undergo a full and fair trial before an impartial Jury.’ Had he anything to say why the sentence of death should not be pronounced? He had not and was sentenced to die on 30 July.113 Jones referred Boulton’s contention that the Lawless Aggressions Act was unconstitutional to the Executive Council and appeared there in person when it deliberated the issue on 26 July. He indicated that he put little stock in Boulton’s argument (which was to be echoed by others) and that the other judges (of the Court of Queen’s Bench) agreed with him that there was no legal objection to the sentence. The council also had Draper’s account of the raid and Morreau’s part in it. The councillors noted that Morreau, whom they wrongly thought a mere brigand,114 had committed serious offences and that dire threats still faced the province from across the border. Morreau’s life should be forfeit, even though the act under which he had been condemned had not been officially proclaimed.115 Two days after the council meeting, Arthur responded to information from Lord Glenelg that the British law officers, thinking the Lawless Aggressions Act unwieldy and unnecessary, since Americans could be tried for treason under the doctrine of local allegiance, had advised against its proclamation.116 Arthur may not have had this news to hand on the 26th but he certainly had it prior to Morreau’s execution. Even if he thought the British law officers’ logic strained, and it was – for one might legitimately wonder how Americans invading the province could owe allegiance117 – he should have realized that proceeding with Morreau’s execution was at best a dubious proposition politically. In the event, a sparse crowd, several women punctuating its ranks, watched Morreau climb the scaffold on the 30th and plunge eighteen feet to his doom.118 The next prisoner tried was also an American, Linus Wilson Miller, who also was indicted under the Lawless Aggressions Act.119 Miller, a twenty-year-old law student, later left a rather fanciful account of proceedings.120 His fevered imagination helped provide his defence – insanity – a plea his court-appointed lawyer, the ubiquitous Boulton, made clear his client opposed.121 The crown used the raiders Hart, Doan, and Seymour again – British-born subjects all – whom it had also mustered against Morreau. Their testimony left no doubt that Miller had been with

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the raiders, though he had not held a command, despite his reputation as ‘a man of good talents.’122 A captured Lancer also noted Miller’s involvement in the raid, observing that he had appropriated a Lancer’s cap, cape, and horse. Draper’s last witness verified Miller’s statement, which was read in court and which declared that he had come over the border after the main body of raiders and, on seeing how few they were, had importuned them to return to the United States. Boulton’s two witnesses were Miller’s brother, William from Chatauqua County, New York, and a neighbour. Both testified that the defendant had acted peculiarly the past two years – thinking himself elected to the state legislature, running wildly into debt, and cheating his father. That Miller’s behavior was peculiar had been suggested by the three crown witnesses appearing against him. Doan had noticed his ‘abrupt’ manner of speaking, his contradictions, and flighty conduct.123 Seymour had testified to Miller’s odd manner and ‘nonsensical’ proposal that the raiders return home.124 Finally, Hart had spoken of his ‘absurd gestures’ and behaviour125 and the fact that he had demeaned ‘himself in a singular way.’126 The Niagara Reporter found Miller, who was ‘very tall and rather good looking,’ odd in behaviour also, his manner smacking of ‘indifference or insensibility,’ alternating as it did between ‘absolute drowsiness’ and ‘wild bewilderment.’127 But his behaviour was not so odd as to persuade the jury of the justice of Boulton’s plea. It returned a guilty verdict, albeit with a strong recommendation to mercy, with which Jones more or less concurred,128 though evidently not Draper.129 The remaining two Americans among the Niagara prisoners, William Reynolds and Norman Mallory, were brought up after Miller’s trial. Oddly, both, who had previously pleaded not guilty, now changed their pleas.130 Perhaps they had assurances that they would not be hanged. Or possibly they had bad advice from counsel. A third raider claimed afterwards that he had pleaded guilty only because his lawyer had advised him to do so.131 After the Americans, thirteen provincial residents were tried,132 including two prisoners who had attempted to petition under the Pardoning Act133 but were not allowed, presumably because the statute applied to those involved ‘in the late treasonable insurrection,’134 not in subsequent events. A notable trial was that of Benjamin Wait, indicted for levying war.135 The evidence against him was clear and compelling. His lawyer, Alexander Stewart, attempted to secure his acquittal on what might be construed as technicalities, including an unsuccessful claim that the ‘indictment & other papers had not been proved to have been duly

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served.’136 He had better results with the evidence of witness and magistrate John J. Lefferty. He objected to Lefferty’s ‘evidence being taken, because, on the list of witnesses delivered to the prisoner, the Dr. was called John Johnson Howe Burgoyne Lefferty. Dr. L. said he never used H.B. in signing his name, but the Sol. General had no wish to press his evidence if the slightest objection was made, and the Judge decided that although he did not think the objection good, he had rather Dr. Lefferty should not be examined.’137 Stewart’s efforts notwithstanding, Wait was pronounced guilty. The next day, 4 August, the day of sentencing, Stewart produced an affidavit to the effect that the foreman of the jury trying Wait was ineligible for jury duty, having ‘voluntarily’ removed to ‘the United States during the War of 1812. As such, he could not participate in the rights and privileges of the act passed in the fourth year of the reign of George IV’ and entitled ‘An Act to Secure to and Confer upon Certain Inhabitants of This Province the Civil and Political Rights of Natural Born British Subjects.’138 Stewart asked that the verdict be set aside, but, according to Linus Miller’s later recollection, ‘the court decided that it was too late to interpose that plea.’139 For the crown, the watershed at Niagara came quite late on 17 August with the trial of Jacob Beamer, indicted for levying war.140 Beamer, sought unsuccessfully by authorities the previous winter for his prominent role in the Duncombe rising, had returned to the province with the Short Hills raiders. He had been, so five prosecution witnesses had it, loose-fingered and bloody-minded, stealing money and counselling death for the captured Lancers.141 The defence called four witnesses, including Beamer’s mother and a comrade from December 1837, the shadowy Doctor Duncan Wilson. Mother and doctor both attempted to suggest that Beamer could not have been on hand during the Short Hills raid. More surprising to the crown was the testimony of the last two defence witnesses – Stephen Hart and Edward Seymour, who had been used previously, and successfully, as crown witnesses. Hart stated that the Beamer who had been with the raiders did not appear to be the one before the court. Cross-examined, Hart would not commit himself on the point.142 In dismissing this witness from the box, the judge rebuked him severely and said that his testimony, when compared with some of his other statements, was ‘most extraordinary.’143 The defence counsel, Stewart, mindful of Hart’s testimony against a former client144 but perhaps thinking less of Beamer than he might have, interjected, ‘It has been so throughout, my Lord.’145 Hart was succeeded on the stand by Edward Seymour, who also waf-

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fled on his identification of Beamer. Stewart ‘expressed his disapprobation of the manner in which this witness gave his evidence,’ with Jones seconding his view.146 Nonetheless, Stewart was sure that, if the jurors were not satisfied as to Beamer’s identity, ‘they would give him the benefit of the doubt.’147 His was a misplaced confidence. Draper, reporting on Beamer’s case, underlined the dire nature of the convicted man’s offences by noting the attempt made on his behalf to tamper with the crown witnesses. ‘The wretched State of the gaol rendered it almost impossible to’ prevent ‘communication in the day time [sic] with these witnesses,’ he complained.148 The next prisoner tried after Beamer was Solomon Kemp, a local farmer. The crown brought Seymour against him. Defence counsel tested his veracity. Seymour ‘said, on being questioned as to whether any bribe had been offered him ... that Beamer had told him he would be well rewarded, if he would give evidence in favour of him.’149 The impact of this revelation was lost on Draper, who puzzled about the resulting acquittal, noting that the jury deliberated for seven hours – ‘I cannot pretend to suggest on what point the case was not considered as proved.’150 But he was sufficiently alive to reality to abandon the next case, that against tavernkeeper Eber Rice, because he had just the evidence of Hart and Seymour against him.151 He proceeded with the last two trials of four other individuals, though he had just Hart and Seymour against them too. He was, accordingly, not surprised at their acquittals.152 In sum, the crown won no cases after Hart and Seymour were caught out in the Beamer case.153 It had lost only two of the previous twelve. While the Seymour and Hart prevarications were likely fatal to the crown’s subsequent cases, it did not help that all of the accused were district residents.154 a ft e rm at h On 29 August, Arthur informed a disappointed Executive Council that Durham had respited all the prisoners, including Beamer, until 1 October.155 Clemency and commutations were to be the order of the day. Pressure came from the United States for the four Americans condemned at Niagara, including petitions from W.L. Marcy, governor of New York,156 and William H. Seward, governor-to-be.157 Pressure came, too, from the British government, which clearly wanted no more executions after Morreau’s, to which Glenelg had given only reluctant assent.158 On 29 September 1839, Arthur announced the granting of conditional pardons to

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the convicted Short Hills prisoners.159 A few were to be sent to jail but most were to be transported. The British army in the Canadas had long used transportation as a punishment but Upper Canada had discontinued non-military transportation in 1800 in favour of banishment. An act of 1833 revived it as a possibility, and a proclamation of 1 July 1835 and a further act passed in March 1837 made this possibility explicit.160 Civilian transportation was not unknown, with one Upper Canadian trundled off to Bermuda in the prerebellion era.161 The transportation of the fifteen Short Hills prisoners, civilians all, was not without incident, with the death at the outset, at Fort Henry, of one from illness.162 The other fourteen were sent first to Quebec and then to Liverpool, where they were to take ship for the antipodes. In Britain, as we have seen in the essay by Paul Romney and Barry Wright, two prominent radicals, Arthur Roebuck and Joseph Hume, asked for writs of habeas corpus in the case of the conditionally pardoned Toronto petitioners and in three cases examined here – those of Americans Linus W. Miller and William Reynolds, convicted for felony under the Lawless Aggressions Act, and Upper Canadian John Grant, convicted of high treason. Why these particular cases were selected is not known163 but the choices frayed the tempers of the unchosen.164 Among the nine Toronto prisoners were two originally jailed at London, Finlay Malcolm and Paul Bedford, and John G. Parker of Hamilton, who had petitioned from the Toronto jail.165 The cases of all twelve appellants – the three raiders and the nine petitioners – were encompassed in the two actually heard – those of Toronto prisoners Watson and Wixon. These were conducted in the Court of Queen’s Bench at London in January 1839. Most of the unsuccessful arguments presented there and, later, in the Court of the Exchequer involved the petitioners166 rather than the three Short Hills convicts.167 In July 1839 the government freed the nine Toronto prisoners, Malcolm and Bedford among them, ‘on Condition of their entering into their own recognizance not to return to Canada, nor to appear within Fifty Miles of the Canadian Frontier.’168 Arthur predicted dire consequences.169 Freed, too, was one of the Short Hills prisoners, Reynolds, after the American ambassador interceded on his behalf.170 But the other two Short Hills raiders whose cases had been heard, Miller and Grant, were sent to a prison hulk in July, ultimately rejoining their comrades in Van Diemen’s Land, most of whom had been shipped south on 17 March.171 The harsh treatment accorded the convicted Short Hills raiders and the application of the Lawless Aggressions Act under which the American

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raiders were tried172 bear out the notion that authorities in Canada have typically responded severely to crises. On the other hand, the results of the London and Hamilton trials more nearly fit the model proposed by Kenneth McNaught. According to McNaught, after a crisis Canadian authorities typically demonstrate first a ‘Burkean’ rigour and then, once tensions have eased, considerable leniency.173 Nor is it the case that the trials betray consistent violations of procedural norms,174 as some might suspect. Not always, but often, authorities at Hamilton, London, and Niagara showed considerable concern for legal niceties. This was evident in the worries expressed at various times, most notably at London, about the admissibility of evidence. But it was evident in other matters too. Two trials were postponed at Hamilton because the defence was not ready.175 Judge Macaulay at Hamilton was prepared to refer a point of law of which he was uncertain176 to higher authority, just as Sherwood later did. The accused were accorded their right to challenge jurors, up to thirty-five. According to the Niagara Reporter, Wait’s counsel challenged thirty-two and Beamer’s twenty-seven.177 This is not to argue that all was fair and just. Macaulay’s charge to the grand jury at Hamilton showed a bias in favour of the constructive treasons and a consequently circumscribed realm of defence for those appearing before him. Similarly, the speed of the proceedings, from the finding of the indictments to the institution of the trials, led to errors and omissions at both Hamilton and London that wrought hardships. And some, most notably Alvaro Ladd at London, were found guilty on the basis of evidence that now seems problematic. That some wanted blood and were bound to have it is best suggested by the fact that Morreau was hanged at Niagara though the statute under which he was tried seemed destined to be disallowed. One of the greatest injustices, as Romney and Wright also suggest, involved those who were not tried at all but who petitioned under the Pardoning Act. A number of prisoners utilized the special legislation to avoid court proceedings at London and Hamilton. Some later claimed that its existence induced innocents to confess.178 In July 1838 six Duncombe rebellion prisoners, including Paul Bedford and Finlay Malcolm, who were later to be appellants in the habeas corpus cases in London, stated that, considering all they had endured, they regretted ever petitioning.179 A London petitioner subsequently complained that he had not known that a petition ‘was tantamount to an acknowledgement of guilt.’ Had he, he would have opted for a trial.180 The Reverend John Roaf later told Durham that the statute had induced many who would not likely

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have been found guilty before a court to confess.181 On 28 April 1838 Attorney General Hagerman had advised Arthur that he had not the authority under the statute to grant a free pardon. Only the queen could extend such clemency. All pardons under the act would thus have thus the same effect as an attainder for high treason on the forfeiture of estates and property.182 Nonetheless, the Toronto Patriot decried the ‘extraordinary lenity’ of the legislation.183 That anyone could consider it lenient suggests the heated public temper of the times. And while that temper does not excuse either the niggardly way in which justice was dispensed on some occasions or withheld on others, it does go some distance in explaining both.

NOTES 1 There were approximately 120 successful petitioners at Toronto, 14 at Hamilton, and 41 at London. See Paul Romney and Barry Wright, ‘The Toronto Treason Trials,’ in this volume; Colin Frederick Read, ‘The Rising in Western Upper Canada, 1837–38: The Duncombe Revolt and After’ (Ph.D. thesis, University of Toronto 1974), 336–7, 343–4. On the statute and its application, see also Barry Wright, ‘“Harshness and Forbearance”: The Politics of Pardons and the Upper Canada Rebellion,’ in Carolyn Strange, ed., Qualities of Mercy: Justice, Punishment, and Discretion (Vancouver, University of British Columbia Press 1996), at 77–103. 2 Romney and Wright, ‘The Toronto Treason Trials’; their data relates to those tried for participation in the Mackenzie rebellion. 3 Gordon Dodds, ‘Sir James Buchanan Macaulay,’ DCB 8: 511–12. 4 Bob Beal, ‘Attacking the State: The Levying War Charge in Canadian Treason Law’ (M.A. thesis, University of Alberta 1994), 78. 5 See Romney and Wright, ‘The Toronto Treason Trials,’ and Wright, ‘The Kingston and London Courts Martial,’ in this volume. 6 F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: Osgoode Society/University of Toronto Press 1993), 153; see also Greenwood, ‘“Brigands,”’ at 2–3. 7 F. Murray Greenwood and Barry Wright, ‘Introduction: State Trials, the Rule of Law, and Executive Powers in Early Canada,’ in Greenwood and Wright, eds., Canadian State Trials: Law, Politics, and Security Measures, 1608–1837 (Toronto: Osgoode Society/University of Toronto Press 1996), at 24, 39 (hereafter Canadian State Trials I). 8 For an overview of his career, see George Metcalf, ‘William Henry Draper,’ DCB 10: 253–9.

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9 See Romney and Wright, ‘The Toronto Treason Trials’; Wright, ‘The Kingston and London Courts Martial.’ 10 Draper to John Joseph, Hamilton, 19 March 1838, RG 5, A 1 (Upper Canada Sundries [hereafter UCS]), vol. 188, 105165–6, NA. 11 Same to same, Hamilton, 19 March 1838, UCS, vol. 188, 105176–8. 12 Draper’s report on the Gore District prisoners who petitioned, 16 May 1838, CO 42/447/295–6, PRO. 13 Draper to Arthur, 31 Aug. 1838, RG, 1 E 3 (Upper Canada State Papers [hereafter UCSP]), vol. 54, 93–5, NA. MacNab in turn later fell ill at the outset of the trials and did not participate in them. 14 Colin Read, The Rising in Western Upper Canada: The Duncombe Revolt and After (Toronto: University of Toronto Press 1982), 125. 15 Draper to John Joseph, Hamilton, 19 March 1838, UCS, vol. 188, 105176–8. 16 Draper to John Macaulay, Toronto, 10 Aug. 1838, CO 42/449/364. 17 See W.R. Riddell, ‘A Trial for High Treason in 1838,’ Ontario Historical Society Papers and Records, 18 (1920), at 51–2. Four associate justices (Riddell thought there were three) joined Macaulay on the bench, sitting at varying times, but they seem to have had little impact on the proceedings. 18 Colin Read and Ronald J. Stagg, eds., The Rebellion of 1837 in Upper Canada (Ottawa: Champlain Society and Carleton University Press 1985), 369. 19 Romney and Wright, ‘The Toronto Treason Trials.’ 20 Wright, ‘“Harshness and Forbearance,”’ at 90–1. Wright suggests there that the act limited the pardons extended to transportation or banishment. The two punishments were mentioned in the act and were no doubt intended to provide the norm, but they did not constitute the range of possibilities. 21 J.B. Macaulay’s Bench Book [hereafter Bench Book], 50, M32, LSUCA. 22 Ibid., 50. Oddly, Macaulay observed that it was ‘of no moment’ that John Malcolm’s name had been omitted in the copy of the indictment served. Odd, because the bill against him was correspondingly ignored. 23 Draper to John Joseph, Hamilton, 30 March 1838, UCSP, vol. 45, 12. 24 See Bench Book, 50–2. Among those tried on the same indictment as Peter was his nephew Norman Malcolm, who was released at the end of the prosecution’s case, no evidence having been produced against him. 25 Bench Book, 46. 26 Petition of John Tufford, Hamilton, May 1838, UCS, vol. 194, 108341–3. 27 On Osgoode’s position, see also Greenwood, Legacies of Fear, 153. 28 Bench Book, 44. Walrath was tried along with another, William Lyons, who was acquitted. 29 Draper to John Joseph, Hamilton, 30 March 1838, UCSP, vol. 45, 11. 30 Toronto, 24 March 1838, CO 42/446/53. 31 Executive Council, 31 March 1838, UCSP, vol. 50, 3–5, 11. The councillors were

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not especially happy with what they regarded as the interference and undue leniency of the Colonial Office in the matter of the prisoners. See, for example, Executive Council to F.B. Head, 3 April 1838, CO 42/446/57. Arthur to Glenelg [Toronto], 14 April 1838, CO 42/445/54. Palladium (Toronto), 7 March 1838. Draper to John Macaulay, Toronto, 10 Aug. 1838, CO 42/449/364. Draper to Arthur, Toronto, 31 Aug. 1838, UCSP, vol. 54, 93–6. Draper reported here that at London there were eleven indictments preferred, fifteen prisoners tried, thirty-eight who petitioned, two bills ignored, and two prisoners who remained untried – fifty-seven cases in all. My count is that forty-one petitioned. Draper to John Joseph, London, 12 April 1838, UCS, vol. 191, 106297–8. Same to same, London, 13 April 1838, UCS, vol. 191, 106316. Executive Council, 10 April 1838, UCSP, vol. 50, 48–9. Arthur to Glenelg, 14 April 1838, CO 42/446/53. Draper to John Joseph, London, 13 April 1838, UCS, vol. 191, 106317–18. Same to same, London, 23 April 1838, UCS, vol. 192, 106820–1. Same to same, London, 24 April 1838, UCS, vol. 192, 106856–63. Same to same, London, 2 May 1838, UCS, vol. 193, 107228–31. Fourteen Hamilton prisoners had their petitions accepted, while forty-one London ones did. At London, Isaac Moore, like Peter Malcolm at Hamilton, stood trial despite petitioning. J.M. Gray, ‘“General” William Putnam,’ OH, 46:1 (winter 1954), at 10. Draper’s observations on the outbreak in the west, 28 May 1838, CO 42/447/ 146. Kingston Chronicle and Gazette, 17 March 1838. Sherwood doubtless had some associates on the bench at London; their identities are unknown. See Ian Pemberton, ‘Levius Peters Sherwood,’ DCB, 7: 794–6. David B. Read, The Lives of the Judges of Upper Canada and Ontario, from 1791 to the Present Time (Toronto: Rowsell and Hutchison, 1888), 105. Report in St Catharines Journal, 17 May 1838. Elijah Woodman Diary, 15, University of Western Ontario, Regional History Collection [hereafter UWO]. Proudfoot Family Papers, Proudfoot Diary no. 27, William Proudfoot to William Peddie, London, Aug. 1839, UWO. Draper’s report on London District prisoners who have petitioned, 18 May 1838, CO 42/447/300. Draper to John Joseph, London, 13 April 1838, UCS, vol. 191, 106317–18. Same to same, London, 24 April 1838, UCS, vol. 192, 106856–63. UCS, vol. 204, 112755, 112772, 112774–5, 112784–5. In the ensuing trial, just two of the four deponents testified.

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56 Draper to John Joseph, London, 10 May 1838, UCS, vol. 193, 107742. A note by John Askin in Draper’s possession could have been interpreted to read that Askin had held out inducements to Ladd to confess. Inducements rendered a prisoner’s examination inadmissible as evidence. See, note of John Askin, 27 Dec. 1837, UCS, vol. 204, 112777. 57 R. v. Alvaro Ladd, evidence of Joseph Seabrook, UCS, vol. 204, 112788–9. 58 Ibid., 112790, evidence of Benjamin Springer. 59 Ibid., 112792. 60 Ibid., 112793. 61 Ibid., 112794, evidence of John Johnston and evidence of Gilbert Harris. 62 Ibid., 112795, evidence of Gilbert Harris. 63 Ibid., 112795. 64 Ibid., 112795. 65 Ibid. , 1112796–7, evidence of Simeon Bullen, Warren [Buck?], and Otis Jeff[reday?]. The microfilm of the transcript is exceedingly faint. 66 Ibid., 112796, evidence of Warren [Buck?]. 67 Joseph Maria Burke to Alexander Macdonnell, London, 31 July 1838, AB 05, 08, Roman Catholic Archives, AO. The London Gazette of 5 May reported that the jury took about one hour to reach its verdict. 68 Dennis O’Brien Papers, Jane O’Brien to Mary Isabella Crichton, London, 31 May 1838, UWO. 69 Draper to John Joseph, London, 5 May 1838, UCSP, vol. 45, 104–5. 70 L.T. Sherwood to John Joseph, Toronto, 16 May 1838, UCS, vol. 194, 107965–6. 71 Executive Council, UCSP, vols. 64, 90, 92. 72 L.T. Sherwood to John Joseph, Toronto, 16 May 1838, UC, vol. 194, 107964–5. Cook’s trial saw one witness who had sworn to his evidence before the grand jury refuse to do likewise before the court, to the disgust of the London Gazette. See Gazette, 5 May 1838. Ebenezer Wilcox was tried along with Enoch Moore, and both were found guilty. The crown actually mustered three witnesses testifying to the actions of the two. R. v. Ebenezer Wilcox and Enoch Moore, CO 42/447/259–63. 73 St Catharines Journal, 7 June 1838; report of London Gazette in St Catharines Journal, 21 June 1838. 74 On 30 Aug. Cook was ordered freed. Executive Council, 30 Aug. 1838, UCSP, vol. 64, 91. Wilcox was kept waiting longer, not being recommended for pardon until October. Executive Council, 11 Oct. 1838, UCSP, vol. 97, 49. 75 R. v. Robert Cook, UCS, vol. 193, 107353–6; R. v. Isaac Moore and Harvey Bryant, CO 42/447/278–80, 284; R. v. John Moore, CO 42/447/252–3; R. v. Ebenezer Wilcox and Enoch Moore, CO 42/447/264–6, 269–71. In a fifth case, David Hagerman’s lawyer objected, though it is not clear on what grounds, that his

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81 82 83 84

85 86 87

88 89 90 91 92 93

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client’s examination ‘could not go to the Jury, but he was overruled by the court.’ London Gazette, 5 May 1838. London Gazette, 3 May 1838. The paper reproduced a copy of the examination. The trial record is in Bench Book, 20–5. Ibid., 21. Ibid., 24. The jury returned a verdict of not guilty. Macaulay did say that in such cases, if a prisoner were to be charged, he should be told ‘at once’ so that ‘he may if disposed not implicate himself.’ The admissibility of evidence also became an issue at Hamilton in the five cases. See ibid., 33, 34, 39, 58, 61, 62, 69. In each instance Macaulay’s rulings favoured the prosecution, though the question of the sufficiency of the evidence against Elias Snyder led Macaulay to refer the matter to his brother judges. Snyder was eventually pardoned. Draper to John Macaulay, Toronto, 10 Aug. 1838, CO 42/449/336. R.C. Watt, ‘The Political Prisoners in Upper Canada,’ EHR, 41:164 (October, 1926), at 540. Glenelg to Arthur, 30 May 1838, CO 42/446/59. The main sources for the Short Hills raid are: E. Cruikshank, ‘The Insurrection in the Short Hills in 1838,’ Ontario Historical Society Papers and Records, 8 (1907), at 5–23; E.A. Cruikshank, ‘A Twice-Told Tale (The Insurrection in the Short Hills in 1838),’ Ontario Historical Society Papers and Records, 23 (1926), at 180–222; Louis Blake Duff, ‘Samuel Chandler of St Johns,’ Welland County Historical Society Papers and Records, 5 (1938), at 115–49; Colin Read, ‘The Short Hills Raid of June, 1838, and Its Aftermath,’ OH, 68:2 (June 1976), at 93–115. Colin K. Duquemin, Niagara Rebels: The Niagara Frontier in the Upper Canada Rebellion, 1837–1838 (St Catharines, Ont.: Norman 2001). Greenwood, ‘“Brigands,”’ at 51. Memorandum by [Draper], n.d., UCS, vol. 200, 110813. Charles R. Sanderson, ed., The Arthur Papers, vol. 1 (Toronto: Toronto Public Libraries and University of Toronto Press 1957), 210, Arthur to Colborne, Drummondville, 26 June 1838. Arthur to Durham, Toronto, 27 June 1838, CO 42/448/180–81A. Palladium (Toronto), 27 June 1838. See Robert L. Fraser, ‘Jonas Jones,’ DCB 7:456–61. Three associate justices sat with him. E.A. Cruikshank, A Memoir of the Colonel the Honourable James Kerby, His Life in Letters, Welland County Historical Society Papers and Records, 4 (1931), at 227. Patriot (Toronto), 17 Aug. 1838. For Murray Greenwood’s discussion of public and private motivation, see his essay, ‘The Prince Affair,’ in this volume. Draper to John Macaulay, Toronto, 22 July 1838, UCSP, vol. 50, 174.

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94 Examination of George Cooley, 27 June 1838, RG 1, E 1 (Upper Canada State Books [hereafter UCSB], vol. K, 432, NA. 95 See Jones’ address, Patriot (Toronto), 17 August 1838. 96 Report by R. Laidlaw [hereafter Laidlaw report], 20 July 1838, MG 24, I 26 (Sheriff Alexander Hamilton Papers), vol. 65, N.A. See also R. v. George Cooley, UCSB, vol. K, 430–1. 97 Niagara Reporter, 20 July 1838, in Cruikshank, ‘A Twice-Told Tale,’ at 203. 98 Unfortunately, the report prepared for Sheriff Hamilton is unclear here. It has Draper noting that Kemp’s and Wait’s Upper Canadian residence had been established, then his asserting ‘that a Residence in the Country constitutes Bona facie evidence of this being so, and is sufficient to sustain the indictment.’ The passage makes sense only if one reads ‘being so’ as an allusion to one’s being a British subject. Laidlaw report, 20 July 1838. 99 Laidlaw report, 20 July 1838. 100 Draper to John Macaulay, Toronto, 23 July 1838, CO 42/448/395A. 101 Niagara Reporter, 27 July 1838, in ‘A Twice-Told Tale,’ at 203–4. 102 The Niagara Reporter’s account identifies eleven witnesses. Jones’s version shows that there were thirteen. See UCSB, vol. 50, 136–57. 103 Niagara Reporter, 27 July 1838, in Cruikshank, ‘A Twice-Told Tale,’ at 207. 104 Ibid., at 205. 105 Ibid., at 206. 106 Ibid., at 206. 107 Ibid., at 206. 108 Ibid., at 208. Jones noted that Boulton did not contest the facts of the case. Jonas Jones to John Macaulay, Toronto, 23 July 1838, CO 42/448/395A. 109 Niagara Reporter, 27 July 1838, in Cruikshank, ‘A Twice-Told Tale,’ at 208. 110 Ibid., at 209. 111 Ibid., at 209. 112 Greenwood, ‘“Brigands,”’ at 54–5. 113 Niagara Reporter, in Cruikshank, ‘A Twice-Told Tale,’ at 209. 114 Greenwood, ‘“Brigands,”’ at 56–7. 115 UCSB, vol. K, 411–13, 26 July 1838; UCSP, vol. 50, 198–9, 26 July 1838. 116 Arthur to Glenelg, 28 July 1838, CO 42/448/433–4. Arthur had known for some time that the British law officers were unhappy with the statute. 117 Greenwood, ‘“Brigands,”’ at 59–65. 118 Diary of Robert Gilkison, 30 July 1838, MG 24, I 25 (Gilkison Family Papers), vol. 2, NA. Niagara Reporter, 3 Aug. 1838. The Reporter’s account of Miller’s trial also appears in Cruikshank, ‘A Twice-Told Tale,’ at 212–15. I consulted the original.

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119 Miller was brought up on 1 August, though not until 9 August did the Executive Council actually get around to deciding whether or not to proceed with prosecutions under the contentious statute. It determined to do so until the legislation was actually disallowed. Executive Council, 9 Aug. 1838, UCSB, vol. L, 40–2. 120 For one thing, Miller asserted that he had originally been scheduled to be tried before Morreau but had successfully badgered a furious Jones into granting him the requisite time to prepare his case. See Linus W. Miller, Notes of an Exile to Van Dieman’s Land ... [1846] (New York: Johnson Reprint Corporation 1968), 65–72. This story seems apocryphal, not the least because Americans tried under the Lawless Aggressions Act were not granted the customary ten days between the serving of the indictment and the holding of their trials. 121 Niagara Reporter, 3 Aug. 1838. Law student Miller had wanted to defend himself. 122 Ibid. 123 Ibid. 124 Ibid. 125 Ibid. 126 Laidlaw report, 1 Aug. 1838. The Niagara Reporter did not include this allusion in its version of Hart’s testimony, nor did Jones. For the latter, see R. v. Linus Wilson Miller, CO 42/450/423. 127 Niagara Reporter, 3 Aug. 1838. Given his verbosity, Miller’s account of his trial is quite brief. He noted that he had previously suffered a ‘partial derangement, which lasted two or three months’ and that his defence was a sham. He implied that the way his lawyer conducted matters proved him, not his client, a fool or a scoundrel. The accounts of the trials in the papers were ‘generally palpably false.’ Miller, Notes of An Exile, 84–7. 128 Executive Council, 9 Aug. 1838, UCSB, vol. L, 38. 129 Draper to John Macaulay, Niagara, 3 Aug. 1838, UCSP, vol. 57, 19. 130 Laidlaw report, 1 Aug. 1838. 131 Petition of James Waggoner, Liverpool, 20 Dec. 1838, CO 42/454/497. While sentenced to death on 4 August, Americans Reynolds, Mallory, and Miller were not to have their bodies dissected, as were the seventeen others also condemned that day. Laidlaw report. 132 Possibly fourteen were tried, including three Bradys, but I believe that there were, in fact, just two Bradys tried, with a mix-up in given names producing the presumed third Brady. 133 Executive Council, 3 Aug. 1838, UCSB, vol. L, 22. The council decided that the statute did not apply to the Short Hills prisoners. Draper originally seems

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134 135 136 137 138 139 140 141 142 143 144 145 146

147 148 149 150 151 152 153

154 155 156 157 158 159 160

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to have thought that it did. See Draper to John Macaulay, Toronto, 22 July 1838, UCSP, vol. 50, 178. Read and Stagg, ed., Rebellion, 369. Draper to John Macaulay, Niagara, 3 Aug. 1838, UCSP, vol. 57, 21. Laidlaw report, 3 Aug. 1838. Niagara Reporter, in St Catharines Journal, 16 Aug. 1838. Affidavit of Alexander Stewart, 4 Aug. 1838, UCS, vol. 201, 112325. Miller, Notes of An Exile, 93. R. v. Jacob Beamer, UCSP, vol. 57, 84. There are three sources for the trial: Jones’s trial notes cited previously, the Laidlaw report, and the St Catharines Journal, 23 Aug. 1838. UCSP, vol. 57, 89–90. Niagara Reporter, in St Catharines Journal, 23 Aug. 1838. Jones’s notes say nothing of the rebuke he offered. Stewart, in defending Benjamin Wait, had questioned the credibility of both Seymour and Hart. Niagara Reporter, in St Catharines Journal, 16 Aug. 1838. Niagara Reporter, in St Catharines Journal, 23 Aug. 1838. Ibid. The former trial alluded to must have been that of Benjamin Wait, though nothing in the records extant shows an exchange between Stewart and Seymour or a rebuke by Stewart of Seymour. Ibid. Draper to John Macaulay, Toronto, 20 Aug. 1838, UCS, vol. 202, 111932. St Catharines Journal, 23 Aug. 1838. Draper to John Macaulay, Toronto, 20 Aug. 1838, UCS, vol. 202, 111935–6. Laidlaw report, 17 Aug. 1838. Draper to John Macaulay, Toronto, 20 Aug. 1838, UCS, vol. 202, 111934–5. The government did not exact vengeance on Hart and Seymour, releasing them, along with Doan, from jail in September. See Draper to John Macaulay, Toronto, 3 Sept. 1838, UCSP, vol. 57, 103–4. Four tried before Beamer were also district residents. Three had been found guilty, with two recommended to mercy. Executive Council, 29 Aug. 1838, UCSB, vol. L, 74, 76, 81. W.L. Marcy to Arthur, Albany, 13 Aug. 1838, UCS, vol. 201, 111587–9. Miller, Notes of An Exile, 97–8. Greenwood, ‘“Brigands,”’ at 57. Watt, ‘The Political Prisoners in Upper Canada,’ at 549. Durham had insisted on the conditional pardons. Wright ‘“Harshness and Forbearance,”’ at 100nn. 21–2; James A. Gibson, ‘Political Prisoners, Transportation for Life, and Responsible Government in Canada,’ OH, 67:4 (December 1975), at 188; Cassandra Pybus, ‘“American

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162 163

164

165 166

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168 169 170 171 172 173 174 175

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citizens ... but British slaves”: Yankee Political Prisoners in Van Diemen’s Land, 1839–1850’ (unpublished paper presented to the Canadian Historical Association, June 1999), at 6. Pybus notes that both Nova Scotia and New Brunswick, and particularly Newfoundland and Lower Canada, had made much greater use of transportation than Upper Canada. Pybus, ‘“American citizens ... but British slaves,”’ at 6n.24. Miller, Notes of an Exile, 102–4. Miller, in his lengthy recapitulation of events, was mute upon the point, though he related that ‘to my inexpressable [sic] joy I found my name among the twelve.’ Notes of an Exile, 130. See Miller, Notes of an Exile, 130; Benjamin Wait, The Wait Letters, introduction by Mary Brown and afterword by Michael Cross (Erin, Ont: Press Porcepic 1976), 82, 86. Petition of John G. Parker, 10 April 1838, UCS, vol. 190, 106186. See John Macdonell, ed., Reports of State Trials, New Series, vol. 3, 1831 to 1840 (London: Eyre and Spottiswoode 1891), at 963–1031. The proceedings in the Court of Exchequer, 24–8, January 1839, are outlined at 1031–6. Miller’s report of the Queen’s Bench proceedings, obviously copied from another source, contains detail missing from Macdonell’s precis. Miller, Notes of An Exile, 141–212. One of the lawyers for the prisoners noted that he would bring in no further cases ‘as the arguments which he had advanced would, in general, apply to all.’ Miller, Notes of an Exile, 199; for the arguments presented, see Macdonell, ed., Reports of State Trials, at 1008–14, 1033–6. C.H.P. Normanby to Arthur, 23 July 1839, CO 42 465/235; L.M. Phillips to James Stephen, 13 July 1839, CO 42/458/150A, 150B. Arthur to Normanby, 21 Aug. 1839, CO 42/462/84. Miller, Notes of an Exile, 218. See Wait, Wait Letters, 89–94, 124. As Greenwood’s essay on Prince notes, the Lawless Aggressions Act was repealed in 1840, when it was replaced by a comparable piece of legislation. McNaught, cited in Greenwood and Wright, ‘Introduction,’ in Canadian State Trials I, at 33–4. See ibid., at 34. The trial of Charles P. Walrath and William Lyons and that of Solomon Lossing. It is not absolutely clear that the defence was not ready in Lossing’s case. See Bench Book, 36, 66. Ibid., 32 Niagara Reporter, in St Catharines Journal, 16 Aug. 1838.

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178 W. Ryerson to Egerton Ryerson, April 1838, Ryerson Papers, UCA. 179 Petition of John A. Tidy et al., Fort Henry, 19 July 1838, UCS, vol. 203, 112570–3. 180 Petition of Nathaniel Deo [n.d], Gore District Gaol, RG 5, B 36, Records of the London District Magistrates, vol. 11, NA. 181 J. Roaf to Durham, Quebec, 19 June 1838, MG 24, A 27, Durham Papers, Series 2, 288, NA. 182 C.A. Hagerman to Arthur [Toronto], 28 April 1838, UCS, vol. 192, 107002–3. 183 Patriot (Toronto), 9 March 1838.

4 The Kingston and London Courts Martial* BARRY WRIGHT

As seen in the previous essay by Colin Read, Upper Canada’s Lawless Aggressions Act (1 Vic. c.3 – see app. D, U.C. doc.1) created a new felony applicable to foreign invaders in league with British subjects which was applied at the trial of the Short Hills raiders. The act also provided an alternative procedure whereby foreigners and subjects alike could be tried by court martial for lawless-aggression offences. This option was pursued at the Kingston and London proceedings examined here. Courts martial became increasingly likely by the fall of 1838. As Murray Greenwood explains in the next essay, the British law officers had recommended disallowance of the Lawless Aggressions Act and one of their chief objections concerned the act’s creation of a new felony applicable only to aliens. The recommendation was ultimately ignored.1 Not only was it impolitic (jeopardizing the convictions of Americans tried after the Short Hills invasion), it also faced Chief Justice John Beverley Robinson’s sustained legal objections which he communicated in person while visiting England. The government of Upper Canada was reluctant to embrace courts martial. It had long held the view that regular trials would have greater * I am indebted to Murray Greenwood, whose unpublished essay ‘“Brigands” and the Law of Treason in Upper Canada, 1837–1839’ was a valuable guide to many of the issues examined here. I also thank Colin Read and Cassandra Pybus for comments on an earlier version of this essay.

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public credibility and effect. Even during the difficult times of the War of 1812, Robinson, as acting attorney general, resisted the court martial of civilians. Official concern about public opinion was prominent during the 1838 treason trials examined in the previous essays, much of it based on an awareness that regular trials lent greater legitimacy to the government’s repression. The flawed court martial of Thomas Sutherland in Toronto in March 1838 underscored the government’s ambivalence about the procedure. As late as October 1838, Lieutenant Governor Sir George Arthur remained concerned about public perceptions despite the cloud still hanging over the regular trial of Americans for the lawlessaggressions felony. By this time, however, the British government had indicated its preference for court-martial proceedings against invaders who were not under the protection of the crown and therefore not liable for treason. As Greenwood explains in the next essay, international and English law justified the application of military justice, even in the case of invading ‘brigands’ whose country was at peace with Britain. Given the unresolved controversy over the new lawless-aggressions felony, courts martial also avoided the need to stretch the doctrine of allegiance to what would probably be unsustainable lengths if treason prosecutions in the regular courts were to be applied beyond the handful of raiders who were obviously British subjects. Even then, findings of local allegiance, applicable to new residents or visitors, or application of the largely discredited doctrine of perpetual allegiance, applicable to Britishborn raiders as was the case with Edward Theller, still would likely mean a number of prisoners escaping trial. The majority of men tried at the Kingston and London courts martial were indeed Americans charged under the first section of the Lawless Aggressions Act. The considerations that led to their court martial overshadowed any concern about the legal rights of British subjects who participated in the invasions at Prescott and Windsor. It is here that the most serious injustice is found. The second section of the Lawless Aggressions Act, which allowed for the court martial of civilian subjects, not only widened liability beyond existing definitions of levying war but was so elastically framed that the presence of aliens during a disturbance fell within its definition. The court-martial procedure itself effectively suspended the established guarantees set out in the Treason Act, 1696 (7 and 8 Wm.III c.3) for regular trials, including the need for two prosecution witnesses and the defendant’s rights to legal representation and an advanced look at the prosecution’s evidence. Although prisoners had access to legal representation as an indulgence, the few who took advantage of counsel

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could not make full use of them. As for the government side, the prosecuting judge advocate was also the court’s adviser on points of law, a mixture of functions that, together with the absence of a jury, had become increasingly anomolous following the Glorious Revolution of 1689 and the 1701 Act of Settlement. In effect, the rights of those under the protection of the crown were suspended by simply changing the name of the crime from treasonable levying of war to lawless aggression. Moreover, in general terms, the court martial of civilian British subjects in peacetime when ordinary courts could function clashed with prevailing British constitutional standards.2 As we shall see, 140 cases were tried in just over a month in Kingston starting in late November 1838 while 44 cases in London took just over three weeks in January 1839. The courts worked quickly, especially given that most prisoners pleaded not guilty. Nonetheless, to avoid legal difficulties, care was taken not to repeat the fatal irregularities that had characterized the court martial of Thomas Sutherland in Toronto and the lawless-aggression offences were defined narrowly, in terms similar to the treasonable levying of war. Together with the limited availability of counsel, these precautions may have avoided some potential technical legal objections and the perception of blatant injustice. Yet the procedural and broader constitutional concerns were not disposed of. Simply put, British civilian subjects faced proceedings that put them in a considerably weaker position than they would have faced in a regular trial, an option that remained possible in late 1838. The government’s position was correspondingly stronger. Of the 138 men convicted in Kingston, at least ten were British subjects; of the forty-three convicted in London, at least nine were British subjects. Given the nature of the court-martial procedure, it is hardly surprising that there were only two acquittals in Kingston and a single acquittal in London. Conviction for treason or many felonies by a regular court in this period resulted in an automatic sentence of death, which could be modified by a conditional pardon granted through the royal prerogative of mercy. Courts martial had more sentencing flexibility and could impose a direct sentence involving lesser punishment such as transportation (used regularly for military convicts). Mindful of the British law officers’ disapproval of the Lawless Aggressions Act and of the disallowance of Lord Durham’s Bermuda Ordinance in Lower Canada, the courts did not exercise this inherent sentencing flexibility. As a result, nearly all 181 convicted men at Kingston and London were sentenced to death, with the court or judge advocate recommending consideration for royal mercy in

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cases where there were mitigating circumstances, in a manner similar to a regular court. The local executive then exercised a delegated version of the prerogative by granting conditional pardons with secondary punishments. Of the Kingston convicts, eleven were executed, sixty (five of whom were British subjects) were transported, three received penitentiary terms, and sixty-four were pardoned on condition of leaving the province. In London, six convicts (two of whom were British subjects) were executed, eighteen (two of whom were British subjects) were transported, and nineteen (five of whom were British subjects) were pardoned on condition of leaving the province. p r e l ud e t o t he ki ng st o n c o u r t ma r ti a l The Sutherland Court Martial in Toronto The Kingston and London courts martial stood in some contrast to the earlier case of Thomas Sutherland, the first use of the Lawless Aggressions Act and of the court-martial procedure during the crisis in Upper Canada. His trial took place on 13 March 1838, only nine days after Colonel John Prince had captured him carrying a sword while crossing frozen Lake Erie on foot near the mouth of Detroit River. A boastful adventurer, Sutherland argued with the other patriot leaders on Navy Island, commanded the occupation of Bois Blanc Island near Amherstburg, robbed arsenals, and recruited patriots in the United States.3 Lieutenant Governor Sir Francis Bond Head, anxious for a quick example, drafted a vague indictment claiming that Sutherland was taken within the province in arms after 12 January as required by the provisions of the new legislation.4 The court consisted of nine militia officers with George Jarvis as president and Colonel James Fitzgibbon, who had led the expedition against rebel forces at Montgomery’s Tavern, as prosecutor. After a bungled suicide attempt, Sutherland mounted an exhaustive and lengthy defence assisted by lawyer George Ridout as a ‘friend.’5 Sutherland’s questions raised reasonable doubts about whether he was within the territory of Upper Canada when captured and whether the sword he carried was evidence of being in arms against Her Majesty. There were also questions about the admissibility and accuracy of an unsigned confession taken by Colonel Prince.6 Nor did the evidence establish the Lawless Aggressions Act’s requirement that the prisoner was in league with traitorous subjects. Sutherland claimed that his hostile activities (at Navy and Bois Blanc islands) took place before the act came into effect and that he had

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fallen out with Mackenzie, subsequently had nothing to do with other rebels, and was no longer a patriot. Apart from suggestions in the confession taken by Prince, there was no evidence linking him with later patriot incursions such as the Pelee Island raid. Those raiders had been cleared from the island nearly a day before Sutherland’s capture. Nine of them, arrested by Prince, were held indefinitely as prisoners of war, and, as Greenwood explains in the following essay, were not tried until July 1839 under the controversial felony provision of the Lawless Aggressions Act. The new lieutenant governor voiced immediate concerns about the Sutherland proceedings when he arrived in Toronto in late March. After Sutherland was found guilty and sentenced to transportation for life, Arthur twice referred the case to Attorney General Christopher Hagerman, who responded that the evidence supported a conviction, adding that courts martial were not bound to the same degree of procedural strictness as the regular courts.7 Arthur then referred the case to the British government. The British law officers found the proceedings to be defective on the grounds of the vagueness of Bond Head’s indictment, lack of proof that the prisoner fell within the legislative provisions, and various procedural concerns related to provincial militia laws and established practice for courts martial.8 Sutherland was released from the Quebec Citadel in 1839. The experience of the Sutherland proceedings probably contributed to the government’s reluctance to pursue the court-martial option in the short term. When it next resorted to the procedure at the end of the year, much greater care was taken. The judge advocates (future political rivals Solicitor General William Draper and Henry Sherwood) proved more capable than Fitzgibbon, whose talents lay more in the military than in legal line. Treason in Eastern Upper Canada: John A. Macdonald Makes a Splash Sutherland’s court martial and other measures did little to deter the patriot problem. It grew in severity and extended to the eastern parts of the province, the most serious incidents being the scattered depredations of the ‘pirate’ Bill Johnson and the patriot invasion near Prescott, the biggest engagement of the crisis.9 However, as Betsy Boyce’s recent study shows, there was also greater disaffection in the east than traditionally allowed, particularly in the Midland District.10 Regional militia regiments were called out when news of Mackenzie’s rising was received and local magistrates ordered the arrest of known dissidents.11 Some of these men

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who were released on bail became involved in the ‘Kingston conspiracy.’ Patriots in New York crossed the ice, only to be repulsed by the militia from Hickory Island in late February. The invaders had expected to be supported by rebels in the province, and indeed armed men and abandoned sleighs were reported in Hastings County and an arms cache was found near Napanee. Nelson Reynolds and over fifty men alleged to be marching on Kingston to support the invasion force were arrested.12 Others implicated in Johnson’s destruction of the Sir Robert Peel in May and raids in the Thousand Islands and Bay of Quinte areas were added to this group.13 In the end, about half of the eighty held in the Midland District were brought to trial for treason when the regular assize session opened in Kingston in May. Queen’s Bench justice Archibald McLean defined treason widely in his charge to the grand jury, adding that, since foreign invaders owed no allegiance, they could not be tried but under the law of nations were at the mere will and pleasure of the captors and could be summarily executed.14 Understandably, none of the prisoners claimed to be American, and despite McLean’s wide charge, the grand jury found only nine true bills on charges of treason, ignoring thirty-three others.15 Eight of the prisoners came up for trial on 4 July and Reynold was first, the result being an acquittal on 6 July.16 The prosecution of Peter Lesage was dropped because a key witness absconded, as was Tobias Meyers’s case because of Reynold’s acquittal on similar evidence. The trials of Samuel Marsh, Peter Orr, Asa Lewis, and Christopher Lafontaine followed on 7 July and Anson Day on 9 July, all resulting in acquittals. The energetic defence counsel for these men was none other than John A. Macdonald, called to the bar only two years earlier. Before the trials he vigorously challenged the selection of jurors, and during the trials he attacked the validity of signed documents said to be confessions, caused prosecution witnesses to contradict one another, and demonstrated the crown’s failure to prove intent. The British Whig observed that the prisoners’ counsel acted with great circumspection and added that the rejected indictments and acquittals demonstrated the excessive zeal of the magistrates.17 The Chronicle and Gazette credited the magnanimity of the government for the outcome, noting that the crown, represented by John S. Cartwright, acted with great integrity and impartiality. It also gave credit to the defence: ‘The prisoners were defended with much ingenuity and ability by Mr. J.A. Macdonald, who, though one of the youngest barristers in the province, is rapidly rising in his profession.’18 Macdonald’s advocacy was to be more limited at the Kingston Court Martial where the stakes were

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higher. His decision to represent the prisoners at both proceedings was a courageous political gamble, particularly given the state of local feeling after the Prescott invasions. It proved to be an astute one, ensuring his rapid rise to prominence.19 Continuing Frontier Tensions and the Prescott Invasion Frontier tensions continued into the fall, with the patriots undeterred by the convictions of the Short Hills raiders and the Kingston trial of Nelson and company. Nor were they discouraged by the decided lack of local popular support for the invaders and the strong militia turnouts across the province. The invasions near Prescott and Windsor reflected the work of the Hunters’ Lodges, a network of secret societies from Michigan to Vermont that had been formed in early 1838 to end British rule and establish republican government throughout North America. Some of the exiled rebels were active in the lodges, while others fell out with them. By November, the provincial government had intelligence that armed concentrations were gathering in Syracuse, Salina, Sackett’s Harbor, and other parts of northeastern New York state in violation of U.S. neutrality laws and in defiance of American government disapproval (although some prominent local figures, including a judge and congressmen, supported the Hunters). Lieutenant Governor Arthur was concerned that, if the patriots succeeded in gaining a foothold, provincial rebellion could break out again, followed possibly by American government support and a new war with Britain.20 On 11 November a steamboat with about 400 Hunters embarked from Sackett’s Harbor, joined by two schooners. Patriot general John Ward Birge proceeded to Ogdensburg, claiming illness but promising reinforcements for the men in the two schooners. Bill Johnson, recently acquitted by a New York court of arson in connection with the destruction of the Sir Robert Peel,21 grounded one of the schooners on the U.S. side of the St Lawrence. Colonel Nils Von Schoultz commanded the other schooner and was left in charge of the invasion with about 180 men, over a third of whom were teenagers or in their early twenties. He landed briefly at Prescott and then drifted about two kilometres downriver where the men disembarked and dragged their guns up to a stone windmill. During this time, a small British steamer harassed other American boats and prevented reinforcements from landing. By the evening of 12 November, British marines, regulars, and militia had surrounded the windmill and begun a siege lasting several days, during which four patriots recrossing the river for supplies were captured. Abandoned by their

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fellow patriots, the dispirited invaders quickly realized that there was little prospect of welcome from residents. Volunteers quickly swelled British forces to nearly 2,000, and on the 16th the invaders succumbed. Twenty patriots had been killed and five escaped, while thirteen British soldiers and militia lost their lives, including a lieutenant whose mutilated corpse enraged the public and became prominent evidence in the proceedings that followed. Close to 160 prisoners were marched to Prescott, taken by steamer to Kingston, and then marched to Fort Henry, with marines and regular soldiers protecting them from the angry crowds.22 The invasion of Prescott demonstrated for many the folly of Lord Durham’s policy of lenience. Many Tories, who embraced Colonel Prince as a hero, clamoured for a more assertive and decisive military response to the problem. The Kingston Chronicle and Gazette referred to suggestions that the prisoners be exchanged for leading figures such as Mackenzie, Johnson, and Birge, but it preferred swift justice – this despite its acknowledgment that prominent men, who avoided actually participating in the invasion, had deluded many of the prisoners into believing that they were liberating willing Upper Canadians from British tyranny.23 Lieutenant Governor Arthur and his council had objected to Durham’s earlier interventions, concerned that the patriots would perceive them as a sign of weakness. However, the government also believed that resort to civilian rather than military proceedings was prudent in terms of effect on public opinion and as demonstration of the strength of regular British justice.24 On the other hand, concern about the legality of courts martial had been evaporating as imperial authorities suggested that the procedure was a valid response to the crisis despite the Sutherland case and implied, through disagreement over the felony provision of the Lawless Aggressions Act, that court martial was the preferred means of dealing with foreign invaders.25 Arthur had also been instructed in mid-July to coordinate his government’s response with that of Lower Canada and by 8 November Sir John Colborne and the Special Council had enacted a retroactive ordinance authorizing trial of rebels by courts martial.26 Despite residual government reluctance, the die was cast for abandoning regular trials (see app. D, U.C. doc.7) t h e k i ng st o n c o u r t m a rt i a l , d ec ember 1838 On 20 November, Lieutenant Governor Arthur issued a militia general order directing that a court martial be assembled at Fort Henry on 26

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November for the trial of persons charged with being in arms against Her Majesty in the province contrary to the Lawless Aggressions Act. The records of the proceedings and related correspondence are well preserved.27 Of the men in custody, 140 prisoners faced trial, while eleven others, several of whom subsequently died, were in the Kingston hospital.28 Only four trials involved a single accused: Von Schoultz and his officers Daniel George and Dorephus (or Dorethus) Abbey, all tried in late November, and a more minor figure, Lyman Lewis, tried in early January (also known as Leetch or Leach, because of difficulties in establishing his identity). As many as thirteen co-accused were tried together, while most trials involved about eight men at a time.29 The proceedings against patriot leaders Von Schoultz, George, and Abbey and the ten or eleven British subjects will be the focus here, while general points will be made about the other cases. Composition of the Court, Procedure, and Jurisdiction The court at Kingston was usually composed of twelve senior regular and militia officers plus Colonel John Marks as president and Solicitor General Draper (who held commission as a militia colonel) as judge advocate.30 Sections 29–33 of the recently consolidated provincial Militia Act specified a minimum of eight commissioned officers plus a field officer as president and a judge advocate, who played the leading role as both prosecutor and chief law adviser, appointed by the lieutenant governor.31 The act also outlined procedure: judgments of the court had to pass with the concurrence of two-thirds of the members, but the voting and opinions of members of the court martial were not publicized (see app. D, U.C. doc.8). Other procedural matters were governed by established conventions for British courts martial.32 While there were no appeals of judgments, the cases were reviewed by the colonial secretary, who referred them on to the British law officers and the judge advocate general. Unlike the Sutherland case, the proceedings at Kingston, as well as those at London, were upheld on review.33 The Militia Act made no reference to defence counsel and the examination of witnesses. In established British court-martial practice, the prisoner’s ability to cross-examine witnesses and address the court was limited to written form through the judge advocate. Prisoners could not be fully represented in court. Whether lawyers or ‘friends’ were permitted depended on the discretion of the court. Legal advisers were permitted at Kingston as well as London. At Kingston, Judge Advocate Draper

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allowed prisoners to cross-examine prosecution witnesses and address the court directly. At London, Judge Advocate Sherwood exercised tighter control, deciding that he would cross-examine on the prisoners’ behalf and insisting that their addresses to the court be written out and read by him. Although there was some division in contemporary public opinion about the fairness of the proceedings,34 even the Kingston ‘concessions’ were a far cry from the procedural protections of the 1696 Treason Act that subjects enjoyed in regular trial, as John A. Macdonald was to argue. While the Militia Act outlined rudimentary procedure, the jurisdiction of the court and the offences themselves were set out in the Lawless Aggressions Act.35 All Kingston prisoners, except for the eight considered British subjects, were tried under the first section of the legislation, having joined British subjects in arms and engaged in acts of hostility. The remaining eight were charged under the second section of the act, as having traitorously joined the invaders. Judge Advocate Draper made no distinction in defining the offences under either section, noting that whatever acts constituted levying war for the purpose of British subjects charged with high treason constituted the requisite actions under the provisions of the legislation.36 The Trial of Patriot Officers These points were outlined in Draper’s address to the court in the first case on 26 November, that of Daniel George, ‘paymaster of the patriots.’ In possession of considerable money and a number of patriot documents in cipher, George was one of the prisoners caught trying to return to the United States under the cover of darkness before the surrender. Donald Creighton suggests that, in the week before the proceedings commenced, George had twice attempted to get a lawyer and was turned down. Macdonald may have hesitated given community hostility against the patriots, the overwhelming evidence against them, and the limits he would face as counsel. Nonetheless, his success in the earlier trials of Reynolds and company emboldened him to take the risk.37 G.F.G. Stanley claims that George and his counsel were able to get the trial adjourned to 28 November in order to prepare a defence, but while Macdonald did not begin assisting George until that day,38 the source of delay was in fact the prosecution. Draper wrote to Arthur that he had hoped to get through a good many more of the cases during the first week but had not anticipated the huge difficulties in establishing the identity and country of the

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prisoners and their ages.39 Draper finished presenting the prosecution’s case on the 29th and George was granted an adjournment until 1 December. This was not a great indulgence compared to the ten-day advance look at the prosecution’s case (indictment and witnesses) afforded in regular treason trials. Draper’s case satisfied three essential requirements of section 1 of the Lawless Aggressions Act. First, evidence was presented that George was a citizen of a foreign state at peace with Britain. Secondly, George was associated with British subjects who were in arms against the queen. Since no inhabitants had joined the patriots after their landing, this point was supported by the testimony of three prisoners, subsequently discharged, who were British subjects residing in the United States; Levi Chipman (who gave evidence for the crown in all subsequent cases); fourteen-year-old Alonzo Mayatt (anglicized, it would appear, from Laurent Melhiot); and Jean-Baptiste Raza (anglicized from Razeau). Finally, evidence from these prisoners and lieutenants in the Royal Navy and the Royal Marines established that George participated actively in the hostilities by helping to organize the invasion, moving weapons into the province, and commanding men linked to several deaths (notably the wounded Lieutenant Johnson who was beaten with a musket until it broke). These acts easily constituted levying war in cases of treason. When Draper finished the prosecution’s case, and George’s cross-examination was complete, the court moved on to the Von Schoultz and Abbey cases while George prepared his final address.40 On 1 December, George presented his address to the court, drafted by Macdonald, which amplified matters raised in cross-examination. The definition of foreign subjects under the Lawless Aggressions Act and the lack of evidence of George’s nationality were problems. The prosecution’s chief witness, Levi Chipman, was said to be a British deserter who would stoop to anything to save his own life and the two others were mere lads. There was insufficient evidence of George’s intent and the only direct evidence establishing that he was engaged in hostilities came from Chipman. The prosecution had failed to establish George’s connection with the invaders (he claimed that he had simply crossed from the United States in a boat the evening of his arrest and was caught shortly after trying to return). Where Macdonald’s hand was most evident was in a final point related to the prosecution’s witnesses: in equivalent cases of levying war, where British subjects faced a treason prosecution in the regular courts, the common law (Macdonald was in fact referring here to the 1696 Treason Act) required the testimony of at least two credible witnesses to the act in question.41

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The Von Schoultz case came up next on 29 November and was resolved before George’s guilty verdict.42 A Swedish national born in Finland and a former Polish officer, Nils Von Schoultz met Macdonald briefly for legal advice but insisted on taking responsibility for his actions and command of others by pleading guilty.43 After securing the court’s consent to forward a statement made before a magistrate to the lieutenant governor, Von Schoultz entered a plea of guilty. The judge advocate reminded him of his right to trial and the penalty, warning that the court could not modify it, nor could a recommendation of mercy be expected. Despite the caution, Von Schoultz repeated his plea, admitting that he commanded the invaders and adding that he had been deceived about circumstances in Upper Canada. Despite the plea, the court examined more than one witness for the prosecution: a lieutenant of the Royal Marines, a medical officer in the militia and another militiaman, prisoners Chipman, Mayatt, and Raza, and the magistrate who had taken Von Schoultz’s earlier statement (to testify that it had been taken voluntarily). The magistrate’s statement, which outlined Von Schoultz’s background and the nature of his involvement, was read and then Von Schoultz addressed the court. He did not ask for mercy but defended his honour, expressing horror at the prosecution’s suggestion that the wounded Lieutenant Johnson’s body had been found bound at the feet with his penis deliberately mutilated.44 He pointed out that three of the wounded were taken to the windmill and given the best care possible in the circumstances and that two of his men were wounded in the attempt to recover Johnson, whose body had in fact been partially devoured by pigs who could not be fended off. Of all the prisoners, the press was most taken with the distinguished Von Schoultz. His care for his young fellow prisoners and honest assumption of responsibility was widely admired. The Cobourg Star, for instance, observed that while George and Abbey acted terrified during their trials, Von Schoultz was stoic and courageous. It added, however, that Von Schoultz’s failure to surrender after it was evident that there would be no support for the invasion, and before lives were lost, meant that he must face the consequences of his misguided actions.45 When the court opened on the 30th, Von Schoultz was condemned to death, and while the Executive Council reviewed his sentence, Macdonald attempted to have the punishment of hanging changed to the more honourable death by firing squad. In the end, however, he was successful only in having the execution carried out at Fort Henry rather than the Kingston gallows.46

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Dorephus Abbey, a colonel in the patriot force, was arraigned immediately following Von Schoultz’s sentence on 30 November.47 He refused initially to plead and entered into an explanation of his conduct; then, when interrupted, he requested an explanation of the charge. Draper repeated the definition of section 1 of the Lawless Aggressions Act and advised that, if he had any means of defence, he should plead not guilty. The case was similar to George’s although Abbey was more honest about his involvement. New evidence was presented about Abbey’s connection with a plan to deport loyal settlers and distribute a hundred acres of confiscated land to each patriot private, an inflammatory reminder of what the Loyalist refugees from the American Revolution had experienced. Abbey was permitted to call a number of witnesses of his own and was warned of self-incrimination. The trial ended on 1 December. Abbey stated in his address that he had been mistaken and misled about the state of public feeling in the province and that he had realized his error when the schooner briefly landed at Prescott. Forces of nature prevented the invaders from returning to the United States, and his command of forces against the British troops was in self-defence. Macdonald probably advised Abbey, who was held in the same cell as George and Von Schoultz, but it is unclear whether he was present with Abbey during the trial and the final address does not reflect Macdonald’s hand. Like George, Abbey was convicted and sentenced to death. After these three principals cases, proceedings became, as Creighton puts it, more perfunctory and Macdonald appears not to have taken any part in them.48 British Subjects Of the remaining prisoners tried, those who were British subjects stand out as a group. At the outset of proceedings, nine prisoners were identified as subjects.49 Eight were eventually tried as such, although at least two others (possibly as many as four) were also British but tried as foreigners. Four of the seventeen discharged men were British subjects who turned evidence for the crown. Their evidence was important to the prosecution in order to satisfy the requirement in the Lawless Aggressions Act that foreign invaders had acted in league with British subjects. The eight British subjects were tried together under the second section of the act, the reciprocal provision (again, subjects traitorously in arms in league with foreign aggressors, with ‘traitorously in arms’ approached in a way similar to a finding of levying war against Her Majesty in cases of

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treason). The British group included two Upper Canadians, Justus Merriam, a native of Newcastle who left for Rochester the previous spring, and David Defield, a native of Niagara who had recently moved to Oswego. The four Lower Canadians were John Morrisette, George Blondeau (or Blonden), François Gagnon (or Francis Gagnion or Ganyo), and Joseph Leforte (or Lefore), all of whom had recently moved to the United States. Irish-born Patrick White had lived in Lower Canada for some time and moved to the United States the previous spring. Fellow Irishman John Bradley, who had immigrated to the United States directly over a decade earlier, was also tried with this group.50 The indictments are an uncertain measure of nationality. Section 1 of the Lawless Aggressions Act referred to citizens or residents of foreign states at peace with Britain. British subjects could therefore be charged as ‘foreign aggressors’ merely on the basis of permanent residency, and not the stricter requirement of foreign naturalization, and Bradley appears to fall into this class. Another borderline case where status was decided the other way was that of Asa Richardson, who was prosecuted as a foreigner under section 1. American-born, he had lived in Upper Canada and his residence was indicated as such, although it is uncertain whether he took an oath of allegiance in the province (many Americans who took up permanent residence in the province did not take the oath, especially before the War of 1812).51 These cases show that the doctrines of allegiance were somewhat fluid in this period. It seems that the older doctrine of perpetual allegiance (for example, the British-born Bradley) had more weight than the doctrine of protection (for example, the provincial resident Richardson). Compounding the problem was the frequent migration back and forth across the frontier, despite the provincial government’s discouragement of American settlement after the War of 1812.52 Charles Smith and Charles Wilson seem to be clearer cases. They were identified as Americans, and tried as such, although it was subsequently found that they were both British-born and Smith had immigrated only recently to the United States. Commenting on Wilson, Draper notes that he disguised himself as American in the belief that foreigners would receive more lenient treatment than subjects.53 The mistakes were brought to the attention of the Executive Council but neither it nor the British government questioned the convictions. At least ten convicted men, eight of whom were openly tried as British, were therefore deprived of rights that as subjects they would have enjoyed in regular trials for treason. One of the two acquitted men, James

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Cummings, may have also been a British subject,54 and, as noted earlier, Upper Canadians Truman and Levi Chipman and Lower Canadians Alonzo Mayatt and Jean Baptiste Raza were among the seventeen discharged without trial. The groupings of the other trials reflected small variations in evidence, testimony that could be handled in one or two days, and, to a lesser extent, differences in status and age, a matter that loomed large when the Executive Council considered conditional pardons. Generally, while identity and nationality initially proved to be a problem, Judge Advocate Draper had little difficulty presenting evidence of the participation of prisoners in certain key events of the invasion. Most were caught in arms at the battle site or near it. In addition to the important role played by the Chipmans, Mayatt, and Raza, two other discharged men turned evidence, enabling the judge advocate to clarify uncertainties and contradictions. Most of the accused argued that, at the time of the incursions, they had no idea of the consequences of their actions and believed that most Upper Canadians supported the rebels and the patriots. Some claimed that they were misled as to the purpose of the venture (looking for work cutting wood) while others say they were pressed into the patriot force against their will. Of the two acquittals, James Cummings satisfied the court that he suffered ‘fits and temporary derangement,’ while in the case of Joseph Norris there was no evidence to establish that he was in the province before the surrender.55 Of the 138, eight others pleaded guilty in addition to Von Schoultz.56 Again, Draper cautioned the prisoners when they indicated that they would plead guilty, and Abner Townsend changed his plea when warned that his life was at stake.57 In all but three cases, the convicted prisoners received sentences of death (two of the three sentenced to penitentiary terms were teenagers).58 In addition to Von Schoultz, George, and Abbey, the sentence was carried into effect with three of the men who pleaded guilty (Martin Woodruff, Joel Peeler, Sylvanus Swete) and five others found guilty (Syl-vester Lawton, Duncan Anderson, Christopher Bulkley, Russell Phelps, and Lyman Lewis).59 Swete was only twenty-one but the others ranged from their late twenties to their late forties. In all these cases there was clear evidence presented of the men being armed and in command or having some direct connection to killing or wounding. Woodruff, Peeler, and Swete were also held responsible for killing a woman and wounding another as they came out of their house near the windmill. Lewis, whose trial was delayed to the end because of difficulties establishing his identity, not

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only adopted an alias but completely denied having any connection to the invaders.60 w e s t e r n u pp e r ca na da : t he l o nd o n c o u r t ma r ti a l Western Patriot Tensions and the Windsor Invasion The western portion of the province experienced more ongoing frontier turmoil and more frequent militia call-outs than the east.61 The earliest arrests resulted in the Sutherland court martial and some of the Toronto trials in March 1838 and the much delayed trials of the Pelee Island prisoners in July 1839. The trials of the Short Hills invaders examined in Colin Read’s essay came at the mid-point of western patriot difficulties, with the Windsor invasion of 4 December 1838 representing the culmination of frontier tensions in this part of the province. Those captured invaders not summarily executed on Colonel Prince’s orders faced the London court martial which opened just after Christmas. Murray Greenwood’s essay following this one examines Prince’s conduct and the events of the Windsor invasion in detail. In brief, the patriots, supported by lodges from western New York, Ohio, Pennsylvania, and Michigan, made a delayed and disorganized start to a long-planned invasion under the command of L.V. Bierce by hijacking a steamer and landing nearly one hundred and fifty men at a farm five kilometres above Windsor. A series of atrocities followed: the Essex militia barracks was set on fire and an officer and several militiamen were shot as they tried to escape (two fatally) while two others burned to death. One group set fire to the steamer Thames, while another burned two houses, killing an unarmed man who refused to join the invaders as well as a surgeon attempting to give medical assistance; the latter, after found hiding in a cask, had been chased, stabbed, and left to the pigs. The militia under Colonel Prince and Captain Sparke met the main patriot force in an orchard while Bierce and other officers made their escape before the engagement. Twenty-seven patriots were killed – five by summary execution – and close to fifty others were taken as the patriots retreated. The London Court Martial Forty-four men faced trial in proceedings that commenced on 27 December 1838.62 Colonel John Bostwick presided, joined by twelve other officers and Henry Sherwood as judge advocate.63 There was only one

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acquittal and the convicts faced sentences of death.64 Like Draper in the George case, Sherwood addressed the court at length in the first case, that of Hiram Lynn. He explained sections 1 and 2 of the Lawless Aggressions Act and the evidence necessary to establish guilt.65 As with the Prescott invaders, most of the accused had been captured in arms at or near the site of skirmishes. The fact that there were fewer cases, and a good number of the defendants had been former residents, meant that Sherwood had fewer difficulties than Draper in establishing the status and identity of the prisoners. As in Kingston, patriot officers, with one exception, were tried alone, while the other prisoners were tried together in groups, although there were fewer in each group. The proceedings took three weeks, which was rapid but not as speedy as the Kingston Court Martial with its larger numbers. Judge Advocate Sherwood exercised tighter control over proceedings than Draper had done in Kingston. In many cases he examined witnesses as well as cross-examined them on behalf of the prisoners. Before the growing participation of defence lawyers in the late-eighteenth-century English criminal trial, judges commonly intervened on behalf of accused in criminal trials to ensure that they understood the prosecution’s case and what needed to be disproved. Sherwood’s role is more troubling for the simple reason that, as a judge advocate, he was also the prosecutor. As one prisoner’s account put it, the defendants ‘were not permitted to interrogate the witnesses, but the questions we wished to ask must be given to the judge, and he would put them to the witnesses in the shape that suited him best.’66 Sherwood’s tight control is also reflected in the restrictions he placed on the prisoners’ addresses to the court. All addresses had to be in writing and were read to the court by the judge advocate himself.67 Such a restriction was permitted under contemporary British authority on courts martial.68 Although legal counsel was employed by at least two of the patriot officers, all the accused men had little opportunity to make a direct impression on the court.69 The defences were as desperate as those raised at Kingston. Prisoners claimed that they had been coerced or misled about the degree of provincial insurgency and had had no idea of the legal implications of their actions. A few prisoners attempted to change their appearance to confound witnesses and others attempted to save themselves by throwing fits to appear insane.70 Almost all prisoners pleaded not guilty, and the few who did not were cautioned by Sherwood. David McDougal, one of the prisoners who gave queen’s evidence, changed his plea as a result.71 The five prisoners who

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gave evidence for the prosecution were not discharged, as those who did so in Kingston were. They faced trial but were given some assurance of recommendations for mercy in return for their testimony against the others.72 The six cases where the sentence of death was actually carried out involved patriot officers. In Hiram Lynn’s case, as in the case of the other Americans, it was necessary to establish that he was a citizen of foreign country, that he joined with British subjects traitorously in arms, and that he engaged in acts of hostility in the province. Lynn led the advance party of the invading force.73 Albert Clark was another American sentenced to death, but two others convicted under section 1 and executed were of ambiguous status. Cornelius Cunningham was born in Vermont and had resided in Upper Canada for eight years, although he did not take an oath of allegiance. Amos Perley was born in New Brunswick but had long resided in the United States, although it is unclear whether he was naturalized as an American.74 The two remaining executed patriot officers were tried as British subjects under section 2 of the Lawless Aggressions Act. Daniel Bedford was born in the Newcastle District and moved to the London District, where he had resided for fourteen years. He was convicted, pardoned, and banished after his involvement in the Dumcombe revolt the previous winter. He was found by the court martial to be in ‘arms against Her Majesty’ in the company of foreign aggressors who committed the murders.75 Joshua Doan was born in the Niagara District and moved to the London District, where he resided until fleeing the province after the Duncombe rebellion. Like Bedford, evidence established that he was in arms and in the company of foreigners who burned the barracks.76 In addition to Bedford and Doan, seven other men were tried as British subjects under section 2. Like Perley and Cunningham, four other men were of borderline status but were tried as foreigners under section 1. Of the eighteen men transported, Upper Canadian John Burwell Tyrell and James Milnes Aitcheson (a Scottish-born immigrant who had resided in both the United States and Upper Canada) were tried as British. Four other transported convicts had ambiguous status but were tried as foreigners: Elijah Woodman (who was American-born but had long resided in Upper Canada without taking the oath of allegiance), William Nottage (born in Nova Scotia but resident in the United States), Henry Barnum (who had lived on both sides of the border and was later treated as an American citizen by the U.S. ambassador when pardons were applied for), and James DeWitt Fero (who appears to have been born in the province but was resident in the United States and likewise treated as an

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American citizen by the U.S. ambassador). Two of the five informers, who were convicted and unconditionally pardoned, and three out of the fifteen convicted and banished were tried as British subjects.77 These numbers suggest that roughly a third of the invading force had substantial provincial connections, a much higher proportion than at Prescott. This reflected the greater level of local disaffection and the stronger American connections in the western part of the province. Read estimates that at least seven other invaders were former residents of the London District. Yet another measure of local disaffection is the fact that at least three invaders in addition to Bedford were involved in the earlier western rebellion.78 p u ni shm e nt The punishment options for courts martial ranged from death to banishment. As seen in the earlier essays in this volume, transportation had been embraced by Lieutenant Governor Sir George Arthur and his council as a penalty that avoided the security risk of mere banishment to the United States or confinement in the new Kingston penitentiary. However, the Lawless Aggressions Act, the basis for the convictions, was already vulnerable and there was no wish to attract further controversy by opening up the possibility that it might be challenged on the same basis as Lord Durham’s ill-fated Lower Canadian Bermuda Ordinance. This may explain why virtually all the convicts at Kingston and London received death sentences, but with reprieves and recommendations for mercy attached except for the invasion leaders and the most egregious cases. The favoured penalty of transportation was therefore imposed widely but indirectly as a condition on pardons, an exercise of the royal prerogative of mercy rather than flowing from colonial legislation.79 This did not dispose of questions around the resort to transportation, as Cassandra Pybus shows in her essay, but it made the sentence a sounder option. The distribution of punishment was the product of review by the lieutenant governor and the Executive Council of lengthy recommendations from the Kingston Court Martial and the London judge advocate, as well as consultations with Attorney General Hagerman and, as described in the Rainer Baehre essay, the judges of the Queen’s Bench (excepting Chief Justice Robinson, then on leave in England).80 The eleven at Kingston and six at London selected to have their sentences carried out were executed as proceedings continued, no doubt sending a chilling message for those still awaiting trial.81

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Although similar criteria were used at Kingston and London in the recommendations for mercy, with youth, mental incapacity, and level of involvement in the invasion taken into account, the process differed slightly. At Kingston the entire court included formal recommendations in their judgments, whereas at London, recommendations were made directly by Judge Advocate Sherwood. In exercising the royal prerogative of mercy after the earlier rebellion trials, Lieutenant Governor Arthur attempted to develop principled formulas but had been frustrated by outside intervention. His search for a just and effective system of classification that balanced punishment with clemency continued with the Kingston and London cases. This involved reference to utilitarian calculations of deterrence informed by his experiences administering a penal colony, as well as moral assessments informed by his religious beliefs.82 Simple retribution, one execution for each British subject killed, had popular resonance. As it happened, there was a rough correspondence between these numbers. The sixty convicts from Kingston and the eighteen from London selected for transportation were for the most part secondary leaders and over twenty-one years of age. The remainder who were banished included all of those recommended for mercy by the Kingston Court Martial and Judge Advocate Sherwood. The heavy reliance on transportation (78 out of 181 convicted) was supported by the British government in the end. Arthur was reassured in the new year that he could proceed and indeed the Buffalo was dispatched to transport pardoned convicts directly from Quebec to Van Diemen’s Land, thus avoiding the legal and political controversy that accompanied the earlier transported prisoners in England.83 c o nc l u si o n The courts martial appear not to have satisfied the more extreme loyalist feeling, as Murray Greenwood shows in the following essay. However, the editor of the Upper Canada Herald probably captured some sense of moderate public opinion about the proceedings when he wrote: When it was first announced that the prisoners were to be tried by Court Martial, we felt some dislike to the method of trial. With all the Englishman’s jealousy of any military encroachment on civil rights and privileges, we were not at all disposed to give any praise to the Court Martial that they did not deserve. After attending the trials for several days, and watching the proceedings very narrowly, we were convinced that full justice was done to the prisoners; that they received a fair trial, and had in some things advantages that they would not have elsewhere.

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The condemnation of the prisoners, then, is not to be found in any supposed blood-thirstiness in the members of the Court Martial, but in the deadly, damning nature of the facts with which they had to deal ... we still think that the punishment of death should not be inflicted any further. Justice has been more than satisfied already. The Executive may properly do what the court could not do, extend mercy to the guilty, especially to the youths amongst them.84

Military justice did coincide with the effective suppression of frontier difficulties, at least until the Fenian invasions a generation later. Rapid, decisive proceedings and the bloody examples made of the leading invaders appear to have contributed to this outcome. The court-martial proceedings could also have been worse. The mistakes of the Sutherland court martial were scrupulously avoided. The elastic definition of the lawless-aggressions offences got around the problem of strained constructions of treason doctrine, but, as we have seen, the Kingston and London courts martial at least treated the offences in a manner similar to the treasonable levying of war. Then again, there was little need to exploit malleable doctrine when most cases involved clear and damning evidence.85 Yet, despite the care taken, the outcome of many of these cases could well have been different if the prisoners had faced regular trial procedure according to the standards of the time. It is in this respect that the justice of these proceedings is best evaluated. The procedural differences between a criminal trial and a court martial were significant. It was not wartime and the regular courts continued to function. The few prisoners at Kingston and London who took advantage of counsel were unable to make full defences through their lawyers in accordance with the rights set out in the 1696 Treason Act. The prisoners’ ‘friends’ had a highly circumscribed role and none of the prisoners had the degree of access to the prosecution’s case guaranteed under the 1696 legislation. John A. Macdonald had good grounds for suggesting that the deprivation of the special guarantees in treason cases, the equivalent of the offences tried, put the validity of the proceedings into question. The prosecuting judge advocate’s simultaneous role as the court’s adviser on points of law flew in the face of constitutional recognition – from the late seventeenth century onwards – of the need to separate these functions. Judge Advocate Sherwood’s conduct of cross-examination of prosecution witnesses on the prisoners’ behalf and his insistence on reading their written statements to the court is an example of why there was concern about this combination of judicial and prosecutorial roles. The court-martial panels composed of military and militia officers were

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hardly a jury of peers, trial by which was thought to be guaranteed at the time of the Glorious Revolution of 1689. Civilians tried by military authorities rather than peers immediately following invasion or insurrection had only a remote chance of facing impartial triers of fact. The right to a regular trial was violated most acutely in the case of the British subjects. As Murray Greenwood elaborates in the next essay, the first section of the Lawless Aggressions Act had some basis in the established legal responses to foreign invaders. Moreover, the 1696 act was applicable to high treason only and not to felonies. The procedural protections could be seen as setting out special rights related to allegiance and therefore not available to aliens. For British subjects tried under section two, the offences in question were in substance high treason. By simply describing the offence by another name, colonial legislation removed the then-existing guarantees all British subjects were thought to enjoy. There were precedents for court-martial proceedings against civilians when it was not wartime and the most proximate examples are examined in Murray Greenwood’s essays on the Montreal Court Martial later in this volume. The expedients followed after the 1798 rebellion in Ireland and in Lower Canada in 1838 involved more extreme states of emergency: in those cases, constitutional government and the administration of the regular courts were eroded further than in Upper Canada. And, as Greenwood suggests, the years after the Irish rebellion saw constitutional developments such as responsible cabinet government and the Reform Act of 1832, making courts martial of civilians even more of a political anathema. The fact remained that, regardless of the reprehensible nature of their actions, all prisoners who faced this type of proceeding in Upper Canada received summary justice, with the thinnest veneer of legality and without the full benefits of the British constitution that Upper Canadians were told they enjoyed.

NOTES 1 See, e.g., Glenelg to Arthur, 22 Aug. 1838, RG 7, G 1 (Despatches from the Colonial Office G series), vol. 87, NA, where Glenelg notes that in view of continued discussion between imperial and provincial law officers there will be no immediate action on the recommended disallowance of 1 Vic. c.3. 2 Murray Greenwood provides a detailed discussion of this point in a section on court-martial mandates in his essay ‘The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison’ in this volume.

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3 See Lillian F. Gates, ‘Sutherland, Thomas Jefferson,’ DCB 8: 851; Patriot, 13 March 1838. 4 See MU 3274 (Fitzgibbon Papers), ‘Militia Order for the court martial to be held at Toronto for the trial of rebel prisoners 12 March 1838,’ AO. 5 The proceedings are found in encl. 3, ‘Proceedings of the court martial,’ in Arthur to Glenelg, 23 April 1838, CO 42/446, PRO. The depositions, written defence consisting of nearly 100 questions, petition, and legal opinions run over 150 pages. A trial report appears in printed form: ‘The Trial of General Th. J. Sutherland, late of the patriot army before a court martial convened at Toronto on the 13th day of March A.D. 1838, by order of Sir Francis Bond Head ...,’ available on CIHM no. 62330. 6 Prince admitted that he had written up the substance of the confession; his summary of 5 March may be found in appendix 1 of encl. 3 in Arthur to Glenelg, 23 April 1838, ibid. Henry Rudyard, who conducted Sutherland to Toronto, recounts in his diary that Prince observed Sutherland about two miles from the Upper Canada shore and about seven miles below Amherstburg, and when confronted Sutherland drew his sword. See S115 (Henry John Boulton Papers), March 1838 entry, TRL. 7 Encls. 5 and 7 in Arthur to Glenelg, ibid. 8 Law officers to Glenelg, 28 May 1838, encl. in Glenelg to Arthur, 22 June 1838, RG 7, G 1, vol. 86. 9 See, generally, E.C. Guillet, Lives and Times of the Patriots: An Account of the Rebellion in Upper Canada, 1837–1838 and the Patriot Agitation in the United States (Toronto: University of Toronto Press 1968); A.B. Corey, The Crisis of 1830– 1842 in Canadian-American Relations (New Haven, Conn.: Yale University Press 1941); J.P. Martyn, ‘Upper Canada and Border Incidents, 1837–38: A Study of Troubles on the American Frontier following the Rebellion of 1837’ (M.A. thesis, University of Toronto 1962). 10 Betsy Boyce, The Rebels of Hastings (Toronto: University of Toronto Press 1992). 11 See ‘Return of the names and quality or station of the several persons arrested in Upper Canada ...’ (from 5 Dec. 1837–1 Nov. 1838), compiled by J.W. Macaulay, encl. in Arthur to Glenelg, 31 Dec. 1838, CO 42/452. The return indicates twenty-nine arrests for the Midland District from 12 Dec. 1837 to 5 Jan. 1838 and fifty-three further arrests stemming from the Kingston conspiracy described below. 12 Boyce, Rebels, 95–104. 13 British Whig, 8, 16 June, 4, 24 July; Guillet, Lives and Times, 153–61; Boyce, Rebels, 107–12; G.F.C. Stanley, ‘William Johnson, Pirate or Patriot?’ Historic Kingston, 6 (1956), 13–28. 14 Chronicle and Gazette, 5 May 1838.

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15 RG 22, Series 134 (Court of King’s Bench Assize Minutebooks), vol. 7, ‘Midland oyer and terminer and special session to hear and determine crimes of treason and misprision of treason,’ AO. The grand jury reviewed the bills from 9 to 17 May; Boyce’s appendix in Rebels (188–91), based on other sources, indicates that twenty-five bills were thrown out by the grand jury. 16 Chronicle and Gazette, 11 July 1838, British Whig, 13 July 1838, and RG 22 indicate that eight of the nine true bills were actually tried: Reynolds, LeSage, Meyers, Lewis, Orr, LaFontaine, S. Marsh, and Day. Boyce, Rebels, indicates that Charles Marsh was also tried along with his brother. 17 British Whig, 13 July 1838 18 Chronicle and Gazette, 11 July 1838. There is brief mention of Macdonald’s role at the Midland assize in Donald Creighton’s John A. Macdonald: The Young Politician (Toronto: Macmillan 1956), 53–4. See also H.R.S. Ryan, ‘Sir John A. Macdonald, the Young Lawyer,’ in M.M. Cohoe, ed., Sir John A. Macdonald, 1815– 1891 (Kingston, Ont.: Historical Society 1991), 76–82. 19 See Creighton, Macdonald, 63; Ryan, ‘Macdonald,’ 80. The previous year Macdonald had toured the Western District as a clerk for Judge McLean, and this may have facilitated his success (see MU 1769, ‘Macdonald papers: Diary description of a tour of the Western District as court clerk accompanying A. McLean of the Court of King’s Bench,’ AO).’ However, Macdonald and his pupil, Oliver Mowatt (later famous rivals), had clashed with Attorney General Christopher Hagerman over the status of the Presbyterian Church and during the John Ashley false-imprisonment case against Henry Dundas, commander of the British regiment at Fort Henry. Despite his involvement with controversial cases, Macdonald managed to secure the position as solicitor for the Commercial Bank in 1839. See also MG 26A (Macdonald Papers), vol. 538, ‘personal papers, legal correspondence and docket of legal cases,’ NA. 20 See Arthur’s letters in C.R. Sanderson, ed., The Arthur Papers (Toronto: University of Toronto Press 1957–9), 1: 381, 396, 404, 414, 478; 2: 75 at 81. 21 Johnson’s case (with twenty-two co-accused) appears in the British Whig, 21 July 1838. 22 Arthur to Fox (the British minister in Washington), 3 Dec. 1838 (encl. in Arthur to Glenelg, 4 Dec. 1838, CO 42/452), notes that 157 prisoners were taken, 131 of whom were Americans, 9 European nationals owing temporary allegiance to the United States, and 9 British subjects. Guillet, Lives and Times (279), puts the figure at 160, noting that 17 died in battle, 3 of the wounded prisoners later died, and 5 managed to escape before surrender. See also Guillet, Lives and Times, 132–40; Boyce, Rebels, 132–6; G.F.C. Stanley, ‘Invasion: 1838,’ OH, 54 (1962), 237 at 238–45. 23 28 November 1838. Letters written by the prisoners to friends and family

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stressed how they had been cruelly deceived. See Stanley, ‘Invasion: 1838,’ 246–8; Guillet, Lives and Times, 140. Arthur makes this case as late as the end of October (see Arthur to Glenelg, 27 Oct. 1838, CO 42/451). See also R.C. Watt, ‘Political Prisoners in Upper Canada, 1837–8,’ EHR, 41 (1926), 526 at 552–4 Law Officers to Glenelg, 31 May 1838, encl. in Glenelg to Arthur, 6 June 1838, and Glenelg to Arthur, 23 June 1838, RG 7, G 1, vol. 86. On the court martial of foreign invaders, see the Greenwood essay that follows. Glenelg to Arthur, 12 July 1838, RG 7, G 1, vol. 86: the lieutenant governor confirms that he will follow this course in Arthur to Colborne, 20 Nov. 1838 (see app. D, U.C. doc.7). See RG 5 (Upper Canada Sundries), NA. RG 7 Series C (Military Records), vols. 173 and 608–15, NA, replicates some of this material, along with details on militia activity. RG 5, B 41, ‘Court Martial Proceedings, Fort Henry, 1838– 39,’ NA, contains an abstract (file 1), correspondence from Judge Advocate Draper and Attorney General Hagerman to Lieutenant Governor Arthur (file 2), and the proceedings against 130 prisoners (files 4–22). The Von Schoultz case is held separately in RG 5, B 40, and the London cases in B 37. Summaries, selected reports, relevant executive council minutes and orders, and legal opinions may be found in: CO 42/452: Arthur to Glenelg, 13 Dec. 1838 (encl. report on execution of Von Schoultz, Executive Council minutes, 8 December, opinions of judges Macaulay, Jones, and McLean and Sherwood, 8 and 10 December); Arthur to Glenelg, 19 Dec. 1838 (return of prisoners tried); Arthur to Glenelg, 22 December (further reporting on cases and encl. orders-in-council, 15 December approving sentence of ten prisoners). See also CO 42/455: Arthur to Glenelg, 1 Jan. 1839 (transmitting proceedings of militia court martial and other papers relating to prisoners taken at Prescott, encl. summary of proceedings, minutes, and orders-in-council, 24, 26, 31 Dec. 1838 and 1 Jan. 1839); Arthur to Glenelg 5 Feb. 1839 (encl. Draper’s final report 21 Jan. 1839 and final list of prisoners and outcomes). Draper to Arthur, RG 5, B 41, file 2. The judge advocate concluded from his visit to the hospital that it would be impossible to bring the wounded to trial for some considerable time. The groupings reflected common evidence, degree of culpability, or circumstances. As Draper put it in the first case, ‘when any number of persons combine together for a criminal purpose, and particularly when, as was the case here, they commence their operations, whatever may be done by any one or more of them in prosecution or furtherance of their common guilty design, is to be considered as the act of each of the whole party, and for which, as well as those who were not the direct actors, as those who were, are in their own per-

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sons responsible.’ See RG 5, B 41, file 18, and the ‘Trial of Daniel George,’ Chronicle and Gazette, 15 Dec. 1838. The other members of the court were Lt.-Col. John Kirby, Lt.-Col. John Cartwright (a leading Kingston lawyer who acted for the crown in the earlier Hastings prosecutions), Lt.-Col. John Turnbull, Lt.-Col. William Logie, Major Thomas Kirkpatrick, Major David Smith, Capt. Hugh McGregor, Capt. John Strange, Capt. James Macfarlane, Capt. John Bower, and Capt. John Richardson. In some cases Major James Sampson and Captain Elijah Beach also served. See 1 Vic. c.8 U.C., ‘An Act to Amend and to Reduce into One Act, the Militia Laws of This Province,’ passed 6 March 1838. The contemporary British authority was T.F. Simmons, Remarks in the Constitution and Practice of Courts Martial (London, 1835). The proceedings were upheld, and the courts deemed legally constituted, by Her Majesty’s judge advocate general and the British law officers. See Normanby to Arthur (with encls.), 4 May 1839, RG 7, G 1, vol. 92; Colonial Office (unsigned) to Arthur, 4 May 1839, CO 42/455; Normanby to Arthur, 21 July 1839, RG 7, G 1, vol. 21. William Gates, Recollections of Life in Van Diemen’s Land (1850; repr. Sydney: Ford-Australian Historical Monographs no. 40, ed. G. Mackaness, 1961), 26. Gates claimed that the speed of the proceedings, the trying of multiple accused together, and lack of opportunity to cross-examine made the proceedings a mockery of justice. Gates (RG 5, B 41, file 22) himself pleaded guilty to evidence provided by four prosecution witnesses. Contrary contemporary opinion is expressed in the Upper Canada Herald, 19 Feb. 1839, which notes that the courts martial, ‘did no more than their duty and every attention and means of defence were afforded to the prisoners that could be done in any court. There was no straining of evidence against the prisoners ... If there was any straining at all, it was in favor of the prisoners.’ As Draper put it, ‘although this court is assembled as a militia general court martial in pursuance of the authority conferred by the militia laws of this province, yet its jurisdiction in the present case does not arise immediately under those laws nor is the offence charged against the prisoner of a character coming within the ordinary competence of such a tribunal.’ See RG 5, B 41, file 18, and the ‘Trial of Daniel George,’ Chronicle and Gazette, 15 Dec. 1838. ‘Levying war on Her Majesty is of course committing an act of hostility within the spirit and meaning of this Act ...’ See RG 5, B 41, file 18, and the ‘Trial of Daniel George,’ Chronicle and Gazette, 15 Dec. 1838. See also Draper to Arthur, 3 Dec. 1838, RG 5, B 41, file 2. Creighton, Macdonald, 63–4, and Ryan, ‘Macdonald,’ 80, provide only sketchy

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outlines of Macdonald’s involvement in the proceedings but they do correct the common late nineteenth-century suggestion that Macdonald made an eloquent speech in court defending Von Schoultz, which established his reputation at the bar. Von Schoultz of course, pleaded guilty and counsel were not allowed to address the court martial on the prisoner’s behalf. See also memorandum by Sir Alexander Pope (Macdonald’s biographer) regarding a conversation with Macdonald about Von Schoultz: Macdonald Papers, vol. 538, 17 May 1890, Macdonald to Overlander, 8 Dec. 1890. Stanley, ‘Invasion: 1838,’ 248. Draper to Arthur, 3 Dec. 1838, RG 5, B 41, file 2. See also RG 5, B 41, file 18; Chronicle and Gazette, 15 Dec. 1838; Cobourg Star, 12 Dec. 1838. RG 5, B 41, file 18. Macdonald was brought into court after Draper made his address and as the first witness, Lieutenant Leary, was making his testimony. The minutes and the newspaper reports indicate that it was the prisoner who actually cross-examined. RG 5, B 41, file 18; Chronicle and Gazette, 15 Dec. 1838; Draper to Arthur, 3 Dec. 1838, RG 5, B 41, file 2. See Arthur to Glenelg, 4 Dec. 1838 CO 42/452 enclosing report and warrant for execution. See also RG 5, B 40, file 1, ‘Von Schoultz, records and warrant for execution,’ and the Cobourg Star, 12 Dec. 1838. See Ronald J. Stagg, ‘Nils von Schoultz’ DCB, 5: 779–80; Leonard Sillanpaa, ‘Death of a Liberator, 1838,’ The Beaver, 70 (1990), 27–31. Testimony of Dr William Gardiner, the surgeon with the 83rd Regiment. 12 Dec. 1838. See also the Toronto Patriot, 14 Dec. 1838. Other coverage of the courts martial may be found in the Upper Canada Herald, 14 Feb. 1839, and the Toronto Mirror, 21 Dec. 1838 and 4 and 25 Jan. 1839. The Herald and Mirror also carried reprints from the U.S. newspapers. Macdonald drew Von Schoultz’s will, which left money to the families of British militia killed at the windmill. See Creighton, Macdonald, 67; Sillenpaa, ‘Liberation,’ 31. RG 5, B 41, file 15. Creighton, Macdonald, 67. See Arthur to Fox, 3 Dec. 1838, n.21 above. Guillet, Lives and Times, 276–8, appendix N, which reproduces Daniel Heustis’s list, also refers to nine British subjects on the basis of residency, although four of the indicated men were discharged, one (Richardson) was subsequently tried as a foreigner, and some who were tried as British subjects are indicated as residing in the United States. RG 5, B 41, file 9 and attached letter from Draper to Arthur, 29 Dec. 1838. See also Chronicle and Gazette, 29 Dec. 1838.

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51 RG 5, B 41, file 13 52 Following the War of 1812, an oath of allegiance was made a prerequisite for holding land in the province, and the government attempted to prohibit administering the oath to Americans. It also threatened to deport them under the Sedition Act of 1804. 53 RG 5, B 41, file 2, Draper to Arthur, 1 Jan. 1839. 54 He is not directly identified as such but testimony in the other trials indicates him to be from Upper Canada. See RG 5, B 41, file 15 (Abbey). 55 Norris and Cummings appear in RG 5, B 41, file 12. There is an error in Arthur’s summary (Arthur to Glenelg, 1 Jan. 1839) which also indicates Martin van Slyke and William O’Neil as acquitted. Van Slyke was convicted but recommended to mercy and released. He argued that he was forced aboard the schooner and was taken trying to escape from the patriots (see file 4). O’Neil was in fact found guilty and sentenced to three years’ hard labour (taking into consideration that he tried to leave the patriots after their failure to land in Prescott before the outbreak of hostilities – see file 14). 56 Luther Darby (out of twelve others; file 4); Pica (or Price) Senter (out of 11 others; file 13); Sylvanus Swete, Martin Woodruff, Joel Peeler (executed, out of 10 others; file 14); Leonard Delino (or Delano) and Hunter Vaughn (out of 12 others; file 17); William Gates (out of eight others; file 22). 57 File 14. 58 Hiram Hall and Cornelius Goodrich seven years; William O’Neil three years in the Kingston Penitentiary. 59 Woodruff, Peeler, Swete et al., file 14; Lawton, file 13; Anderson et al., file 17; Bulkley et al., file 4; Phelps, file 6; and Lewis, file 10. 60 Upper Canada Herald, 12 Feb. 1839, notes that Lewis had been second in command to Bill Johnson in the burning of the Sir Robert Peel. 61 The circumstances and context are thoroughly examined in Colin Read, The Rising in Western Upper Canada, 1837–8: The Duncombe Revolt and After (Toronto: University of Toronto Press 1982). See also Guillet’s chapter on the Windsor invasion in Lives and Times, 143–52 and appendix O; F. Landon, ‘Trial and Punishment of the Patriots captured at Windsor in Dec. 1838,’ Michigan History Magazine, 17 (1934), 25; Corey, The Crisis of 1830–1842; J.P. Martyn, ‘Upper Canada and Border Incidents.’ 62 See London District General Court Martial, RG 5 (Upper Canada Sundries), B 37; Arthur to Glenelg, 13 Dec. 1838, CO 42/452, reporting events of Windsor invasion and militia orders; Arthur to Glenelg, 5 Feb. 1839, CO 42/455, enclosing final report of Judge Advocate Sherwood, dated 26 Jan. 1839. See also n.26 above. 63 Col. James Minniett; Lt.-Cols. Joseph Clinch, John Askin, George Whitehead,

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William Brearley, P.B. DeBeaquiere; Majors Frederick Somers, James Ingersoll, James Carroll; and Captains Julius Talbot Airey, Edmond Deede, and Charles Purley Abraham Tiffany, file 9. No evidence could be produced against him and he was thought to be insane – see Sherwood to Arthur, 20 Jan. 1839, RG 5, B 37, file 1. RG 5, B 37, file 5 S. Snow, The Exile’s Return, or, Narrative of Samuel Snow Who Was Banished to Van Diemen’s Land for Participating in the Patriot War in Upper Canada in 1838 (Cleveland: Snead and Cowes 1846), reproduced in CIHM no. 22020, 6. See also trials in RG 5, B 37, files 3 and 6. See, e.g., files 6 and 8. See Simmons Remarks, who observes that questions directed at witnesses are to be registered before being asked and that prisoner’s addresses can be read by the prisoner or judge advocate but not by legal counsel. As noted earlier (n.33 above), the proceedings were confirmed as regular by the law officers and Her Majesty’s judge advocate general. Joshua Doan (RG 5, B 37, file 3), whose trial commenced 9 Jan., was granted a day’s adjournment in order to employ counsel and prepare witnesses; he then requested another five days and was granted three after the prosecution finished presenting its case. The trial of Cornelius Cunningham (RG 5, B 37, file 16) commenced 10 January, took two days, and was adjourned for two days in order to allow the defendant time to prepare an address to the court. John Peter Williams, who was directly implicated in the murder of Dr Hume, attempted to disguise himself in front of the witnesses. Oliver Crandell threw fits daily, and the court recommended mercy on the grounds of imbecility of mind. See Sherwood to Arthur, 20 Jan. 1839, RG 5, B 37, file 1. See RG 5, B 37, file 8. David McDougall, Daniel Sweetman, George Putnam, Sidney Barber, and William Bartlett. McDougall testified virtually in every case, Putnam in most, and Sweetman in a good number. Upper Canada Herald, 12 Feb. 1839, notes that Sweetman was aide de camp to one of the lead patriot officers, who, unlike Beirce, had not fled and was killed in action. See RG 5, B 37, file 5; Arthur to Glenelg, 2 and 4 Jan. 1839, CO 42/455. See also Cobourg Star, 9 Jan. 1839. Cunningham (RG 5, B 37, file 16); Perley (file 17). See also Arthur to Glenelg, 29 Jan. 1839, CO 42/455; references in the Cobourg Star, 20 Feb. 1839, and Upper Canada Herald, 29 Jan. 1839. (Perley’s co-accused, Harrison Peter Goodrich, was convicted but later pardoned and banished.) RG 5, B 37, file 4. See also Arthur to Glenelg, 4 Jan. 1839, CO 42/455, and Cobourg Star, 9 Jan. 1839.

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76 RG 5, B 37, file 3; Arthur to Glenelg, 29 Jan. 1839 CO 42/455; Cobourg Star, 20 Feb. 1839; Upper Canada Herald, 29 Jan. 1839; Colin Read, ‘Joshua Gwillen Doan,’ DCB 7: 253–4. 77 George Putnam of Upper Canada and David McDougal, a Scottish native, were pardoned in return for giving evidence. Joseph Grason of Upper Canada, Englishman Charles Reed, and Scotsman David Hay were banished. 78 Read, Rising, 157–8. The three were Woodman (who did not participate directly in the western rising but helped rebels escape afterwards), Doan, and George Washington Case (both of whom had avoided capture). 79 RG 1, E 3, vol. 3 (‘Submissions, Upper Canada Executive Council’), NA: A6, opinion of Attorney General Hagerman on transportation; A9, opinion of Solicitor General/Judge Advocate Draper on transportation. 80 The letters to the lieutenant governor and Executive Council from Draper and Sherwood are found in file 1 of RG 5, B 40 and file 2 of B 41 in the case of Kingston and file 1 of R G5, B 37 in the case of London. The files also contain letters from Attorney General Hagerman confirming that there were no legal grounds for not carrying the sentence of the courts into effect and some Executive Council minutes. See Minute to Council, Minutes of Council, and Opinions of Judges Sherwood, Macaulay, Jones, and McLean, 8 Dec. 1838, encl. in Arthur to Glenelg, 13 Dec. 1838, CO 42/452, and related dispatches to February 1839, n.27 above. 81 Kingston executions: Von Schoultz, 8 Dec. 1838; George and Abbey, 12 Dec. 1838; Woodruff, 19 Dec. 1838; Peeler and Swete, 22 Dec. 1838; Lawton, Anderson, Bulkley, and Phelps, 4 Jan. 1839; Lewis, 11 Feb. 1839. London executions: Lynn, 7 Jan. 1839; Bedford, 11 Jan. 1839; Clark, 14 Jan. 1839; Cunningham, 4 Feb. 1839; Perley and Doan, 6 Feb. 1839. 82 See n.80 above; P. Buckner, ‘Sir George Arthur,’ DCB 8: 26–31; and Graham Parker, ‘Governor Arthur and Clemency’ (1987, unpublished). 83 See Glenelg to Arthur, 25 Jan. 1839 (confidential), encl. in Glenelg to Colborne, 25 Jan. 1839, RG 7, G 1, vol. 91; Arthur to Glenelg, 2 April 1839 (confidential), CO 42/457; Normanby to Arthur, 18 and 28 May 1839, RG 7, G 1, vol. 92. See also the essay by Cassandra Pybus in this volume, where the legality of transportation is examined in more detail. 84 19 Feb. 1839. 85 The treason felony acts passed in 1848 in the United Kingdom and in 1868 by the Dominion of Canada put the constructive treason of conspiracy to levy war on a permanent legislative footing as a non-capital offence. As Murray Greenwood explains in the next essay, an amended version of the Lawless Aggressions Act was later applied to the Fenian invaders.

5 The Prince Affair: ‘Gallant Colonel’ or ‘The Windsor Butcher’? F. MURRAY GREENWOOD

In the year after Mackenzie’s uprising in December 1837, recurrent invasions of the ‘patriots’ – Americans and Canadians – resulted in much property damage and the death of British subjects. Residents of the province, and most who lived near the border, were tormented by fear. This was no less true of government officials, whose exaggerated but genuine fears were similar to the ‘garrison mentality’ I have described in early Lower Canada.1 Lieutenant Governor George Arthur remained convinced in November 1838 that, if the patriots were to gain a solid foothold, sympathizers would pour over the border and widespread insurrection would erupt.2 Similarly, at the beginning of 1839, Chief Justice John Beverley Robinson and his colleagues believed that if Mackenzie’s men occupying Navy Island were to establish a base on the mainland, disaffected elements and their sympathizers in the then northwestern United States would be greatly encouraged, fostering ‘a movement which ... would require a great exertion of the strength of the Empire to counteract.’ Motivated by this fear of possible invasion and a resultant mass revolt, Upper Canada’s legislators passed the Draconian Lawless Aggressions Act (see app. D, U.C. doc.1). When the measure was * I thank my wife, Beverley Boissery, for much valuable editorial and research assistance, and Christopher Greenwood and Carla Paterson for their great help in finding new sources. [Barry Wright completed final revisions to this essay following Murray Greenwood’s death in December 2000.]

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challenged in the summer, Robinson reiterated that it was designed ‘to prevent ... by any terrors they could hold out, the wicked union of Canadian rebels with American outlaws.’3 The applications of the felony and court-martial provisions of the Lawless Aggressions Act have been discussed in the essays by Colin Read and Barry Wright. The act’s belated application to the Point Pelee raiders in 1839 will be examined briefly here; however, my main object will be to explore the legality and constitutionality of this remarkable measure in the context of domestic and international law, the building frustrations around the problem it sought to address, and Colonel John Prince’s ultimate extralegal response, arguably the most repressive official act taken during the crisis in the province. b r i g a n d s, t he l aw o f t re a so n, a n d o th er c r i m i na l o ffe nces As described in the Introduction, the Lawless Aggressions Act sought to address a perceived legal lacuna around the status and effective deterrence of armed foreign invaders from a country at peace with the United Kingdom. To commit high treason, a person had to owe allegiance to the crown.4 British-born subjects, for example, owed such allegiance even after becoming naturalized citizens of another state. Aliens residing in or visiting the realm or any of the king’s dominions engaged the crown’s protection and hence fell under a correlative duty of temporary or local allegiance for the duration of their stay. Foreign enemies at war with the United Kingdom and who invaded the realm or a colony owed no allegiance and if captured were to be treated as prisoners of war. So much, in 1838, was crystal clear from the judicial and juristic authorities, but a number of grey areas remained, including the status of invading aliens from a country at peace with Great Britain who were under no obligation resulting from perpetual or local allegiance. Whether such persons, technically alien amys but often called ‘brigands,’ pirates, robbers, or bandits by the Upper Canadian governing elite, could be tried for treason came to be hotly disputed between legal officialdom in London and Toronto, with the local authorities insisting that they could not be. The Toronto position seems the more persuasive. In the first place, it is unclear when, if ever, during the battles the foreign raiders came within the protection of the crown – a sine qua non of the duty of allegiance. In case of invasion, martial law automatically came into force in the affected area and imposed a duty on every resident, sol-

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dier, and militiaman to help repulse the invaders. From the moment he crossed the frontier, a raider would be liable to be killed by any defender with impunity. Thus, during the time he was in substance levying war, that is, from entry to capture, if such occurred, the foreign invader enjoyed no protection and hence, it seems, owed no allegiance and so could not be capable of committing high treason. As Chief Justice John Beverley Robinson wrote, ‘It is impossible to discern at what time the duty of allegiance commenced ... or upon what principle they can be treated as having acted treacherously.’5 This kind of argument, although never explicit, was doubtless assumed by the treason jurists. Edward Coke, Matthew Hale, William Hawkins, Michael Foster, William Blackstone, and Edward Hyde East could all be cited in favour of the Toronto position.6 The jurists dealt with the subject when construing that head of the Statute of Treasons condemning the act of adhering to the king’s enemies. They were unanimous that the status of traitor/rebel and that of enemy were mutually exclusive. Blackstone concluded that, to assist ‘a rebel fled out of the Kingdom is no treason ... a rebel is not an enemy, an enemy, being always the subject of some foreign prince ... who owes no allegiance to the crown of England.’ All the writers referred to invading aliens, whose countries were not at war, as ‘enemies’ under the adhering clause.7 Hence, they regarded such raiders as exempt from allegiance and therefore incapable of treason. This point was implicit in Foster, Blackstone, and East but explicit in the earlier writers. Hawkins was the clearest: ‘But it seemeth that Aliens who is a hostile Manner invade the Kingdom, whether their king were at War or Peace with ours, and whether they come by themselves or in Company with English Traitors, cannot be punished as Traitors, but shall be dealt with by Martial Law.’ A very strong case, based on principle and authority, could therefore be made against the idea of American (or other foreign) invaders being guilty of high treason, even though they had clearly in substance levied war according to the 1352 Statute of Treasons. The British law officers disagreed, first in an opinion delivered at the end of May 1838 and then in a more elaborate opinion given in August. The law officers never came to grips with the question of principle, were cavalier in treating authorities, and used as their telling precedent a sixteenth-century decision, the report of which does not make the facts clear. The later opinion bears all the earmarks of straining to support conclusions too hastily arrived at earlier.8 It was also doubtful whether the American invaders could be tried for crimes other than treason. Although often referred to as ‘pirates’ in the

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Upper Canadian press, they were not liable to be charged with piracy since that offence was confined to the high seas. Could they be charged with murder, robbery, arson, or other offences for acts committed during an invasion? The question initially perplexed government legal circles. They could find no precedent one way or the other on the point. It was clear that foreigners entering the colony intent on private plunder or vengeance could be tried for such offences. Otherwise, they might be liable if found to owe temporary allegiance. If, in the case of foreigners invading for political reasons, it were held that they could commit murder and so on, the anomalous situation would be created of requiring obedience to laws from which the accused had enjoyed no protection whatever, laws of a sovereign to whom they were not bound in allegiance. Gradually, however, a consensus emerged that since the American invaders owed no allegiance they could not be convicted of ‘crimes’ committed in furtherance of their political objectives.9 On this point, the British law officers conceded that if the invaders owed no allegiance, a conclusion strenuously denied, they could not be tried for any crime done in furtherance of battle aims.10 t h e l aw o f nat i o ns: p r i so ne r-o f - wa r s tatu s a nd o u t l aw ry If the brigands were not subject to the jurisdiction of the courts, their status had to be determined by reference to the law of nations, the customary branch of which had formed part of the common law since at least the middle third of the eighteenth century. One possibility was that they should be treated as quasi-prisoners of war. Such a conclusion could have been supported on the basis that, with respect to the treatment of captured invaders, the treason jurists made no distinction between those who came from belligerent countries and those at peace with the king. Thus, Coke insisted that all such open enemies either be executed according to the rule of warfare (‘martial law’) or ransomed. Hale and Hawkins followed Coke. If this status were the appropriate one, there were several deductions to be drawn. First in importance was that captured invaders, though their sovereign was not at war, could not be put to death by the military, either summarily or even pursuant to a court martial, unless the executions could be justified on the grounds of military necessity. This followed from the entitlement to life attributed to regular prisoners of war by such international law jurists as Hugo Grotius, Emerich de Vattel, and Georg Friedrich von Martens.11 It could also be justified on the basis

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of the British doctrine of martial law – according to which military rule replaced the common law only where and when war was actually raging to the point that the ordinary courts could not function.12 Other deductions from the status of quasi-prisoners of war are highly speculative but might include their non-liability for secondary punishments, such as transportation, except for offences committed during detention and their right to be released or deported once the frontier had been thoroughly pacified. The legal and political authorities of Upper Canada were certain that the American brigands had no right to prisoner-of-war status (as the American government is currently claiming in its treatment of foreign detainees captured in Afghanistan). Rather, they were land-based pirates or bandits by the law of nations and as such could be dealt with by the capturing officers or the government as outlaws. In August 1838 Chief Justice Robinson informed Lieutenant Governor Sir George Arthur that no one acquainted with the law could doubt that these men were ‘public robbers’ who could be ‘punished summarily ... even to death ... Their conduct would place them out of the pale of the law.’13 In other words, summary executions or lesser punishments were legally justified, with no need to demonstrate military necessity. Robinson and colleagues were hard pressed to find precise authority for this doctrine of outlawry, but they did cite two brief passages in Grotius and von Martens.14 The former had justified the action of the Genevans in 1602 when they had put to death as public robbers Savoyard prisoners taken in an attack during an undeclared war. As explained below, however, Grotius’s writings were not without ambiguity. As for von Martens, he stated that ‘those who, unauthorized by ... the order of their sovereign, exercise violences [sic] against an enemy, and fall into that enemy’s hands, have no right to expect the treatment due to prisoners of war: the enemy is justifiable in putting them to death as banditti.’15 Vattel might perhaps have been cited as well. He wrote that captured enemies who had ‘been guilty of some enormous breach of the law of nation’ could be legitimately executed on the spot. Private warfare arguably fit that case, although Vattel did not mention it.16 There were also two nineteenth-century political precedents which lent some support to the outlawry concept. During the Seminole War in Spanish Florida, the American general, Andrew Jackson, had placed on trial before a court martial two captured British subjects, Alexander Arbuthot and Robert Ambrister. They were found guilty of aiding the Indians and executed in accordance with General Jackson’s order of 29 April 1818,

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which justified the proceedings on the basis of ‘an established principle of the law of nations,’ characterized thus: ‘Any individual of a nation, making war against the citizens of another nation, they being at peace ... becomes an outlaw and a pirate.’17 The other precedent was even more recent, more directly on point, and involved official British interpretations of international law. In December 1831 a group of rebels favouring a constitutional monarchy and under the command of Jose Maria Torrijos had landed in Spain near Malaga and had shortly afterwards been captured by government forces. One of the invaders was an Englishman named Robert Boyd. Spain and the United Kingdom were then at peace. On the order of King Ferdinand (who was as unaware of Boyd’s nationality as Arthur was of John Prince’s intentions18) and Don Gonzales Moreno, governor of Malaga, Torrijos and some of his companions, including Boyd, were shot to death. Although the British consul in Malaga and the British ambassador to Madrid protested the execution of Boyd, both conceded it was legal according to the law of nations.19 The same advice was given Viscount Palmerston, the foreign secretary, by the king’s advocate, Sir Herbert Jenner, a recognized authority on international law.20 When Moreno visited England in 1834, demands were made in Parliament that he be tried for Boyd’s murder. Palmerston answered that no British court had jurisdiction and, in any event, the circumstances of the raid ‘took the case of Mr. Boyd out of the protection of the law of nations.’21 t h e l aw l e s s agg r e ssi o ns act a nd f ru s tr ati o n s o f e nfo rce m e nt The Lawless Aggressions Act was drafted by Chief Justice Robinson and assented to on 12 January 1838, as described in Rainer Baehre’s essay. Again, as seen in the previous essays, the act provided that British subjects allied with invaders could be tried for high treason before the regular courts or for lawless aggression before a court martial. Foreigners from a country at peace with the United Kingdom could be tried for the felony of lawless aggression by the regular courts or for lawless aggression by military tribunals. The legislation was not only designed to fill the perceived gap in the law which made alien raiders immune from criminal liability for treason and possibly other crimes. It was also aimed at doing away with the outlawry concept, which field commanders would be loath to put into practice because it might further inflame the situation on the border.22 As it turns out, however, the Lawless Aggressions Act had

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two features that were to prove seriously hampering. First, it was prospective, applying only to attacks mounted after 12 January 1838. Second, the prosecution had to prove that the raiders were joined by British subjects. The court martial of Thomas Sutherland was the first application of the act, and, as suggested in Barry Wright’s essay, the prosecution was farcical. Impetuous Lieutenant Governor Sir Francis Bond Head, whom Lord Melbourne had aptly described as ‘such a damned odd fellow,’23 began it all by drafting the indictment himself. The gravamen of Head’s charges must have set a modern British record for vagueness in a capital case. It merely alleged that the accused, in league with unspecified traitorous subjects, ‘after the twelfth day of January last, within the limits of the Province aforesaid, was in arms against Her Majesty, against the form of the Statute in such case made and provided.’24 The prosecution, led by Colonel James Fitzgibbon, an alarmist Tory without professional qualifications, failed to prove that Sutherland had been captured in Upper Canada or that he was joined by British subjects. Even the court martial that convicted him refused to issue a death sentence. On London’s orders, backed by the condemnation of the law officers, Sutherland was released at Cornwall in May or June 1839 and immediately returned to the United States.25 Edward Theller, who had captained the Anne when it bombarded Fort Malden at Amherstburg early in January and was among the twenty-one prisoners taken when the ship ran aground on the 9th, was handled differently. Since the Lawless Aggressions Act was prospective, it did not apply to him. Most of the prisoners from that incident were ultimately treated as quasi-prisoners of war, except, most notably, the Irish-born Theller. As we have seen in the essay by Paul Romney and Barry Wright, he was tried and convicted of high treason at the Toronto trials immediately following Sutherland’s court martial. Theller escaped the gallows when Chief Justice Robinson intervened, concerned about the diplomatic repercussions of acting upon the archaic doctrine of perpetual allegiance. In October/November 1838 he escaped from the Quebec Citadel to the United States26 and thus two brigand ‘generals’ evaded the noose. The later applications of the Lawless Aggressions Act went more smoothly for the colonial government but caused mounting concern in London even as the British law officers’ recommendation of disallowance was ignored by imperial authorities. As seen in Colin Read’s essay, one of the five Americans convicted for participating in the Short Hills raid of June 1838 was hanged – the leader, Colonel James Morreau, primarily for

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his role in committing atrocities. The four others were transported for life to Van Diemen’s Land. These punishments did not appease high Tory opinion.27 Although the Prescott and Windsor invasions, as we have seen in the previous essay by Wright, were handled by court-martial proceedings under the Lawless Aggressions Act, and resulted in far more executions and wider use of transportation in the end, Tory opinion seemed unappeased. As all of these proceedings came and went, the Pelee Island raiders languished in prison. Nine men were in custody, arrested by Colonel John Prince of Sandwich shortly before Sutherland (who was tried only nine days after his capture). Prince told them that they would be tried in May. Then, on 23 May 1838 Prince burst into the Sandwich grand jury proceedings, bringing with him indictments, witnesses, and western alienation. Justice Jonas Jones had just explained to the jurors that the Anne and Pelee Island captives were being treated as prisoners of war until Britain decided their fate.28 The problem was that there was no proof they were joined with British subjects as required under the Lawless Aggressions Act. Five eventually did face trial, but not until July 1839. Prince, an independent MHA, senior militia officer, and magistrate, had intended to present bills of indictment for murder against the Point Pelee prisoners, a course he had earlier urged on Arthur.30 Prevented from doing so by Justice Jones (who reiterated the government’s decision to treat the men as prisoners of war) and by crown counsel Colonel Allan McNab, who cited his instructions from the attorney general, Prince launched into a tirade designed to portray himself as the champion of all true western loyalists against a pusillanimous government in Toronto. The prisoners could not possibly be prisoners of war, since there was no war, and if they were tried for murder, Prince could easily prove that charge. The crown’s interference with the legal course of justice reflected the attitude of the uncaring easterners: ‘Whereas those who live remote and remain unscathed by injury ... remain ... indifferent to ... a distant people’s wrongs, and indifferent about vigorous prosecutions and the truth of this remark is, I think established by the extraordinary proceedings of this day ... I protest, most solemnly protest ... and in that I am bold enough to expect that every good and loyal subject of this country, who reveres and desires to sustain the laws, will join.’ The next day the grand jury presented Prince with a written statement associating themselves with his stand.31 The Western Herald followed with an attack on a government that coddled the foreign ‘murderers of our brave soldiers.’ Its ‘unparalleled misapplied lenity ... exhibited towards

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its enemies, far – far exceeds the justice due to its friends.’32 The Herald’s sensational story on the proceedings was reprinted in newspapers throughout the colony and usually was accompanied by editorial support for Prince. This was so even in Toronto, where one might have expected some sympathy for the government’s dilemma. The Colonist, for example, deplored the government’s unprecedented interference with the judicial process.33 The Patriot blamed the ‘truckling policy’ of the Whig government in London. If those ‘imbeciles’ were to hold office another year, it predicted, ‘England will not have one ray of glory left.’34 The Palladium headlined the story in block capitals ‘MOST MELANCHOLY!!!’ and reproduced the Patriot’s editorial comment.35 Whatever the adulation, this was Prince’s third failure, for he had personally captured Sutherland and had arrested the Anne prisoners. His frustration must have been building. The nine Pelee Island prisoners of war were transferred to the Home District in June and then to Fort Henry in October. Six were eventually indicted by the Toronto grand jury in June 1839. When the crown went to trial against five of them (Phillip Jackson, James Mace, John McIntyre, Diogenes McKenzie, and Benjamin Warner) in late July 1839, it relied heavily on the testimony of one teenager, William Carroll, who turned evidence. He had grown up in the Niagara District and had participated in the invasion, the only British subject among the prisoners. The belated trials were heard before Mr Justice James Buchanan Macaulay and prosecuted by Christopher Hagerman. George Rideout, a Baldwinite Reformer, defended.36 Rideout’s major argument was that the Lawless Aggressions Act required the raiders to be joined by British subjects in the plural. He supported his contention for a restrictive interpretation by citing a case where an accused who had stolen one horse was acquitted under a statute which referred to stealing ‘horses.’ Rideout also argued that the procedural protections of the 1696 Treason Act, notably the two-witness rule, should apply because the Lawless Aggressions Act punished offences analogous to treasonable levying of war. Macaulay dismissed the contention that foreigners could benefit from the protections offered by the 1696 act and instructed the jury that ‘subjects’ in the Lawless Aggressions Act could be read in the singular as well as plural.37 After retiring for about half an hour, the jury found all the accused guilty and made no recommendation for mercy. Judgment was postponed in order to obtain the collective opinion of the King’s Bench judges on Rideout’s objections to the admissibility of confessions entered on the record and Macaulay’s interpretation of the

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Lawless Aggressions Act. Judge Jonas Jones found both objections valid. Judges L.P. Sherwood and Archibald McLean found neither valid. Judge Macaulay had new concerns and found for the defence on admissibility but reiterated his singularizing of ‘subjects.’38 With no majority for or against conviction, final judgment was further postponed until the return of Chief Justice Robinson in 1840. Robinson had been in England since the end of October 1838 defending the Lawless Aggressions Act and other controversial provincial measures and battling over changes in colonial policy and the shape of the new Canada Bill.39 Before final judgment was possible, the Lawless Aggressions Act was repealed. Early in March 1840 the new attorney general, William Draper, advised Arthur there was now no law under which the prisoners could be sentenced.40 As we will see, the measure was re-enacted later in the year with strengthened provisions. In the meantime, the Executive Council directed the release of all the remaining Pelee Island prisoners on their own recognizances not to return to the province. They left for the United States, having spent over two years in prison.41 Although this ended the formal rebellion-era applications of the Lawless Aggressions Act, the story is far from complete. We now turn to the continuing public debate over summary justice and to the tacit official support for the sort of rough justice that John Prince ultimately embraced. p u b l i c e x p r e ssi o ns o f b e l i e f i n t he o u tlawr y c o n c ept John Prince was a man beset by many demons.29 A reclusive paranoid who sought publicity, an indefatigable performer of duty, he longed for a release from martyrdom, indeed from life, and despised the public he, as a gentleman, must serve. Prince was a defender of the law who often broke it. His unhappiness with the world as it stood was symbolized by the imposing Regency house he had built in the bush, facing away from the nearest road, prying neighbours, and humanity in general, all determined, he thought, to visit humiliation on him. As a magistrate, Prince adopted a heroic posture, which seemed to say that only this toughminded practical man could effectively deal with the bandits plaguing the frontier. It was he, for example, who had ordered the Anne’s prisoners tied and marched ‘cart’s tail to the Amherstburg guardhouse. In June-July 1838, on the occasion of a rumoured raid, Prince characteristically took the law into his own hands and had all the boats on the Canadian side of the Detroit River impounded. As his biographer, R. Alan Douglas, convincingly argues, Prince yearned for simple solutions to life’s complexi-

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ties. This was never more evident than in his treatment of the brigand issue. By the summer of 1838, as suggested above, Colonel Prince was growing increasingly frustrated with the cause of justice, and his feelings appear to have been widely shared. After the Short Hills Raid, for instance, the Toronto Patriot observed, in a much-reprinted story, that the captives should be ‘treated as mad dogs,’ adding that it would be abominable ‘if a single one of them escape the halter, the rifle, or the tomahawk.’42 A meeting held at Sandwich on 9 June 1838 passed a set of resolutions praising Colonel Prince and ominously announcing that in future cases ‘a thirst for sanguinary retributive vengeance’ might of necessity operate its will, given Toronto’s indifference.’ Copies of the resolutions were sent to newspapers in all parts of the colony and received widespread publicity.43 Arthur was thoroughly alarmed. A copy of a letter from Hagerman dated 7 June 1838, reiterating his views on outlawry, treason, and other crimes was sent to Prince and other Western District magistrates. Whether this would eventually help mould Prince’s opinion is unknown. Arthur sent the letter and a copy of the resolutions home, again asking for advice.44 He had earlier sent to England a Hagerman opinion endorsing the outlawry concept and claiming that the civil government, after receiving prisoners from the military authorities, could no longer execute these men but could condemn them to transportation or hard labour on the British hulks. Arthur again warned London that, if punishments were not meted out to brigands, ‘summary justice, will in future cases, be inflicted by their captors.’45 More irresponsible than the statements made at public meetings or in the newspapers were those of government officials (including judges) and supporters. In March, Chief Justice Robinson had informed the grand jury for the Home District that the raiders were outlaws at the mercy of the government. In Theller he stated in his address that the ‘captors of that Brigand crew would have been fully justified in hanging them upon the spot,’ but that once they were delivered to the civil government summary executions became illegal.46 At the Kingston assizes early in May, Justice Archibald McLean claimed that a foreign invader from a country at peace with Queen Victoria was ‘guilty of a violation of the Law of Nations, and ... liable to be dealt with according to the mere will and pleasure of his Captors.’ His government would have no complaint if such a person, thus ‘placing himself out of the protection of all Law were summarily punished with death.’47 Later that month, Justice Jonas Jones, in opening

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the assizes at Sandwich, said much the same.48 In the Morreau trial, Solicitor General William Draper contrasted what might have been with the spirit of British fair play: ‘The Canadians did not, as justifiably they might have done, take the administration of justice into their own hands and execute the banditti by whom their lives and property were attacked on the very spot they were captured ... The fact that the foreign leader of a violent and unprovoked outrage is brought to a peaceful trial affords the strongest possible moral lesson of the forbearance of British subjects as well as of the utter futility of attempting to overthrow their existing institutions.’49 On 10 July the Patriot published a long apologia of the government’s conduct in the form of a letter to the editor from a correspondent described only as ‘S.’ It was likely the work of Tory barrister Henry Sherwood, of Toronto, sometime assistant to Hagerman in the political trials and the son of Judge Levius Peters Sherwood.50 He certainly expressed Hagerman’s viewpoints. ‘S’ cited a number of authorities to show that the prisoners, owing no allegiance and enjoying no protection, could not be guilty of treason. Nor were they liable for murder or some lesser crime: ‘From the nature of the undertaking in which they embarked they could not claim the protection of our Laws, and certainly if a man cannot claim protection ... the obligations are reciprocal. Suppose for instance that while the brigands were in possession of Pelee Island, an inhabitant ... had gone at night and shot one of this party, could he be tried for murder? Certainly not because the person killed was not under the protection of our laws, and the principle must equally apply a converso.’ The proper course, in the opinion of ‘S,’ would have been to hang the captives on the spot as outlaws, in accordance with the doctrines laid down by Grotius and von Martens, whom he quoted. But having been spared by the officers in command, execution now would properly ‘be looked upon by all civilized nations, as an act of the most wanton barbarity.’ They could, however, be sentenced without trial to hard labour in the hulks or transportation to a penal colony.51 Another letter writer answered ‘S’ at length.52 The men taken at Pelee Island, he claimed, could hardly be considered prisoners of a war since ‘war’ meant the ‘exercise of violence under Sovereign command, against withstanders.’ To say that these men could not be tried for criminal offences implied that any ‘foreigner who crosses over to this province and commits murder, arson, robbery or any other crime, is not triable in the Courts of Upper Canada.’ Such a position was ‘too monstrous to waste comment on.’ If the captured invaders were not tried and, if con-

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victed, hanged forthwith, the writer would always believe ‘that when Justice fled from earth to Heaven, she certainly did not bless with her last footstep the CAPITAL OF UPPER CANADA.’ As for the doctrine advocated by ‘S’ that the outlaw Pelee Island prisoners might have been summarily executed, it was in flagrant contradiction to the British tradition that the people ‘ought not to take the law into our own hands.’ He for one was appalled by this concept of a lex talionis or ‘lynch law’ as practised by the Genevans in 1602 and by the Yankees in more recent times: ‘We of England and Upper Canada try robbers by jury, because we happen to be 200 years in advance of these countries in the arts and sciences, in laws, in manners, in language, and in all the blessings of civilization. Hence the difference between barbarians and us.’ This was the strongest denunciation of summary justice published in Upper Canada before the Prince affair. The author? Colonel John Prince! t he b at t l e o f w i nd so r About one hundred and fifty raiders were involved in the Battle of Windsor on 4 December 1838.53 Twenty-seven of them were killed in a variety of minor engagements and forty-nine taken prisoner. During the battle the raiders fatally shot two militiamen and also engaged in a number of violent acts which would soon be widely characterized as atrocities. They burned a guardhouse of the Essex militia, roasting two citizen soldiers to death in the process, and proceeded to fire the steamer Thames in reprisal for the Upper Canadian burning of the American ship Caroline at the Falls, almost a year before. An unarmed black man was shot to death in his own house for expressing pro-British sentiments too strongly. A local surgeon, John Hume, attempting to give medical aid to whomever needed it, was stabbed to death, his body then being mutilated and fed to the pigs. Retaliation was not long in coming. After the last engagement, Colonel John Prince, commanding the militia forces, ordered the execution of five patriot captives. The savagery with which those orders were carried out is best described by his biographer: ‘The simple fact of the shootings seems to have been generally approved of both before and after the battle; but telling a prisoner to run for his life before shooting him down, blowing a man’s brains out just to make sure he was dead; dragging a wounded prisoner out of a clergyman’s house and shooting him from horseback; and staging a shooting for the benefit of the audience on an American schooner – these were the acts not of a defender of the established order of things but of a madman.’54 The vigilante action so long

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feared by Sir George Arthur had come to pass and the complex question of outlawry was now pushed to centre stage. When Arthur first learned that Prince had ordered prisoners shot, he could hardly credit it. The orders were surely illegal, contravened the spirit of government policy, and stupidly increased the risks of war. As he complained bitterly to Colonel Richard Airey, commanding at Amherstburg, it was beyond his power to express the anger he felt at this illegal and immoral act.55 Arthur’s mood hardly improved when the Western Herald published Prince’s war dispatch containing this sentence: ‘Of the Brigands and Pirates 21 [sic] were killed besides 4 [in fact 5] who were brought in just at the close and immediately after the engagement, all of whom I ordered to be shot upon the spot, and which was done accordingly.’56 Asked by Arthur to explain himself, Prince complied in a lengthy letter of justification.57 ‘My conscience and the law assure me I was right in what I did,’ he wrote. The brigands had butchered Dr Hume and a ‘coloured man.’ The colonel entertained no doubt whatever that he would have been justified in executing each and every captive ‘just as we would mad dogs and wolves.’ Prince had expected praise, not blame. Had not the lieutenant governor himself earlier instructed Colonel Airey to ‘destroy’ the brigands if they were to effect a landing? In the future, as in the past, only ‘positive orders’ to refrain would make Prince change his course. The proper way of preventing incursions was to convince the patriots that they faced ‘instant death’ if caught. Theller had not been strung up at once, had escaped the death penalty and the Citadel, and was now the ‘Lion’ and chief agitator in the Detroit area. He, Prince, had begun the salutary lesson. Nowhere in this letter did Prince claim that the executions were designed to help win the battle by undermining the enemy’s morale, freeing needed soldiers from guard duty, or otherwise. The only passage referring to immediate military necessity was an assertion that the defenders ‘had quite enough to do without taking care of Prisoners.’ Prince in fact claimed legal justification on the basis of the concept of outlawry and in support of this he paraphrased a statement made by Chief Justice Robinson to the jury in the Theller case: ‘The captors of that Piratical brigand would have been fully justified in hanging him and his associates on the spot.’ Opinion in Detroit was hostile to the colonel. The Detroit Daily Free Press described him as ‘this disgrace to human nature – this unhung [sic] murderer.’58 By the latter half of December, if not earlier, ‘the walls of that city’ were ‘covered with placards, offering a reward of eight hundred dol-

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lars for the body of Colonel Prince, dead or alive.’59 About New Year’s Eve, 1838, Prince was burned in effigy on the ice of the river and afterwards a cannon was fired.60 In Upper Canada, by contrast, Prince became a hero, although he was not without his critics. On Boxing Day, 1838, Prince sent a letter to the adjutant of a regiment stationed at Port Credit, thanking its officers for their unqualified support of his behaviour. The letter perfectly illustrated the colonel’s unusual conscience and absolute assurance that whatever he did or would do was absolutely proper: ‘I was right both in Law and in moral principle in what I did, and I know also that four fifths of the Province are with me in the subject.’61 In this last he may have been correct. With the notable exception of the Toronto Examiner, published by the moderate Reformer Francis Hincks, the colony’s newspapers hailed Prince’s action. The Patriot and the Western Herald led the way, usually referring to Prince as the ‘gallant colonel.’62 Almost immediately some of Toronto’s citizens organized a subscription to present him with a sword.63 He made a triumphal progress to the capital, taking his assembly seat to rousing cheers.64 Almost any Tory running for election sought his support.65 Oddly, the most flattering praise came a few years later and from a Montreal newspaper, the Morning Courier, which, recalling Prince’s stance as a ‘terror to Yankee brigands, wrote that “he is the very type of what an Englishman ought to be – frank, generous, & noble.”’66 In Sandwich the townsfolk had earlier thought to improve security matters by holding another public meeting on Christmas Eve to draft an address to the lieutenant governor. The address was provocative in the extreme, calling for ‘an immediate, a vigorous, and a decisive war between Great Britain and that nation opposite to us.’ Would-be patriot invaders were warned that, the moment they were captured on Upper Canadian soil, ‘certain, instant, and inevitable death at our hands will be their Fate, without any recognition of them as Prisoners of War or as any other sort of prisoners.’67 Arthur, who came to Sandwich on 12 January to investigate the affair, replied that while the provocation was immense the infliction of summary justice was a course ‘you and the whole of the civilized world reprobate; and would deprive the imperial government of the strongest arguments which it can use in enforcing the justice of your cause.’68 In this indirect way the lieutenant governor publicly reprimanded Prince. Later that month an anonymous pamphlet titled Battle of Windsor appeared, printed in Detroit.69 It attacked the patriots and Prince, the latter being portrayed as a cowardly madman, who had avoided the battles

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before sadistically orchestrating the killings. The pamphlet had been prepared by a dozen or so residents of the Sandwich-Windsor area. Prominent among them were William Elliott, colonel of the Essex militia, who had had second thoughts about chairing the Christmas Eve meeting; Charles Elliot, magistrate for the Western District; François Baby, owner of the orchard in which the main battle had been fought; his cousin Charles, a merchant; and William Wood, deputy clerk of the peace. The authors may well have been motivated by humanitarian feelings and a desire to tell the truth. To Prince and his supporters, however, they were cowardly plotters, jealous of the colonel’s exploits. These ‘reptiles’ needed crushing and Prince did his best, publicly horsewhipping Charles Baby and wounding Wood in a shooting duel. a sse ssi ng re sp o nsi b ili ty The publication of the Battle of Windsor convinced Arthur that some official action was required. He ordered the establishment of a court of inquiry, consisting of Colonel Airey and two other regular officers. The mandate of the court, which began its sitting at Malden on 18 February, was restricted to inquiring into and reporting on the truth of those statements made in the pamphlet relative to the shooting of the five prisoners. Twenty-eight witnesses were examined, including several authors of the Battle of Windsor, Sergeant Charles Anderson, who had boasted of involvement in all five executions, and Colonel Prince himself.70 Evidence supporting and denying statements bearing on the colonel’s supposed gratuitous cruelty were entered into the record, although the greater number of witnesses testified in Prince’s favour: he could not have known that one prisoner was wounded; no women witnessed the death of another prisoner; and so on. Most believed that, when the first prisoner had been shot at the end of the skirmish in Baby’s orchard, a patriot attack on Sandwich had seemed imminent, although in fact the raiders had by then been defeated. There was no agreement among the witnesses as to the military context of the succeeding four executions. Prince’s friends contended that all were shot when it was believed the patriots would be immediately reinforced from Detroit. The colonel’s political opponents testified that, after the first or at worst the second shooting, all danger had clearly passed, a position more consistent with the information Arthur had received. In any case, Prince again did not defend himself on the ground of imperative military need but admitted that, having satisfied himself as to the law prior to the battle, he had ‘made up his

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mind to execute, as soon as he possibly could, every Prisoner that was brought to him.’ The court of inquiry made no finding relative to military necessity and did not refer to the law. It could not, of course, hide the fact that Prince had ordered the executions, but it could and did conclude that the Battle of Windsor falsely accused him of wanton cruelty: ‘The invidious colouring which characterized the ... facts ... reflecting so painfully upon the conduct of Colonel Prince is not in any way substantiated by evidence.’ The pamphlet was attributed solely to ‘a spirit of personal hostility and enmity towards Colonel Prince,’ and its publication, and inevitable circulation outside the province, was severely condemned. On 20 March, Arthur issued a militia general order expressing his entire concurrence with the report.71 He ‘most deeply regretted that ... Colonel Prince was induced to anticipate the result of legal proceedings,’ but it should be remembered that the orders had been given ‘under circumstances of impending danger and highly excited feeling.’ Arthur continued to disapprove of summary execution, which ‘can only be justified by an extreme case of necessity.’ The real culprits, though, were the authors of the Battle of Windsor, especially Colonel William Elliott, who had earlier supported Prince wholeheartedly. Elliott was dismissed from the militia. The next day Arthur ordered Charles Elliot’s dismissal as magistrate. Prince retained his commission and remained on the bench; indeed, he was elected chairman of the quarter sessions for the Western District in July. While one could only condemn what he had done, Arthur wrote Airey, the colonel ‘never premeditated any cruelty, and was under that degree of excitement that he knew not what he was about. But his persecutors are a shocking set!’72 The Prince affair had almost run its course. The United States government issued no protest and the fear of war receded. From Arthur’s point of view the only aggravation occurred when a public dinner was held, 4 April, in Toronto to honour Prince. In a long speech, much interrupted by cheering, the colonel elaborated on his handling of outlaws, for the first time citing military necessity (the prospect of an immediate counterattack) and suggesting that the lieutenant governor, who had ordered the brigands destroyed, had not given him sufficient support. An exasperated Arthur, who now saw the colonel as one of those ‘persons so perfectly impracticable that it is impossible to deal with them,’ felt obliged to send Lord Glenelg, the colonial secretary, documentary proof that Prince had understood all along that the order to ‘destroy’ was meant to apply to the battlefields only.73

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The colonel’s behaviour seems inexcusable. He did not act on orders and he never – except on the occasion of the Toronto dinner – made a case of military necessity. Prince was well aware that his acts were possibly illegal, having himself written the most severe condemnation of drumhead justice published until then in Upper Canada. From February on, public opinion, it is true, strongly favoured killings on the spot, but other commanders, after Pelee Island, Short Hills, and Prescott, did not pander to it. And Prince could no longer claim that without lynchings there would be no punishments. The brigand Morreau was hanged in July under the Lawless Aggressions Act and the four other Americans convicted at the Short Hills assize had been ordered transported for life. At the time of the Battle of Windsor, the Fort Henry court martial had been hearing evidence for six days and by 30 November had sentenced the Prescott raid leader Nils Von Schoultz to death.74 Given the number of Upper Canadian exiles then living in the Detroit area, Prince could hardly have supposed there would be no British subjects among the invaders, so as to make the act inapplicable, and never claimed he had. Indeed, it is clear that Prince’s own words that he had no idea whether the men he ordered shot were Americans or British subjects: ‘Whether they were British subjects or Citizens of the opposite ungodly shore I did not trouble myself to enquire. There was no time for that – nor would it have signified to me one straw, whether they were British or Yankee, Jew or Gentile.’75 Part of the responsibility for this gross breach of British military tradition must be laid on the provincial and imperial governments. Arthur had long anticipated something of the sort might happen and was perfectly aware that only uncommon firmness on the part of the militia officers had prevented their men from shooting the captured Short Hills raiders on the spot. And yet Arthur gave no express orders on the issue. The judges and law officers had given repeated public expression to their belief in outlawry, no doubt to vaunt British magnanimity, but included no caveat against acting upon it. ‘S,’ whose status of crown counsel soon came to be widely known, went so far as to advocate summary hangings as proper policy. Newspaper editorials arguing the same point of view remained unanswered by government officials. This stance was bad enough considering the weak basis outlawry had in legal principle and authority. But it was plainly irresponsible after the Lawless Aggressions Act had, in the modern vernacular, occupied the field, as its title indicated, of lawless aggression. The judges and law officers hastened to advise the lieutenant governor on penal policy, but they apparently said nothing after learning of the British law officers’ opinion of 21 August

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negating the outlawry concept. As for London, Glenelg had received dispatches and enclosures from Arthur warning of the vigilante danger, including a copy of the inflammatory resolutions passed at the Sandwich public meeting of 9 June. Yet he issued no definite instructions on the point. The British law officers were well aware that Hagerman and Robinson adhered to the outlawry concept but, though they disagreed, did not attempt to refute it with argument. Nor did they bring to Glenelg’s attention the possible consequence. In the late spring of 1839 the Executive Council requested an opinion from the law officers on whether or not a crime had been committed in the Prince affair. Hagerman and Draper could not decide on the question of necessity. They admitted that the raiders had been ‘defeated’ but also stated that Prince’s forces, at the relevant times, were ‘in expectation of an immediate renewal of the conflict with the enemy.’ But, of course, military necessity was irrelevant to the outlawry concept and the law officers, without mentioning it, let alone attempting to justify the doctrine, simply concluded that the procedure adopted by Colonel Prince, though ‘unusual,’ was perfectly legal.76 The new colonial secretary, Lord Normanby, had already approved Arthur’s handling of the affair in a dispatch of 14 May.77 He had also then expressed official regret that Prince had ordered the shootings. He would not enter into the question of the law involved but was ‘deeply impressed with the conviction that it is not for the honor of the British name that unresisting men should, however culpable, suffer death otherwise than by the sentence of a Legal Tribunal.’ Arthur should take every means in his power to ensure against any recurrence. The next day Henry Labouchere, undersecretary for the colonies, repeated to the Commons the main points contained in the dispatch.78 In the House of Lords, former lord chancellor Henry Brougham led the parliamentary attack on Prince late in May 1839. He castigated the halfdozen or so peers who cheered when one of Hagerman’s pro-outlawry opinions was read. To Brougham, the Prince affair meant lynch law. Hagerman’s opinion ‘was the grossest outrage on all law that had ever been put on paper, not merely by a lawyer, but by the most ignorant man that ever existed ... it was absurd and monstrous from the beginning to the end.’ If one killed a murderer, that was murder. Killing a convicted murderer, on the way to execution, was also murder. Brougham told the House that he had never come across a chapter entitled ‘On the anticipation of legal proceeding by summary execution’ in such famous jurists as Hawkins, Blackstone, and East. In the worst case, the battle was entirely

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over; in the best, Prince’s men were expecting another attack. Did the Duke of Wellington, who was sitting opposite, ever in his long military career do anything remotely similar to what Prince had done? To ask the question, Brougham implied, was to make the point. The Marquess of Normanby, again avoiding the law, managed to deplore the action but defend Prince because of the agitation along the border. Former colonial secretary Lord Glenelg and Lord Ellenborough added nothing to the debate. No one confronted Brougham directly. Wellington argued that the colony must be defended by disciplined regular troops, not uncontrollable militia. He clearly thought that Prince had gone too far. It was owing to the militia’s heavy role that ‘these unhappy events had occurred – events which no man more deplored than himself – and the guilty persons engaged in which he was most desirous to see punished.’ Thus did the greatest British law reformer and general of the age condemn the legality of the outlawry concept.79 Little was made of the debate in the London press. The Times, the Spectator, and the Examiner, for example, carried Brougham’s speech but did not editorialize on the matter. The London Standard did question Brougham’s legal capacity, by quoting von Martens, but the issue was almost dead except that Normanby’s successor, Lord John Russell, used the incident in early June to bolster his case against colonial responsible government.80 It demonstrated, Russell contended in the Commons, that Lord Durham’s division of political matters into imperial and local, with cabinet government to operate only with regard to the latter (including the militia presumably), was ultimately unworkable. Russell characterized the notion of outlawry as morally reprehensible anywhere in the empire, but there was no follow-up. Prince and the Upper Canadian law officers who protected him had successfully broken the ‘rule of law.’ a sse ssm e nt o f t he l aw Today, the outlawry concept, so firmly held among senior officials of the Upper Canadian government and Tories in general, is widely rejected by virtue of a 1949 treaty known as the ‘Convention Terrestre.’ But what was the law in 1838? Then there were no judicial decisions on point. The passages from Grotius, von Martens, and the ambiguous Vattel were brief and eschewed discussion of principle. Yet, while the following passages in Grotius’s War and Peace deal with prisoners of war, there seems no reason not to apply them to irregular wars:

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1. For where tribunals retain their authority in full vigour to try the merits of every offence ... the power of the sword must be restrained from inflicting promiscuous death. 2. For after a place has surrendered, and there is no danger to be apprehended from the prisoners, there is nothing to justify the further effusion of blood.81

Against these scholars can be set the six British treason jurists: Coke, Hale, Hawkins, Foster, Blackstone, and East. They all dealt with invading alien amys, but not one of them so much as mentioned the outlawry concept.82 Furthermore, the latest juristic opinion, the British law officers’ opinion of 21 August 1838, was dead set against it. The following passage was written on the assumption, highly dubious in their view, that the Upper Canadian authorities were in fact correct and that alien amy raiders could not be tried for treason. If so, they could not be punished at all, even as outlaws: An alien amy hostilely invading the English territory while in arms, might lawfully be put to death, and when taken prisoner, if his immediate execution were necessary to the suppression of insurrection, he might be executed immediately, without any reference to municipal law. But the insurrection being quelled and tranquility restored, and the ordinary tribunals proceeding regularly in the administration of justice, an alien amy who had been taken in arms could not be lawfully put to death, either with or without the form of being tried by a courtmartial, and all who should take part in such an execution would be guilty of murder.83

Nor are the actual precedents particularly persuasive. In the 1819 session of the U.S. Congress a select committee of the Senate severely rebuked General Andrew Jackson, claiming that his two captives should have been treated as prisoners of war. The report did not call for a vote of the Senate and none was taken. The committee of military affairs in the House of Representatives also censured Jackson for acting on a barbarous theory and without the slightest military necessity. The resolution of censure proposed in the House was defeated. Still, the condemnation by two specialized committees weakens the Jackson precedent.84 In advising Palmerston in the Torrijos-Boyd case, King’s Advocate Sir Herbert Jenner offered as his principal ground that Boyd had been treated in exactly the same manner as the Spanish rebels who were liable to summary death sentences and executions. Such a principle would have been difficult to apply to the British empire where invading

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subjects were entitled to trial by jury. In any case, Jenner’s letters dealt in conclusions, not reasoning.85 The idea of summary executions, moreover, was fraught with practical difficulties, for how were the military commanders to be clear which of the captives were aliens and which subjects (including those who had become naturalized) and which of the aliens owed local allegiance and hence came under the crown’s protection? Outlawry sat badly with the tradition of the British army and the great hostility of the common lawyers to martial law, not to mention Lord Mansfield’s well-known characterization of the law of nations as being ‘founded on justice, equity, convenience, and the reason of the things and confirmed by long usage.’86 And the concept certainly appeared anomalous during the constitutional enlightenment of the late 1830s, when Britain had enacted the Great Reform Bill and was witnessing the emergence of responsible cabinet government. In this context, Lord Brougham’s repudiation of the idea was not surprising. With the much delayed trial and conviction of the Pelee Island raiders in July 1839, the suspended judgment, and their release in March 1840 on the grounds that the law under which they were to receive sentence was repealed, the political, military, and legal dilemmas engendered by ‘lawless aggressions’ was terminated, for a generation at least. The repeal of Lawless Aggressions Act was followed by the passage of a revised act which eliminated the problem encountered with the Pelee Island cases and that had so frustrated Prince: the requirement that raiders join themselves to traitorous British subjects was dropped.87 As will be seen in the planned volume 3 of this series, in response to the 1866 Fenian raids, the measure was extended to Quebec and then further amended for the entire United Province of Canada to have retroactive effect and to enable British subjects as well as foreigners to be tried for the offence of lawless aggression in the regular courts.88 Thus, by the time of the socalled Fenian Act, the problems posed by the joining together of subjects and aliens and by invasions prior to legislation taking effect had been confronted. One of the most controverial measures of the rebellion became a long-term feature of Canada’s state-security law. As for Prince himself, he remained unchanged in temperament for a decade at least. In late February 1849 he discovered William Lyon Mackenzie, recently returned from exile but no longer an MLA, in the library of the Legislative Assembly in Montreal. According to the colonel’s diary, he ‘turned William Lyon Mackenzie, the Traitor out of The Library. Much excitement created thereby.’89 This deed embellished his heroic status as

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the ‘gallant Colonel’ among Tories from Kingston to Windsor.90 But the turning out was brutal and not everyone, of course, was charmed. According to the Long Point Advocate, Prince, finding Mackenzie in the library, ‘fell upon him, without the slightest provocation ... and after dragging him down two flights of stairs, pitched him headlong into the mud in the street! When it is remembered that Mr. Mackenzie is a weakly man, of diminutive size, and nearly seventy years of age, the gallant exploit of the Windsor Butcher cannot fail to add to the lustre of his already exalted reputation for courage and humanity.’91

NOTES 1 See Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: Osgoode Society/University of Toronto Press 1993). 2 See Arthur’s letters in Charles R. Sanderson, ed., The Arthur Papers, 3 vols. (Toronto: Toronto Public Libraries/University of Toronto Press 1957–9), 1: 381, 396–7, 404–8, 414–18, 478–80; 2: 75–92 at 81. 3 Robinson to Arthur, 6 Aug. 1838, John Beverley Robinson Papers, AO. 4 See Glanville L. Williams, ‘The Correlation of Allegiance and Protection,’ Cambridge Law Journal 10 (1948), 54. 5 Robinson to Arthur, 6 Aug. 1838, n.3 above. 6 Sir Edward Coke, The Third Part of the Institutes of the Laws of England [1641] (London: W. Clarke and Sons 1809), 1–15; Sir Mathew Hale, Historia Placitorum Coronae/The History of the Pleas of the Crown [c. 1670], vol. 1, Sollom Emlyn, ed. (London: E. and R. Nutt and R. Gosling 1736); William Hawkins, A Treatise of the Pleas of the Crown, vol. 1 [1716] (London: Professional Books 1973), ch. 7; Sir Michael Foster, A Report of Some Proceedings on the Commission for the Trial of Rebels in the Year 1746, in the County of Surrey; and of Other Crown Cases: to Which are Added Discourses upon a Few Branches of the Law [1762], M. Dodson, ed. (London: E. and R. Brooke 1792), 183–200; Sir William Blackstone, Commentaries on the Laws of England [1765–70], 4 vols., George Sharswood, ed. (Philadelphia: J.B. Lippincott 1859), 4: 74–93; Sir Edward Hyde East, A Treatise of the Pleas of the Crown, 2 vols. (London: J. Butterworth 1803), 1: 37–138. The passages cited are hereafter referred to by their authors’ surnames. 7 This was distinctly implied, rather than expressly stated, in Foster and East. 8 For the London position, see the law officers to Glenelg, 28, 31 May 1838, RG 7, G 1, vol. 86, NA; and their more elaborate position, same to same, 21 Aug. 1838, reproduced in William Forsythe, ed., Cases and Opinions on Constitutional Law (London: Stevens and Haynes 1869), 199–204. The most comprehensive

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10 11

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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opinion from the Toronto side was that of Chief Justice Robinson, cited in n.3 above. It was thoughtfully considered and relied heavily on authorities. See also, e.g., the opinions (including Robinson’s) enclosed with Arthur to Glenelg, 30 June 1838, CO 42/448, NA. The precedent was Sherley’s case [1557] 2 Dyer 14 b, the report of which does not indicate that the issue was even raised in court. Attorney General Hagerman to Arthur, 1, 12 May 1838, CO 42/446; Justice Jonas Jones’s address to the grand jury of Niagara (18 July 1838), Toronto Patriot, 17 Aug. 1838. See n.8 above. Hugo Grotius, The Rights of War and Peace [1625, in Latin], trans. ed. A.C. Campbell (Washington/London: M. Walter Donne 1901), B.3; Emerich de Vattel, The Law of Nations [1758 in French] (London: G.G. and J. Robinson 1797); Georg Friedrich Von Martens, Compendium of the Law of Nations [c. 1789 in French], trans. ed. W. Cobbett (London: Cobbett and Morgan 1802), 291–2. See the second essay by Greenwood on the Montreal Court Martial in this volume. See n.3. above. See letter of ‘S’ (discussed below), Patriot, 10 July 1838. I have not been able to locate the Grotius passage in question but do not doubt its existence. See n.11 above. Ibid., 348. See n.84 below. The Times (London), 4 July 1834. Ibid., 17, 25 July 1834. Jenner to Palmerston, 31 March 1831, 10 Feb. 1832, Law Officers’ Opinions to the Foreign Office, vol. 81, 254–6, 273–9. U.K., H.C. Parliamentary Debates, 3rd series, vols. 24, 25, (27 June, 28 July 1834) For the origins of the act see references in n.4. Quoted by S.F. Wise in his Introduction to Head’s A Narrative (Toronto: Carleton Library Series 1969), xix. See appendices to Arthur’s despatch to Glenelg, 23 April 1838, CO 42/446. Law officers to Glenelg, 28 May 1838, RG 7, G Series, vol. 86, NA. Robinson to Arthur, 11, 19 April 1838, CO 42/446; encl. with Arthur to Glenelg, 25 April 1838, ibid.; DCB 8: 870–2. Robinson interpreted the jury’s qualification of the guilty verdict, ‘on the ground that his birth makes him a subject, as a recommendation for mercy.’ Two other British-born subjects pleaded guilty and were sentenced to fourteen years’ transportation. That the concept of perpetual allegiance was archaic is reasonably clear from Aeneas Macdonald’s case (1747) 18 St. Tr. 857.

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27 See the issues of the Niagara Chronicle and the Niagara Reporter for June– August 1838; Arthur to Glenelg, 27 July 1838, with enclosures, British Parliamentary Papers (Irish University Press ed.), vol. 10; Colin Read, ‘The Short Hills Raid of June 1838, and Its Aftermath,’ OH, 68 (1976), 93. 28 Western Herald (Sandwich, U.C.), 29 May 1838. 29 For Prince, see the writings of R.A. Douglas: ‘The Battle of Windsor,’ OH, 61 (1969), 137; DCB, 9: 643–7; John Prince: A Collection of Documents (Toronto: Champlain Society 1980). 30 Prince to Arthur, 14 April 1838, CO 42/446. 31 Western Herald, 29 May 1838. 32 Ibid. 33 14 June 1838. 34 8 June 1838. 35 13 June 1838. 36 For this trial (R. v. Philip Jackson et al.), see Judge Macaulay’s report, 25 July 1839, RG 1, E 3 (Upper Canada State Papers, 1791–1841), vol. 65, NA; Mackenzie’s Gazette, 17 Aug. 1839. 37 This suggests sloppy drafting by Robinson; unlike section one, section two of the act refers to any subject. Macaulay reasoned that ‘any Subjects’ could be read as ‘any of ’ the queen’s subjects. This would seem to contradict the local Evidence Act which Macaulay himself cited (SUC 1837, c.14, s.2, which provided that the plural included the singular and vice versa unless such construction was ‘repugnant’ to the context). At the very least, since two interpretations were plausible, the accused was entitled to the most beneficial one in accordance with established common law. See, e.g., Sir Fortunatus Dwarris, A General Treatise on Statutes [1831], 2nd ed. (London: W. Bening 1848), 1634. 38 Macaulay to S.B. Harrison, 20 Aug. 1839, RG 1, E 3, vol. 65. 39 Robinson had been able to fend off the continuing threat of disallowance of the act (which Lord Brougham described as absurd) by suggesting that objections would be met through amendments in the next session of the provincial legislature – Robinson to Stephen, 10 June 1839, J.B. Robinson Letterbook, AO. See also, generally, Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact (Toronto: Osgoode Society/University of Toronto Press, 1984) 208–26. 40 Draper to Arthur, 8 March 1840, RG 1, E 3, vol. 65. 41 Minute of Executive Council, 9 March 1840, and one by Arthur, 11 March 1840, ibid. 42 10 July 1838. 43 A copy of the resolutions was enclosed with Arthur to Glenelg, 19 June 1838, British Parliamentary Papers, vol. 10.

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51 52 53 54 55

56 57 58 59

60 61 62

63

64

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Arthur to Glenelg, 19 June 1838, R G 1, E 3, vol. 65. Same to same, 5 May 1838, CO 42/446, encl. Hagerman to Arthur, 1 May 1838. Patriot, 13 March 1838; Western Herald, 6 Feb. 1839 (letter of ‘Gamaliel’). Kingston Chronicle and Gazette, 5 May 1838. Western Herald, 29 May 1838. In addition to the sources in n.27, see Jones to Macaulay, 23 July 1838, British Paraliamentary Papers, 10. The correspondent was clearly trained in law, well versed on the legal status of invading aliens, knowledgeable on the government’s policy in that area, and had access to Judge Jones, a colleague of Henry’s father. ‘Gamaliel’ later wrote (n.41) that the letter was generally attributed to ‘the pen of one of Her Majesty’s Counsel.’ Sherwood had assisted Hagerman in the prosecution of John Montgomery and, more significantly, Edward Theller. In his address opening the Niagara assizes later in July, Jones repeated most of the points made by ‘S.’ Patriot, 27 July 1838. See n.29 above and an anonymous paper entitled ‘The Battle of Windsor,’ RG 5, B 39 (Detroit), NA. Douglas, ‘Battle of Windsor,’ 146. Arthur to Airey, 10 Dec. 1838, Sanderson, The Arthur Papers, 1: 431–2. See also same to Colborne, 11 Dec. 1838, ibid., 437–8; same to Fitzroy Somerset, 20 Dec. 1838, ibid., 475–7; Douglas, John Prince, 27. Prince to Airey, 5 Dec. 1838, as printed in the Western Herald, 11 Dec.1838. Emphasis added. Prince to Colonel Chichester, 19 Dec. 1838, n.75 below. 19 July 1839. See also the issue of 9 July 1839. As quoted in the Montreal Gazette, 27 Dec. 1838, citing the Patriot and based on private letters from Detroit. American newspapers not published in Detroit were often less condemnatory. The Albany Argus asserted that there was ‘no disguising the criminality of these deceived and misguided’ patriots: quoted from the Detroit Daily Advertiser, 1 Jan. 1839. The Times, 5 Feb. 1839, paraphrasing the Detroit Daily Advertiser, 1 Jan. 1839. Prince to Captain George Vardon, 26 Dec. 1838, MG 19, F 14, file 24, NA. Based on a review of the Montreal Gazette, The Times, the Patriot, and the Western Herald, December 1838 – July 1839. These often reprinted or paraphrased stories in other newspapers. Montreal Gazette, 5 Jan. 1839. Of the Lower Canada papers, the Montreal Gazette and the Montreal Herald appear to have been the most outspoken and comprehensive in supporting Prince. Montreal Gazette 12, 19 March 1839; Douglas, John Prince, 35 (diary, 1 March

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76 77 78 79 80 81 82 83

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1839); ibid., xxviii. But see the Examiner’s denial in the Detroit Free Press, 28 Mar. 1839. Douglas, John Prince. Mackenzie-Lindsey Papers, AO; no date given except 1843. Western Herald, 8 Jan. 1839. Ibid., 6 Feb. 1839. Transcription in RG 5 B 39 (Miscellaneous Records relating to the Inquiry into the Conduct of Colonel Prince at the Battle of Windsor, 1839), NA. Ibid. Western Herald, 4 April 1839 (order dated 20 March 1839). Arthur to Airey, 21 March 1839, Sanderson, The Arthur Papers, 2: 95–6. Same to same, 5 April 1839, ibid., 109–10. The decision to establish the court martial had been taken by 20 Nov. 1838. It opened briefly on the 26th to swear in its members and began the trials two days later. By the morning of 4 December, Prince must have known of Van Schoultz’s fate. Two others were sentenced on 1 December. See Arthur to Colborne, 20 Nov. 1838, Sanderson, The Arthur Papers, 1: 381; Quebec Gazette, 12 Dec. 1838; Donald Creighton, John A Macdonald: The Young Politician (Toronto: Macmillan 1956), 62–8. Prince to Colonel Chichester, 19 Dec. 1838, RG 5, B 29, ‘Prince Enquiry.’ The great difficulty the military had in ascertaining subject/citizenship status after the Prescott raid was commented on in Draper to Arthur, 3 Dec. 1838, RG 5, B 41, ‘Court Martial Proceedings, Fort Henry, U.C., 1838–1839,’ file 2, NA. Hagerman and Draper to Macaulay, 23 May 1839, RG 1, E 3, vol. 65, NA. G series, vol. 92. U.K., H.C. Parliamentary Debates, 3rd series, 1839, cols. 1022–4 (15 May). Ibid., H.L., cols. 1033–1104, passim. (27–30 May). Ibid., H.C., cols. 1268–70 (3 June). Grotius, War and Peace, 327 and 363 respectively. See n.6 above. Forsyth, Cases and Opinions, 199–204 at 201. The law officers, Queen’s Advocate Sir John Dodson, Attorney General Sir John Campbell, and Solicitor General Sir R.M. Rolfe also stated that captured raiders could not be held as prisoners of war. They did not explain why or refer to the fact that Upper Canada had adopted this very practice. Their position that the Upper Canadian view on treason was wrong may have induced them to conclude that raiders were perfectly free to return to their native land and try again, with impunity. Hence the opposing view was absurd. The Debates and Proceedings of the Congress of the United States, vol. 19 (Jan.–Feb.

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88

89 90 91

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1819). The defeat of the censure resolution does not equate with approbation of the doctrine. See n.20 above. See Frederick Pollock, Essays in the Law (London: Macmillan 1922), 64. ‘An Act to Alter and Amend an Act ... intituled, “An Act to Protect the Inhabitants of this Provinces from Subjects of Foreign Countries at Peace with Her Majesty,”’ S.U.C. 1840, c.12. ‘An Act to Protect the Inhabitants of Lower Canada against Lawless Aggressions from Subjects of Foreign Countries at Peace with Her Majesty,’ S. Prov. C. 1866, c.2 (8 June 1866); ‘An Act to Amend the Act of the Present Session,’ S. Prov. C. 1866, c.2; ‘An Act to Amend the Ninety-eighth Chapter of the Consolidated Statutes for Upper Canada,’ S. Prov. C. 1866, c.4 (15 August 1866). As noted above, previously subjects could only be tried in the regular courts for high treason/levying war. The broader offence of lawless aggression by subjects was limited to courtmartial proceedings. The amendments that made subjects and foreigners liable in the regular courts was defended as the equivalent of the new British offence of treason-felony. The amended provisions expressly applied to anyone ‘who has at anytime heretofore offended or may at any time hereafter offend against the provisions of this Act.’ For a discussion of retroactivity, see Greenwood’s second essay on the Montreal Court Martial in this volume. Douglas, John Prince, 102 (diary entry for 28 Feb. 1849). Ibid., xl; Kingston Patriot, 7 March 1849 (?), as found in the Mackenzie-Lindsey Papers. N.d., ibid. The story is similar to that in the pro-Prince Kingston Patriot. I presume that Long Point refers to the peninsula off the north shore of Lake Erie, about 125 kilometres from Buffalo.

6 Patriot Exiles in Van Diemen’s Land* C A SSA N D R A P Y B U S

In the aftermath of the rebellion and invasions of 1837–8, 102 political prisoners were sent out of Upper Canada to be transported to a penal colony in the antipodes. Ninety-two men – participants in the cross-border raids at the Short Hills, St Clair, Windsor, and Prescott – were transported to Van Diemen’s Land (VDL), the former name of Tasmania, Australia.1 The lieutenant governor of Upper Canada, Sir George Arthur, had extensive experience with penal transportation as the previous governor of VDL, and he saw this option as the most effective way of curtailing further border disturbance.2 He was also urged to widespread use of this penalty by the British ambassador to Washington, who emphasized that ‘transportation is regarded with extreme terror by the Americans.’3 Ninety percent of those transported to VDL were citizens of the United States, some eighty men.4 Eight years later, most of the ‘patriot exiles’ from Upper Canada had returned to the United States – only one returned to Canada – where eleven of them either wrote, or had written on their behalf, accounts of their exile in VDL.5 There are also contemporary historical accounts of the exploits of the patriots and their exile, but as yet the array of legal issues that their transportation throws up has not been subject to sustained scrutiny.6 * Research for this essay was assisted by a Large Grant from the Australian Research Council and a Faculty Research Grant from the Canadian Department of Foreign Affairs.

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In English criminal law the crown exercised a broad prerogative of mercy, with the ability to set conditions on pardons such as transportation as a condition or secondary punishment, which became an important release valve for a rigid system that had over two hundred capital felonies. In the colonies of Upper and Lower Canada, processes for the regular administration of criminal justice were put in place with the Quebec Act of 1774 and the Constitutional Act of 1791. Under this system the scope of the crown’s prerogative as exercised by colonial governors was not entirely clear, although until 1838, convictions and pardon recommendations in political cases and murder were referred to the imperial government. In Upper Canada, banishment from British territories was substituted for transportation to a British penal colony where it was specified as punishment in English law or used as a condition on pardons granted in convictions for capital offences (40 Geo.III c.1). By the 1830s, all colonial reliance on transportation was subjected to increasingly restrictive administrative directives as the British government attempted to regularize practices and reduce the costly system of punishment. In Upper Canada, sweeping reforms to the penalties and administration of criminal law in 1833, in-cluding construction of the Kingston penitentiary, meant the introduction of imprisonment for serious offences. Despite British directives, transportation was reintroduced as a secondary punishment by provincial legislation passed in March 1837 (8 Wm.IV c.7), which explicitly substituted transportation for mere banishment as a possible condition for pardons.7 This was soon seen as conflicting with the imperial government’s policy of reducing the flow of convicts to Australia.8 Indeed, the Home Office placed a prohibition on transportation of any further convicts from the North American colonies on 25 May 1837. Lower Canada and Nova Scotia made the most use of transportation. Prior to the rebellion, only one civilian prisoner had ever been transported from Upper Canada and he was sent to the convict hulks in Bermuda.9 So the transportation in 1837–8 of a large numbers of political prisoners, who were overwhelmingly citizens of the United States, left the process open to suspicion. The imperial government’s 1835 directive on transportation required transportees to be sent to the hulks in Britain and thence to such destination as the queen (in the person of John Capper, superintendent of convicts, Home Office) should direct. A colonial governor could authorize banishment out of his jurisdiction but never to another place. Interestingly, the warrants and conditional pardons authorizing penal transpor-

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tation from British North America required that the prisoner was to ‘suffer himself to be transported’ to whatever place the queen should direct. This was reiterated in the abortive attempt by Lord Durham to transport eight political prisoners from Lower Canada to Bermuda in 1838, thereby establishing the legal precedent that the governor of one colony could not dispose of his prisoners to another; his powers related only to legislative matters within the colony. Lord Durham had ‘no power to impose restrictions on prisoners with a view to their destiny in Bermuda’ was the firm opinion of the governor of Bermuda. His view was upheld by the law officers of the crown.10 Mindful of the legal irregularities, Lieutenant Governor Arthur had asked for assurance that there would be no legal impediment if he sent a batch of political prisoners – nine men who had petitioned under the provincial pardoning legislation (1 Vic. c.10) together with fourteen from the Short Hills raid – to England to be transported. Reassurance that the process was perfectly in order was provided by the law offices of the crown.11 Maybe so, but legal challenges saw all nine ‘ex-post facto’ prisoners released in England and forced the imperial and colonial authorities to consider other possibilities for transportation.12 bo u nd fo r t he fata l sho r e As noted earlier in the essays by Colin Read and Paul Romney and Barry Wright, when Arthur’s first batch of prisoners arrived in England, they immediately attracted sympathetic attention from radical reformers Joseph Hume and John Roebuck, who promptly applied for writs of habeas corpus. Although Hume and Roebuck focused their attention on the nine ‘ex-post facto’ prisoners, they also took as test cases three men from the Short Hills: Linus Miller and William Reynolds, both Americans convicted under the Lawless Aggressions Act (1 Vic. c.3), and John Grant, an Upper Canadian found guilty of treason.13 While these three were in London testing the legality of being held in jail in England, most of the remaining Short Hills prisoners were packed off to VDL on the convict transport ship Marquis of Hastings before the full outcome of the case could be known.14 Both the application for habeas corpus before the Court of Queen’s Bench in January 1839 and the appeal to the Court of the Exchequer in April failed, with each court maintaining that the detention in England was valid. The courts made no distinction between the prisoners in terms of their legal proceedings in Upper Canada, nor did they make a ruling on the validity of the sentence of trans-

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portation.15 On the strength of these decisions, the home secretary, Lord John Russell, informed Capper on 9 May 1839 that the order for transportation was valid and would be put into effect as soon as practicable.16 The exception was the young American William Reynolds (also known as David Deal), who was issued a pardon the same day, following representation from the U.S. ambassador.17 Considering the expense of dealing with the habeas corpus applications, it is perhaps not surprising that the fly in the ointment of the transportation process was the solicitor to the Treasury, George Maule, who was most anxious to see that Her Majesty’s government would not be exposed to lawsuits in addition to the considerable cost of transporting these political prisoners.18 Maule first raised the issue in February, prior to the appeal to the Court of Exchequer, to the effect that the prisoners could have a case for wrongful imprisonment if sent to VDL. Maule was anticipating continuing trouble from the radicals in Parliament and was especially anxious to have the matter clarified before Parliament resumed on 15 April.19 He was not mollified by reassurance from Lord John Russell that the order for transportation was valid and would be implemented.20 A legal opinion to that effect, given by the attorney general, was sent to the Colonial Office on 18 May.21 The secretary for the colonies conveyed the news to Lieutenant Governor Arthur the next day, entirely confident that ‘all difficulties have been removed’ and there was no reason to believe the sentences would be remitted.22 The legal opinion was sent to the Treasury on 25 May. Still unconvinced, Maule requested a further opinion. The British law officers obtained the petitions of the Canadian prisoners together with other related Upper Canada papers.23 On 28 May, rather anxious about the matter, the new colonial secretary, Lord Normanby, wrote to Upper Canadian chief justice John Beverley Robinson, who was still on leave in England, seeking assistance in reaching a decision about the case. On 9 June, Normanby wrote again to Robinson, explaining that the law officers had now raised a concern that ‘no law exists in VDL which would justify detention and punishment of these excepting such cases as have been convicted by due course of law.’24 His particular concern, however, was not that the prisoners had been denied a trial, but that in their petitions they claimed to have interpreted Lieutenant Governor Sir Francis Bond Head’s proclamation as an amnesty and for that reason pleaded guilty.25 It was this specific point he explained to Arthur on 10 July to account for the decision to set the nine at liberty: ‘The confusion in the sentence was found chiefly in Head’s proclamation of 7 December 1837 which they saw

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as amnesty.’ The choice therefore was to try them for treason (which would inevitably fail) or let them go. Prudently, Her Majesty’s government choose the latter course.26 The original pardon document, dated 9 July 1839, was written in the names of all the prisoners, beginning with the Short Hills prisoners Linus Miller and John Grant, who were described as having been convicted for a felony and treason respectively. The warrant was signed by Lord John Russell and forwarded to the sheriff of London. By 10 July however, the names of Grant and Miller had been removed from the pardon documentation.27 Why? The most obvious answer is that they had been convicted in a regular criminal court and thus could be legally restrained in VDL. Nevertheless, Linus Miller had been tried under the problematic Lawless Aggressions Act, which the British law officers had consistently deemed to be improper though it was never formally disallowed.28 On the strength of their opinion about the Lawless Aggressions Act, they could well have concluded that the governor in VDL had no authority in law to hold the Americans convicted under that act and accordingly would discharge them. However, it seems that the law officers did not have the Miller case referred to them for an opinion. In his own hyperbolic account, Miller says that his English supporters had full expectation that he would be pardoned, on much the same grounds as the others, but instead both he and Grant were promptly dispatched to VDL on the Canton on 5 August, before any further petition could be prepared or any more loopholes found about the legality of their transportation.29 The problem facing the British government in this instance was that it had already transported the other Short Hills men to VDL and would likely face suits for wrongful imprisonment if Miller were pardoned. Interestingly, it seems to have been the view of Edward McDowell, the attorney general who received them in VDL, that the Americans had a good case against the legality of their transport. He reportedly told Miller that he ‘had seen not the scratch of a pen to authorise the Governor to receive you upon this Island, much less treat you as convicts’ and that they should have been free men from the moment they arrived.30 He seems to have kept this opinion to himself until some time later when he fell out with Governor John Franklin (who later was to perish in the Canadian Arctic). Yet he believed it with enough fervour to take on Miller as his law clerk after Miller was pardoned, and to encourage him to sue for wrongful imprisonment.31 While there is nothing about Miller in the documentation around the

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pardons, it does seem likely that consideration was given to potential problems arising from the transport of men sentenced under the Lawless Aggressions Act. Oddly enough, the warrant for Miller’s transportation said that he had been sentenced for treason, even though the pardon warrant from which he had been removed clearly stated him to have been sentenced for the felony of armed incursion under the Lawless Aggressions Act. Likewise, when the American prisoners on the Marquis of Hastings arrived in VDL, the formal record of their sentence taken down by the muster master was that of treason.32 It appears that the Home Office recast the Americans’ conviction to treason, regardless of their trial in Canada, which stated them to be guilty of the felony of armed incursion. By recasting the offences as treason, the crown may have tried to head off any further problems about the legality of the transportation by dispatching the prisoners on transport ships as fast as they could, confident they would be received without any legal hitch by Arthur’s old friends in VDL. As indeed they were. At the same time that all the anxiety around the habeas corpus application was percolating through the government, the Colonial Office undertook to accept the transport of political prisoners sentenced to death by courts martial in Montreal.33 Although the colonial secretary at the time, Lord Glenelg, did not want any more transportees, he was determined to limit the number of executions that might flow from courts martial in Canada, which he felt cast the British government in a barbaric light. In his letter to Governor Sir John Colborne, Glenelg referred to the ‘necessity of waiting for instructions before conveying the prisoners ... you will of course send to this country.’34 This carried over to Upper Canada. Following the courts martial in London and Kingston, Glenelg also encouraged Arthur to grant pardons. Arthur, however, stuck to his principle of executing 10 per cent of those convicted, although he did agree to repatriate about half of the rest to the United States – the youngest and least culpable – and pardon the others on condition of transportation for life. Again Glenelg was forced to agree, even though he warned that transportation was ‘replete with difficulty.’35 As Wright suggests in his essay, care was taken to avoid transportation as a direct sentence and again it was imposed only as a secondary punishment through the local exercise of the prerogative of mercy. Arthur was well aware the difficulties stemmed from the habeas corpus applications. ‘I have accordingly been restrained from sending to England any more convicts,’ he explained in a confidential letter to Colborne, ‘until I get further instruction.’36 The idea of getting a ship to take the prisoners direct from Canada to

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Australia may have originated in an informal discussion between Home Secretary Russell and others in the British government.37 On 25 January, Glenelg sent a highly confidential report to Colborne concerning measures for the removal of prisoners.38 The content of this report was made clear on 27 March: ‘A naval vessel under orders for Quebec with troops serving in Canada ... will take on board and transport convicts for Australia.’39 Soon afterwards the Admiralty sent requests to both Colborne and Arthur for the numbers required to be transported.40 The absence of the Home Office in these negotiations is notable. While Lord John Russell may have originated the idea, officially he kept at arm’s length from this unusual procedure, advising Colonial Secretary Lord Normanby that the Colonial Office should negotiate the matter directly with the Admiralty.41 There seems to have been no intervention by the superintendent of convicts, nor any Home Office involvement, even though the transportation of civil prisoners was a Home Office responsibility. In late September, seventy-eight prisoners from the Windsor and Prescott raids went aboard HMS Buffalo in Quebec where they joined fiftyeight men from Lower Canada. At some stage they also picked up Horace Cooley from the St Clair raid.42 In their later accounts, several of the prisoners insisted that they had received no sentence and had no idea where they were being sent. Authorities in England were equally confused. The Colonial Office seems to have expected that all the prisoners, including those from Lower Canada, were to be sent to VDL, and they dispatched papers associated with these prisoners to Governor Franklin.43 Governor Colborne, however, made the decision that his prisoners would go to the Australian colony of New South Wales (NSW). Not until the master of the Buffalo arrived at Quebec did he understand exactly where his charges were destined.44 One of the American transportees, Robert Marsh, was adamant that in being transported they were being dealt with illegally.45 Franklin, who was at loggerheads with Arthur’s old cronies in VDL, was rather nervous at the news that his predecessor intended to dispatch a large group of political prisoners directly from Quebec.46 He sought assurance from the colonial secretary that the steps taken by the Canadian colonial authorities in effecting this transportation were above board. The evidence would suggest that the British government recognized the legal problems represented by these men and connived at a solution which would not see the prisoners released by the courts or provide a cause célèbre for the radicals who were orchestrating an attack on the prerogatives and unaccountable colonial administration in the North American colonies. This is no doubt why, on 1 November, the crown law

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officers could give the curious opinion to the secretary for the colonies that the steps taken were ‘proper and sufficient.’47 The opinion is curious because they had previously issued a decision – announced in Parliament – that a colonial governor did not have the power to compel the restraint of men outside his domain. Given that the British government had been a party to the process by which the men were transported directly from Canada, they could not have said anything else, especially since the Buffalo was well on its way to Australia by the time they were asked for an opinion. In her essay in this volume, Beverley Boissery suggests that concern about the legality of penal transportation on the Buffalo related to the nature of the sentence and she argues that this was valid exercise of the prerogative of mercy. However, the suspicion of illegality is attached not to the punishment so much as the process: in this case, the proper legal mechanism for transportation was not adhered to.48 The men aboard the Buffalo were sent to VDL or NSW with warrants made out by the colonial governors, who did not have the power to order the restraint of prisoners in another place, nor the authority to transport prisoners out of their domain to be restrained in a penal colony elsewhere – a legal point made indelibly clear in the Bermuda affair and reiterated in the subsequent court cases before the Queen’s Bench and the Court of Exchequer. The imposition of extraterritorial punishment through the colonial exercise of the prerogative rather than through a direct sentence derived from colonial legislation or ordinance does not dispose of this point. Nevertheless, the Colonial Office and Lieutenant Governor Arthur could have been fairly confident that no legal problems would arise in a penal colony where Arthur’s old cronies still held sway. VDL did not have a Hume or Roebuck likely to apply for writs of habeas corpus on the convicts’ behalf. Republicanism was no virtue in that place. a p u ni shm e nt se ver e The first batch of patriot exiles arrived in Hobart aboard the Marquis of Hastings late in 1839, half dead from scurvy and other illnesses.49 At their reception by Governor Franklin, the Americans in particular were singled out for a dose of high invective about their ‘crimes against God, and all the ties of social government.’ Franklin told them that they could expect to find no sympathy.50 Linus Miller recounts that on the Canton he and his comrades were assured that as political prisoners they were to be treated with liberality in VDL, that they would not be degraded or

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required to do hard labour. At their initial interview with Franklin in January 1840, Miller pressed a plea for liberality upon the governor, but Franklin proceeded to harangue him for being a republican and attempting to set up republican institutions within the queen’s domain, warning: ‘Be careful sir to restrain your evil propensities here. Your notions of liberty and equality must be kept within your own breast. Van Diemen’s Land is not America.’ Miller was taken aback by the governor’s ‘inveterate malice against Americans and ‘horrified to think that “a nephew of our immortal Benjamin Franklin” could have been so destitute of honorable feelings and principles.’51 Miller and three of his fellow political prisoners were sent to hard labour on a chain gang, building roads under supervision of cruel and arbitrary convict overseers. When men on the Buffalo were landed a month later, they too were sent to hard labour on the roads. In their narratives, the patriots uniformly blamed Franklin for their harsh treatment. According to Robert Marsh, ‘the old reprobate was death to Yankees.’ Franklin said, in Marsh’s account, that they would be punished more severely than the Lower Canadian rebels going on to NSW, for those men were ‘poor simple Canadians ... excited to rebellion by you Americans.’52 Whether he made the distinction or not, that is how matters developed. When the Buffalo reached Sydney, Governor George Gipps informed the captain that Sydney was no longer receiving convicts and that he was to take his charges to the harsh penal colony in Norfolk Island. Captain Wood refused to comply, insisting that his orders were to leave the convicts in Sydney, dismantle the fitting for a convict ship, and load up with a cargo for New Zealand as soon as possible.53 As a consequence, the Canadiens landed in Sydney had a much easier time than the predominantly American convicts in VDL.54 The patriot exiles are unkind to Franklin, who did try his ineffectual best for them. When the Marquis of Hastings arrived he was able to separate out the political prisoners and, after a few weeks working on the road gang, they were given work assignments with settlers. Changes to the convict system in 1840 made such discrimination impossible for later arrivals. When Franklin sought direction from the Colonial Office as to whether the political prisoners could be treated differently from common felons, Russell took his time to consider the question. In October, after consultation with the new governor-in-chief in Canada, Lord Sydenham, he replied that after two years’ probationary sentence at hard labour on the chain gangs – breaking and carting rocks for road works – indulgences could be granted as ‘tickets-of-leave.’55 After two years, prisoner William Gates reasoned, they would have got their ticket of leave from a

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higher source, having expired from starvation and overwork, and ‘the freed spirit would be liberated from the tyrannised body ... there is one consolation for the convict there: his soul shall not rest in Van Dieman.’56 As it transpired, fourteen men died as a direct result of transportation either on the voyage or in VDL, which was a high percentage of fatalities even for the brutal VDL penal system. For the most part, the prisoners were spared savage floggings – though one man was sentenced to the lash – and in the main their brutal treatment was no different from that accorded to felons. Desperation at the inhuman conditions drove several to risk escape, aided by sympathetic American whalers that came regularly to the port of Hobart. After only four months, Horace Cooley, William Reynolds, Jacob Paddock, and Michael Morin – all transported on the Buffalo – resolved they would rather die in an escape attempt than ‘endure longer the loathsome curse of slavery.’57 They were recaptured, almost starved to death, and sent to the much-feared penal station at Port Arthur. The same fate befell Linus Miller and Joseph Stewart when they tried to escape, although, after a brutalizing start, they had a much more comfortable time at Port Arthur where they were employed in work appropriate to their education, unlike their unhappy comrades who were still carting rocks like beasts of burden.58 Late in 1841 three men from the Short Hills who had already gained their tickets of leave – Benjamin Wait, Samuel Chandler, and James Gemmell – made good their escape aboard American whalers. Once they reached ‘the gladsome shore of free America,’59 they began agitating that the U.S. government act on behalf of their fellow patriots still in servitude.60 Aaron Dresser, Jr, and Stephen Wright were the first of the patriots to be granted ‘free’ pardons (allowing the individual to go anywhere he pleased) in June 1843, as a reward for their part in capturing several renegade convicts known as ‘bushrangers.’ They were given free passage to England, where the American ambassador paid their fare back to the United States. On arrival they too began agitating for the release of the patriots. In an emotive letter to the New York Tribune on 17 February 1844, they recounted the horrors of VDL. ‘To be obliged to drag out an existence in such a convict colony and among such a population, is, itself a punishment severe beyond our powers to describe,’ they concluded.61 The letter had the desired effect of exerting pressure on the U.S. government to intervene on behalf of the patriots and the ambassador to St James was directed to ask the British authorities about a pardon for the American patriots.62 The U.S. consul in VDL was also directed to draw up a list of all the American prisoners to be pardoned.

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The process by which free pardons were finally granted to the patriot exiles in VDL was chaotic at best and dastardly at worst. Early in 1844, following representations from family and friends in Canada, eight pardon warrants had been dispatched for the few remaining patriots who were British subjects, but some of these went astray.63 Others were simply not gazetted in VDL. The same was true of the Americans’ pardons. Governor Eardley Wilmot, who replaced Franklin when he left in disgrace, took the view that he should exercise his own discretion by giving out the pardons in stages and withholding any pardons for convicts who had bucked the system. As a consequence, few men were granted pardons at the time the pardon warrants were received in the colony; most had to wait between six months and two years. When Linus Miller was told that he and several others had their pardon withheld for absconding, he exploded in indignation that they were being further punished for being ‘American, in spirit and in heart, for not meekly wearing the yoke and kissing the burden upon [our] shoulders; for daring to evidence the spirits of a man in the presence of tyrants.’64 Miller got his pardon in July 1845, more than a year after it had been sent from London; eight others had their pardons withheld indefinitely. By the middle of 1845, less than half of the Patriots had received their free pardons.65 Nor was there any assistance available for their return passages, although it was common practice for the British government to provide passage to England with a free pardon.66 For some, such as Elijah Woodman, who died on his return voyage, it was a heart-wrenching struggle to get the money for passage at a time when VDL was in the grip of an economic depression and there was a chronic oversupply of labour. Most of the patriots managed to return aboard American whaling ships, either by working for their passage or promising to pay when landed in the United States. This was usually a collective negotiation, as in the case of the whaler Steiglitz, which took twenty-six Americans to the Sandwich Islands after they agreed to a bond of thirty dollars apiece.67 Ten of the patriots – maybe more – did settle in the Australian colonies, where descendants of theirs still live. By 1846, it was presumed in England and Canada that everyone had been pardoned, yet eighteen still remained in servitude in VDL. Eleven American names had simply been left off the U.S. consul’s list, while the others had their original 1844 pardons held back at the governor’s pleasure. When Linus Miller arrived in New York, early in 1846, he also wrote letters to the New York newspapers agitating on behalf of those left behind.68 In July the British government reacted to mounting pressure

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from the U.S. ambassador and called for a report on the remaining patriots in VDL. This report, recommending pardons for all but six of the remaining Americans, was forwarded to the colonial secretary in February 1847.69 Six months later, the crown sought closure of the patriot case by authorizing pardons for all those recommended.70 These pardons were gazetted in VDL during 1848. One of those belatedly pardoned, the venal Jacob Beamer, married twice in the colony and sired a horde of descendants.71 A conditional pardon (restricting freedom to Australia) was given to Horace Cooley late in 1849 even though he had been issued a full and free pardon in March 1844 that had never been gazetted. Patrick White, originally from Ireland, had also fallen through the cracks in the system. He was recommended for a pardon in 1848, but it was not until February 1850 that he was granted a conditional pardon only. Cooley and White subsequently married and settled in VDL. Four Americans then remained in the cruel and capricious convict system. Joseph Stewart had been pardoned in 1844 and again in 1847, but, for whatever reason, the pardon was never gazetted. The names of William Reynolds and George Cooley had been on the American’s consul’s list but they had never been given pardons. Stewart and Reynolds are recorded as having escaped in March 1850, probably on an American whaler. George Cooley tried unsuccessfully to escape in 1846, when it was apparent he was not to be pardoned. He returned to hard labour and was finally given a pardon in 1852, when he went to Victoria. After a warrant was issued for his arrest for embezzlement in September 1856, he disappears from the records. Most capricious of all was the treatment of John Berry, who had found work as a shepherd in the remote north west of the island. He was pardoned in October 1844 but not instructed that he was ‘discharged from servitude’ until 1857. After seventeen years in the island colony, he did not suffer from torn loyalties. He boarded the first American ship that would take him home. The predominantly American patriots were punished most severely, compared to both the patriotes from Lower Canada and those who participated in the original rebellion in Upper Canada. This was as much accident as design. Caught in the maw of a brutal and overly bureaucratic penal system at the end of the world, the patriots proved harder to extract than the authorities had first intended. Deeply traumatized by the experience in VDL, none of the returned Americans was prepared to take a legal action against the British government, and so the issue the legality of their transportation remains a matter for academic debate.

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NOTES 1 Nine ‘ex post facto’ prisoners were released in England along with one American citizen from the Short Hills, William Reynolds, who was pardoned on petition from the U.S. ambassador on account of his youth. Thirteen men came from the Short Hills raid, seventy-eight from the Prescott and Windsor raids, and one was from the St Clair raid. 2 As seen in the previous essays in this volume, the Executive Council was concerned about the unstable frontier and the security risks posed by mere banishment or imprisonment in the newly constructed Kingston penitentiary. 3 Fox to Arthur, 31 Jan. 1839, CO42/456, PRO. 4 The status of this group is somewhat problematic since many had experienced periods of residency in both Canada and the United States: Samuel Chandler was a citizen of the United States, but he was a long-time resident who held property in Canada and as such was tried for treason. I count him as an American, however, as I do another long-time resident of Canada, Elijah Woodman, who had not taken the oath of allegiance, and Asa Richardson, who also had resided in Canada but was indicted as an American. I also count former residents of British North America who had settled in the United States – William Nottage, James deWitt Fero, and Henry Barnum – as Americans since they were considered Americans by the U.S. ambassador. Eight were Upper Canadians by birth or allegiance; two were from Lower Canada, two from Scotland, and one from Ireland. In his narrative Robert Marsh claims that eighty-two were American citizens. See also discussion of the nationality issue in Barry Wright’s essay in this volume. 5 The narratives are: Linus Miller, Notes of an Exile in Van Diemen’s Land (New York: McKinstry 1846); Daniel D Heustis, A Narrative of the Adventures and Sufferings of Captain Daniel Heustis (Boston: Redding 1847); Samuel Snow, The Exiles Return (Cleveland: Snead and Cowes 1846); Benjamin Wait, Letters from Van Diemen’s Land Written during Four Years Imprisonment for Political Offences Committed in Upper Canada (Buffalo, NY: Wilgus 1843); Robert Marsh, Seven Years of My life, or a Narrative of Patriot Exile (Buffalo: Foxon and Stevens 1847); Caleb Lyon, ed., Narrative and Recollections of Van Diemen’s Land during Three Years Captivity of Stephen S Wright (New York: Winchester 1844); William Gates, Recollections of Life in Van Diemen’s Land (Lockport, N.Y.: 1850; repr. George Mackaness, ed. [Dubbo NSW: Review Publications 1977]; James Gemmell, ‘Two Years in Van Diemen’s Land,’ Jeffersonian (Watertown, N.Y.), 4 July 1842; S. Chandler, In the Shadow of the Gallows (Oklahoma, 1915); letters of Elijah Woodman, in Fred Landon, ed., An Exile from Canada (Toronto: Longmans, Green 1960); and the unpublished diary of Aaron Dresser, Jr, in the NA.

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6 Notably E.C. Guillet, Lives and Times of the Patriots (Toronto: Nelson 1938), and Oscar Kinchen, The Rise and Fall of the Patriot Hunters (New York: Bookman 1956). 7 In response to the Earl of Aberdeen’s instructions on transportation, provincial Attorney General Jameson declared that 3 Wm.IV c.35 (1833) restored transportation as a penal option and a provincial proclamation was issued to this effect on 1 July 1835; see RG 1, E 3 (U.C. Executive Council Submissions), vol. 63, P15, 177–88, NA. See also Barry Wright ‘“Harshness and Forbearance”: The Politics of Pardons in the Upper Canada Rebellion,’ in C. Strange ed., Qualities of Mercy: Justice, Punishment and Discretion (Vancouver: University of British Columbia Press 1996), 80–2. 8 Glenelg to Arthur, 31 March 1838, RG 7, G 1, vol. 84, NA. 9 Three more prisoners convicted by regular criminal trial were transported from Upper Canada, and they went on the same ship which took the political prisoners from London and Kingston courts martial to VDL in 1839. 10 Glenelg to Durham, 15 Sept. 1838, CO 42/446. The attorney general in fact elaborated on this point during a debate in Parliament, and it was subsequently used in the prisoners’ application for habeas corpus. See Alfred A. Fry, The Case of the Canadian Prisoners with a Introduction of the Writ of Habeas Corpus (London 1839). 11 See Robinson to Arthur, 2 Jan. 1839, Arthur Papers, TPL. 12 The exercise of local prerogative to impose a conditional pardon including transportation was not a basis for the release of the prisoners, despite clear administrative policy, objections to the 1837 act, and the disallowance of Durham’s Bermuda Ordinance. As seen at the end of the essay by Romney and Wright in this volume, release stemmed from concerns about the circumstances in which the prisoners had petitioned for mercy. These circumstance raised questions about the legality of their confessions, convictions, and imprisonment. 13 See Read’s essay in this volume. The special pardoning legislation under which the Toronto prisoners had petitioned for pardons was not available to the Short Hills raiders, although some had made application for such a pardon. For proceedings, see CO 44/33, PRO; Fry, The Case of the Canadian Prisoners. 14 The men were detained at Portsmouth until the decision of the Queens Bench. See Glenelg to Arthur, 18 Jan. 1839, CO 42/468. The men were moved to Portsmouth on 5 January but kept there until the Queens Bench ruled. The decision of the Exchequer did not worry the Home Office. Orders were sent to the master of the Marquis of Hastings on 16 March that he need be detained no longer and to sail for VDL. Home Office (HO) 13/75, PRO.

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15 CO 44/33. 16 HO 13/75, PRO. 17 CO 44/32. Reynolds (also known as David Deal) was pardoned on account of his youth. Linus Miller says that the ambassador also petitioned on his behalf and that he was actually younger than Reynolds, but to no avail. See Miller, Notes of an Exile, 218. 18 In January 1829 Robinson was utterly confident that Maule would ‘oppose the release of the prisoners’ and maintained the legality of their transportation. See Robinson to Arthur, 2 Jan. 1839, Arthur Papers, Toronto Public Library. 19 Maule to Stephen, 9 Feb. 1939, RG 7, G 1, vol. 91; CO 42/465. 20 Russell to Maule, 9 May 1839, HO13/75, PRO. 21 Attorney general to secretary for the colonies, 18 May 1839, CO 44/33. 22 Normanby to Arthur, 19 May 1839, CO 43/48, PRO. 23 CO 42/465. 24 See Robinson correspondence, CO 42/468. 25 In rather testy correspondence with Stephen on 7 and 10 January, Robinson had already pointed out that since the prisoners were supplied with copies of indictments before petitioning, they could not interpret the act as involving an amnesty. See Romney and Wright’s essay in this volume. 26 Normanby to Arthur, 10 July 1839, RG 7, G 1, vol. 91, NA. 27 HO 13/75, PRO. 28 Law office,rs to Colonial Office 21 May 1838, CO 42/452. See also RG 7, G 1, vol. 85, NA. The law officers stuck firmly to their opinion about the Lawless Aggressions Act, despite strenuous objection from Upper Canada, during an extended correspondence with the Colonial Office between 21 May and 26 October 1838. Eventually, the law officers did reluctantly concede that the colonial authorities could proceed with the Lawless Aggression Act using the option of court martial. This concession did not apply to the Americans from the Short Hills, who were tried by a civil court. See also Greenwood’s essay on the Prince affair, which criticizes the law officers’ view on this point. 29 James Gemmell and Jacob Beamer, who were still in England, were also put aboard the Canton. 30 Miller, Notes of an Exile, 350; Marsh, Seven Years, 46. 31 Miller did not pursue the case, choosing to take an American whaler home instead, but James Aitchison, a Scottish resident in Upper Canada, convicted by court martial, did mount a case for wrongful imprisonment, assisted by McDowell. It was thrown out on a technicality. 32 The usual procedure was for the convicts to state their offence, which was written down by the muster master. This did not happen with the patriots, who were all given the exact same offence of treason regardless of what they stated. Con 31, Tasmanian Archives (TA).

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33 Transportation had been a policy option in Lower Canada since the Chateauguay trial in December 1838, when several prisoners were sentenced to transportation for life, even though the law officers in England had doubts as to whether the Canadian courts could legally impose such a sentence. Courts martial regularly used transportation as penalties for military offenders. 34 Glenelg to Colborne, 18 Jan. 1839, CO 42/468. 35 Glenelg to Arthur, 2 Feb. 1839, CO 42/468. 36 Arthur to Colborne, 12 March 1839, CO 42/458. 37 In a private letter to Lord Melbourne between December 1838 and January 1839 – which he asks be discussed with Lord Glenelg – Russell highlights both the possibility of sending troops to Canada and the transportation of the majority of those before the courts martial in the province. Russell Papers 33/ 22–3, PRO. 38 Glenelg to Colborne, 25 Jan. 1839, CO 43/48; Arthur to Glenelg, RG 7, G1, vol. 30, NA. 39 Glenelg to Colborne, 27 March 1839, RG 7, G 1, vol. 91, NA. 40 The report was sent on to Arthur, who acknowledged it on 3 April 1839. RG 7, G 1, vol. 42, NA. 41 Russell to Normanby, 8 Feb. 1839, HO 13/74. 42 Cooley, an American, was never tried for treason or piratical invasion – probably because of ongoing concerns with the Lawless Aggressions Act – but he was tried and found guilty of burglary in October 1838. RG 1, E 3, vol. 51, NA. His sentence of death was commuted to transportation. I am indebted to Colin Read for this information. There were also three prisoners convicted by criminal courts and one deserter among the contingent from Upper Canada. 43 Russell to Franklin, 28 March 1840, GO1/35/455, TA. 44 Master of the Buffalo, 1 Oct. RG 7, G 1, vol. 45, NA. 45 Marsh, Seven Years, 46. 46 Arthur to Franklin, 26 Sept. 1839, CSO 5/230/5877, TA. 47 Lord Russell to Franklin, 11 Nov. 1839, GO 1/36/93, TA. 48 When the governor of Lower Canada sent three dozen civilians destined for the penal colonies to the hulks in England in May 1837, there had been no suggestion of illegality, although these were shipped out just in time to avoid a Home Office prohibition on any more convicts from the North American colonies. 49 Three were immediately transferred to hospital where one subsequently died. 50 Wait, An Exiles Return, 132. 51 Miller, Notes of an Exile, 271, 274. 52 Marsh, Seven Years, Chapter 4. 53 In A Deep Sense of Wrong: The Treason, Trials and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion (Toronto: Osgoode Soci-

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ety/Dundurn Press 1995), Beverely Boissery attributes the dispute about whether or not to land the Canadiens in Sydney to religious influence, but the official correspondence is clear that it was a matter of policy, not prejudice. The decision to allow them to stay flowed directly from the fact that there was no available transport. See Colonial Secretary Correspondence 1840/4/2484, Archives of New South Wales. I am indebted to Dr Brian Petrie for alerting me to this material. Although it seemed like cruelty on Franklin’s part, he was obliged to send the patriots to probation gangs since the assignment system had ceased to operate in 1840, as he explained to Lord John Russell when he sought advice. Franklin to Russell, 15 Feb. 1840, GO 25/8/29, TA. Russell to Franklin, 28 Oct. 1840, GO 1/40, TA. A ticket of leave meant that a convict was free to seek work at set rates of pay (low) and to move about within certain designated areas of the state. Any minor infringement meant a return to chains. The information about Russell’s ‘indulgence’ was passed on to Joseph Hume, who had continued to petition for a free pardon for the Short Hills men. Gates, Life in VDL, 69. Wright, Narrative, 21. Miller became the tutor to one of the officer’s children, while Stewart worked as a clerk. Wait, An Exiles Return, 144. Notably James Gemmell, ‘Two Years in Van Diemen’s Land,’ although there is evidence this was written by William Lyon MacKenzie. Reprinted in Wright, Narrative, 44. In February 1844, the U.S. and British governments concluded a treaty allowing for the extradition of prisoners. This undoubtedly hastened the pardon process. By some oversight, James Waggoner, a Canadian from the Short Hills, was not given a pardon, although Benjamin Wait, who had escaped in 1842, was. Miller, Notes of an Exile, 354. Con 60, TA. Edward Everett to Daniel Heustis, 5 Dec. 1845, in Heustis, A Narrative, 161–3. See Stuart D. Scott, ‘The Patriot Game: New Yorkers and the Canadian Rebellion of 1837–1838,’ New York History, July 1987, 281–95. Letter from Linus Miller, New York Express, 28 Jan. 1846. See Grey to Denison, 7 Aug. 1847, in response to a report from Denison dated 9 Feb. CSO20/40/1084, TA. GO 1/76/368, TA. Beamer is consistently portrayed as the villian in all the patriot narratives: a thief, a turncoat, an informer, and a bully.

PART TWO Lower Canada

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7 ‘This Ultimate Resource’: Martial Law and State Repression in Lower Canada, 1837–8* JE A N-MAR IE FE CT E AU

If the soldier and the judge should sit both on one bench, the drum would drown the voice of the crier. (Sir Edward Coke, 1628).1 It is superfluous to state with what caution and reserve this ultimate resource should be resorted to, and that it ought to be confined within the narrowest limit which the necessity of the case would admit. But if unhappily the case shall arise in any part of Lower Canada, in which the protection of the loyal and peaceful subjects of the Crown may require the adoption of this extreme measure, it must not be declined. (Colonial Secretary Lord Glenelg, 1837)2 Nor shall I regret that I have wielded these despotic powers in a manner which, as an Englishman, I am anxious to declare utterly inconsistent with the British constitution, until I learn what are the constitutional principles that remain in force when a whole constitution is suspended; what principles of the British constitution hold good in a country where the people’s money is taken without the people’s consent, where representative government is annihilated, where martial law has been the law of the land, and where the trial by jury exists only to defeat the

* This essay is based on my article ‘Mesures d’exception et règle de droit: Les conditions d’application de la loi martiale au Québec lors des Rébellions de 1837–1838,’ McGill Law Journal, 32:3 (July 1987), 465–95, which has been completely revised with new research and analysis. I am indebted to Jean-Paul Bernard and the late F. Murray Greenwood for their comments on this version, as well as Steven Watt for his fine translation.

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ends of justice, and to provoke the righteous scorn and indignation of the community. (Lord Durham, 1838)3

Since Max Weber, if not before, the relationship between law and collective violence has been studied mainly in terms of legality, where the law is seen as one of the preferred means of controlling violence. The latter is confined by law to the formal and pre-established context of permitted relationships, with the state holding a monopoly on ‘legitimate’ violence. The advent of democratic societies only served to confirm and systematize this tendency by associating the power of the state with the expression of popular will. Of course, there remains the question of a potential conflict between the will of political representatives or that of the state, on the one hand, and the fundamental rules and values of the society, on the other.4 But what happens when the very organizing principle of a society is the object of questioning, along with the rules that flow from it? What happens when the ruled rise up against the rulers and, by their violent and radical actions, render inoperable the existing legal system, including the traditional modes of preserving the established ‘order’? In such a situation, law dissolves into, or is confused with, violence. Or else law is reborn in terms dictated by the victors. Towards the end of the eighteenth and during the first half of the nineteenth century, most Western societies experienced this ‘revolutionary’ situation before falling under the shadow of a well-policed and decidedly militarized liberal order.5 At the very moment when the concept of the right to revolt sprang from considerations on natural law, there also developed what might be called a legal economy of emergency measures. This implied a reflection on the means of intervention, ranging from riot control to martial law, available to authorities in times of insurrection. In such a context, distinctions among law, power, and politics became very much blurred. As this article will show, the imposition of martial law during the rebellions of 1837–8 in Lower Canada was no exception. legality, social disruption, and martial law The British Example It has often been said that the English Revolution of the seventeenth century represented less a fundamental change in the established order than a radical redistribution of power among the existing elites. What resulted was a delicate balance between royal power and the power of the domi-

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nant classes in civil society – the merchants and gentry. Critical to maintaining this balance was the establishment of a series of safeguards protecting the British subject against the arbitrary use of royal power. Thus, the idea of a ‘balanced constitution’ implies not only a division of powers and a close regulation of the relationships between different branches of government. It is also grounded in the idea that the rights of the subject are not limited to the mere regulation of interactions among individuals (civil and criminal law) under the paternal eye of the sovereign. Rather, these rights are an integral part of a ‘constitution’ which regulates the relationship between the subject and the sovereign.6 Over the course of the seventeenth century, the English Parliament led the way in instituting a set of legal measures designed to express more clearly the protections accorded to subjects. In particular, two measures were central to this process of formally recognizing the subject’s basic legal rights. First, the 1679 statute on habeas corpus provided protection against arbitrary imprisonment.7 This protection, in turn, was linked to the universal right to due process as well as to the tempering of judicial power by the consolidation of that of juries. These rights were further consolidated by limitations placed on the king’s powers to use military force. Thus, the Petition of Right (1628) stipulated that, ‘by the Great Charter and other laws of the realm, no man ought to be judged to death but by the laws established in the realm, either by the customs of the realm or Acts of Parliament.’8 Also, the sovereign lost all power to impose martial law on the territory of England during peacetime.9 Later, the Bill of Rights (1689) stated that ‘the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.’10 Henceforth, the maintenance of a permanent army on English soil fell under the control of Parliament. The latter passed a collection of laws regulating the armed forces, beginning with the first Mutiny Act of 168911 and followed by the military regulations contained in the Articles of War. Consequently, from the end of the seventeenth century, the English monarch enjoyed much more limited prerogatives than his European counterparts when it came to intervening in cases of civil insurrection.12 The consolidation of the powers of the justice of the peace – notably in the Riot Act of 171413 – completed the establishment of a system for dealing with social disturbances which was founded on a delicate balance among the rights of the subject, the powers of local elites and those of Parliament, and the royal prerogative. Parliament, elected by the elites, played a pivotal role as both the defender of ‘English liberties’ and an instrument of

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state power. This flexible mode of regulation, founded on the rule of law and respect for the rights of the subject, proved to be remarkably effective.14 Of course, the monarch retained, for times of extreme emergency, that ultimate tool of repression: the regular army. However, the suppression of the Duke of Monmouth’s revolt in 1685 ‘proved to be the last instance of unfettered martial law in England.’15 At the end of the eighteenth century, a rising tide of demands for democratic reforms began to threaten this increasingly fragile balance. Incidents of popular protest, such as the Wilkes Riots at the end of the 1760s,16 were among the warning signs. They questioned both the legitimacy of Parliament as the defender of the rights of the subject and the capacity of the justice system to ensure that those rights were respected. From this moment onward, authorities had recourse to a panoply of statutory and legal measures: Lord Mansfield’s clarification of the jurisprudence surrounding the intervention of the army during riots;17 the extension of the definitions of treason and sedition in the 1790s when the repression of democratic initiatives could at least appear to be legal; and, in moments of deeper crisis, suspensions of habeas corpus (May 1794 to July 1795, April 1798 to March 1801, and again in 1817).18 But the periodic suspension of the fundamental rights of the British subject (habeas corpus) also reflected deeper structural changes in social relations brought about by the transition to industrial capitalism. A system founded on the ad hoc intervention of authorities lacking any real professional expertise was quickly being rendered obsolete. Justices of the peace were increasingly turning to the regular army for help in suppressing riots,19 thereby showing the extent to which the traditional tools of civil intervention had become overwhelmed. The necessary adjustments came in the form of a fundamental reform of the entire system for maintaining civil order, notably through changes to the criminal law, the creation of a prison system, and the establishment of a new police force.20 It is remarkable that, given the revolutions which shook other Western societies at the time, the social and political troubles in Britain between 1780 and 1850 were suppressed without having to supplant civil and judicial authorities with military power.21 Extreme Cases: Martial Law in the Colonies and Dependencies At home, then, British authorities could do without their own version of the continental procedures for declaring states of siege. However, things were not the same in the British colonies and dependencies. Here,

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recourse to martial law not only was frequent but periodically became a veritable mode of governance. As I have shown, in Britain martial law was unthinkable except in extreme situations, when the courts were incapable of functioning normally. In fact, there emerged out of the Petition of Right of 1628 and the Bill of Rights of 1689 a relatively clear definition of the parameters within which martial law could be imposed: • martial law could not be invoked to justify any abridgement of the jurisdiction of the common law courts save in time of war within the realm; and • a time of war for this purpose could be said to exist only where the common law courts had ceased to function. Again, as the law developed, further principles were established: • whether a time of war existed or not was determined solely by the functioning or non-functioning of the ordinary courts; • the crown enjoyed no prerogative to declare a state of martial law, and, if a question arose as to whether a time of war existed, that could be determined only by the courts, either during or after the conflict; and • the existence of a state of martial law did not render legal those acts, such as the carrying out of the death sentence by the military authorities, which were illegal at common law: it merely constituted an acknowledgment that durante bello the civil courts were incapable of interfering.22 In fact, from the end of the eighteenth to the end of the nineteenth century, British legal thought and jurisprudence would maintain this restrictive interpretation of martial law. Thus, the tradition established by Edward Coke, Matthew Hale, and William Blackstone was followed and strengthened, while recourse to martial law was increasingly confined to the logic of emergency and inevitability.23 From this perspective, the threat posed by important social disturbances, up to and including insurrection, does not justify the imposition of an exceptional legal order. The power to meet force with force, established in common law,24 appears more than sufficient to justify any necessary repression, as long as the courts can, retroactively, sanction any unjustifiable abuses of power or other arbitrary actions committed during the suppression of an insurrection. One question clearly addressed by this ‘liberal’ vision of martial law is that of what powers are reasonable and what measures are acceptable

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in times of insurrection. Another, equally important, is that of the acceptable duration of exceptional measures, with respect not merely to the repression of the disturbance but also to the punishments meted out to those responsible: ‘The King may punish his subjects by martial law during such insurrection of rebellion, but not after it is suppressed.’25 However, if the legal theory underlying martial law became increasingly clear during the nineteenth century, such was not the case with the practice of martial law. In the British colonies and dependencies, ‘necessity’ often took the form not only of open rebellion but also of the practical impossibility of respecting British legal norms. In this context, British power had to circumvent the various legal restrictions placed on martial law by jurisprudence and legal thought. It is important to recognize that all of these restrictions touched on executive power and its use of the army. In fact, on the periphery, the crown could normally count on relatively compliant legislatures, prepared to pass specific legislation rendering legal any measure deemed necessary. Ireland set the pattern: first, the local legislature and then, after union, the British Parliament repeatedly passed laws permitting the imposition of martial law. These laws not only affirmed royal prerogative in the matter but also protected individuals who applied the measure against subsequent legal action from those affected by it.26 At work here was a systematization of extrajudicial procedures in the British colonies and dependencies. There is a striking contrast between the extreme caution exercised by authorities at home and the often brutal measures taken to deal with civil disturbances in lands under British domination. In fact, in the colonies in general, the imposition of martial law became, from the start of the nineteenth century, a familiar form of dealing with civil disturbances. Thus, martial law was imposed in Barbados in 1805 and 1816; in Guyana (Demerara) in 1823; in Upper and Lower Canada in 1837–9; in Ceylon in 1848; in Cephalonia (Ionian Islands) in 1849; in the Cape Colony in 1835, 1849–51, and 1859; in Saint Vincent in 1863; and in Jamaica in 1831–2 and 1865. Of course, these actions were complemented by a much more frequent use of less severe exceptional measures, such as the suspension of habeas corpus. These legal developments would soon be heralded by W.E. Finlason. The author of one of the few nineteenth-century legal works dealing specifically with martial law, Finlason showed himself from the start to be sensitive not only to the practical pressures facing authorities dealing with a rebellion, but also to the way British rules of procedure constituted an obstacle to efficient action:

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It is obvious that one of the perils we incur as the price we pay for free constitution, is the constant insecurity of those who have the courage to act in defence of law and order on occasion of riot or insurrection. It is true that in theory, at all events, the law is plain and clear; upon paper it is so, but in practice it is perilous, as these and subsequent events show ... our system of criminal prosecution is essentially popular; it is the grand jury who, at common law, present or indict, and though they are composed of a superior class of the people, still they are of the people, and likely, more or less, to share any strong popular excitement.27

This explains why Finlason, going against the dominant jurisprudence of the time, was careful to affirm the primacy of royal prerogative in such matters. Furthermore, he showed particular sensitivity to the challenges posed by the imposition of British order on foreign ‘races’: The important point to be observed is, that the more the Common Law is supposed to be extended to a colony in right of English blood and descent, the more it must be considered to be in favour of and for the protection of those subjects of English descent, whose birthright it is presumed peculiarly to be. So that this theory, which has lately been proclaimed upon such high authority, only makes all the clearer the power of a governor to proclaim martial law for the protection of the subjects of English descent whenever really required for their protection; as in cases of a really dangerous rebellion of those of a different, perhaps hostile, race.28

The fact is that the maintenance of order in British colonies and dependencies reflected an entirely different logic from that which prevailed in the mother country. This ‘colonial’ logic concerned the very legitimacy of British power in times of revolution. The Right to Revolt As the rough British equivalent of the state of siege, martial law proved to be one of the preferred weapons in fighting against movements for colonial autonomy.29 To move beyond the nineteenth-century legal parameters of the measure, it is important to understand how martial law was also – if not primarily – the product of a particular political dynamic. The arrival of the ‘Age of Revolution,’ to use Eric Hobsbawm’s phrase, signalled a fundamental disruption in the nature and uses of public power. The demand for democracy implied that the principle of legitimacy, no longer based on allegiance to a dynasty, increasingly meant fidelity to the homeland. An essential continuity was being established between the

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individual citizen and the democratic state, validated by elections and the principle of majority rule and framed within the narrow confines of the nation. The delicate ‘balance’ of powers among established elites was giving way to an ideal of government where the ‘people’ were at once the source and the target of power. The principle validating this new power was neither legal tradition nor dynastic inheritance, but a mandate periodically granted to representatives by the popular majority. This legitimacy, resting on the ‘free will’ of the citizen, certainly gave the state the power to repress brutally, in the name of the majority, expressions of political dissidence. But the same legitimacy also made possible a situation where the majority, or those who claimed to speak for it, could claim to have lost confidence in the government. This explains why the arrival of the modern democratic state coincided with a debate on the right to revolt. In other words, disobedience now had a ‘legal’ justification in cases where the exercise of official power proved to be arbitrary. The origins of such a justification can be traced to Grotius: ‘The Right to war may be conceded against a King who, possessing only part of the sovereign power, seeks to possess himself of the part that does not belong to him ... Whoever possesses a part of the sovereign power must ... possess the right to defend it. In this case ... the King may even lose his part of the sovereign power by right of war.’30 Thus, during the Glorious Revolution, the people’s ‘right to resist’ the arbitrary use of power was supported by Algernon Sidney and John Locke in the name of natural law and that of a justice which transcended the formal authority of the king.31 In a society faced with authorities’ attacks against the ‘rights’ of the people and the open collusion of the courts, rebellion becomes the ultimate recourse in demanding a legal order superior to that of the authorities who happen to be in place, or even an effective antidote against those who would manipulate the power of the people to their own ends. This demand lies at the origins of all the great revolutions which marked the end of the eighteenth and the beginning of the nineteenth century. The right to revolt was articulated by American patriots32 and enshrined in the French constitution of 1793.33 In fact, in the absence of all authority above that of the elected powers, it can be understood as the only recourse against the possible excesses of executive power. Such claims would fade away only with the decline of ideas surrounding natural law during the nineteenth century and with the development of the power of the courts to interpret constitutions along the American model. Of course, in the colonial context, the new relationship of legitimacy at

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the root of popular rights took on the form of demands for political self-determination. In other words, in the colonies and dependencies, democratic thought would develop primarily along the lines of colonial autonomy. From this perspective, the use of martial law had the advantage of short-circuiting popular resistance by giving unlimited powers to imperial authorities. This temporary putting aside of the rule of law, an expedient that English courts considered with great suspicion throughout the nineteenth century, was in fact an extremely useful means of exercising power when the goal was not to suppress revolt but to quash demands which might lead to the mobilization of large populations hitherto kept in a state of submission. Ultimately, Finlason was right: foreign ‘races’ were not worthy of the protections granted to British subjects. Lower Canadians would learn this lesson at their own expense. martial law and the lower canadian rebellions of 1837– 8 Recent historiography relating to the rebellions in Lower Canada has prompted an important reinterpretation of those events. Different studies have underlined the sincerity and breadth of demands for democracy34 while providing a deeper and more subtle understanding of the different forces present in the colony.35 These trends have contributed to a reading of the rebellions which looks beyond socio-economic, ideological, and cultural determinants towards the analysis of an essentially political event, with all the implications of that term.36 A substantial degree of temporal and spatial unity has traditionally been attributed to the rebellions. Thus, historians have presented the events leading from the Russell Resolutions in March 1837 to the seemingly inevitable conclusion marked by the Act of Union as a tragic yet coherent drama. But I would argue that to understand the events, as well as the role of martial law, it is essential to distinguish between two specific moments within a larger and complex process which completely redefined political reality.37 In other words, the uses of martial law during the winter of 1837–8 had little to do with the implementation of that measure during the winter of 1838–9. In the interim, relationships of political power were fundamentally altered in such a way that the meaning which should be given to the repression of the ‘second’ rebellion is fundamentally different from that which should be given to the first. It is therefore necessary to take a closer look at these two individual moments.

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Arbitrary Power as Reaction In reality, the events commonly referred to as the ‘rebellion’ of 1837 consisted of the brutal military repression of the major centres of political and legal dissent which had developed in the countryside surrounding Montreal. In essence, there were a series of pre-emptive strikes designed to nip an anticipated insurrection in the bud. The armed resistance of peasant militias in response to military invasion ultimately provided the justification for the imposition of martial law. To a great extent, martial law was not a response to a real military threat. Rather, it proved a convenient means of dealing with political deadlock in the short term. When Governor Gosford proclaimed martial law on 5 December 1837, two weeks had already passed since the ‘rebels’ had been crushed at Saint Charles. The combined forces of the regular army and loyalist volunteer militias ensured that the remaining patriote stronghold at Saint-Eustache would meet the same fate on 14 December. Lacking organization, leadership, and arms, the patriotes never posed a serious military challenge. However, in the countryside surrounding Montreal, they did succeed in establishing a widespread system of civil disobedience. The patriote strategy, beginning in the summer of 1837, was clear and remarkably effective: mobilize the peasant masses with local assemblies, culminating in the ‘Assemblée des Six-Comtés’ held at SaintCharles on 23–24 October 1837, which in turn was to lead to a national convention.38 Meanwhile, in several counties, militia captains and justices of the peace opposed to the patriotes were replaced by individuals more sympathetic to popular demands. It was this loss of political and judicial control, potentially leading to open violence, which forced a hesitant Gosford to turn to martial law. From the end of October, the governor recognized the efficiency of the Patriots’ actions: ‘Having for their object the superseding of the ordinary administration of justice, by the establishment of a species of tribunal over which magistrates elected by the people are to preside, for the adjustment of differences and the trial of causes, and the organization of volunteer companies of militia, under the command of officers elected by militia men, who are to be drilled in the management of fire-arms, which, with the other accoutrements, the permanent committee pledges itself to provide for those corps that distinguish themselves by their good order and discipline.’39 These mobilization tactics rendered irrelevant the judicial apparatus in the countryside, a fact that Gosford had begun to recognize in September.40 With no hope of cooperation from the House of Assembly, which had been dissolved in August, the executive had few legal means at its

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disposal for dealing with the situation.41 Faced with this state of political and legal deadlock, Gosford quickly turned to considering more extreme measures: ‘Unless some extraordinary powers be immediately placed in the hands of the local Executive, such as that of suspending the habeas corpus, and declaring martial law over the whole or parts of the province, the tide of sedition cannot be stemmed but by resort to active military operations; an alternative which I cannot contemplate without the most painful reluctance.’42 Martial law was endorsed by the Executive Council a few days later (see app. D, L.C. doc.1a). By early December, the colonial secretary, Lord Glenelg, reluctantly agreed with this solution: ‘The first and highest prerogative and duty of the Crown is the protection of those who maintain their allegiance against the enemies of order and peace. To repress by arms any insurrection or rebellion to which the civil power cannot be successfully opposed, is therefore a legitimate exercise of the royal authority; and, in the attainment of this object, the proclamation of martial law may become indispensable.’43 In fact, what set events in motion were the military engagements at Saint-Denis and Saint-Charles on 23 and 25 November. On 27 November, the Court of Sessions of the Peace for Montreal, in special session, implored Governor Gosford to place the district under martial law.44 Unsure of the legality of a proclamation of martial law, Gosford had requested, on 21 November, the opinion of attorney general Charles Ogden and Solicitor General Michael O’Sullivan. Their answer was received on 30 November (see app. D, L.C. doc.1b). Ogden and O’Sullivan began by referring to the opinion of the first attorney general after the Conquest, George Suckling, who had expressed doubts regarding the governor’s right to implement martial law.45 They put more stress, however, on the Irish laws of 1799 and 1833 whose preambles, as we have already seen,46 proclaimed that martial law was a matter of royal prerogative. According to the Lower Canadian jurists, this prerogative was de facto extended to colonial governors. Consequently, they informed Gosford that he was entirely within his legal powers in proclaiming martial law without the approval of the assembly.47 Gosford would wait for more than a week after receiving the news. Ultimately, what forced his hand appears to have been an injunction issued by the magistrates of Montreal on 5 December: Resolved, that in the opinion of this meeting, the turbulent and disaffected persons who have incited the peasantry to rebel against Her Majesty’s Government have been led on and encouraged in their career of crime by a firm belief that,

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whatever might be their political offences, they would not be declared guilty by any jury impannelled in the ordinary course of law; that the great mass of the population in this district having been engaged in aiding and abetting the late treasonable attempt, a fair and impartial verdict cannot be expected from a jury taken indiscriminately from the legally-qualified inhabitants ... Resolved ... that the only effectual mode of ... arresting the progress of crime and of social disorganization, is to place this district under martial law.48

The magistrates’ arguments were essentially about the paralysis of the province’s judicial apparatus. Martial law was thus presented as a means of overcoming this problem rather than as a temporary exceptional measure aimed at suppressing an open rebellion. Lacking any alternatives, Gosford resigned himself to the need for martial law and proclaimed the measure that very night. Gosford’s hesitation is revealing. It shows how, in the absence of any political authority capable of legitimizing recourse to exceptional measures, martial law presents itself as a last resort in the face of an impending crisis, ensuring the relative stability of key institutions while waiting for an eventual conclusion. Thus, martial law is perceived as an eminently temporary measure, carefully linked to the intensity of the crisis and adjusted to its rhythm. Gosford expressed his views on the matter to Glenelg in the following terms: ‘It is with the most painful regret I now acquaint your Lordship that from the aspect of affairs in that district, and the subsequent proceedings of the insurgents, I found that I could no longer abstain from a resort to the only measure left untried of maintaining therein the royal authority, and restoring order. Accordingly I last night issued ... a Proclamation ... subjecting the district of Montreal to martial law.’49 Gosford’s departure and his replacement by Colborne signalled the final defeat of the former’s policy of conciliation. It coincided with a troubled period during which authorities in London hesitated to act while exploring different scenarios for resolving the crisis. Ultimately, they decided to name Lord Durham as governor general of the British North American colonies. But, while he was appointed on 15 January 1838, Durham would wait four months before taking up his position in Lower Canada. Meanwhile, Colborne saw in martial law a convenient means of preventing a resurgence of the rebellion. Once again, the uses of martial law had little to do with an actual emergency. The measure simply ensured that the executive would have the means to intervene rapidly in any

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future troubles without relying on slow and cumbersome legal procedures. However, in Lower Canada, maintaining such a regime for any considerable length of time faced a major obstacle: there was no political authority ready to sanction military intervention in civil affairs, nor even to protect those responsible for implementing martial law from potential legal reprisals. As early as 5 January 1838, Gosford had asked the colonial secretary ‘whether whilst legislating for the affairs of the province, it would not be expedient to pass some bill of indemnity to place all recent proceedings beyond the reach of ... ill-disposed parties.’50 On 17 March, it was Colborne’s turn to show his concern after taking over the reigns of power. An overenthusiastic military regime had arrested, ‘beyond the law probably,’ the editors of the Quotidienne and the Courrier canadien. Colborne therefore hoped that ‘Her Majesty’s Government will think it right to recommend the adoption of measures to prevent my being prosecuted by the factious party, or by individuals who have been checked in their career of mischief, when the Proclamation authorizing Martial Law is withdrawn.’51 But it was not merely the arbitrary and exceptional measures taken to maintain order that were poorly protected by a legally fragile system of martial law.52 Distressed authorities soon realized that the exceptional regime they had hastily put in place could not even guarantee that those implicated in the late rebellion would be punished. As early as 12 March 1838, during the March sessions of the Court of King’s Bench in Montreal, Judge Jean-Roch Rolland had sidestepped martial law by issuing a writ of habeas corpus for three individuals imprisoned in September 1837: Toussaint Peltier, Côme-Séraphin Cherrier, and Denis-Benjamin Viger.53 An even greater challenge than keeping rebels imprisoned until trial was that of ensuring they would receive an appropriate punishment.54 As early as 5 January, Gosford had decided that ‘some examples, selecting the most notorious and prominent characters in the revolt, must be made.’ But since juries were notoriously unreliable when it came to convicting prisoners, ‘the only course for effecting this is by trial by Court Martial; I really, at this moment, do not see any other mode by which the ends of justice can be arrived at.’55 Meanwhile, Lord Glenelg cautioned against resorting ‘to this measure without the most conclusive evidence of the inadequacy of any milder remedy to meet the existing evil.’56 The future of these initiatives was further placed in doubt by an opinion of the law officers of the crown in Lower Canada, issued on 24 January 1838 (see app. D, L.C. doc.2). Ogden and O’Sullivan declared that the establishment of a court martial was illegal since the period of open

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insurrection had passed and there was no impediment to the operation of the regular courts. They further stated that the Irish precedent of 1799, mentioned above, indicated that the involvement of the House of Assembly was necessary for such a project. As Canadian juries clearly could not be relied upon,57 and a new session of the Lower Canadian legislature was out of the question, imperial legislative intervention was necessary.58 On 19 February, Lord Glenelg instructed an uncertain Colborne as to the procedure to follow in the face of what the latter considered to be a ‘most embarrassing question’:59 With regard to the persons who have been apprehended for political offences and are now in confinement, Her Majesty’s Government desire that such of them as you may not think it right at once to liberate should not be brought to trial, unless they can be tried by the ordinary tribunals of the country. In case, therefore, a reference to the ordinary tribunals should not, in your judgment, be yet advisable, a law ought to be passed for the suspension of the Habeas Corpus Act, which will enable you to detain such persons in prison till the arrival of Lord Durham. You will propose to the council this measure, if, for the reason I have stated, or for any other reason, you may think it expedient. You will thus be enabled immediately to revoke the proclamation of martial law in the district of Montreal, if still in force.60

In the end, the solution to this legal dilemma had to come from the British Parliament. In fact, on 10 February, Parliament had passed a law replacing the Lower Canadian legislature with a Special Council appointed by the governor. As examined in Stephen Watt’s essay which follows, the council passed a series of measures from mid-April 1838 onwards shoring up the legality of actions taken since the end of 1837 rebellion, suspending habeas corpus and offering legal protection to anyone who had aided in repressing the rebellion (see also app. D, L.C. doc.3). By 27 April, Colborne felt secure enough to suspend martial law.61 The imposition of martial law in 1837 fits perfectly with the pattern of emergency measures taken in British colonies at that time. It had been implemented as a measure of last resort, though not primarily as a response to the threat of an armed uprising. Rather, it met the urgent necessity of overcoming the political and judicial deadlock caused by popular support for the demands of political radicals. Gosford’s hesitation and his cautious approach – historians have no reason to suspect his good faith – highlight the specific context in which the loss of political legitimacy on the part of the authorities and the danger it posed for a loyal minority forced ill-prepared authorities to deal with matters one at

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a time, beginning with the most urgent. In this case, far from constituting the centrepiece of a comprehensive program for relieving the tensions exacerbated by the rebellion, martial law serves to underline the weakness and confusion of the authorities.62 The clearly improvised manner in which martial law was imposed, the law officers’ rejection of the idea of taking advantage of the state of emergency to dispose of prisoners by means of court martial, the issuing of a writ of habeas corpus by a judge of the Court of King’s bench while martial law was supposedly in force: these were all indications of the weak and shaky foundations supporting the regime of martial law in Lower Canada. In fact, the colony needed a political alternative much more than further means of repression. It was precisely as part of this search for a way out of a deep political crisis that imperial authorities placed the fate of Lower Canada in the hands of a liberal and enlightened ‘despot’: Lord Durham. The Durham Interlude: Arbitrary Power as a Cure When Lord Durham finally landed at Quebec on 27 May 1838, charged with sorting out the colonial imbroglio, local authorities were well protected from judicial actions. However, the fate of some 140 prisoners still remained to be settled. Durham was aware of the importance of his mission. The imperial government had given him both its full support and sweeping powers, including that of granting pardons for murder and treason without British approval. Even before he arrived, he was aware of the intensity of the political crisis, rendered worse by increasingly profound ethnic rivalries. His brief visit to Canada would be spent not only dealing with the aftermath of the first rebellion but also laying the foundations of a solution to the conflicts which had ground political life in the colony to a halt. Much has been written about Durham’s mission, and my goal here is not to undertake a detailed examination of this literature. In fact, the historiography has mainly described Durham’s mission as an interlude of peacemaking between two uprisings. It was an attempt, which would soon prove futile, to resolve the Canadian constitutional deadlock. However, it is also important to understand how Durham’s ‘reign’ was merely the continuation, under a new form and to new ends, of the arbitrary exercise of power. British authorities saw in their fiery and pretentious governor a referee who would not be caught up in the partisan fray, and they gave him the proconsular powers necessary to stand above local rivalries,

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not to mention local laws.63 But the intention was for Durham’s ‘despotism’ to be an enlightened one, oriented to reconciliation and pacification. Thus, he began by replacing the existing Special Council with one composed of members of his entourage. Also, the British military presence, as well as that of volunteer militias, would not diminish during his stay. Finally, his freedom of action was secured by maintaining the suspension of habeas corpus, which would remain in effect until 24 August.64 It is in the context of this great freedom of action, where the governor was handed a tremendous degree of autonomy, that the brutal end to Durham’s mission can be best understood. In fact, from the moment of Durham’s arrival, the Colonial Office expressed its desire that conciliation and respect for the law might be guiding principles in pacifying the province: Even if it might be right to resort ultimately to any form of trial unknown to the constitution, it would at least be improper to do so without having ascertained by actual experiment that the usual forms are unequal to the occasion ... The utmost lenity, compatible with public safety, should be exercised towards the insurgents ... It is a principle supported, in our opinion, by considerations, not only of humanity, which cannot in such cases be admitted as the exclusive test of right conduct,65 but also of true policy in reference to the future well-being of the Canadas ... There should be no further deviation from the established modes of legal procedure ... You will therefore bring them to trial, in the usual manner, before the courts of justice as at present constituted for the trial of criminal offences in the province.66

But in spite of these clear and unflinching instructions, Durham, after a month in the colony, refused to test the Lower Canadian judicial apparatus: ‘If a trial took place, there existed the danger of an acquittal, which would have been considered as a triumph (and naturally) by the disaffected, and would have produced the worst consequences. On the other hand, even if a conviction was obtained, the excitement of the proceedings, the exposure of the acts of treason and disaffection, and the revival of the whole question, would have again reopened and inflamed all those party animosities, the calming of which was an indispensable preliminary to the final settlement of Canadian affairs.’67 Durham had, on the previous day (28 June), passed the famous ordinance exiling to Bermuda eight prisoners who had admitted to their role in the rebellion,68 a decision that he presented to imperial authorities as a fait accompli. These prisoners were prohibited from returning to Lower Canada, on penalty of death, as were certain number of patriotes accused

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of high treason who had not yet been apprehended.69 The same day, the governor proclaimed a general amnesty for those accused or suspected of high treason as a result of their participation in the rebellion, with the exception of those named in the Bermuda Ordinance (see Steven Watt’s essay and app. D, L.C. doc.4).70 In fact, even in openly dispensing clemency, Durham found himself resorting to exceptional and arbitrary measures. Not only had he carefully avoided all regular legal procedures, but he had exiled the prisoners to a colony over which he had no jurisdiction. Furthermore, by threatening the exiles with summary execution if they were to return to Lower Canada, he went against the most fundamental principles of British justice, specifically the assurance of legal protection and the right to due process for any person accused of any crime.71 Given that the province had remained remarkably calm during the summer, Durham’s dramatic actions opened him up to criticism. Lord Brougham’s strong indictment of the ordinance in the House of Lords in August 1838 was organized around a denunciation of the flagrant use of arbitrary legal power in a period of relative social peace. Placed in a difficult situation, the British government disallowed the ordinance and, adding insult to injury, proceeded to indemnify Durham against any legal proceedings related to the matter.72 From this moment onward, Durham’s mission seemed destined to fail, a failure the governor would attribute to weakness on the part of the British government, in the face of the opposition: Upon two things alone could I chiefly rely for ultimate success. The first was, the great extent of the legal powers conferred upon me, enhanced as they had been morally by the universal expression in England of satisfaction at my having undertaken to exercise them. The second was the impression, which prevailed throughout these colonies, that I might reckon with perfect confidence on the undeviating approval and support of the members of Her Majesty’s Government, with most of whom I had been so long and intimately connected, as well by personal friendship as by political relation. By the proceedings in question I was deprived of these, the only, but all-sufficient grounds of confidence in my own exertions ... The moral authority of my government, the prestige, if I may so speak, of power, once imagined to be so great, and of a supposed unbounded influence with Her Majesty’s Government, was gone, apparently for ever.73

For Durham, both the sweeping powers he had been granted and his personal prestige were essential for the success of his mission. Indeed, his

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at times enthusiastic reception by all parties in the colony was a product of his reputation for neutrality. Yet, from the moment when Durham began to take sides in the political conflict rocking the colony, and his partisan views became known to the principal political actors, the very possibility of ‘conciliation’ evaporated. In fact, Durham quickly came to two fundamental ‘conclusions’: first, that behind demands for democratic reforms strictly ethnic conflict was at play; second, that as a consequence of the prevailing ethnic conflict, the essential condition for a resolution to the crisis was the disappearance of French institutions and the integration of the French majority into exclusively British institutions.74 His evaluation of the crisis in Lower Canada, provided in a letter of 9 August 1838, was already very clear and explicit. Deploring the blindness of those Americans who supported the patriotes in their demands, Durham stated: [The Americans] believe ... that the majority in Lower Canada has contended for the maintenance of popular rights, and that arbitrary government is the aim of the minority. The mistake is easily accounted for: it is only on the spot that one learns how the subject of strife in Lower Canada has been a question of nationality; everywhere else, the false professions and designations employed by both parties, combined with the plain fact that the contest has been between a majority and a minority, is apt to mislead the inquirer, by keeping out of view the distinction of races ... They have misunderstood the case. They have fallen into the not uncommon mistake of confounding means with ends. Believing that the means employed by the Canadians, in the Assembly, were constitutional and popular, and seeing that the British, being in a minority, necessarily clung to the local executive and the imperial authority; above all, regardless of the accident (for so it may be termed with respect to the question of nationality) by which the Canadians happen to constitute a majority, Americans have supposed that the objects of both parties in the colony were of the same nature respectively, as to the means on which each party has relied.75

Thus, all possible measures had to be taken to counteract this ‘accidental’ (!) majority.76 In fact, Durham finished by admitting that the policy of clemency, evident in both the fateful ordinance of 28 June and the general amnesty of the same day, was merely a means of making French Canadians more amenable to the necessary anglicization of their institutions: ‘I had made up my mind, it was evident, to the necessity of rendering the institutions of this province thoroughly British ... As to the past, I proclaimed forgiveness and oblivion; as to the future, British institutions; as to the present, security against the disaffected ... Since the different parts

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of the whole scheme of policy were intimately blended with and dependent on each other, the destruction of one portion of it affects all the rest.’77 In his proclamation of 9 October, the governor announced the disallowance of the June ordinance and, in a rash act, openly blamed the imperial government. At the same time, he finally clearly stated to the entire colony what he had in mind for its future: ‘My aim was to elevate the Province of Canada to a thoroughly British character, to link its people to the sovereignty of Britain, by making them all participators in those high privileges, conducive at once to freedom and order, which have long been the glory of Englishmen. I hoped to confer on an united people a more extensive enjoyment of free and responsible government, and to merge the petty jealousies of a small community, and the odious animosities of origin, in the higher feelings of a nobler and more comprehensive nationality.’78 To their dismay, Canadian Reformers discovered that Durham, without really having consulted them, had adopted the position of the most radical elements in the British party.79 Even if, at this time, the governor still seemed open to a political solution in the form of a confederation – rather than a union – of Upper and Lower Canada, Durham’s attitude effectively rendered impossible any conciliation of the different factions in the province. Durham’s now obsolete ‘benevolence’ revealed the arbitrary nature of his power. In fact, Durham was conscious of the fact that the success of his mission depended not only on his power and his prestige but also on the exceptional and despotic nature of his power: ‘The government of these provinces requires something more than a knowledge of the common and statute law of England. Though the object of wise and benevolent statesmen should be to establish the great principles of the British constitution and the English law in this province, it must not be supposed that this is yet done ... My acts have been despotic, because my delegated authority was despotic.’80 Thus, it is important to understand that what I have called the Durham ‘interlude’ was in no way an oasis of legality lying between two periods of open repression. Durham’s ‘reign’ was an exceptional regime. Specifically, arbitrary power was justified not by the necessity of repressing an armed uprising but as a form of armed neutrality with the aim of imposing peace on the warring parties. From the moment that London’s delegate strayed from his symbolic image as impartial referee in order to support one of the parties, the justification for that arbitrary power had partially disappeared.81 This is why Durham increasingly felt the need to

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justify the extent of the powers which had been granted to him, and notably the way these powers seemed so out of place in a British regime. In fact, the persistent political deadlock made the exercise of these powers (openly denounced by Lord Brougham in the House of Lords in August) increasingly delicate. This is why, when the colonial secretary suggested tempering the effects of the disallowance of the June ordinance by suspending habeas corpus in the colony, Durham suddenly rediscovered the reflexes of an English radical: To me, my Lord, it appears that men’s notions of right and freedom would be much more shocked at such an universal violation of every man’s dearest rights, than by any summary process adopted for the punishment of the undeniable guilt of a few. I do not say that there are no circumstances under which I would consent to a suspension of the habeas corpus; I should not hesitate to adopt it in any emergency in which the notoriety of a general outbreak, or of a general purpose of insurrection, might render it advisable that a Government should be for a while armed with the power of arresting the objects of its suspicion, without bringing them to immediate trial. But I see no necessity on account of any existing evil in this province, for taking such a step now ... I cannot think it justifiable to take away the franchises of a whole people in order to punish a few known and dangerous individuals; or to guard against the misconduct of 23 men, by enveloping them in a general forfeiture of personal liberty.82

Thus, from September 1838, the political conditions for the eventual success of Durham’s mission rapidly dissolved. Worse still, he also faced increasingly formidable legal challenges. That same month, during their trial at the Court of King’s Bench of Montreal, Amable Daunais, François Nicolas, and two others were acquitted for the murder of Joseph Armand Chartrand, committed during the 1837 rebellion.83 Durham concluded that ‘it is now certain that no jury but a French Canadian could have been empanelled, and that the acquittal of one and all would have been certain, however strong the evidence of their guilt.’84 Moreover, in October, during a request of habeas corpus before the judges of the Court of King’s Bench of Quebec in favour of Firmin Moreau, arrested under the police ordinance passed by the Special Council, Judge Elzéar Bédard issued a minority opinion that the ordinance was invalid, since it modified the British law on vagabonds, while the law creating the Special Council prohibited it from modifying laws passed by the British Parliament. A particularly outraged Durham wrote to London:

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Mr. Bédard was fortunately overruled by the other judges, and no mischief resulted in the particular case before the court; but that mischief has been done, which must result from the public declaration of the illegality of the acts of the only legislative authority in the country, on the part of one of the judges of the highest court; whilst still greater mischief must result from this opinion being grounded on a view which restricts the legislative authority of the province within limits so absurdly narrow; and the greatest evil of all is, that ... his opinion is unfortunately backed by those of many of the speakers in both Houses of Parliament, in the late debates on the ordinance.’85

Thus, in early fall, as a vexed and sickly Durham prepared his definitive departure from the colony, and in the midst of rumours of agitation in the Canadian countryside, the return of a quasi-military regime was envisaged: ‘The indications of mischief are so numerous and so urgent, that it is no longer possible to conceal, or advisable to attempt concealing, the consciousness of danger entertained by the Government: its only course is openly and resolutely to proclaim and avert that danger. The early adoption of these measures of military precaution ... will in all probability produce a state of things in which the present exasperation of parties will be aggravated by fresh causes of irritation; but these are evils which must be borne, if we mean to provide, as far as is in our power, for the retention of the two Canadas.’86 Durham departed from Quebec on 1 November. Two days later the second Lower Canadian rebellion began. Arbitrary Power as Politics The circumstances surrounding the implementation of exceptional measures during the second rebellion had little to do with the situation that prevailed during the first. First of all, the second uprising itself took on an entirely different form. Unlike the first, there appears to have been a significant degree of advanced planning. A secret society, the Frères Chasseurs, provided coordination for the patriotes’ actions. The symbolic use of oaths and the systematic use of secrecy – characteristic of early nineteenth-century clandestine nationalist organizations87 – allowed, in theory at least, some degree of concerted action. But the lack of external support and the difficulty, if not the impossibility, of organizing a mass movement with neither arms nor a permanent military organization ensured that what was

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planned as a major armed uprising was doomed to failure. Thus, the rebellion of 1838 consisted of a series of isolated skirmishes, involving clashes between the patriotes and volunteer loyalist militias. The patriotes’ preferred form of organization contributed to a profound sense of paranoia, especially in the countryside surrounding Montreal.88 Having suffered through the events of 1837 and exasperated by Durham’s failure, the most radical members of the English-speaking minority saw in the agitated context of early November the opportunity to use the second rebellion as a pretext for action. Indeed, the speed with which the second rebellion was repressed is revealing. On 3 November, news was received of a few Chasseur mobilizations around Montreal. Colborne declared martial law the very next day. During the days that followed, the Special Council, in a mood of furious repression, passed a series of eleven ordinances abolishing, for all intents and purposes, the normal operation of criminal law in the colony.89 A few days earlier, on 26 October 1838, Colonial Secretary Lord Glenelg had joined Durham in denouncing the ineffectiveness of the regular Lower Canadian courts. He proposed the organization of special courts as a preventative measure: Where trial by jury has excited the righteous scorn and indignation of the community, it cannot be difficult to form tribunals more impartial and more competent than the existing juries ... It would not be safe to postpone the formation of such tribunals until a new insurrection may happen to break out, for the same objections which induced Her Majesty’s Government to reject the proposition to subject the prisoners charged with being concerned in the late revolt to new tribunals, constituted after the commission of the offences, would again apply. Men would complain that they were tried by an ex post facto law. While, therefore, the power of detention and imprisonment, without trial, may well be reserved for a period of emergency, of which your Lordship will be the judge, it is the desire of Her Majesty’s Government that you should at once prepare and propose to the Special Council an Ordinance for constituting tribunals, by which future rebels or murderers may be tried. The leaders and agents of insurrection will thus be forewarned, and cannot justly complain if they are made amenable for their crimes.90

But the Special Council was one step ahead of the Colonial Office and its clear instructions. In fact, an ordinance had already been passed instituting the very retroactive measures the British government wished to avoid at all costs (see app. D, L.C. doc.5).91 Colborne did his best to justify

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the situation: ‘The sudden renewal of the revolt has exposed the local government to the embarrassments and serious difficulties which it encountered last year, in regard to bringing to justice offenders guilty of treason and murder ... The progress of the insurrection had been rapid and extensive, and as the prisoners, most of whom had been taken with arms in their hands, were hourly increasing, it was necessary to legislate not prospectively only, but for the punishment of offences already committed.’92 But Colborne really had no reason to be worried. British authorities had effectively given him carte blanche: ‘You may rely on the unequivocal sanction and firm support of the ministers of the Crown, in any further proceedings which, in the exercise of your powers as administrator of the Government, you may take for defeating intrigues against the public peace and the royal authority, even though these intrigues should be conducted in such a manner as not to render the authors of them, amenable to the legal tribunals in the ordinary course of law.’93 Indeed, one of the most striking characteristics of the measures taken by Lower Canadian authorities to suppress the second rebellion was the wholehearted support they received from their British government. This included legal representatives, who would systematically rely on a broad interpretation of the Special Council’s powers in order to justify the measures taken.94 The council even took it upon itself to exonerate retroactively all those implicated in the repression by voting two separate ordinances granting legal immunity, covering the periods from 1 November to 21 December 1838 and from 21 December to 13 April 1839.95 Under these circumstances, the repression faced by the rebels was virtually unrestrained. During the few days that the second uprising lasted, 753 persons were arrested in the District of Montreal alone. Beginning on 28 November, a court martial was established which would continue sitting until 8 May 1839. During that time, it would try 106 prisoners, 72 of whom were acquitted and 99 sentenced to death. Twelve were executed, 58 deported to Australia, and 27 granted a conditional release.96 The operations and legal issues surrounding the Montreal Court Martial are examined in Murray Greenwood’s essays that follow. A striking characteristic of this second wave of repression was the vigorous legal challenges it faced. In fact, the example was set from above. On 21 November 1838, at Quebec, Court of Queen’s Bench judges Philippe Panet and Elzéar Bédard issued a writ of habeas corpus for John Teed, who was suspected of treason. This act directly contradicted the Special Council ordinance of 8 November authorizing the imprisonment

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of persons accused of treason. In their decision, the judges claimed that the Special Council had overstepped its authority in passing such an ordinance, given the terms of the imperial law creating the legislative body.97 Soon afterwards, on 6 December, the assistant judge of Trois-Rivières, Joseph-Remi Vallières de Saint-Réal, relying on the same interpretation, issued a writ of habeas corpus for Celestin Houde.98 The position taken by these three judges threatened to sweep away all of the exceptional measures instituted by the Special Council’s legislation. Thus, authorities were quick to seek the opinion of other judges and that of the crown law officers. Their response, with the exception of Rolland, affirmed the legality of the Special Council ordinances, claiming that the three judges had wrongly interpreted the restrictions contained in the imperial act creating the council.99 As a result, Panet and Bédard were suspended. Vallières de Saint-Réal suffered the same fate on 27 December. Finally, on 25 January 1839, British jurists rendered an opinion confirming the council’s powers in such matters.100 In any case, legal resistance came mainly from the principal victims of repression themselves. Thus, Denis-Benjamin Viger, imprisoned on 4 November along with Louis-Hippolyte La Fontaine and Charles Mondelet, refused to post bail and demanded a regular trial. He would remain in prison until May 1840.101 Meanwhile, those prisoners who faced the court martial, on the advice of lawyers Lewis Drummond and Aaron Hart, decided to contest the jurisdiction of the court. They insisted that ‘the offence or offences with which they stand charged, are cognizable only by a jury of the country, and that, by the mode of trial, and the means resorted to upon the present occasion, they are deprived of all constitutional means of defence.’102 Once again, the legal opinion of J. Campbell and R.W. Rolfe, law officers of the crown, confirming the legality of the Special Council ordinance constituting the court martial was decisive.103 In the face of such an unequivocal endorsement of the Special Council’s powers, the only remaining course of action was to appeal to higher legal authorities. On 14 February 1839 La Fontaine and Mondelet, with the help of a radical MP, laid a petition before the House of Commons solemnly protesting against the arbitrary arrests and the exceptional measures introduced by the Special Council: They, with several other persons, were forcibly torn from their families ... by persons calling themselves the agents of Government, and dragged to prison by her Majesty’s troops, without any warrant, without any accusation against them and,

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as they believed, with the knowledge or by the orders of Sir John Colborne ... It was publicly believed, that a carte blanche had been given to many persons, to denounce as traitors any of her Majesty’s subjects in the colony, thus furnishing to enmity an opportunity of wreaking its revengeful feelings on the liberty of the subject ... The country was under military and despotic rule, of a nature to drive the population of these provinces to despair, and of which the object appeared to be to destroy their institutions and their language, and drive them from their country.104

Of course, legal resistance ultimately proved futile. For what was at work was not the suppression of a rebellion but a brutal reorganization of power relations in the colony, in the guise of the restoration of order. One is struck, for example, by the brief, even abrupt justifications for repression to be found in the correspondence between colonial authorities and their British masters. Long gone were Gosford’s hesitations and Durham’s long and verbose declarations of principle. Examples had to be made and deterrence was the principal goal, as Colborne explained: Convinced ... that the safety of both provinces depends on the firmness and unhesitating decision of the executive government, and persuaded that the insurgents were in a great degree encouraged in the second revolt by the recollection of past impunity and the hope of future amnesty, and receiving daily proof of the infatuation by which a large portion of the population have been drawn into a belief in the impotence of justice, I feel that severe examples have become indispensable, and it only remains for me seriously to consider how the cause of public justice can be vindicated with the least possible sacrifice of human life.105

A visitor from Europe did a good job of summing up the situation in Canada at the time: ‘[The English] have been thinking of nothing ever since [the second insurrection] but avenging imagined cruelties, and guarding against apprehended dangers.’106 In fact, there were few who could not perceive what was really going on. Even Pierre de Rocheblave, a member of Colborne’s Special Council and long-standing enemy of the patriotes who had lent a hand in the repressive measures adopted in November, would soon lose all illusions. In February he undertook the presidency of the Association loyale canadienne, a political association whose published manifesto deplored les prétentions injustes de cette faction de nos co-sujets d’origine Britannique qui, dans le but avoué de ravir à la majorité des habitants de ce pays toute influence

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constitutionnelle, profite avec ardeur de la fausse position où nous ont placés les déplorables tentatives d’un petit nombre de nos compatriotes égarés, pour attaquer nos institutions avec acharnement et mauvaise foi ... Les événements déplorables qui viennent de se passer ont fait triompher la faction qu’il était essentiel de contenir; elle s’empare aujourd’hui de fautes isolées pour les rendre générales, et obtenir par là le renversement de toutes les institutions que nous tenons de la capitulation et de la bienveillance de feu Notre Auguste Monarque George III, de Glorieuse mémoire.107

Perhaps never before had martial law been used so openly and over such a long period of time to crush opposition to what was essentially a political coup in the guise of a state of emergency. Thus, Colborne maintained martial law in force in the District of Montreal until 24 August 1839.108 general conclusions From the end of the eighteenth century, colonial elites in the Canadas found various ways of using the law as a means of exercising their political will and guaranteeing their political power. However, a specifically British process of colonial expansion, with the American example everpresent as an alternative path of political development, demanded that a somewhat milder version of those constitutional rights which had been at the heart of the British political system since the seventeenth century also be transplanted into the colonial context.109 Consequently, with the rise of democratic demands in the colonies, political battles frequently spilled over into the legal domain. To a certain extent, formal legal procedure and the complex ritual of legal conflict obscured the underlying political questions. Nevertheless, it was on the field of law that the battle between the supporters of ‘order’ and those of the ‘people’ took place: The criminal courts must be seen as arenas of struggle dominated, but by no means controlled, by the ruling alliance ... While helping to facilitate and legitimize the repression, the law was also a limited instrument. Those subject to the proceedings could utilize the formal claims of the law to contest the repression ... The use of sedition laws highlighted the tension between the rule of law and discretionary authority, played out in arguments about executive influence over prosecutions, the jury, and judiciary. These rule-of-law claims were not obscure legal technicalities confined to the specialist participants. They were expressions of established British constitutional principles, part and parcel of the rights and

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liberties of all subjects. The popular appeal of those subject to the prosecutions was that the government had deprived the public of the full benefits of the British constitution.110

The legal process at issue here turned on the jury. This was the crack through which popular grievances could eventually affect the process, to the extent that the ‘peers’ who decided guilt or innocence, or the fate of a civil action, had the opportunity to influence directly the administration of justice. This is why ‘jury control’ was such a sensitive and fundamental question in England and, a fortiori, in the colonies.111 As in Upper Canada – and perhaps even more so, given that it was a conquered colony – there developed in Lower Canada a precocious and widespread version of judicial authoritarianism. Greenwood has rightly insisted on the predominance of ‘Baconian’ judges112 in the colony, always ready to come to the aid of authorities. Here, too, there developed a local oligarchy that controlled the economic and political life of the colony, ready to take whatever exceptional legal measures were necessary to stem the tide of democracy. Paul Romney’s harsh portrayal of Upper Canada is perfectly relevant to its neighbour: ‘Upper Canada did not possess what it was meant to possess: a constitution that was, in spirit if not in the letter, an “image and transcript” of the English. It lacked such a constitution because the colonial administrative elite, whose duty it was to govern the colony in conformity with the precepts of the English constitution, had betrayed their trust as imperial agents by cultivating a political creed, and nurturing a political mood, that were incompatible with that duty.’113 But an important difference needs to be underlined. In contrast to Upper Canada, where conservative forces periodically scored important electoral victories, the democratic opposition in Lower Canada quickly and decisively took control of the elected assembly. Furthermore, this opposition increasingly relied on the support of the province’s francophone majority (as well as a good portion of American immigrants to the Eastern Townships and of Catholic Irish immigrants). Even if the vast British immigration beginning in the 1820s provided the ruling oligarchy with a degree of popular support, they were never able to control the ‘peasantry’ as their Upper Canadian counterparts succeeded periodically in doing. Meanwhile, the rural French-Canadian majority, increasingly conscious of its power, was able to express its political demands in the language of democratic rights characteristic of their century. With time, the conservative elites’ sense of isolation only increased as Lower Canadian demands for colonial autonomy were increasingly framed in terms hostile

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to British institutions. From the mid-1830s onward, they entered a state of what might be called hysteric paranoia, seeing in the patriote’s demands for democracy a plan for ethnic domination114 by a population which they had always considered ignorant and easily manipulated. Thus, it became possible to read the Lower Canadian crisis as a parody of democracy, as an illicit and crafty use of the ‘privileges’ granted to British subjects. In this situation, the criteria for legitimacy could be turned upside down: the democratic farce left a threatened minority with no choice but to resort to the arbitrary use of power, justified by urgency and the enormity of the threat.115 The rebellions of 1837 and 1838 represent two stages in the development of this political dynamic. They also underline how the Special Council proved indispensable in the exercise of this arbitrary power. But the rebellions also reveal a side of the law which is little understood, especially in the age of liberal democracy and legality. The law I am referring to does not present itself as an ideology, and even less as an instrument for mediating social tensions. Rather, with the establishment of a formal rule of law, it becomes the veil behind which arbitrary power may be exercised. Martial law allows us to see past this veil. Viewed by legal scholars as a last resort in cases where the law is incapable of regulating society, as an indication of the legal void temporarily filled by military force, martial law in the Lower Canadian context became an administrative façade for an excess of order and legislation, a protective umbrella for a frustrated minority which unexpectedly found itself with an opportunity to remake a politically paralysed society. In exceptional circumstances where the fabric of society is irrevocably torn, law can also be the thin coat of legality applied to the naked use of force, a sort of legal make-up covering the arbitrary use of power which jurists can only passively ratify, leaving no room for resistance, except perhaps for the vain protests of a DenisBenjamin Viger, a Charles Mondelet, or a Louis-Hyppolite La Fontaine. Canadian democracy, also born of this logic whereby arbitrary power is cloaked in necessity, continues to feel its effects. But for the legal historian, martial law teaches a difficult lesson. Sometimes, in law, the exception does not confirm the rule. Rather, it establishes an entirely new order.

NOTES 1 Sir Edward Coke, Commons, 1628, 2: 549. 2 Glenelg to Colborne, 6 Dec. 1837, British Parliamentary Papers: Colonies Canada (1837–1838), vol. 9, 114 (hereafter Parliamentary Papers).

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3 Durham to Glenelg, 28 Sept. 1838, ibid., 193–4. 4 This corresponds to what Romney calls the contradiction between constitutionalism and legalism. Paul Romney, ‘From Constitutionalism to Legalism: Trial by Jury, Responsible Government, and the Rule of Law in the Canadian Political Culture,’ Law and History Review, 7:1 (spring 1989), 121–74. 5 See Michael Mann, The Sources of Social Power, Vol. II: The Rise of Classes and Nation-States, 1760–1914 (New York: Cambridge University Press 1993). 6 Dicey does a good job of capturing this relational logic – between the individual and political authority – which lies at the heart of the phenomenon: ‘The right to personal freedom or the right to free expression of opinion ... may be looked upon from two points of view. They may be considered simply parts of private or, it may be, of criminal law. But in so far as these rights hold good against the governing body in the state, or in other words, in so far as these rights determine the relation of individual citizens towards the executive, they are part, and a most important part, of the law of the constitution ... Whereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result, not the source, of the rights of individuals.’ A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan (1860; repr. 1920), 280–2. 7 ‘An Act for the Better Securing the Liberty of the Subject, and for Prevention of Imprisonment beyond Seas’ (U.K.) 31 Charles II (1679), c.2. 8 Cited by W.E. Finlason, A Review of the Authorities as to the Repression of Riot and Rebellion (London: Stevens and Sons, 1868), 52. 9 A report to the Privy Council dating from the end of the seventeenth century clearly explained the implications of this restriction in peacetime: ‘Martial law to be granted only at the advice of the Council, and that in times of dangerous stirs, and the same to be called in when the stirs shall be appeased; for now the common law hath force in most parts of the realm. The trial of malefactors by the ordinary way of 12 men is a thing that doth greatly content the people.’ Ronan Keane, ‘“The Will of the General”: Martial Law in Ireland, 1535–1924,’ Irish Jurist, 25–7 (1990–2), 150–80. 10 ‘An Act for Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown’ (U.K.) 1 Will. and Mary II (1688), c.2, art.1(1). 11 ‘An Act for Punishing Officers and Soldiers Who Shall Mutiny or Desert their Majesties Service, to Continue till November, 1689, and No Longer’ (U.K.) 1 Will. and Mary I (1688), c.5. 12 It is important to note that this restriction applies only to the executive and not to Parliament itself: ‘During the course of the war parliament was to impose measures of martial law more draconian by far than anything the king has

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ever attempted.’ Lindsay Boynton, ‘Martial Law and the Petition of Right,’ EHR, 79 (1964), 282. 1 Geo.I, st.2, c.5. See Gerald R. Williams, ‘The King’s Peace: Riot in Its Historical Perspective,’ Utah Law Review, 6:2 (summer 1971), 240–58. The classic explanation of this system of regulation, founded on the ideology of the rule of law, remains that of Douglas Hay, ‘Property, Authority and the Criminal Law,’ D. Hay et al., eds., Albion’s Fatal Tree: Crime and Society in 18thCentury England (New York: Pantheon Books 1974), 17–64. Ian Steele, ‘Governors or Generals? A Note on Martial Law and the Revolution of 1689,’ William and Mary Quarterly, 46:2 (1989), 304–14. Georges Rudé, Wilkes and Liberty: A Social Study (London: Lawrence and Wishart 1983). See also W.E. Shelton, English Hunger and Industrial Disorders (London: Macmillan 1973); J. Brewer et J. Styles, ed., An Ungovernable People: The English and Their Law in the 17th and 18th Centuries (New Brunswick, N.J.: Rutgers University Press 1980). Steven C. Greer, ‘Military Intervention in Civil Disturbances: The Legal Basis Reconsidered,’ Public Law (1983), 573–99. See Clive Emsley, ‘An Aspect of Pitt’s “Terror”: Prosecutions for Sedition during the 1790s,’ Social History 6:2 (May 1981), 155–84, and F. Murray Greenwood’s useful overview, ‘Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution,’ in Greenwood and B. Wright, eds., Canadian State Trials: Volume One: Law, Politics and Security Measures, 1608–1837 (Toronto: University of Toronto Press 1996), 241 (hereafter Canadian State Trials I). Léon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol. 4 (London: Stevens and Sons 1968), 115–57. The 1831 Bristol riots serve as a particularly good illustration of this phenomenon. On these different points, see John Jacob Tobias, Crime and Police in England, 1700–1900 (London: Gill and Macmillan 1979), 117–84; Randall E. McGowen, ‘The Image of Justice and Reform of the Criminal Law in Early 19th-Century England,’ Buffalo Law Review, 32 (winter 1983), 89–126; and Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (New York: Pantheon Books 1978). The Chartist troubles at the end of the 1830s and in the 1840s serve as a good example of the prudent application of measures for civil repression. On this subject, see Léon Radzinowicz, ‘New Departures in Maintaining Public Order in the Face of Chartist Disturbances,’ Cambridge Law Journal, 19 (April 1960), 51–80. Ronan Keane, ‘“The Will of the General,”’ 158. ‘The whole drift of English legal thinking [is] towards banishing martial law

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from the confines of law properly understood – to say, in effect, as the Duke of Wellington had said, that it [is] “no law at all.”’ Charles Townshend, ‘Martial Law: Legal and Administrative Problems of Civil Emergency in Britain and the Empire, 1800–1940,’ Historical Journal, 25 (1982), 172. Also relevant here is A.V. Dicey’s famous remark: ‘“Martial law”, in the proper sense of that term, in which it means the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals, is unknown to the law of England.’ Dicey, Law of the Constitution, 283. This was also the position of the great jurist Mansfield, at the end of the eighteenth century. See Greer, ‘Military Intervention in Civil Disturbances,’ 581–5. Essentially, the urgency of the situation alone cannot justify recourse to an exceptional legal order: ‘When martial law is proclaimed under circumstances of assumed necessity, the proclamation must be regarded as the statement of an existing fact, rather than the legal creation of that fact.’ Cushing, attorney general of the United States, opinion of 7/2/1857, cited in William Forsyth, Cases and Opinions on Constitutional Law (London: Steven and Haynes, 1869), 209. Hale, Analysis of the Law, cited in Forsyth, ibid. See also Lord Chief Justice Cockburn, charge to the grand jury in R. v. Eyre: ‘If it be true that you can apply martial law for the purpose of suppressing rebellion, it is equally certain that you cannot bring men to trial for treason under martial law after a rebellion has been suppressed.’ Ibid., 213. See especially ‘An Act for the Suppression of the Rebellion Which Still Unhappily Exists within This Kingdom, and for the Protection of the Persons and Properties of His Majesty’s Faithful Subjects within the Same’ (Ireland), 39 Geo. III (1799), c.11; ‘An Act for the Suppression of Rebellion in Ireland, and for the Protection of the Persons and Property of His Majesty’s Faithful Subjects there’ (U.K.), 43 Geo. III (1803), c.117; ‘An Act for the More Effectual Suppression of Local Disturbances and Dangerous Associations in Ireland’ (U.K.), 3 and 4 Will. IV (1833), c.40. This last example (art.40) ‘provided ... that nothing in this Act contained shall be construed to take away, abridge, or diminish ... the undoubted prerogative of His Majesty, for the Public Safety, to resort to the Exercise of Martial Law against open Enemies or Traitors ...’ Finlason, Review, 5–6. As the following discussion will show, this link between the need to maintain order and the unpredictability of juries was fundamental. Ibid., 120–1. For an early example, see Jean-Marie Fecteau and Douglas Hay, ‘“Government by Will and Pleasure, Instead of Law”: Military Justice and the Legal System in Quebec, 1775–1783,’ in Greenwood and Wright, eds., Canadian State Trials I, 129–71.

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30 Grotius, De Jure Belli (1625) cited in Jonathan Scott, ‘The Law of War: Grotius, Sidney, Locke and the Political Theory of Rebellion,’ History of Political Thought, 13:4 (winter 1992), 580. 31 ‘For Locke ... the right to resist was not a political but a natural right,’ ibid., 582. 32 J.P. Reid, ‘In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution,’ New York University Law Review, 49 (December 1974), 1043–91. ‘Unsuccessful rebellions indeed generally establish the encroachments on the rights of the people who have produced them. [Rebellion] is a medicine necessary for the sound health of government.’ Jefferson to Madison, 30 Jan. 1787, cited in Harris G. Mirkin, ‘Rebellion, Revolution and the Constitution: Thomas Jefferson’s Theory of Civil Disobedience,’ American Studies, 13:2 (1972), 61–74. 33 ‘Quand le gouvernement viole les droits du peuple, l’insurrection est, pour le peuple et pour chaque portion du peuple, le plus sacré des droits et le plus indispensable des devoirs,’ Constitution de l’An I de la République (1793), article 35 in Jacques Godechot, ed., Les constitutions de la France depuis 1789 (Paris: Garnier-Flammarion 1970), 83. 34 Allan Greer, The Patriots and the People: The Rebellion of 1837 in Rural Lower Canada (Toronto: University of Toronto Press 1993); Allan Greer, ‘1837–1838: Rebellion Reconsidered,’ CHR, 76:1 (1995), 2–18. 35 Elinor Kyte Senior, Redcoats and Patriotes: the Rebellions in Lower-Canada, 1837– 38 (Stittsville, Ont.: National Museums of Canada 1985); Steven Watt, ‘Authoritarianism, Constitutionalism and the Special Council of Lower Canada, 1838– 1841’ (M.A. thesis, McGill University 1997); Brian Young, ‘Class Realignment and the Transformation of Lower-Canada, 1815–1866,’ in Allan Greer and Ian Radforth, eds., Colonial Leviathan. State Formation in Mid-19th Century Canada (Toronto: University of Toronto Press 1992), 50–63. 36 Jean-Marie Fecteau, ‘Lendemains de défaite: les rébellions comme histoire et mémoire,’ Jean-Paul Bernard, ed., Bulletin d’histoire politique, 7:1 (fall 1998), 19– 28. 37 Here, I take up an idea expressed by Jean-Paul Bernard. See The Rebellions of 1837 and 1838 in Lower Canada (Ottawa: Canadian Historical Association, 1996). 38 See Jean-Paul Bernard, ed., Assemblées publiques résolutions et déclarations de 1837–1838 (Montreal: VLB Éditeur, 1988). The mobilization strategy based on large assemblies was directly inspired by the experience of the American Revolution. It was also adopted by the Chartists in England. The best work on the relationship between the peasantry and democracy in Lower Canada is Greer, The Patriots and the People.

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39 Gosford to Glenelg, 12 Oct. 1837, British Parliamentary Papers, vol. 9, 72. 40 ‘The great difficulty of procuring strict trial evidence for bringing home, in a court of justice, to the parties concerned the charges that might be founded on the proceedings had at these meetings, added to the questionable policy of political prosecutions, especially at a time like the present, when the minds of a portion of the jury summoned to try the offence would probably be poisoned by the misrepresentations and efforts of the disaffected, have as yet prevented any resort to the court of law for the punishment of those implicated in such proceedings.’ Gosford to Glenelg, 9 Sept. 1837, ibid., 56. 41 A report of the Executive Council from 20 October reflects this feeling of helplessness: ‘There is no hope, under existing circumstances, to re-establish the equilibrium between the component parts of the constitution without the intervention of the Imperial Parliament ... It becomes absolutely necessary that the Executive Government should be made independent of the house of Assembly, and enabled to carry on the government of the province without the assistance of the legislative body ... The commission of the peace is inefficient, inasmuch as several parts of the country are without magistrates and that in the towns there is a general want of that activity which is necessary to meet the emergency of the times.’ ‘Report of a Committee of the Whole Council,’ 20 Oct. 1837, ibid., 91. 42 Gosford to Glenelg, 6 Nov. 1837, ibid., 104. See also Report of the Executive Council, 20 November 1837 in app. D, L.C. doc.1a. 43 Glenelg to Colborne, 6 Dec. 1837, ibid., 114. 44 Court of Special Sessions of the Peace, 27 November 1837, ibid., 137. Justice of the peace Denis-Benjamin Viger expressed his dissent, while judges Guy and Castonguay abstained. 45 Suckling’s interpretation relies on a strict interpretation of the Petition of Right of 1628: ‘There is ... however after all that has been said a disagreeable kind of obscurity still remaining in the subject which I confess myself unable to remove nor do I think it a matter entirely without doubt that the King can in any case whatever, even in case of an invasion or a rebellion, establish Martial Law by his single authority in England, or delegate power of doing so to his Governor or Governors in Council in the American Colonies, seeing that the prohibition of the issuing of Commissions to exercise Martial Law in the famous Petition of Right above mentioned is expressed in these very general words which contain no exception whatever.’ Cited in Ogden and O’Sullivan to Civil Secretary S. Walcott, 30 Nov. 1837, RPAC, CO 42/274/147. 46 See n. 26. 47 Ibid., 147–53. Note how the articles of the imperial acts cited in support of their legal opinion are declaratory. That is to say, they preserve a prerogative

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believed to exist already. Also, the principle that, for any proclamation of martial law, a state of war must be such that the regular courts cannot sit, was interpreted very loosely by Lower Canadian jurists. The mere incapacity to deliver the court’s warrants was deemed sufficient to meet this requirement: ‘The functions of the ordinary legal tribunals may be considered as having virtually ceased. For although the Courts of Justice may sit with perfect security in the city of Montreal, we can hardly name any part of this district in which process of any description could be served or writs executed by the ministry of Civil Officer.’ Ibid., 153. Court of Special Sessions of the Peace, 5 Dec. 1837, in Parliamentary Papers, vol. 9, 141. The justices of the peace also cited the danger of an invasion by rebels who had taken refuge in the United States. In fact, the next day, eighty patriotes attempted an invasion from the United States, but they were intercepted at Moore’s Corner, near the border, by volunteer militiamen. Gosford to Glenelg, 6 Dec. 1837, ibid., 140. The instructions to Colborne, who was charged with putting martial law into effect, were also explicit as to the need to do so with prudence and discretion: ‘... In all cases wherein the unlimited power with which you are now invested can be exercised in cooperation with, or in subordination to, the ordinary laws of the land, and that in all cases where from local circumstances, or from a prompt return to their allegiance, the deluded inhabitants of any part of that district display an honest contrition for their past offences, you will revert at once to the assistance of the civil authorities, and impress upon a misguided people the conviction that Her Majesty’s Government in this Province is equally prompt to pardon the repentant and punish the incorrigible.’ S. Walcott, civil secretary, to Colborne, 5 December 1837, ibid., 140–1. Gosford to Glenelg, 5 Jan. 1838, RPAC, CO 42/279/18. Glenelg had also already considered granting retroactive legal protection for all acts committed under this special regime: ‘Reposing the utmost confidence in your prudence, Her Majesty’s Government are fully prepared to assume to themselves the responsibility of instructing you to employ it, should you be deliberately convinced that the occasion imperatively demands it. They will, with confidence look to Parliament for your indemnity and their own.’ Glenelg to Colborne, 6 Dec. 1837, Parliamentary Papers, vol. 9, 114. Colborne to Glenelg, 17 March 1838, RPAC, CO 42/280/196. A curious incident from February 1838 highlights the fragility of arguments justifying martial law in Lower Canada. Governor Colborne issued a proclamation declaring a day of prayers and thanksgiving in honour of the ascension of Queen Victoria. Notably, the proclamation celebrated the fact that the rebellion had been brought under control, ‘thus virtually, as it may be supposed,

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discontinuing the Act declaring Martial law.’ However, Colborne had to issue another proclamation on 27 February, announcing the continuation of martial law! On this strange series of events, see the letter from Colborne to Glenelg, 28 Feb. 1838, and the proclamation of 27 Feb. 1838, in Parliamentary Papers, vol. 9 (1838), 200. For the story of these legal procedures, see O’Sullivan’s letter to Civil Secretary Rowan on 17 March 1838, in ibid., 198–9. The prisoners had requested that their trial be held during the session. O’Sullivan noted that, ‘if the judges should decide that martial law, as declared by the last mentioned proclamation, is not in force, I cannot help reflecting upon the disagreeable situation in which His Excellency may be placed.’ On this subject, see also Le Canadien, 30 April 1838. While martial law was in force, 515 suspects were arrested, of whom 340 were released on bail before 5 April, and about thirty others after that date. See Gérard Filteau, Histoire des patriotes (Montreal: Aurore 1975), 389. See Gosford to Glenelg, 5 January 1838, RPAC, CO 42/279/17. Glenelg to Colborne, 6 Jan. 1838, Parliamentary Papers, vol. 10, 20. The crown law officers deplored the excessive democratization of the procedure for nominating juries under the law of 1832: ‘This change let in upon the administration of criminal justice, an honest but illiterate peasantry. This was found to conduce materially to the increase of popular power and to further the ends of the disaffected ... It must be obvious considering the widespread of the recent Rebellion whose ramifications have extended throughout the whole Province, that every person accused of political offence could only be brought to trial with the certainty of an anticipated acquittal.’ Ogden and O’Sullivan to Captain Goldie, 24 Jan. 1838, RPAC, CO 42/280/67. Ibid., 62. Note how, for the authors of this report, the uprising was not the act of a few agitators but that of an entire population. Their angry description of the influence of the patriote leadership is revealing: ‘These men have for years past ruled the peasantry of the country as they pleased, and still possess the confidence of their deluded constituents and of several of their fellow members,’ Ibid., 68. Colborne to Gosford, 24 Jan. 1838, RPAC, CO 42/280/67. Glenelg to Colborne, 19 Feb. 1838, Parliamentary Papers, vol. 10, 1–2. The full titles and range of the Special Council ordinances can be found in app. D, L.C. doc.3. Hesitant British authorities would wait four months after the first rebellion to suspend the constitution. This highlights a situation where the patriotes had the initiative and where the social forces likely to offer resistance to them – poorly supported by a governor (Gosford) dedicated to conciliation – did not

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have the political means to react. On this point, see Philip A. Buckner, The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, Conn.: Greenwood Press 1985). ‘With the extensive executive power, reform credibility, immunity to local pressures, and a facility for critical inquiry, Durham was the pragmatic solution of the part of imperial administrators increasingly conscious of, and concerned about, the compact’s manoeuverings.’ Barry Wright, ‘Ideological Dimensions,’ 157. To be more precise, the Special Council ordinance passed in April suspended habeas corpus only for prisoners taken during the rebellion. On this point, Durham would show a much stronger attachment to humanitarian principles. He later explained his approach to Lieutenant-Governor Arthur, speaking with respect to the Upper Canadian rebels: ‘Where severity is advisable, the moment of the commission of the crime seems to be the only one in which it is possible to apply it. When an insurrection is suppressed, when the offender is helpless, the recollection of the crime weakened by the lapse of time and the horror of the impending punishment alone vivid, the common feelings of humanity render it impossible to use the severity which would previously have been allowable.’ Durham to Arthur, 18 Sept. 1838, Parliamentary Papers, vol. 10, 172. Glenelg to Durham, 21 April 1838, ibid., 29. Durham to Glenelg, 29 June 1838, ibid., 128. In April, Colborne had begun expressing the same opinion: ‘None of the prisoners can, I fear, be brought before the ordinary tribunals of the province with justice to the community at large.’ Colborne to Glenelg, 9 April 1838, ibid., 102. The text of this confession can be found in [John Stuart Mill], ‘Lord Durham’s Return,’ Westminster Review, 32 (1838), 249. ‘An Ordinance to Provide for the Security of the Province of Lower Canada,’ SLC (Special Council, 2nd session), 2 Vic. (1838), c.1. Proclamation of 28 June 1838, Parliamentary Papers, vol. 10, 128. The ordinance stated that once these persons entered the province, they ‘shall in such case be deemed and taken to be guilty of high treason, and shall on conviction of being found at large or coming within the said province ... suffer death accordingly.’ Clearly, any trial was to be concerned strictly with the presence of the rebels in Lower Canada, and not an accusation of high treason. ‘An Act for Indemnifying Those Who Have Issued or Acted under Certain Parts of a Certain Ordinance Made under Colour of an Act Passed in the Present Session of Parliament, Intituled An Act to Make Temporary Provision for the Government of Lower Canada’ (U.K.) 2 Vic. (1838), c.112. Durham to Glenelg, 25 Sept. 1838, Parliamentary Papers, vol. 10, 182.

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74 It appears fairly certain that the governor was leaning to these conclusions well before his arrival in the colony, as the words of his friend and secretary Buller would suggest: ‘Lord Durham from the first took a far sounder view of the matter: he saw what narrow and mischievous spirit worked at the bottom of all the acts of the French-Canadians; and while he was prepared to do the individuals full justice, and justice with mercy, he had made up his mind that no quarter should be shown to the absurd pretensions of race, and that he must throw himself on the support of the British feelings, and aim at making Canada thoroughly British.’ Charles Buller, cited in Chester New, Lord Durham’s Mission to Canada (Toronto: McClelland and Stewart, [1929] 1963), 50. See also Ged Martin, ‘Le Rapport Durham et les origines du gouvernement responsable au Canada,’ Bulletin d’histoire politique, 6:3 (spring-summer 1998), 37. 75 Durham to Glenelg, 9 Aug. 1838, ibid., 155. 76 Clearly, Durham is speaking in terms of an ethnic majority. Despite the denials of a certain historiographical tradition (see especially Janet Ajzenstat, The Political Thought of Lord Durham [Montreal: McGill-Queen’s University Press 1988]), the ethnic dimension was at the heart of the Durham’s thought, in line with the position of the British party in Lower Canada. It is also by referring to the ethnic character of political demands that Durham had a pretext for negating the principal of the democratic majority. In fact, appeals to ethnic solidarity constituted one of the major themes in the constitutionalist discourse of the period. On this point, see Richard La Rue, ‘Allégeance et origine: contribution à l’analyse de la crise politique au Bas-Canada,’ Revue d’histoire de l’Amérique française, 44:4 (spring 1991), 529–48. 77 Durham to Glenelg, 28 Sept. 1838, Parliamentary Papers, vol. 10, 189. 78 Proclamation of 9 Oct. 1838, ibid., 207. 79 Moreover, in August, Durham had named Adam Thom, ex-columnist of the Montreal Herald and sworn enemy of French institutions, as commissioner on municipal institutions. 80 Durham to Glenelg, 28 Sept. 1838, Parliamentary Papers, vol. 10, 193. 81 At the same moment, in England, this same idea was clearly articulated by John Stuart Mill: ‘In itself ... the dictatorship which has been assumed, and of which Lord Durham is the immediate depositary, admits of justification. But if it shall prove to have been assumed only to remove the obstacles which the constitution of the House of Assembly has of late years opposed to the previously uncontrolled sway of a rapacious faction; if because the majority of the people, when they had the power over the Assembly, did not use it to our liking, we mean to remedy this inconvenience by taking the power from them and giving it to a minority; if we have set aside their constitution in order to

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confiscate the privileges of the old inhabitants for the benefit of a small proportion of foreigners and new settlers; then will a stain rest upon the British name, to be effaced only on the day when all that is now done shall be undone.’ [John Stuart Mill], ‘Radical Party and Canada,’ Westminster Review, 28 (1837), 529. Durham to Glenelg, 28 Sept. 1838, ibid., 192. It is important to remember that, although habeas corpus was suspended during the entire summer of 1838, the suspension applied only to those implicated in the 1837 rebellion. The day before the period of suspension was to expire, Durham also passed an ordinance permitting the continued imprisonment of those prisoners who had not signed a promise to keep the peace: SLC (Special Council, 2nd session), 2 Vic. (1838), c.3. Chartrand had been executed for treason following a summary trial organized by the rebels. On the trial, see F. Murray Greenwood, ‘The Chartrand Murder Trial: Rebellion and Repression in Lower Canada, 1837–1839,’ Criminal Justice History, 5 (1984), 129–59. Durham to Glenelg, 12 Sept. 1838, Parliamentary Papers, vol. 10, 165. The jury deliberated only for a half-hour before returning a verdict of not guilty based, to the dismay and indignation of the solicitor general, ‘upon the grounds (and they were the only grounds urged in the defence) that pending a rebellion in which they took a part, the victim had been a spy and enemy to his country, and as such deservedly put to death by the sentence of his fellowcountrymen.’ C.R. Ogden to c.Buller, 19 Sept. 1838, ibid., 174. Durham to Glenelg, 20 Oct. 1838, ibid., 220. Durham makes reference to the August 1838 opinion of Judge Denman in the House of Lords, according to which the Follett amendment rendered inoperable Durham’s ordinance providing for the deportation of political prisoners without a conviction. See U.K., HC, Parliamentary Debates, 3rd series, vol. 44, col. 1162. Durham to Glenelg, 20 Oct. 1838, Parliamentary Papers, vol. 10, 221. The Italian Carbonari provide a good example. On the question of secret societies in the context of Lower Canadian politics, see Jean-Marie Fecteau, ‘Les dangers du secret: Note sur l’État canadien et les sociétés secrètes au milieu du 19e siècle,’ Canadian Journal of Law and Society, 6 (1991), 91–112. Durham had already painted a tragic picture of the situation: ‘Terrified by signs of this formidable and mysterious organization, and sometimes by secret menaces or warnings of murder and massacre, the loyal inhabitants of the country quit their exposed and isolated habitations, and either at first seek refuge in the towns or at once secure their safety by quitting the British dominions.’ Durham to Glenelg, 20 Oct. 1838, Parliamentary Papers, vol. 10, 222. For a complete list of Special Council security legislation, see app. D, L.C. doc.3.

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90 Lord Glenelg to Durham, 26 Oct. 1838, Parliamentary Papers, vol. 10, 79. 91 Thus, the ‘Ordinance for the Suppression of the Rebellion Which Unhappily Exists within This Province of Lower Canada,’ already cited, was retroactive to 1 Nov. 1838. This was a harsher version of the recent British law, ‘An Act for the More Effectual Suppression of Local Disturbances and Dangerous Associations in Ireland’ (U.K.), 3 and 4 Will. IL (1833), c.40. Furthermore, the ordinance could be applied regardless of ‘whether the ordinary courts of justice shall or shall not at such time be open.’ SLC (Special Council, 3rd session), 2 Vic. (1838), c.3, art.1. 92 Colborne to Glenelg, 19 Dec. 1838, Parliamentary Papers, vol. 10, 273. 93 Glenelg to Colborne, 19 Nov. 1838, ibid., 86. 94 The brutal haste with which the Special Council removed all obstacles to repression sometimes pushed it to extremes that raised the eyebrows of even the most tolerant British jurists. Such was the case of the ‘Ordinance to Declare that the Second Chapter of the Statutes of the Parliament of England, Passed in the Thirty-first Year of the Reign of King Charles the Second, Is Not, Nor Has Ever Been, in Force in This Province, and for Other Purposes,’ SLC (Special Council, 3rd session), 2 Vic. (1838), c.15. This ordinance invalidated all writs of habeas corpus issued by the Court of King’s Bench under the ‘Act for the Better Securing of the Liberty of the Subject, and for Prevention of Imprisonments beyond the Seas’ (U.K.) 31 Charles 2 (1678), c.2. The crown law officers had to underline, in polite terms, that the Special Council did not have the power to rewrite the province’s legal history. The ordinance was immediately disallowed: SLC (Special Council, 4th session), 2 Vic. (1838), c.51; see also the letter from J. Campbell and R.W. Rolfe to Colonial Secretary Lord Glenelg, 6 Feb. 1839, in RPAC, CO 42/300/260–1. 95 SLC (Special Council, 3rd session), 2 Vic. (1838), c.14; (Special Council, 4th session), 2 Vic. (1839), c.66. 96 For an analysis of the proceedings of this court martial, see F. Murray Greenwood, ‘L’insurrection appréhendée et l’administration de la justice au Canada,’ Revue d’histoire de l’Amérique française, 34 (June 1980), 57–94; F. Murray Greenwood, ‘The General Court Martial of 1838–1839 in Lower Canada: An Abuse of Justice,’ in W. Wesley Pue and Barry Wright, eds., Canadian Perspective on Law and Society – Issues in Legal History (Ottawa: Carleton University Press 1988), 249–90. See also the contributions of Boissery and Greewood to this collection. 97 The judgment was published in extenso in Le Canadien (23 Nov. 1838), and the lawyer’s arguments in the Quebec Gazette (26 Nov. 1838). As mentioned above (see n.92), Judge Bédard had already given the same opinion in October.

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98 Judgment published in Le Canadien (10 Dec. 1838). 99 See the opinions of Chief Justice J. Stuart, and judges M. O’Sullivan, G. Pyke, and S. Gale, 7 Dec. 1838, RPAC, CO 42/281/479; the opinion of Attorney General C.R. Ogden, 27 Dec. 1838, ibid., 487; the opinion of Solicitor General A. Stuart, 23 Dec. 1838, ibid., 489. Only Judge Rolland abstained from responding to the government’s request. However, in January 1839 he refused to grant a request for a writ of habeas corpus. See Colborne to Glenelg, 21 Jan. 1839, ibid., vol. 293, 86. Finally, on 11 Feb. 1839, judges Stuart and Bowen reiterated their opinions in refusing a similar request on behalf of J. Teed, reversing the decision of judges Panet and Bédard. See the wording of the judgment in the Quebec Gazette (18 Feb. 1839). 100 J. Campbell and R.M. Rolfe to Glenelg, 25 Jan. 1839, RPAC, CO 42/300/ 240–3. 101 On the ‘Viger Affair,’ see G. Parizeau, La vie studieuse et obstinée de DenisBenjamin Viger (Montreal: Fides 1980), 70–8; letter from governor Colborne to Colonial Secretary Marquis of Normanby, 6 May 1839, Parliamentary Papers, vol. 13, 65; Colborne to Normanby, 20 May 1839, ibid., vol. 11, 86–7; Colborne to Russell, 18 Oct. 1839, ibid., 153–5. 102 ‘Protêt de Joseph Narcisse Cardinal et al., 28 novembre 1838,’ Report of the State Trials before a General Court Martial Held at Montreal in 1838–9, vol. 1 (Montreal: Armour and Ramsay 1839) 17 at 77. 103 ‘Joint Opinion of the Attorney and Solicitor General,’ J. Campbell and R.W. Rolfe, 22 Jan. 1839, in William Forsyth, Cases and Opinions, 205. 104 U.K., HL Parliamentary Debates, 3rd series, vol. 45, col. 353–4. The petition was presented but no debate followed. 105 Colborne to Glenelg, 19 Dec. 1838, Parliamentary Papers, vol. 10, 275. Two days earlier, Joseph Cardinal and Joseph Duquet had been executed. The other executions would take place much later (18 January: Pierre Decoigne, François Hamelin, Joseph Robert, and Ambroise Sanguinet; 15 February: Chevalier de Lorimier, Charles Hindenlang, Pierre Narbonne, François Nicolas, Charles Sanguinet, and Amable Daunais). 106 Cited by Greenwood, ‘The Chartrand Murder,’ 150. 107 Association loyale canadienne, ‘Déclaration des vues et motifs de l’Association Loyale Canadienne du District de Montréal,’ Montreal, 1 Feb. 1838. 108 In the District of Saint-Francis, martial law was imposed on 16 Nov. 1838 and lifted by proclamation on 16 April 1839. 109 ‘Equality before the law, due process, and an independent judiciary were the essence of Whig constitutionalism.’ Paul Romney, ‘From the Types Riot to

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the Rebellion: Elite Ideology, Anti-legal Sentiment, Political Violence, and the Rule of Law in Upper Canada,’ OH, 79:2 (1987), 134. Barry Wright, ‘Sedition in Upper Canada: Contested Legality,’ Labour/Le Travail, 29 (1992), 49 and 56. On this question, see Douglas Hay, ‘The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century,’ in James S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800 (Princeton, N.J.: Princeton University Press 1988) 305–57; Barry Wright, ‘Sedition in Upper Canada’; and Paul Romney, ‘From Constitutionalism to Legalism.’ ‘Baconianism’ is in opposition to the legal tradition of the autonomous judge, exemplified by Coke. See F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: Osgoode Society/ University of Toronto Press 1993). A study of the behaviour of judges and the legal struggles in the period following that covered by Greenwood is sadly lacking and greatly hinders an understanding of Lower Canadian political history from 1815 to 1840. Romney, ‘From the Types Riot,’ 139. Of course, I refer here to an ultra-conservative fringe of the anglophone minority. The ‘Constitutional’ movement, loyal to Great Britain, also contained a more democratic faction, represented most notably by John Neilson. But this faction would soon be overtaken as political struggle became increasingly radicalized. It had virtually disappeared by the time of the rebellions. On this point, see Steven Watt, ‘Authoritarianism, Constitutionalism and the Special Council,’ and Michael McCulloch, ‘The Death of Whiggery: LowerCanadian British Constitutionalism and the tentation de l’histoire parallèle,’ Journal of the Canadian Historical Association, 2 (1991), 195–213. Such a backwards reading, portraying the patriotes as deceitful and the British elites as the precursors of a democratic future, would, of course, have a rich future in Canadian historiography.

8 State Trial by Legislature: The Special Council of Lower Canada, 1838–41* ST E V E N W A T T

The constitutional response of British authorities to the Lower Canadian rebellions proved rather slow and ponderous. A first step, taken in early 1838, was to augment other means of temporarily consolidating power in the hands of the provincial executive – notably martial law, examined in the previous essay – by suspending the partially elected Lower Canadian legislature and replacing it with a Special Council wholly appointed by the governor. In the short term, the council enacted several significant security measures designed to place official responses to the crisis on firmer legal ground and to facilitate further interventions. It also served as a more general legislative caretaker, persisting until early 1841, beyond its original mandate and far beyond any immediate security crisis which might have justified its existence. Its legislation came to address a plethora of issues and profoundly alter the institutional landscape of the province. With time, the council’s business became increasingly oriented to smoothing the transition to union with Upper Canada, the proclamation of which coincided with its ultimate dissolution.1 * I am indebted to Jean-Marie Fecteau, the late F. Murray Greenwood, and Barry Wright for their help and guidance in completing this essay. My research has been financially supported by the Fonds pour la formation de chercheurs et l’aide à la recherche of Quebec and the Social Sciences and Humanities Research Council of Canada. This article draws extensively on my M.A. thesis, ‘Authoritarianism, Constitutionalism and the Special Council of Lower Canada, 1838–1841,’ McGill University, 1997.

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The theme of state trials is useful for understanding how these developments, spanning three years and as many colonial governors, fit together. It serves to underscore the Special Council’s pivotal role in implementing an extreme and far-reaching reaction to the rebellions, one that ultimately judged Lower Canadians incapable of collective selfgovernance. Granted, ‘state trials’ are normally associated with extraordinary judicial proceedings initiated against individuals or groups of coaccused.2 Moreover, the council was not a particularly efficient tool for the direct administration of justice by the executive. Despite its frequent and sometimes exaggerated association with executive power,3 it remained a legislative institution, designed to pass laws rather than issue judgments, decrees, or pardons. However, the editors of this volume and series employ a broad definition of state trials, so as to include a wide range of official reactions (and overreactions) to real (and perceived) threats to state security.4 From this perspective, while the council was neither an executive body nor a court, it was an important and novel institution which enacted and sometimes even administered the law in response to the Lower Canadian rebellions. As an instrument for regulating politics through law, the Special Council merits study as a state trial from two main perspectives. The first involves its role in creating exceptional legislation. Working in concert with other tools of military and judicial repression, a small group of ordinances played a key role in quieting dissent, crushing revolt, and restoring order. The suspension of habeas corpus, Lord Durham’s Bermuda Ordinance (whereby the council attempted to administer justice directly), and the Courts Martial Ordinance constitute the best-known examples. These measures not only raised serious questions of legality and constitutionality but became increasingly ambitious in scope. For many, this trend had political implications which went beyond the mere prosecution of those suspected of treason. The second perspective from which the Special Council merits a place alongside other Lower Canadian ‘state trials’ covers a much longer time period and relates to the institution’s status as an exceptional legislature. Here, the association with the conventional notions of trial proceedings is less obvious although the focus remains on uses of the law in times of emergency. To begin with, the suspension of representative legislative institutions symbolized the authoritarian backdrop against which the reaction to the rebellions took place. It also constituted a political judgment by imperial authorities, namely, that recalling the Lower Canadian legislature was inadvisable and that Lower Canadians were temporarily

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unfit to enjoy representative government. Yet, paradoxically, as the security threat posed by the insurrection lessened, this judgment became more severe. Thus, the council became increasingly monolithic, its powers greater, and its legislation more ambitious. Ultimately, by facilitating the transition to union, local politicians were helping to render permanent many aspects of the (temporary) judgment initially handed down by imperial authorities. Historians have certainly recognized the exceptional nature of the Special Council, but rarely have they addressed its complexity and evolution. Some scholars, specifically interested in the events of 1837–8, evoke a potent and efficient tool for imperial vengeance. But regardless of whether the repression is portrayed as legitimate or wanton, the council is dismissed as monolithic and predictable.5 This characterization is problematic, since the institution reflected a noteworthy degree of ethnic and ideological diversity at least until the end of 1839. Other scholars, interested in the larger political and legal history of Quebec, study the council as a curious remnant of the rebellions which was later called upon to fill an institutional void in the months and years that followed.6 While they disagree on whether the special councillors were competent or disinterested legislators, they tend to downplay the council’s status as an emergency measure, focusing instead on the latter years of its mandate. Yet these studies often fail to recognize that the council’s later legislation depended on an extended mandate and expanded powers which could be justified only in the context of an ongoing redefinition of the rebellions and of what constituted a legitimate response to them. Nationalism is key to understanding the Special Council’s evolving role in the official response to insurrection, for the institution was ultimately used to implement a nationalist response to the rebellions.7 The ideas expressed in the Durham Report had deep roots in Lower Canada’s anglophone elite, and its representatives on the council eagerly welcomed the commissioner’s conclusions insofar as they dealt with union and the perceived needs of the British population. Initially, however, the council was very much divided on the question of whether the events of 1837–8 should, in fact, be treated as a clash of nations.8 Counter-revolutionary imperatives temporarily made for uncomfortable bedfellows, but the threat of revolution could not repair fundamental ideological splits. Those who supported the aims of union and anglification portrayed the rebellions as a collective act of treason on the part of the province’s French-Canadian population. Specifically, Montreal Constitutionalists had long complained of the need for a backward French Canada to make

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way for an emerging British-American nation. Accordingly, only with the disappearance of Lower Canada – with its representative political institutions and French-Canadian majority – could the root cause of the rebellions be eliminated. From the beginning, this group saw in the Special Council an opportunity for furthering these political aims. A second group of special councillors is particularly interesting because its members simultaneously exhibited a dedication to the preservation of British sovereignty and an opposition to how this goal was being achieved. They perceived the rebellions as a temporary outburst of political radicalism and sought a swift resolution to the crisis with a return to the full provisions of the 1791 constitution. As British policy progressively diverged from their point of view, they found themselves increasingly alienated from the council. Admittedly, they were far from being the most radical critics of the British regime in Lower Canada. Nevertheless, an analysis of their perspective allows for a complex evaluation of the council’s role, exposing political currents running across a simplistic loyalist/rebel division, mapping the lengths to which initially justifiable measures could be legitimately taken, and showing the influence of partisanship and urgency in an atmosphere of crisis. e xc e p t i o nal l e gi sl at i o n: t he sp e c i a l c o u n c i l a n d e m e rg e ncy m e a su r es The Special Council played an important role in the direct suppression of insurrection. Almost thirty ordinances were passed which provided colonial authorities with sweeping powers to keep large numbers of prisoners in custody, to supervise closely the province’s population, to repress any signs of dissent, and to arrest, convict, and dispose of treason suspects.9 Over the course of 1838, not only did immediate security concerns come to dominate the council’s agenda, but its ordinances became the basis of a decidedly repressive response to insurrection. The reluctance of some special councillors to endorse the measures being introduced illustrates how the significance of the council’s security legislation was greater than the sum of the individual ordinances. Rather, this legislation had the power to influence both the meaning and the ultimate outcome of the rebellions. Creating the Special Council An act of the British Parliament passed on 10 February 1838 suspended those sections of the Constitutional Act (1791) referring to a House of

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Assembly and a Legislative Council. It was explained that these legislative bodies could not be recalled ‘without serious detriment to the interests of the said Province.’ In the meantime, the Lower Canadian governor was free to appoint a Special Council and alter its membership at will. Although the council could not levy new taxes, alter Lower Canada’s constitution, or subdivide the province into new administrative units, it was otherwise empowered ‘to make such Laws or Ordinances, for the peace, welfare, and good government’ of the colony. However, all ordinances passed by the council were to be temporary, ceasing to have effect on 1 November 1842, ‘unless continued by competent authority.’ All ordinances also had to be initially introduced by the governor, and subsequently required his assent to become law. Legislation had then to be forwarded to the British government ‘by the first convenient opportunity’ and could be disallowed within two years. Finally, the council itself was to be dissolved by 1 November 1840.10 In fact, the Special Council was the remnant of more ambitious legislative responses to the rebellions which had been dropped by the British cabinet in the name of political expediency.11 Nevertheless, suspending the legislature was a logical step which would allow Durham a freer hand in personally sorting out the colony’s political difficulties.12 Elected assemblies had often proven a powerful weapon in the arsenal of movements for colonial autonomy, and Lower Canada was certainly no exception. In Upper Canada, as the essay by Rainer Baehre shows, a purge of the more radical elements was enough to make the assembly receptive to the executive’s proposals, resulting in a regular legislature that was an effective instrument of counter-revolution. By contrast, the Lower Canadian House of Assembly (and Legislative Council) would never be convened again.13 Meanwhile, as a dispatch from Colonial Secretary Lord Glenelg to Sir John Colborne14 explained, ‘the crown in the exercise of its prerogative, had repeatedly of late years established councils possessing Legislative authority in other British Colonies.’ Thus, rules for the council recently established at the Cape Colony were forwarded as guidelines.15 Of course, in Lower Canada it was a matter of reverting to a fully appointed body – similar to the council established under the Quebec Act of 1774 – in a context where political progress has traditionally been judged in terms of the increasing powers and prerogatives of elected colonial legislatures.16 There are parallels with the response to the 1798 Irish rebellion which Murray Greenwood examines in detail in the following essay. Responsibility for convening the first session of the Special Council fell to Sir John Colborne, who was acting as administrator of government in

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the wake of Lord Gosford’s departure. In late April, the Colonial Office informed Colborne that numerous provincial acts were about to expire and needed to be renewed before Durham’s arrival. The suspension of habeas corpus was also cited as a pressing need.17 Colborne dutifully chose just over twenty special councillors, all of whom were informed that they would be replaced upon Durham’s arrival.18 More than just a rubber stamp for gubernatorial whims, the council immediately adopted regular rules of parliamentary practice and began playing an active role in completing the draft ordinances which were presented to it.19 Colborne also sought to ensure that there were equal numbers of anglophones and francophones on the council and that different regions of the province were represented in approximately the same proportions as they had been in the assembly.20 Of course, all of the councillors had exhibited strong opposition to the patriotes in the months and years leading up to the rebellion, although not all of them had consistently enjoyed amicable relations with the colonial administration.21 Ultimately, Colborne’s Special Council proved to be the rule rather than a short-lived exception. When Durham arrived in June 1838, he did replace it with a much smaller body. His seven appointees were all military officers or members of his entourage.22 In the space of four months, they met only four times to approve a handful of ordinances which Durham personally put before them, apparently without following any formal rules of procedure or holding a single vote.23 However, with Durham’s unexpected departure in October, responsibility for the colonial administration once again fell to Colborne. At that point, the interim council he had called a few months before essentially became permanent. Although its membership would undergo significant changes, this was the institution that would not only deal with the 1838 insurrection but also undertake a reworking of the colonial state in the months that followed. Security Legislation in the Aftermath of the 1837 Rebellion The Special Council’s role in the direct suppression of insurrection was, in many ways, an unexpected one. After all, the institution was created in the aftermath – not the midst – of the 1837 rebellion.24 The council’s first session was overwhelmingly dominated by the passage of ordinances renewing provincial acts that were about to expire. In all, legislation directly concerned with security accounted for only one-fifth of the council’s total legislative production during late April and early May 1838.

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Furthermore, compared with later security legislation, the council’s earlier measures were fairly modest in scope. They were principally aimed at coping with the problems created by the zealous and often questionable measures taken to restore order during the previous weeks and months, placing official and informal repression of the insurrection on firmer legal footing. The main security ordinance passed was the suspension of habeas corpus, a relatively familiar weapon against perceived security threats in Lower Canada, although one normally introduced with the consent of the regular legislature.25 The measure was seen as essential given both the extremely large numbers of prisoners taken into custody during the previous months and the severe doubts harboured by numerous officials regarding the possibility of securing convictions in jury trials. Indefinite detention without trial provided colonial authorities with much needed flexibility until the political situation stabilized and an effective means of trying prisoners could be found. The suspension of habeas corpus would be renewed on several occasions over the following months.26 The Special Council’s first session also produced the first of several ordinances indemnifying loyalist forces against legal reprisals.27 By absolving their allies of civil and criminal liability, the colonial administration and the council were both forgiving past indiscretions and potentially encouraging new excesses. In the short term, the two vital measures already mentioned were complemented by ordinances providing for pardons on the condition of forfeiture of property and banishment, for convictions in absentia, and for the close supervision of what remained of the Lower Canadian press.28 Durham and the Bermuda Ordinance Following Lord Durham’s arrival in late May 1838, the Special Council was rapidly transformed from legislative caretaker to full-time judge and policeman. The institution would henceforth move from a reactive to a truly active role in the official response to the rebellions. In the case of the Bermuda Ordinance, an attempt was made to administer summary justice directly, effectively making the council into a court. Durham, who arrived with strong reformist credentials (he had been instrumental in helping to implement the far-reaching provisions of the Great Reform Act of 1832), distanced himself from previous repressive measures. His appointment of an entirely new Special Council might also be seen as a conciliatory gesture, although it effectively cut off all Lower Canadian

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input from the legislative process and coincided with the appointment of representatives of the more extreme elements in the province’s anglophone elite to other important posts.29 The first weeks of Durham’s mission were spent trying to reconcile the risk of acquittals in regular courts with his and British officials’ reluctance to endorse more extreme measures, such as trying prisoners in special courts or under retroactive legislation.30 However, he quickly developed a distrust of Lower Canadian juries, courts, and local institutions in general, and the legislation passed by his council was characterized by legal innovation and exceptionalism. Beginning in mid-November 1837, upwards of five hundred suspects were arrested and taken into custody. The task of evaluating these cases, and the accompanying evidence and petitions, fell to Attorney General Charles Ogden. By the time of Durham’s arrival, Colborne had already released 330 prisoners, some on bail and others outright. After further discharges, 125 remained to be dealt with. Largely dispensing with Ogden’s services because of his perceived anti-French-Canadian bias, Durham relied upon his own advisers – Charles Buller and Thomas Turton – to examine the legal options and to identify those prisoners most deserving of punishment. They quickly ruled out the possibility of holding a court martial or passing special legislation governing the selection of jurors for regular trials. Instead, they proposed something like an act of attainder, whereby several patriote leaders would be declared guilty and subjected to punishment short of death.31 Drawing upon Lord Glenelg’s imperial instructions stressing reconciliation and lenity, Durham decided upon a general amnesty except for eight or nine leaders, who would be transported. Fearing court martial or packed juries, eight prisoners ultimately confessed to participating in the rebellion (while not admitting directly to high treason) and placed themselves at Durham’s discretion. Thus, Durham presented his Special Council with a solution which he argued would dispense with the colonial administration’s judicial dilemmas in a swift and permanent fashion, simplifying the vexing question of disposing of the remaining political prisoners by focusing on a small groups of leaders and a couple of key events. ‘An Ordinance to Provide for the Security of the Province of Lower Canada’ – better known as the Bermuda Ordinance – was passed accordingly on 28 June 1838 (see app. D, L.C. doc.4) . After making confessions of guilt, eight leaders, including Robert S.M. Bouchette, Wolfred Nelson, and Bonaventure Viger were transported to Bermuda.32 Sixteen others, including Louis-Joseph Papineau, who had succeeded in fleeing the province were banished, and would automatically be found guilty of treason and face the death pen-

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alty if they returned.33 Finally, the passage of the ordinance coincided with a general amnesty for all others implicated in the insurrection, with the exception of those accused of murdering Lieutenant George Weir and Joseph Armand (Chartrand).34 The later jury acquittals of the four accused of murdering Chartrand appeared to confirm Durham’s lack of confidence in the courts and set the stage for the General Court Martial of 1838–9.35 However, Durham and his advisers had made two serious errors. The most damning was that, by imposing duties on the governor of Bermuda, the ordinance constituted extraterritorial legislation beyond the powers of a colonial legislature. The ordinance also subjected the exiles to a summary death sentence for returning to Lower Canada, which appeared to be capital punishment for treason without trial. Chester New’s biography of Durham details the extensive British parliamentary debate on the Bermuda Ordinance, the critical opinions of the British law officers submitted to Glenelg, and the ordinance’s disallowance.36 The Bermuda Ordinance serves as the best example of the Special Council being used as a vehicle for issuing extraordinary executive orders, to the point that it actually administered summary justice. It also invited the first significant challenge to the council’s authority. Durham briefly convened his council solely for the purpose of approving this measure (and eventually a small number of others), in no way treating it as a deliberative body which sat regularly during a session (as it had done up to this point and would do in the future). Thus, when fatal questions of constitutionality (the powers of a Lower Canadian legislature to provide for the detention of prisoners in another colony and the council’s power to enact new criminal law) and the course of British politics led to a disavowal of the ordinance by imperial authorities, it was not the council but Durham personally who reacted. He resigned and left Lower Canada on 1 November. Days later, the 1838 rebellion began. However, before his hasty departure from the province, Durham also initiated a second significant trend in Special Council legislation. This involved using the council not merely to sidestep local institutions but to remake them. Thus, the establishment of new police forces at Quebec and Montreal, although clearly related to the question of security, was not aimed at resolving the immediate security crisis.37 And, unlike the other non-security legislation passed by the council to that point, it envisaged permanent institutional change. This was in spite of the fact that, at this point in its development, the council lacked the power to pass permanent legislation. And these were merely the first of many ordinances which

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would greatly increase the colonial state’s power to regulate and observe the province’s population, while consistently centralizing that power in the hands of the governor. These measures are particularly relevant in light of the patriotes’ ability to organize and lead resistance by supplanting or undermining the state at the local level. Security Legislation and the 1838 Rebellion In light of Durham’s recent experience with the Bermuda Ordinance, it would not have been surprising if Colborne and his resurrected Special Council had decided to tread softly when they encountered questions of legality and constitutionality. Furthermore, following the failure of Durham’s mission, authorities in Lower Canada were once again acting in the absence of a consistent and well-defined imperial strategy. Yet, when a second rebellion broke out at the beginning of November, the council’s response was anything but timid. In fact, the third session involved the passage of a striking collection of exceptionally repressive laws. And this time the council’s energies were focused primarily on suppressing the revolt directly rather than on reacting to its consequences.38 The centrepiece in the Special Council’s response to the 1838 rebellion was ‘An Ordinance for the Suppression of the Rebellion, which Unhappily Exists within this Province of Lower Canada, and for the Protection of the Persons and Properties of Her Majesty’s Faithful Subjects within the Same’ (see app. D, L.C. doc.5). Passed on 8 November, it permitted the trial by court martial of civilians accused of treason and related crimes. Courts martial were to take place by order of the governor, independently of the imposition of martial law, the proceedings of regular courts, or writs of habeas corpus. Furthermore, the ordinance was applied retroactively to 1 November, over a week before its proclamation.39 This measure was complemented by other ordinances which sought not only to facilitate the arrest and trial of treason suspects but also to supervise what had clearly come to be regarded as a hostile population and to punish that population for any association with political radicalism or rebellion. Specific ordinances granted the governor extraordinary powers to search private dwellings for arms and munitions and to appoint new magistrates without being bound by the regular qualifications. Not surprisingly, given their role in the 1838 uprising, secret societies were declared illegal and participation in their activities was equated with treason.40 The disallowance of Durham’s Bermuda Ordinance was not the last

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important challenge to the Special Council’s authority. Indeed, as Murray Greenwood examines in the following essays, the legality of the courtsmartial ordinance was unsuccessfully challenged by the defendants’ lawyers during the treason proceedings that followed. Furthermore, there was even a significant degree of dissension within the ranks of the special councillors themselves. Contested Legality, the Suspension of Judges, and Internal Dissent In the short term, the greatest challenge to the Special Council’s authority actually came from the judiciary and involved the suspension of habeas corpus, a measure that had been first introduced well before the outbreak of the 1838 rebellion. The suspension was deemed unconstitutional twice in quick succession by judges who issued writs for prisoners at Quebec and Trois-Rivières. The judges ruled that habeas corpus had been introduced into Lower Canada as part of the English criminal law (not as a provincial act or ordinance). Therefore, it could not be repealed under the limited powers of the Special Council.41 In justifying his decision, Justice Vallières de Saint-Réal suggested that authorities were allowing their concerns over security to blind them to the necessity ‘of respecting the law even when it runs counter to our desires and contradicts our opinions. For the law is the safeguard of governments and of peoples, and neither society nor government can exist without it.’42 As Murray Greenwood’s second essay on the Montreal Court Martial in this volume explains, the judges’ position also undermined the courtmartial ordinance. After receiving legal opinions supporting the Special Council’s powers to legislate on the matter,43 Colborne suspended the three judges who had challenged it. He then turned to the council, which approved a flurry of ordinances allowing the governor to replace sick or suspended judges, declaring that the imperial act guaranteeing habeas corpus had never been in force in Lower Canada, and protecting those who had detained prisoners against the judgments of the courts from any subsequent legal action.44 Like Durham’s Bermuda Ordinance, the one regarding the origins of habeas corpus in Lower Canada was eventually disallowed, and the judges reinstated (see app. D, L.C. doc.5, note). However, in the short term, the council was showing that it had a free hand in determining how the rebellions would be dealt with. This incident underscores the Special Council’s rapid evolution into a tool for acting quickly and decisively in the face of an ongoing security threat. That a temporary, appointed legislature affirmed the legality of its

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own exceptional legislation in the face of challenges from regularly established courts exposes the fragility both of democracy in the colonial context and of the rule of law in times of emergency. Unlike the Durham period, when ordinances were essentially executive orders issued by a commissioner who himself had been granted extraordinary powers, these events involved an interim administrator of government and a substantial body of local legislators. Even if the institution’s powers were both limited and uncertain, the sense of urgency in the face of a security threat was powerful enough for them to dispense entirely with local institutional and legal safeguards. Interestingly, dissent was not confined to the judiciary. Several special councillors were among those who felt the council was going too far in supporting the colonial administration, and that the latter had greatly overstepped the bounds of a reasonable response to the rebellions. For example, when the ordinance allowing for the replacement of suspended judges was introduced to the council, James McGill and George Moffatt moved that the rules regarding second and third readings be suspended so that the ordinance could pass immediately. They were unsuccessfully opposed by Jules-Maurice Quesnel and Pierre de Rocheblave.45 De Rocheblave promptly withdrew from the council chamber and penned his letter of resignation, although the letter was not delivered and he returned to his seat the next day. He nevertheless described Colborne’s actions as ‘a terrible threat hanging over the heads of our judges.’46 Such internal conflicts were about more than just the propriety or legality of individual security measures. They were also about the larger question of how the security crisis would ultimately be resolved. For, contrary to what Allan Greer parodies as the police officer’s conception of rebellion, the troubles of 1837–8 were not the unilateral act of the patriotes.47 In fact, supporters of the colonial administration had great power to define and exaggerate the scope and severity of the rebellions. Thus, in framing its legislation, the council consistently established broad definitions of treason, retroactively sanctioned legal and military excesses, and set arbitrary time-frames. In one case, an ordinance granted the governor the exclusive power to declare when a state of rebellion had, in fact, ceased to exist.48 Meanwhile, those supporting harsher measures could point to those that had already been implemented as evidence of the severity of the security crisis. And the longer that exceptional measures were kept in place the more likely it was that more fundamental changes would be required to bring the crisis to a close. Thus, far from being an isolated occurrence, de Rocheblave’s reaction

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to the judicial suspensions reflected a more general ambivalence towards the Special Council. He was constantly torn between his desire to support the steps necessary to restore order and his suspicion that security legislation was actually exacerbating the very problems that it was supposed to resolve. In fact, he justified his support for certain ordinances by suggesting they would certainly be disallowed by the courts before they could have any real effect.49 Earlier, in the days following his appointment, he constantly fretted about the political outlook of his fellow councillors and the political agendas the council might end up serving: ‘I am beginning to regret accepting,’ he wrote on 9 April. ‘I anticipate no good coming from the Specialness of this council.’50 In the weeks and months that followed, he frequently complained about ordinances he found troubling or repugnant. For example, on the subject of indemnifying loyalist forces, he remarked that the special councillors were ‘busy whitewashing Col. Bowels, Young ... It will surely take several coats to finish the job.’51 At times, de Rocheblave went so far as to suggest that the troubles in Lower Canada were largely a matter of certain loyal elements intentionally provoking confrontations for personal and political profit.52 De Rocheblave was further incensed when Colborne suggested that the activities of Montreal’s Association loyale canadienne might encourage further unrest, while at the same time permitting an illumination organized by the city’s Constitutional Association to go ahead.53 De Rocheblave had founded the Association loyale in early 1838, along with fellow Special Councillor Quesnel and other prominent members of Montreal’s francophone elite.54 The organization’s manifesto demanded a swift return to the provisions of the Constitutional Act and the preservation of Lower Canada’s autonomy, reducing the significance of the 1837 rebellion to ‘the deplorable actions of a handful of our wayward fellow countrymen.’ It identified the greatest threat to the province’s security as a ‘faction of our fellow subjects of British origin’ which sought to manipulate the reaction to the patriotes in order to strip political rights from French Canadians and force union with Upper Canada.55 The ‘faction’ referred to in the manifesto was undoubtedly the Montreal Constitutional Association. The opponents of de Rocheblave and Quesnel in the debate over replacing the suspended judges – Moffatt and McGill – were among its most prominent members.56 The Montreal Constitutionalists reduced Lower Canadian history to an ongoing clash between English- and French-Canadian nations and portrayed the rebellions as a collective act of treason on the part of French Canadians, who were ungrateful for all that British rule had given them.57 This logic sup-

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ported a broad, ethnically defined definition of treason and a narrow, ethnically defined definition of loyalty. It justified the extended life of the Special Council and union, an objective long demanded by Montreal’s mercantile elite. Union would do permanently what the Special Council had accomplished in the short term: marginalize French Canadians as a collective political force.58 These political divisions cast the Special Council’s security legislation in a new light. Beyond the question of how those deemed directly responsible for the insurrection were to be dealt with, security measures had important implications for how the post-rebellion political landscape would take shape. Meanwhile, undaunted by significant challenges to its authority, the Special Council consistently proved extremely flexible in adapting itself to the changing needs of the colonial administration. The differences between the councils established by Colborne and Durham underscore the institution’s malleability. However, the most significant changes would occur during the following months, when the council’s energies would be directed at problems other than the immediate legislative needs of the province. e xc e p t i o na l l e g i sl at u re : t he sp e c i a l c o u n c i l a n d t h e p ro j e c t s o f co u nt e r- rev o lu ti o n The Special Council’s relevance to the rebellions and to the theme of state trials does not begin and end with security legislation. Granted, the institution greatly outlived the insurrection and steadily shifted its attention to a multitude of other matters. But, as Jean-Marie Fecteau shows in the previous essay (dealing with martial law), the persistence of a security measure beyond the crisis that justified its imposition can be just as significant as the uses of that measure during the crisis itself. Thus, in order to justify the council’s continued existence and new endeavours at a time when ordinary legislative operations could have easily been restored, the threat posed by the rebellions needed to be redefined. As a result, even the most mundane ordinances were significant (and controversial) precisely because their relationship to security concerns was unclear. Furthermore, as the council’s legislative ambitions broadened, its powers were increased and its complexion became more monolithic. An analysis of these changes helps explain why the institution’s ultimate response to the rebellions was not just a swift restoration of British sovereignty but also the creation of a new order – a decidedly partisan project of counterrevolution based on the centralization of power, anglification, and union.

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An Evolving Reaction When describing the history of the Special Council, it is tempting to speak in terms of an initial period of security legislation followed by later sessions where more mundane concerns predominated. Indeed, the council increasingly began to resemble an ordinary legislature in its dayto-day operations. For example, special committees, like those that had managed so much of the business of the regular legislature, were introduced in March 1839 to deal with an expanding workload.59 Later, under Charles Poulett Thomson,60 many of the administrative changes normally associated with the transition to responsible government were reflected in the closer coordination of the council’s business with that of the executive.61 However, the perception of the Special Council as a progressively more benign institutional fixture neglects the fact that the exceptional nature of the council actually increased as the threat of insurrection diminished. The legislation aimed at directly suppressing revolt was passed with the limited powers initially granted in 1838 and it was not until well into 1839 that a second act of the British Parliament permitted the council to pass permanent legislation. This act also allowed the Special Council to modify virtually any law passed by the British Parliament (relating specifically to Lower Canada) or by previous Lower Canadian legislatures.62 The Act of Union uniting Upper and Lower Canada (1840) provided that the two acts already regulating the council would remain in force until union was proclaimed, which did not occur until months after the council was originally supposed to have been dissolved.63 As the Special Council gained new powers, it also became a more monolithic institution. English-speaking Montrealers progressively came to dominate the council’s proceedings.64 No new francophones were appointed after April 1838, and their numbers on the council steadily dwindled.65 While Colborne’s original council was made up of longstanding members of the province’s political elite, later appointments, especially those made by Thomson, introduced younger anglophone politicians who were closely tied to the administration and whose political careers would stretch well into the union period.66 Whatever the context, special councillors were expected to facilitate the passage of a pre-defined legislative agenda, made up of those laws deemed necessary by the governor. In fact, most of the cases where the council’s regular rules of procedure were suspended to speed the passage of a particular ordinance involved ‘ordinary’ – as opposed to security –

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legislation.67 Yet the council’s non-security legislation proved, in most cases, to be anything but ordinary. Temporary security measures and the renewal of expiring provincial acts soon gave way to an ambitious program of regulation and public works under Colborne.68 Under Thomson, the council reoriented its activities to permanently altering the political and legal foundations of Lower Canada. This included the incorporation of the cities of Montreal and Quebec (a measure initially introduced by Durham’s council), a general system of local government based on district councils, a thoroughly reorganized judiciary, and a province-wide system of land registration which abolished customary dower.69 These matters had proven extremely contentious in the years leading to the rebellions and were often associated with attacks on French-Canadian institutions.70 Meanwhile, although some efforts were made to keep the public apprised of the council’s increasingly complex ordinances, in camera sessions effectively shielded its proceedings from public scrutiny and more popular influences were effectively kept at bay. 71 Not only were elected representatives a thing of the past, but the rules of the council did not allow petitions to be addressed directly to the legislature. Instead, they had to be addressed to the governor and subsequently presented to council – by the governor and at his discretion.72 Redefining the Rebellions With its growing legislative ambitions, the council came to resemble an ongoing political trial of Lower Canada, imposing drastic changes where existing laws and institutions were judged inadequate or imprudent. Yet there is a tendency to view Lower Canada during the period from patriote defeat to the proclamation of union as a political wasteland, where colonial politicians could do little more than wait patiently for the imperial verdict on the province’s future. By jumping ahead to the reintroduction of representative government, this version of events tends to obscure the fact that imperial authorities used the Special Council to hand down two very different verdicts on the same crime. Granted, many scholars have recognized that the Special Council did much more than maintain the political status quo. However, the institution’s major legislative initiatives tend to be associated not so much with the rebellions than with much larger historical trends. For example, numerous scholars point to individual ordinances which laid the foundations of various modern Canadian state institutions.73 Taking a broader view, Brian Young argues that ‘the Special Council ... played a central

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role in shaping state and institutional structures that were receptive to and supportive of capitalist relations.’ Thus, the council ‘responded with alacrity to class concerns expressed so strongly in the pre-rebellion period,’ notably ‘fear of popular resistance’ and ‘the protection of landed property.’ In doing so, it lay the groundwork for ‘the establishment of a centralized, bureaucratic state’ which would be inherited by later (responsible) governments.74 What such interpretations tend to neglect are the Special Council’s changing complexion and expanding powers, without which most of its legislation would never have been passed. Furthermore, these changes reflected more than just general historical trends. They also depended on a fundamental redefinition of the rebellions by imperial authorities. Thus, in 1838, the insurrection was treated as a significant disruption requiring temporary (if extreme) measures. After 1839, the rebellion was redefined and same events were treated as a symptom of deeper problems which required more far-reaching changes. Eventually, short-term measures targeted at suspected insurgents no longer sufficed. Henceforth, French Canada, or at least the political influence it exercised through Lower Canadian institutions, was put on trial. In light of Colborne’s initial efforts to ensure a significant degree of ethnic diversity on the council, Thomson’s infamous statement that there was not a single French Canadian who could be entrusted with office underscores the extent to which the situation had been re-evaluated by British officials. Legislative union was eventually adopted as a means of permanently diminishing the collective political influence of French Canadians. Meanwhile the work of the council became so tied up with union that the proclamation of the latter was repeatedly delayed until the last set of ordinances could be passed in February 1841.75 Special councillors could not help but be aware of the institution’s changing approach to the rebellions. In fact, the Special Council formally endorsed a series of resolutions supporting the principle of union. Introduced by Thomson shortly after his arrival in Lower Canada, they were opposed by only three special councillors – James Cuthbert, John Neilson, and Jules-Maurice Quesnel. Ironically, de Rocheblave figured among the twelve who voted in favour of the resolutions.76 But rather than political conversion, this likely reflected a sense of resignation shared by other Lower Canadians of various political stripes.77 As he put it, ‘despite the risks to our pride and our nationality, we can only benefit by leaving the state of uncertainty and inaction where we find ourselves today.’78 Likewise, Cuthbert soon recognized that ‘question is no longer an open one, and my opposition has ceased.’79

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The Politics of Persistence The mere fact that the British government altered or expanded its response to the Lower Canadian rebellions is not particularly significant. After all, the purpose of Durham’s mission was to report on the causes of the insurrection so that a comprehensive solution could subsequently be developed and implemented. But what remains significant is the Special Council’s role in implementing Durham’s sweeping recommendations. For the council was explicitly created as a temporary expedient, designed to help govern the colony while the immediate security crisis was being resolved and its causes investigated. After Durham, by contrast, the council was adapted in order to alter permanently the political and legal foundations of the colony in ways that were not merely controversial but also closely associated with a particular political faction within the colony. Yet the council’s reputation as a pliant body has prevented it from being studied as an important site of political debate. Historians have instead tended to portray councillors as emasculated sycophants – ‘Her Majesty’s boot lickers’80 – or marvelled at the breadth of political consensus among the loyalist elite in the wake of the rebellions.81 However, as differences over security legislation showed, special councillors had clear and divergent ideas about how the exceptional measures introduced to deal with the rebellions should – and should not – be used. Furthermore, in the absence of a coherent imperial strategy, these local politicians actively sought to influence the role of the council and the shape of the legislative agenda which would be placed before them for approval. Some were more successful at this lobbying than others. For example, de Rocheblave’s Association loyale canadienne proved a dismal failure. By all indications, the association’s petitions to the queen and Parliament never even left Lower Canada.82 Lower Canadian Constitutionalists enjoyed much more success. They and their allies in Britain have been identified as a driving force behind the decision to use the council as a vehicle for fundamental legal and constitutional change, rather than merely a tool for suppressing revolt.83 Earlier, the Constitutionalist press had welcomed the creation of the council as the return to the efficient government which had been known under the Quebec Act.84 The Constitutionalists who were active and long-serving members of the council included figures such as George Moffat, Peter McGill, John Molson, Samuel Gerrard, Turton Penn, and Charles Day. Their dedication to the Special Council was only encouraged by Colborne’s penchant for

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extreme security measures, Durham’s recommendations on union, and Thomson’s dedication to implementing that policy. Although some supporters of union clashed with Thomson during the council’s final weeks and months, personalities and differences over points of law were to blame rather than fundamental disagreements over the council’s role in reacting to the rebellions.85 John Neilson was among those who vigorously objected to how an increasingly powerful Special Council was being used to pass judgment on the political future of Lower Canada. Neilson is often portrayed as the founder of Lower Canadian Constitutionalism and proof-positive of its moderation and ethnic tolerance, even though he had distanced himself from the movement by 1837.86 He later resigned his seat on the Special Council shortly after voting against the union resolutions, and went on to pursue a concerted attack on the policy.87 Arguing that any constituency could err, as Lower Canadians had done in lending their support to the patriotes, Neilson insisted that they were unfairly having their political fate decided without their input and consent and without giving them a chance to reconsider the electoral verdict of 1834. He attributed this state of affairs to the fact that the majority of the population was of French ancestry, and that this was being used as an excuse to deny their rights as British subjects.88 It is easy to dismiss Neilson as a hypocritical politician who, anticipating the return of representative government, wished to distance himself from recent associations with authoritarianism. After all, he fully supported the passage of the harsh security legislation that so troubled de Rocheblave.89 Neilson never seems to have doubted the need for creating the Special Council, suggesting in early 1838 to Lord Gosford that a temporary appointed legislature was the best option facing British authorities.90 Two years later, Neilson argued that the Special Council had been the lesser of various evils: ‘The suspension of the Constitution was unavoidable, upon a resort to arms, headed by the Speaker and the leading members of the majority of the Assembly. It was necessary to establish a temporary Legislative authority in the country, to meet emergencies; unless, indeed, an act similar to the Irish Insurrection Act had been passed, or the country been, at once, put under Martial Law.’91 However, Neilson became disillusioned with the Special Council when, in his opinion, there was no longer an emergency to justify its existence or the nature of its legislation. He drew a clear distinction between the suppression of rebellion – which both required and justified exceptional measures – and the fate of Lower Canada – which could be dealt with only by a regular legislature, in consultation with the province’s population. He

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also joined others in attacking the idea that the council’s union resolutions represented the will of Lower Canadians.92 Thus, when Neilson eventually submitted a petition to the legislature of the province of Canada calling for the repeal of the Special Council’s legislation, the laws mentioned were all ordinances passed during the final sessions, when security concerns had given way to institution building and Neilson was no longer present. Focusing on the imposition of taxes by a non-elected legislature, the petition attacked not the council in and of itself but rather the progressive usurpation of the prerogatives of the Lower Canadian legislature by a temporary body created for other, very specific, purposes.93 Thus, in his Quebec Gazette, Nielson had earlier insisted that the council could not legitimately ‘legislate beyond what was necessary to meet the mere emergencies of the times for which alone the council was constituted.’94 Yet those who remained on the Special Council during its later sessions clearly had little interest in limiting their role to that of legislative caretaker in a time of emergency. Rather than seeking a swift return to normal, they helped establish a new political order which dramatically altered the balance of political power in the colony. In light of the opinions underlying the recommendation of union in the Durham Report, as well as those held by those colonial politicians who welcomed its implementation most enthusiastically, the council had clearly been used to pass judgment on the majority of the Lower Canadian population. c o nc l u si o n: a t ri a l b y o t h er mea n s The history of the Special Council, particularly when viewed through the lens of state trials, serves as a reminder that the Lower Canadian rebellions are more than just the story of patriote defeat. The events of 1837–8 also provided an opportunity for promoting and implementing plans for fundamental legal and constitutional change which were certainly very different from anything the insurgents had in mind. The council was an instrument of counter-revolution, encouraging and implementing the disappearance of Lower Canada by way of union with the upper province. This was in spite of the fact that the council had originally been created with limited powers and shorter-term goals in mind. Admittedly, I have stretched the definition of state trials quite a bit. But the exercise remains useful precisely because of the otherwise obscure linkages it makes clear – the council’s creation as a temporary expedient and its ultimate legacy, exceptional and mundane legislation, short- and

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long-term consequences of the rebellions – all of which have enormous significance for Lower Canadian law and politics. For, despite its changing vocation, the Special Council remained an official reaction to a security threat. What changed dramatically over its three-year tenure were official understandings of what exactly constituted a legitimate response to the rebellions. The Special Council’s persistence on the Lower Canadian institutional landscape ensured not merely that popular influence would be kept at bay longer than some had hoped. Rather, the council went about rewriting the very terms on which such influence would again be exercised. Whereas other exceptional measures instituted in the wake of the rebellions made use of the power of the colonial state to crush insurrection, the Special Council ultimately set about remaking the colonial state itself, legislating Lower Canada out of existence in the process. This represented not merely a shift in imperial policy but a fundamental change identified with a specific political faction in the colony. In short, it constituted the manipulation to partisan ends of emergency measures taken in response to a threat to state security. And, although the council was a legislative institution and not a judicial one, it proved, in the end, to be an efficient means of judging the population of Lower Canada, especially its French-speaking majority, unfit for self-government.

NOTES 1 The table entitled ‘Security Legislation of the Special Council’ located in app. D, L.C. doc.3, provides a basic summary of the council’s six sessions. 2 This volume’s section dealing with Upper Canada provides excellent examples of classic state trials. However, in those essays as well as in examples from the first volume of the series, Canadian State Trials: Law, Politics, and Security Measures, 1608–1837 (Toronto: Osgoode Society/University of Toronto Press 1976) (hereater Canadian State Trials I), legislatures often figure as a crucial source of security legislation or an obstacle to the implementation of measures desired by the executive. There are also numerous examples of individual legislators becoming directly involved in judicial proceedings. 3 For example, in an article on the General Court Martial, F. Murray Greenwood repeatedly refers to the Special Council’s deliberations over the fate of condemned prisoners. In fact, those deliberations involved the Executive Council. While over time increasing numbers of special councillors also sat on the Executive Council, the membership of the two bodies never overlapped to any sig-

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nificant degree. F. Murray Greenwood, ‘The General Court Martial of 1838–39 in Lower Canada: An Abuse of Justice,’ in W. Wesley Pue and Barry Wright, eds., Canadian Perspectives on Law and Society: Essays in Legal History (Ottawa: Carleton University Press 1988), 249–90. See the editors’ introduction to this volume and to Canadian State Trials I. With the possible exception of Durham biographies, studies rarely focus on the Special Council period. The council normally receives a brief mention in either the conclusion of works dealing with the rebellions or in the introduction of works dealing with the union period. For example, Allan Greer, The Patriots and the People: The Rebellions of 1837 in Rural Lower Canada (Toronto: University of Toronto Press 1993), 332. The most detailed (and probably least critical) evaluation of the council’s legislation is Antonio Perrault, ‘Le conseil spécial, 1838–1841,’ La revue du barreau, 3 (1943), 130–44, 213–30, 265–74, 299–307. Other studies that highlight the council’s role outside the direct suppression of revolt are: Phillip Goldring, ‘British Colonists and Imperial Interests in Lower Canada, 1820 to 1841’ (Ph.D. thesis, University of London 1978); Stephen Kenny, ‘“Cahots” and Catcalls: An Episode of Popular Resistance in Lower Canada at the Outset of the Union,’ CHR, 45:2 (1984), 184–208; and Brian Young, ‘Positive Law, Positive State: Class Realignment and the Transformation of Lower Canada, 1815–1866,’ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press 1992). Notwithstanding the recognition that cultural chauvanism played a role in shaping Durham’s view of French Canada, the significance of British nationalism, which tends to be portrayed as mere reaction against French Canadian nationalism, is a neglected topic. See, e.g., Elinor Senior, Redcoats and Patriotes: The Rebellions in Lower Canada, 1837–38 (Stittsville, Ont.: Canada’s Wings 1985). Ramsay Cook provides a classic example of this tendency to associate nationalism exclusively with French Canadians and political radicalism, and one where the vocabulary employed is especially relevant to this article. Thus, he contrasts nationalism – a French-Canadian phenomenon – to constitutionalism, which he associates with ‘the well worn story of the advance toward responsible government.’ Cook, Constitutionalism and Nationalism in Lower Canada (Toronto: University of Toronto Press 1969), vii–x. It is important to distinguish here between the extent to which the rebellions actually constituted an ethnic conflict (a hotly debated subject which far exceeds the scope of this study) and the political implications of their being portrayed or understood as such by contemporaries. This distinction roughly follows that made by Rogers Brubaker between nation as a category of practice and nation as a category of analysis. Brubaker, Nationalism Reframed:

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Nationhood and the National Question in the New Europe (New York: Cambridge University Press 1996), 13–22. See ‘Security Legislation of the Special Council,’ app. D, L.C. doc.3, which contains a complete index to the council’s security legislation, including dates and full titles. ‘An Act to Make Temporary Provision for the Government of Lower Canada’ (U.K.) 1 Vic., c.9 (10 Feb. 1838), reprinted in the Journals of the Special Council of Lower Canada (hereafter JSCLC), vol. 1 (18 April 1838). The act passed unanimously in the House of Lords, and by a margin of 262 to 17 in the Commons. See Perrault, ‘Le Conseil spécial,’ 135. Other proposals called for a one-year suspension of the Lower Canadian assembly, during which time a convention of delegates from the British North American colonies would meet to discuss constitutional reforms; and for a smaller convention of delegates from Upper and Lower Canada to discuss constitutional amendments and a possible federal union. See Phillip Buckner, The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, Conn.: Greenwood Press 1985), 239–41. However, in light of the conditions contained in the imperial act creating the council, it is important not to exaggerate the council’s powers. Durham was not exactly given carte blanche (Buckner, Transition to Responsible Government, 241), nor was the council ‘empowered to make any laws or ordinances within the powers of the suspended legislature’ (Chester New, Lord Durham’s Mission to Canada [Toronto: McClelland and Stewart 1963], 42). Emphasis is mine. On the importance of a pliant legislature for dealing with security crises, both in the British legal tradition and in Lower Canada specifically, see Jean-Marie Fecteau’s contribution to this volume. Although Colborne was made Lord Seaton in 1839, and Thomson was made Lord Sydenham in 1840, for the sake of uniformity I will refer to them by their surnames throughout this article. Glenelg to Colborne, dispatch no. 28, 19 Feb. 1838, Colborne Collection, vol. 21, NA. Emphasis is mine. In recommending that rules be established, Glenelg cited the need for ‘maintaining order and regularity, and for the prevention of possible abuses.’ In light of developments that occurred during the union period, the rebellions are often portrayed as a necessary step in the achievement of responsible government (by alerting imperial authorities to the seriousness of grievances), or else the achievement of responsible government is portrayed as the achievement of the patriotes’ ends by other (more peaceful) means. Nevertheless, the three full years that the Special Council remained on the institutional land-

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scape represents a major step backward on the road to responsible government. The imposition of the Commission of Government in twentieth-century Newfoundland is the only British North American parallel which comes to mind. Of course, the absence of an armed revolt in the latter case certainly makes it fundamentally different. Colborne to Glenelg, dispatch no. 30, 24 April 1838, Colborne Papers, microfilm A-586, NA. Colborne was free to appoint whomever he wished, so long as the council contained at least five members (as stipulated in the act) and the loyalty of its members was unblemished. Glenelg to Colborne, dispatches nos. 21 and 28, 19 Feb. and 31 March 1838, Colborne Papers, microfilm A-586. The council adopted a complete set of rules (not followed during Durham’s tenure) at its first meeting. Each draft ordinance, after being introduced, had to progress through three different readings before receiving royal assent and becoming law. JSCLC, vol. 1 (19 April 1838). ‘Special Councillors,’ n.d., Colborne Papers, microfilm A-589. The councillors who began serving during the first session were Thomas Austin, Charles Casgrain, William Christie, James Cuthbert, Amable Dionne, Joseph Dionne, Joseph Faribault, Samuel Gerrard, Barthélémie Joliette, Paul Knowlton, Charles de Léry, Étienne Mayrand, Peter McGill, John Molson, John Neilson, Turton Penn, Toussaint Pothier, Jules-Maurice Quesnel, Pierre de Rocheblave, James Stuart, and William Walker. For example, John Neilson worked closely with Papineau in the House of Assembly during the 1820s and early 1830s. The councillors who served under Durham were Arthur Buller, Charles Buller, Jr, John Clitherow, George Couper, Charles Grey, James McDonnell, and Charles Paget. Colborne and Thomson were rarely present during the council’s deliberations and usually had draft ordinances delivered by their civil secretaries. The council’s business was normally directed by a presiding member, a position usually filled by Cuthbert under Colborne and by Stuart under Thomson. Furthermore, while votes rarely threatened the ultimate passage of a particular ordinance, they were frequently used to settle differences of opinion on specific provisions. This is an important point to underscore, since the impression is often given that the council was created in the midst of the fighting. For example, Jacques Monet’s description suggests that the council was unilaterally created by Colborne in late 1837 (when Gosford was still civil governor). Monet, The Last Cannon Shot: A Study of French-Canadian Nationalism, 1837–1850 (Toronto: University of Toronto Press 1969), 11.

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25 See Fecteau’s contribution to this volume on other suspensions of habeas corpus. 26 (1st session) 1 Vic., c.2 suspended habeas corpus until 24 Aug. 1838 and was renewed until 1 June 1839 by (2nd session) 2 Vic., c.3 and (3rd session) 2 Vic., c.4. The suspension ultimately remained in effect until 8 April 1839, when the ordinance (4th session) 2 Vic., c.6 repealed an earlier ordinance, judged unconstitutional, which stated that (U.K.) 2 Charles II, c.51 had never been in force in Lower Canada. See below. 27 Ordinances providing for the indemnification of government supporters include (1st session) 1 Vic., c.10; (3rd session) 2 Vict., c.14; and (4th session) 2 Vict., c.64. These measures are particularly significant in light of the substantial role played by volunteer militias. 28 (1st session) 1 Vic., c.15 and c.19. 29 Notably, Adam Thom and James Stuart. 30 New, Lord Durham’s Mission, 73–5. 31 See Colborne to Glenelg, 2 May 1838; Durham to Glenelg, 29 June 1838, British Parliamentary Papers (Irish University Press ed), vol. 10 (hereafter Parlimentary Papers). 32 The others were Rodolphe Desrivières, Henri-Alphonse Gauvin, ToussaintHubert Goddu, Luc Masson, and Simon Marchessault. 33 Other leading exiles were T.S. Brown, Étienne Chartier, C.-H.-O. Côté, Ludger Duvernay, Lucien Gagnon, Robert Nelson, E.B. O’Callaghan, Ovide Perrault, and Édouard Rodier. 34 (2nd session) 2 Vic., c.3. 35 See F.M. Greenwood, ‘The Chartrand Murder Trial: Rebellion and Reprssion in Lower Canada, 1837–1839,’ Criminal Justice History (1984), 129. 36 C.W. New, Lord Durham: A Biography of John George Lambton, the First Earl of Durham (Oxford, U.K.: Clarendon Press 1929), and New, Durham’s Mission. See also Buckner, Transition to Responsible Government, 250–1; and the large number of primary sources relating to Durham’s mission. Debates surrounding the Bermuda Ordinance are printed in the appendices of the RPAC, 1923. 37 (2nd session) 2 Vic., c.2. See also Allan Greer, ‘The Birth of the Police in Canada,’ in Greer and Radforth, ed., Colonial Leviathan, 17–49. 38 Thirteen of the fifteen ordinances passed during the third session consisted of security legislation. 39 (3rd session) 2 Vic., c.3. 40 (3rd session) 2 Vic., c.6, c.11, c.12, and c.13. 41 Gérard Filteau, Histoire des patriotes (Montreal: L’Aurore 1975), 427–8; Young, ‘Positive Law, Positive State,’ 53. 42 Vallières de St-Réal to Colborne, 6 Dec. 1838, RG 4, A 1, vol. 557, 51–9, NA.

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43 Stuart, O’Sullivan, Pyke, and Gale to Colborne, 7 Dec. 1838, RG 4, A 1, vol. 557, 230–2, NA. 44 (3rd session) 2 Vic., c.13, c.14, and c.15. 45 JSCLC, vol. 2 (11 Dec. 1838). 46 De Rocheblave to Bouthillier, 24 Nov. and 7 Dec. 1838, Bouthillier Collection, file 421, McCord Museum Archives. While clearly upset with the suspension of the judges, de Rocheblave had actually voted in favour of the ordinance suspending habeas corpus. 47 Greer, ‘1837–38: Rebellion Reconsidered,’ CHR, 76:1 (March 1995), 5. 48 (3rd session) 2 Vic., c.5. The significance of granting this authority to the governor lies in his ability thereby to determine how long certain exceptional measures would remain in force. 49 This helps explains his reaction to the suspension of the judges. De Rocheblave to Bouthillier, 19, 23, and 25 April 1838, Bouthillier Collection, file 420. 50 De Rocheblave was especially interested in the council’s ethnic balance and its members’ attitude to union with Upper Canada. Thus, he was disappointed when Hughes Heney was passed over, troubled when Moffatt was selected, and overjoyed at the oppointment of John Neilson. De Rocheblave to Bouthillier, 4, 9, and 19 April 1838, Bouthillier Collection, file 420. 51 De Rocheblave to Bouthillier, 23 April 1838, Bouthillier Collection, file 420. 52 ‘Rumors of invasion ... continue to circulate. I hear that the patriots are not the only ones behind them. So many men profiting from the existing troubles that it’s not unreasonable to think that some of them are joining in to help promote a state of agitation. How sweet it is to wear a uniform with epaulettes; even sweeter to receive a salary. I know so many who wish the troubles would last their entire lives.’ De Rocheblave to Bouthillier, 5 Feb. 1838, Bouthillier Collection, file 418. 53 De Rocheblave to Bouthillier, 19 and 24 Feb. 1838, Bouthillier Collection. De Rocheblave suspected that the illumination, in honour of Colborne, would prove to be an excuse for damaging the property of French Canadians. 54 In fact, de Rocheblave was president of the Association loyale. Other members included H.E. Barron, Édouard Leprohon, and Austin Cuvilier. See Association Loyale Canadienne, ‘Il vient de se former, dans cette ville, une Association de Canadiens, sous la désignation d’Association Loyale Canadienne ...’ (1838), CIHM no. 62896. 55 ‘Déclaration des vues et motifs de l’Association Loyale Canadienne du District de Montréal,’ Montreal, 1 February 1838, CIHM no. 63293. The Association loyale also had close ties to the newspaper Le Populaire, which, in early 1838, carried on heated debates with the Constitutionalist press. 56 A complete list of members is included in the report of the association’s

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annual general meeting held on 31 Dec. 1838. Badgley Collection, folder 9, McCord Museum Archives. ‘Address of the Constitutional Association of the City of Montreal, to the Inhabitants of the Sister Colonies,’ Montreal Gazette (Extra), 15 Dec. 1837. In contrast to the often discussed ambiguities of patriote discourse, for Constitutionalists the ethnic divide was fundamental and unambiguous. See especially Representation of the Legislative Union of the Provinces of Upper and Lower Canada, by the Constitutional Association of the City of Montreal. Circular on the Legislative Union of the Provinces, &c, Montreal, 23 March 1837; also, ‘Circular Letter of the Montreal Constitutional Association,’ January 1836, Sandham Scrapbook, vol. 4, 60, Chateau Ramzay Museum. This was a result of a change to the council’s rules and orders. JSCLC, vol. 4 (25 Feb. and 2 March 1839). See n.14. While historians have paid more attention to his impact on Upper Canadian politics (see Ian Radforth, ‘Sydenham and Utilitarian Reform,’ in Greer and Radforth, eds., Colonial Leviathan, 64–103), Thomson’s utilitarian impulses were very much felt in Lower Canada. After his arrival, a rudimentary form of cabinet government took shape. Ordinances were assigned to individual councillors (not necessarily members of the executive) who were responsible for shepherding them through the legislative process. Meanwhile, officers of government, whose numbers on the council increased greatly under Thomson, were expected to vote as a bloc. These practices are described in the correspondence of Edward Hale of Sherbrooke. Edward Hale to Eliza Hale, 5 January; 7 and 12 May; 3, 7 and 12 June 1840, Hale Correspondence. McCord Museum Archives. (U.K.) 2 and 3 Vic., c.53, ‘An Act to Amend an Act of the Last Session of Parliament for Making Temporary Provision for the Government of Lower Canada,’ reprinted in Adam Shortt and Arthur G. Doughty, eds., Canadian Archives Documents Relating to the Constitutional History of Canada, 1791–1840 (Ottawa: S.E. Dawson 1907). Special exceptions to the council’s power to legislate were made for ordinances ‘altering or affecting the Temporal or Spiritual rights of the Clergy ... or altering or affecting the tenure of land,’ although it was specifically empowered to extinguish the seigneurial rights of the Sulpicians at Montreal. This was ultimately achieved by (4th session) 2 Vic., c.50. The act also raised the quorum from five to eleven and set the minimum number of councillors at twenty (previously no minimum had been set). Rather than a drastic change, this merely reflected the substantial council which had already taken shape under Colborne. ‘An Act to Re-unite the Provinces of Upper and Lower Canada, and for the

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Government of Canada,’ reprinted in W.P.M. Kennedy, ed., Documents of the Canadian Constitution, 1759–1915 (Toronto: Oxford University Press 1918), 149–73. During the council’s later sessions, Hale complained that the council’s business was directed by a small clique of Montrealers (Edward Hale to Eliza Hale, 9 and 14 June 1840, Hale Correspondence). Taking into account all the members who attended at any point during the sessions held under Colborne and Thomson, the proportion of francophone councillors consistently decreases: from 48 per cent in the first session, to 37 per cent in both the third and fourth, to 26 per cent in the fifth, and 20 per cent in the sixth. During the sixth session, two of the four French Canadians who were still participating in the business of the council – Faribault and J. Dionne – stopped attending in mid-November 1840, while the council continued sitting until early February 1841. It should be noted that attendance for members from outside Montreal, regardless of ethnicity, tended to be particularly bad. Charles Day and Domonick Daly exemplify this trend. They both took their seats on the council during the fifth session, along with Henry Black, Edward Hale of Portneuf, Edward Hale of Sherbrooke, Robert Harwood, Federick Heriot, Charles Ogden, and John Wainwright. George Moffatt and Dominique Mondelet had been added during the third session. On multiple occasions the council voted to suspend its own rules in order to speed the passage of individual ordinances, such as the one replacing suspended judges. Most of these ordinances were of a routine nature. On at least one occasion, Hale reported rumours that Thomson sought to replace his council with a more pliant body because they were ‘too independent & honest in [their] opinions to be convenient. The new [council] will certainly be composed of Officers of Govt and pliant voters, for there is certainly plenty of despotism in these Liberal Politicians.’ Edward Hale to Eliza Hale, 7 June 1840, Hale Correspondence. Notably, a board of works was provided for by (4th session) 2 Vic., c.44. (5th session) 4 Vic., c.36 and c.36; (6th session) 4 Vic., c.4; (5th session) 4 Vic., c.45; (6th session) 4 Vic., c.30. On the question of land registry and dower, see Bettina Bradbury, ‘Debating Dower: Patriarchy, Capitalism and Widow’s Rights in Lower Canada,’ in Tamara Myers et al., eds., Power, Place and Identity (Montreal: Montreal History Group 1998), 55–78. For a more general discussion of the importance of nationalism for debates surrounding questions of law, see Evelyn Kolish, Nationalismes et conflits de droits: Le débat du droit privé au Québec, 1760–1840 (Montreal: Hurtubise HMH 1994). After August 1839, ordinances were required to be published in the official

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Gazette before becoming law. In at least one case – an ordinance regulating sleighs – the administration embarked on a veritable public-relations campaign to sell the population on the merits of new regulations introduced by the council. See Kenny, ‘“Cahots” and Catcalls.’ Journals of the council’s proceedings were also published, but only following the close of each session. In the decades leading to the rebellions, petitions from diverse groups of citizens had occupied a large portion of the legislature’s deliberations and initiated a significant amount of legislation. By contrast, the JSCLC indicate that a grand total of seven petitions were laid before the council during its three-year history. The few petitions forwarded to the council by the governor tended to be from banks and charitable institutions. Meanwhile, since the council’s legislation created numerous new state agencies, petitions from individuals hoping to administer their local registry office become increasingly numerous in the records of the civil secretary (RG 4, A 1, NA). Also, Hale’s correspondence from 1840 and early 1841 (Hale Collection) frequently describes special councillors, including himself, seeking posts for friends and family. On the role of patronage in the shifting alliances of the professional classes in Lower Canada, see Greer, Patriots and the People, 360–2; and Stéphane Kelly, La petite loterie. Comment la Couronne a obtenu la collaboration du Canada français après 1837 (Montreal: Boréal 1997). Examples include property law (Bradbury, ‘Debating Dower’); municipal government (C.R. Tindal and S. Nobes Tindal, Local Government in Canada [Toronto: McGraw-Hill Ryerson 1984], 17); and policing (Greer, ‘The Birth of the Police in Canada’). More broadly, the council was, quite literally, an exercise in state formation. Thus, ordinance after ordinance provided for corporations, commissioners, overseers, and officers to regulate new roads, jails, registry offices, and district councils. Young, ‘Positive Law, Positive State,’ 50–4. See Ian Radforth, ‘Sydenham and Utilitarian Reform,’ in Colonial Leviathan, 64– 102; Paul Knaplund, ed., Letters from Lord Sydenham, Governor-General of Canada 1839–1841, to Lord John Russell (Clifton, N.J.: Augustus M. Kelley 1973). In fact, one resolution, dealing with the need for a civil list, was opposed only by Neilson. Along with de Rocheblave, those voting in favour of all resolutions were James Stuart, Toussaint Pothier, Charles de Lery, Moffatt, McGill, Samuel Gerrard, William Christie, William Walker, John Molson, Robert Harwood, and Hale. JSCLC, vol. 5 (11 and 12 Nov. 1839). Notably, it was around this time that La Fontaine’s decided that it was best to work within the framework of union rather than resist it any further. He has often been portrayed as a visionary French-Canadian leader for taking this risk. See, for example, Jacques Monet, The Last Cannon Shot, 55–8.

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78 De Rocheblave to Bouthillier, 11 April 1839, Bouthillier Collection. 79 Cuthbert to Sydenham, 28 Oct. 1840, RG 4, A1, vol. 611, 57, NA. While de Rocheblave died of a debilitating illness about a year later, Cuthbert stopped attending meetings in November 1840, when the council was originally supposed to be dissolved but four months before it ultimately was. 80 Georges Aubin, ‘Chronique des patriotes de 1837–1838: La prison du Pied-auCourant,’ Bulletin d’histoire politique, 6:2 (winter 1996), 129. 81 For example, describing the membership in June 1840, Young remarks on the presence of ‘former patriotes John Neilson and Frédéric-Auguste Quesnel’ to stress the council’s continuing diversity. However, the last meeting attended by Neilson before his resignation was that of 14 June 1840. Meanwhile, F.-A. Quesnel was not a special councillor, although he did sit on the Executive Council until the fall of 1838. Presumably, Young meant to refer to JulesMaurice Quesnel, whose votes against union suggest that he was less than pleased with the direction the council was taking. Young, ‘Positive Law, Positive State,’ 53. 82 De Rocheblave’s correspondence suggests that a repressive political climate was largely to blame. Thus, the Association loyale’s leaders fretted constantly about appearing disloyal. Meanwhile, the population in the countryside, once burned by political activism and now apparently twice shy, were reluctant to sign its petitions. De Rocheblave to Bouthillier, 5, 7, 10, 14, 19, 21 Feb. and 24 March 1838, Bouthillier Collection. 83 Goldring, ‘British Colonists and Imperial Interests,’ 167–8, 236, 248–9, and 260–1. 84 Montreal Gazette, 7 April 1838; see also address to Durham by Moffatt and Badgely, 9 April 1838, ‘Badgely Collection,’ folder 10. 85 Moffatt was among those who fell out of favour with Thomson. Meanwhile, conflicts with Stuart led to his resignation from the council in early 1841, forcing Thomson to preside personally over the council’s final sessions. All those involved showed a strong commitment to the union and the overall legislative agenda presented to the council during its final sessions. Gerald Tulchinsky, ‘George Moffatt,’ DCB 9: 555. Evelyn Kolish, ‘Sir James Stuart,’ DCB 8: 842–5; Thomson to Russell, 20 Dec. 1840, in Knaplund, Letters from Lord Sydenham, 106–7; Edward Hale to Eliza Hale, 2 June 1840, Hale Correspondence. 86 The Quebec City Constitutional Association, which had been presided over by Neilson, had held a position on union opposed to that of its Montreal counterpart (see Goldring, ‘British Colonists and Imperial Interests,’ 218–20). For examples of Lower Canadian Constitutionalism being portrayed as a broadbased and even ethnically diverse coalition, see Ronald Rudin, The Forgotten Quebecers: A History of English-speaking Quebec (Quebec: Institut québécois de

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recherche sur la culture 1985), 134–5; and Senior, Redcoats and Patriotes, 1. Other historians have suggested that diverging opinions on the question of French-Canadian political rights had relatively little effect on anglo-Canadian solidarity. See Michael McCulloch, ‘The Death of Whiggery: Lower-Canadian British Constitutionalism and the tentation de l’histoire parallèle,’ Journal of the Canadian Historical Association (1991). Neilson’s opinions on the union were expressed both in his Quebec Gazette and through his political activities in the Quebec City region. And unlike the Association loyale canadienne’s, Neilson’s anti-union petition was ultimately signed by thousands of Lower Canadians and made its way to the queen and both houses of the British Parliament. Jacques Monet, The Last Cannon Shot, 56–62. Meanwhile, supporters of the measure were quick to attack the idea that the province’s English-speaking population had ever been anything but united in its support of the measure. See the report on the ‘The Albion Hotel Meeting,’ Quebec Gazette, 3 Feb. 1840. Quebec Gazette, 2 March 1840. For example, he sided with McGill and Moffatt in the confrontation described earlier in this essay. The immediate imposition of union, which Neilson described as the position of the province’s Constitutional Association, was listed among other, less desirable, options. Neilson to Gosford, 26 Feb. 1838, Neilson Collection, vol. 12, 544–9, NA. Quebec Gazette, 30 Dec. 1839. ‘Re-Union – Lower Canada,’ resolutions of a meeting held at Quebec, 18 Jan. 1840, RG 4, A 1, vol. 613, 100, NA. Singled out for criticism were those ordinances dealing with winter roads, turnpike gates, district councils, registry offices, and district courts. D. Daly to Neilson, Kingston, 29 June 1841, Neilson Collection, vol. 10, 189; ‘The Petition of the Inhabitants of the Late Province of Lower Canada,’ Neilson Collection, vol. 16, 298–301. Quebec Gazette, 30 Dec. 1839. Emphasis in original.

9 The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison* F. MURRAY GREENWOOD

A civilian rebel tried by court martial usually faced a crushing burden of proof and overt hostility from the ‘bench.’ The unpredictable, often merciful, jury was removed from the equation. Hearsay proof abounded. The prosecutors advised the lay, military officers on the law. These ‘judges’ had sometimes fought the prisoners in battle. The rights of defence counsel were severely restricted and the proceedings were not usually supervised closely by senior judges or the government. An anecdote from Montreal in December 1838 clearly conveys the irregular atmosphere. During the first trial [1] of the Chateauguay suspects, the presiding officers took grave personal offence when counsel asserted that the court was ‘incompetent.’1 These lawyers, grounded in William Blackstone and the English criminal law, were challenging jurisdiction but their arguments seemed irrelevant and even arcane to the officer-judges, who based themselves on the applicable Articles of War and Mutiny Act2 and were virtually unsupervised by the governor or senior judges. Thus, it is easy to understand, to some extent, why the General Court Martial of 1838–9 suffered from so many illegalities and dubious interpretations of the law of treason. The Montreal General Court Martial tried 106 prisoners in 14 trials for the treason offences of ‘levying war’ and ‘compassing Her Majesty’s * This essay was revised by Beverley Boissery following Murray Greenwood’s death in December 2000. Barry Wright wishes to thank Alan Orr for his helpful comments on the Irish comparison in the revised version of the essay.

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death,’ while eleven of these faced additional charges of murder. Ninetynine were convicted of treason and sentenced to death. The selection of the twelve to be hanged and the fifty-eight to be transported to New South Wales depended on the importance of examples as much as degrees of guilt.3 This essay, and the following one, surveys the Montreal Court Martial and highlights selected legal issues that are evaluated in comparative perspective. A simple question is posed: Were rebels elsewhere treated similarly in this period, or were such processes, where there was such marked departure from regular legal procedures and the formal claims of the British constitution, unique to Lower Canada? Ireland, where the last proximate large-scale court martial of civilians occurred, seems an apt comparison, although there are important differences that need to be taken into account. Ireland, during the 1798 rebellion, had a population of four and a half million compared to the two to three hundred thousand in the District of Montreal. In 1798 the United Irishmen numbered about 150,000. Active patriotes in 1838 did not exceed 13,000. When liberating Napierville on 10 November 1838, Sir John Colborne led about five thousand troops. At the outset of the 1798 rebellion, Britain had approximately 83,000 troops of all ranks in Ireland and the numbers grew rapidly.4 However, there were important similarities, beginning with the prevailing laws of treason and of martial law. o ri g i ns: l o w e r ca na da The background to the Montreal Court Martial has been thoroughly examined in the previous essays in this volume. As both Jean-Marie Fecteau and Stephen Watt have shown in their contributions, following the rebellions there was lack of confidence by the government in regular legal processes and in judicial malleability. Failures therefore precipitated the decision to try civilians by court martial. The perception that Lord Durham’s lenity had been misguided was also widely held by the anglophone elite. Ignoring profound Canadien resentment following the first uprising, government supporters were absolutely certain that the second was ‘caused’ by the amnesty. This proved the imperative need, in the short term, for the government to act with swift vengeance, and, in the longer term, as Watt suggests, to anglify the conquered. One outraged Montrealer wrote Whig MP Edward Ellice that the ‘ignorant peasantry believe that the impunity ... originated in fear of them instead of magnanimity.’ Special councillors, high military officials, the administrator, Sir

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John Colborne, and many others thoroughly agreed. It was the theme song of the English-language newspapers.5 Although these sentiments may have inclined the government elite to use military tribunals, as I have suggested elsewhere, it was the Chartrand murder trial that most likely made the court martial inevitable.6 In September 1838 four patriotes from the rural county of L’Acadie were tried for the murder of Joseph Armand, also known as Chartrand, a stonemason from Saint-Jean. Chartrand, a lapsed patriote, joined the militia volunteers and became an informer responsible for many arrests during the 1837 troubles. Shot to death in November 1837, following the sentence of a kangaroo court, he had been well away from any scene of battle two days after the patriote defeat at Saint-Charles which ended the rebellion in the south. For a few hours in a packed Montreal courtroom, the prosecution and defence staged a morality play in which the passions generating desperate insurrection and fierce repression engaged once again in pitiless combat. The four accused – two illiterate farm labourers, another hired hand, Amable Daunais, and their leader, François Nicolas, a schoolteacher – had been exempted from Durham’s amnesty. James Reid, chief justice of Montreal, a leading proponent of anglification, presided over the trial. Attorney General Charles R. Ogden and Solicitor General Michael O’Sullivan led the prosecution. Lead counsel for the prisoners, rebel sympathizer Charles Mondelet, delivered a passionate and sensational defence argument, which the Montreal Herald characterized as ‘the most extraordinary and seditious harangue, ever heard within ... a temple of justice.’7 He suggested that the area southeast of Montreal had reverted to a state of nature, that the patriote leaders had become a de facto government and under British constitutional law their orders had to be obeyed.8 Despite a strong counter-argument from Ogden, convincing proof, and a directed verdict from Reid, the accused were acquitted by the all-Canadien jury, on which were probably four Frères Chasseurs. The Chartrand verdict nearly precipitated a riot inside and outside the courthouse. More ominously, habitants and villagers were encouraged to join the Chasseurs.9 Immediately, government supporters decided that jury trials, even in atrocity cases, were impractical. Canadiens, believed Durham, Ogden, the English newspapers, and the tory L’Ami du Peuple, followed their leaders like sheep. By the time of the second rebellion, the idea of a military tribunal was fully accepted by Administrator Colborne. On the very day of the first executions, the once and future Whig constitutionalist and Special Councillor John Neilson agreed. Only the court martial, his Que-

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bec Gazette editorialized, ‘divested of the Jury Chartrand’ could administer ‘impartial justice.’ Despite Neilson, there were less harsh alternatives expressed. A learned man, one ‘C,’ contended in the Gazette that jury trials should be retained but, following the Jacobite precedent of 1746, be held in the District of Saint-Francis, that is, in the English-speaking Eastern Townships. Provincial Chief Justice James Stuart urged a similar course. Adolphe Jacquies, printer of the pro-patriote Le Fantasque, argued that all-English speaking juries would be fairer to the accused than a court martial and Colonial Secretary Lord Glenelg had suggested courts composed entirely of judges or of military officers and well-trained lawyers. Colborne hardly gave these suggestions a passing thought. Nor did he contemplate using earlier precedents to have the prisoners tried in England or in an adjacent colony.10 As for Glenelg, Colborne was correctly confident, the colonial secretary would ratify a fait accompli and he wanted a tribunal where nothing could go wrong.11 origins: ireland The Society of United Irishmen, established in Belfast in 1791, quickly spread to Dublin and, more slowly, most other parts of Ireland. The Union, as it was sometimes called, began as a radical Whig parliamentary reform organization. Its further rise to power was blocked by the socalled Protestant Ascendancy of Anglican landowners and officials who made up about 10 per cent of the population. The Ascendancy controlled the Irish Parliament through patronage and the Anglican Church of Ireland to whom dissenting Protestants and Roman Catholics were obliged to pay tithes. Catholics who had gained the vote only in 1793, after their Lower Canadian counterparts, were still excluded from Parliament and other institutions. In urban areas, leadership came from Catholic and and Protestant merchants. In rural areas, where Catholic grievances were acute, the rural party known as the ‘Defenders’ became part of the Union. By 1795–6, frustrations with inadequate reforms had led to radicalization, inspired in part by the French Revolution. Independence from Britain, full Catholic emancipation, and abolition of the House of Lords were envisaged. However, the promised support from France did not materialize until armed risings broke out in May 1798. Vicious battles occurred in several counties, such as Down in the north and Wexford in the south. The Union lasted, though weakened, through this military phase, with

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Roman Catholic and Protestants fighting side by side and priests and Presbyterian clerics alike suffering on the gallows. The risings were uncoordinated, both as among themselves and with the French who landed, on 22 August, in Killala Bay. The arrests of several top leaders, loss of morale, widespread seizures of arms, and divisions among Orangemen and Catholics also contributed to failure. United Irish insurrection was most profound not in the Ulster homeland but among the Catholics of Wexford, who held the county town and most of the county itself for several days. Loyalist claims for property damage in Wexford amounted to about half the amount for the entire kingdom.13 The rebellion was arguably over by the end of June and certainly by 8 September, when General Jean Humbert’s invading army, supported by unarmed peasants, was routed by generals Lord Cornwallis and Gerard Lake. Thereafter, localized outbreaks of rebellious banditry were commonplace. In order to deal with the building unrest, the Irish Parliament in 1796–7 suspended habeas corpus for suspected treason, passed the first of several indemnity statutes, retroactively legalizing illegal ‘rough justice,’ and enacted the repressive Insurrection Act.14 According to Chief Secretary Thomas Pelham, the Insurrection Act was absolutely essential and, if it failed, ‘we must have recourse to the sword’ and to martial law, which, being ‘no law at all was highly oppressive.’15 The act made administrating seditious oaths a capital crime and taking them a crime punishable by transportation up to life. The lord lieutenant could ‘proclaim’ disturbed counties or parts of them. When done, this allowed magistrates to impose curfews and seize arms deemed dangerous. Two justices could send ‘disorderly persons’ to serve in the fleet and later in the army as well. The British cabinet, although regretful, accepted the act, making sure to place the responsibility for such Draconian action – as well as for the suspension of habeas corpus and the protection of over-zealous officers – solely on the Irish government, much to the annoyance of Pelham and Lord Lieutenant Camden.16 In the same year the Dublin legislators authorized a yeomanry corps, raised by landlords and staffed by loyal tenants. From late 1796 to the outset of rebellion in the spring two years later, Ireland experienced brutal severity in law enforcement, not to mention a great deal of illegal activity. Hundreds of persons were arrested, including leaders in Ulster and Dublin. Curfews were imposed, buildings burned, and torture practised on suspects. Over a thousand guns were seized in the north. Arbitrary arrests and military raids destroyed the republican press – the Northern Star of Belfast and its learned successor, the Press of Dublin. Exemplary hangings included one of popular farmer-

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politician William Orr, an Ulster Presbyterian, for administering an illegal oath.17 The government, though, often fared badly before the regular courts, except in the magistrates’ sessions. The rigour of civilian judges, strict rules of evidence and procedure, the fear felt by informers about testifying, the cleverness of lawyers, notably the renowned John Philpot Curran, the trepidation of some jurors, and the reluctance of others to kill political idealists led to many prosecutorial failures and embarrassing setbacks for the government. In the spring of 1797, thirteen men – whom General Lake, commander in Ulster, had incarcerated in an artillery barracks – were released by the King’s Bench on a habeas corpus application, the barracks not being in law a ‘prison.’ From the beginning of 1797 to mid 1798, only a third of those tried before the high courts for political offences, including treason, were convicted. Given the relative success of severe measures and the difficulties encountered with civilian legal processes, it is little surprise that the government embraced civilian courts martial. The concerns arising out of earlier uses of martial law and prerogative powers in Ireland were brushed aside. A proclamation of 24 May 1798 by Camden in council, a day after the rebellion broke out, ordered all general officers to punish every person assisting in rebellion.18 The courts martial examined here arose under this exercise of the prerogative and its later statutory replacement. m a ndat e s The lord lieutenant’s Proclamation of 24 May 1798 authorized trial by court martial until doubts arose about its legality.19 It was replaced in March 1799 with an Irish statute20 which was renewed the following year and again in 1801 and 1802 after the union with the United Kingdom. A consolidation was enacted in 1803.21 The enacting clauses of the Lower Canada ordinance of 8 November 1838, which authorized courts martial (see app. D, L.C. doc.5),22 was almost a word-for-word copy of the 1799 statute and most of the imperial Irish Coercion Act of 1803. This was true, to give examples, with regard to arrests, excluding the courts, defining the crimes, allowing summary procedure for courts martial, prescribing penalties of ‘death or otherwise,’ answering applications for habeas corpus, and asserting the alleged royal prerogative to declare martial law conclusively. There can be little doubt that the principal model was the Irish legislation.

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Unlike the imperial act, the Irish and Lower Canadian preambles referred to a ‘traitorous conspiracy,’ ‘most horrid excesses and cruelties’ done to loyalists, and the prior use of martial law by the executive. One amendment, made after 1799, required that death sentences have a twothirds majority. This does not appear in the Lower Canadian ordinance.23 The latter is more repressive than the 1803 antecedent and is also distinguished from both earlier statutes in being explicitly retroactive – to the first day of November 1838. The context should also be borne in mind. While both laws were passed during active rebellion, Britain was not at war and the United States had proclaimed neutrality in 1838. In 1803 the mother country was again at war with France, whose navy had assisted the United Irish rebels in the late 1790s. The drastic nature of the ordinance is also revealed by comparing it to the Irish Coercion Act of 1833, enacted only five years before to deal with the nearly uncontrollable rural unrest, the so-called ‘Tithe War’ directed against the 10 per cent tax on produce payable to the Church of Ireland.24 The south was heavily affected since potatoes were tithed more there and the religious dimension was blatant – Roman Catholics paying an Anglican Church of Ireland, rather than northern Presbyterians doing so.25 Violence was certainly endemic in the south, with rioters, for example, often confronting the military or police, and relative tranquillity was not restored until the late 1830s with the passage of statutes merging the clerical exaction with rents.26 Prime Minister Earl Grey introduced the Irish Coercion Act of 1833, which authorized courts martial for disturbed districts to try serious crimes (including capital ones such as arson, robbery, and murder), arguing that it was a matter of the direst necessity. Grey admitted that he and his Whig colleagues disliked this gross inference with civil liberties but hastened to note the many ameliorations from the 1799 Irish act. In particular, there was now a quorum of five, not three, for each court; no judge could be under twenty-one years of age; and the death penalty was removed, with all sentences of transportation to be confirmed by the lord lieutenant.27 Later he added a proviso allowing civil counsel to examine and cross-examine witnesses.28 Grey might have added that the act was, expressly prospective and separated the offices of prosecutor and acting judge advocate, who advised the court. The Lower Canadian ordinance, as interpreted in practice, provided only hanging sentences upon conviction and made no such separation of offices. It was, of course, explicitly retroactive. All statutes – 1799, 1803, 1833, 1838 – preserved the so-called preroga-

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tive of creating martial law. This was acted upon in Ireland between May 1798 and March 1799. In Lower Canada it had been declared by the executive during the 1837 rising and thereafter used to intern hundreds of suspected rebels in jail for weeks and even months. Martial law could not be introduced by royal prerogative, despite an opinion to the contrary by a court majority in the Ship-Money case (1637)29 and recitals in the statutes mentioned above. The first preamble to the 1799 act mentioned ‘the wise and salutary exercise of His Majesty’s undoubted prerogative in executing martial law.’ Later on, the statute denies construction so as to ‘diminish the acknowledged prerogative of His Majesty for the public safety to resort to the exercise of martial law.’ The acts of 1803 and 1833 as well as the courts-martial ordinance had similar reservations. To counter the majority in Ship-Money, there is the cogent argument of John Hampden’s counsel, Sir Robert Holborne,30 the opinion of the British law officers in 1757,31 those of the Irish judiciary in 1798, that of Dublin Castle officials after Tone’s case, the 1799 statute,32 and the opinion of the eminent jurist Francis Hargrave in 1801.33 The value of the statutory recitals was effectively undermined by Lord Chief Justice Cockburn in R v. Eyre and R v. Nelson and Brand (both 1867): that the recitals gave power where it was not needed, since it was already conferred by the legislation; mere reservations could confer no rights that did not already exist; and the common practice of passing acts of indemnity to protect persons acting under the supposed prerogative made nonsense of the recitals.34 The law on point seems to have been definitely set by the highly influential opinion of British Attorney General Sir John Campbell and Solicitor General Sir R.M. Rolfe on 16 January 1838 dealing with past and potential rebellion in Lower Canada. It reads in part that the Lower Canadian governor had the power to proclaim, for any disturbed area, ‘that the Executive Government will proceed to enforce martial law. We must, however, add ... such proclamation confers no power on the Governor which he would not possess without it. The object of it can only be to give notice to the inhabitants of the course which the Government is obliged to adopt for the purpose of restoring tranquillity.’ In other words, it is the factual situation of war or rebellion being waged so as to paralyse the civil government which brings martial law into being, not the proclamation of the governor under the royal prerogative. The law officers were perfectly aware of the statutory recitals mentioned earlier for they referred to them expressly and interpreted them consistently. The governors (or the queen) could not by proclamation or otherwise define a martial law situation (for example, imminent danger); it had already to exist. This opinion

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was widely published and often cited with favour.35 And, of course, it is the most relevant precedent for Lower Canada in 1837–9. I also think that it states the present law. It is important to know when a martial-law situation came into force, absent an act of Parliament. Until the Boer War, it was commonly agreed that the test was whether war was raging so that the regular courts could not function. Among other authoritative opinions on point is that of the British law officers in August 1838 relating to Upper Canada.36 Martial law then came into being only when the regular courts could not function. Of course, sovereign parliaments, like the Irish and British, could widen that function however far they wished. The 1803 Irish Coercion Act was justified on the basis that suspected rebels ‘might avail themselves of the ordinary Course of the Common Law to evade ... Punishment.’ This suggests that parliamentarians feared that use of the regular courts could lead to acquittals because of jury sympathy or technical rules. The Act of 1833 stated that, while the civil courts were open, violence and intimidation were so widespread as ‘to frustrate the ordinary Modes of Criminal prosecution.’ The crown acting alone could not do these. p ro ce e d i ng s a nd p e r so n n el The three prosecuting deputy judge advocates at Montreal were Captain Edward Muller, Royal Regiment, who was largely a figurehead, and two outstanding barristers, Charles Dewey Day, later chancellor of McGill and one of the civil law codifiers, and Dominique Mondelet, Charles Mondelet’s Tory brother. Decisions to prosecute were made by these men, assisted by a commission of four Montreal lawyers. Except for two or three, the prisoners were represented by Lewis Drummond, an Irish Catholic liberal, and Aaron Hart, a Jew, each at the top of his career. Both would become folk heroes in French Canada. Legal questions were referred to Attorney General Ogden and Solicitor General Andrew Stuart. Ogden reviewed all the trials for irregularity, as did the British law officers. Major-General John Clitherow, commander of the Montreal District, aided by fourteen regular army officers, presided. These ‘judges’ undertook to keep all deliberations secret, which meant that no reasons for decisions were ever given.37 Final determinations of punishment were made by Administrator, later Governor, Sir John Colborne as advised by his Executive Council. Sitting from 28 November 1838 to 1 May 1839 in the old Palais de Jus-

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tice on rue Notre Dame, the General Court Martial conducted fourteen trials, ranging in size from a single accused [2, 6, 14] to an unwieldy nineteen [13]! All 106 prisoners tried (about one in eight of those imprisoned in Montreal and many fewer of those originally detained in the countryside) faced charges of treason. Eleven of them also faced murder charges, and three faced accusations of administering illegal oaths. Two pleaded guilty at the outset and ninety-seven were found guilty of treason (as well as nine and one respectively of murder and tendering illegal oaths). One major contrast between Ireland and Lower Canada was the difficulty of escaping from an island. In Ireland, many prominent leaders faced the courts. This was not the case in Lower Canada, where most of the top-ranking rebels had fled successfully to the United States after both the 1837 and 1838 uprisings. Indeed, Papineau, Wolfred Nelson, and E.B. O’Callaghan remained in exile and indeed did not even participate in the second uprising. In 1838 Robert Nelson and Dr Cyrille Côté escaped, as did many regional commanders. Only a handful of the latter and a few other second-level officers were brought before the court martial; the accused were mostly small farmers, artisans, labourers, or lower-middleclass men – neighbourhood leaders, marching bewildered little groups about.38 On the other hand, virtually all the main Irish leaders, not slain in or immediately after battle, were arrested. Some, such as Henry and John Sheares, national leaders and Dublin activists, were tried by the regular courts. Still more underwent court-martial prosecution: for example, military leaders William Byrne of Wicklow and Henry Joy McCracken of County Antrim and Wolfe Tone, co-founder of the rebel society. The military men named to the tribunal were, of course, judges in their own cause. Clitherow, as commanding officer for the Montreal District, had gathered intelligence about suspected rebels, including many rumours of their intended atrocities, for some months and had led a column of troops to liberate Napierville. Twelve of the other members belonged to units engaged in that operation. And every judge remembered ‘Jock’ Weir, the young officer hacked to death by rebels in 1837. That the court martial functioned in a partisan manner also owed much to its being beyond criticism. French-language editors sympathetic to the plight of the prisoners were interned; the English-language press heaped praise on the court for its learned impartiality and condemned several accused before their trials. The Special Council remained silent whereas Irish parliamentarians were open in criticism.39 Early in the Irish rebellion, Lord Lieutenant Camden urged that he be replaced by ‘some person of the first military authority.’ Prime Minister

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William Pitt chose Lord Cornwallis, who, as lord lieutenant and commander in chief of Ireland, had a distinguished career both as a general as an administrator.40 Officers eligible for court duty in Ireland were drawn, not only from the regular forces but also from fencibles, yeomanry, and militia, and although in some cases the panel consisted only of professional officers,41 this was usually not so. In William Byrne’s case, for example, five of the seven members were militia, while in Dr Richard Maher’s, at least twelve of thirteen members were not regular army.42 One would think that local animosities would undermine impartiality even more than in Lower Canada. But such was not the case in any obvious sense. The commanding general of the area appointed the members on the advice of a local prosecution committee or individual lawyer, subject to the lord lieutenant’s veto. Well over a thousand Irishmen faced courts-martial trials during the years 1798–1800 for assisting in the uprising. There was a veritable plethora of charges, over and above the obviously political ones of treason, rebellion, and sedition: murder, robbery, pillaging, arson, desertion, mutiny, and even ‘domestic’ offences as such as the abuse of women or sexual harassment.43 The sheer numbers and variety of charges makes it difficult to set out a clear sense of military and social ranking. The leaders were tried and severely punished, while most followers were given light sentences or released under the terms of the local Amnesty Act, passed in the autumn of 1798, which excepted, principally, those charged with murder, yeomen deserting to the other side, rebels holding the rank of captain or above, traitorous members of the national, provincial, or county committees of United Irishmen, and those plotting foreign invasion.44 This represented the Castle’s policy of ‘firmness and leniency’ and Cornwallis’s insistence on distinguishing organizers from dupes, and, as the preamble remarked, would be accepted with gratitude by ‘all who have been misled into treasonable practices.’ As in Lower Canada, members of the Irish courts martial were judges in their own cause. Innumerable officers must have seen action or been part of units which had had comrades killed. A leading commander in repressing the threatening rebellions in counties Wicklow and Wexford, Major-General William Loftus, presided at the famous trial of Wolfe Tone, discussed below. In County Down, young Archibald Warwick, a Presbyterian licentiate, later hanged on the basis of contradictory evidence, found himself tried by a court presided over by a captain in the bloodthirsty Monaghan militia, which had engaged in major fighting in that county.45 There was even a parallel to Clitherow. The Earl of Lon-

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donderry, who sat on the trial of the Reverend James Porter in Ulster (1798), later hanged, had long been an intelligence gatherer and purveyor for the government.46 Again, as in the case of Lower Canada, the courts martial would brook no challenge to their jurisdiction. Mathew Tone, captured serving with French forces, read a paper to a Dublin tribunal challenging its competency in detail, but without success.47 Some weeks later, in the momentous case of his brother, Wolfe, the Court of King’s Bench decided in favour of the challenge. p ro ce du r e a nd e v i d e nc e In Lower Canada, the prosecution won about 90 per cent of the motions on matters of procedure and evidence. The rights of the accused were often cavalierly ignored. Not one of the prisoners tried by this military tribunal ever received a list of witnesses or jurors (that is, the judges). Nor did any of them learn of the indictment more than four or five (rather than ten) days before the trial. In pleading before the court martial, counsel were not permitted to examine or cross-examine witnesses, although they could try to prepare their many clients in advance or pass them written suggestions. But often the accused were forced to react without adequate guidance and fared badly – particularly those who were illiterate and unilingual (French). Farmer Pierre Lavoie of Saint-Cypien, later transported, defeated himself [7] when he elicited contradictory testimony from two successive witnesses, one claiming that he was totally uninterested in politics and the other stating that he was a political enthusiast but of the true-blue Tory persuasion. Counsel could prepare written defence statements and read them to the court, but could not address it orally. However, Irish parliamentarians and legal administrators were even less concerned than their British counterparts in Lower Canada to ensure accused traitors a fair trial. English law was formally received in Ireland before the Treason Act, 1696, or even its two-witness-rule predecessor, 1 Ed.VI c.12. There were no special guarantees for Ireland until a local act of 1765 which required the accused be given a copy of the indictment at least five days (not ten) before arraignment but said nothing about lists of witnesses and jurors with addresses and occupations given.48 Prisoners could make full defence by counsel, but no mention was made of subpoenaing defence witnesses, the three-year limitation of action, or the twowitness rule, which the Irish King’s Bench had ruled not to be in force.49 Since the Irish Parliament was sovereign – unlike the Lower Canadian

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legislature – it could ignore, with perfect legality, all guarantees provided accused in English law. And, of course, courts martial were not bound by these guarantees in any event.50 In Ireland, from the silence of the records of over 150 courts martial sampled, the five-day notice of indictment, required in treason cases before the King’s Bench, appears to have been ignored. The Reverend James Porter’s son later recalled that his father had received a copy of the charges only the day before his trial. An attempt to clarify vague allegations went unheeded.51 Dr Richard Maher found out what the indictment was only on the very day of his trial.52 The two-witness rule was ignored also in a few cases charging treason, at least in substance.53 In contrast, the rule was followed by the Montreal Court Martial except, substantively, in the Ducharme case where it would have proved most inconvenient for Colborne. In both jurisdictions, the military tribunals in theory attempted to ensure the presence of defence witnesses when requested.54 Cornwallis permitted accused to be assisted by counsel, but, as in Lower Canada, they could not examine or cross-examine witnesses. The practice seems to have varied; sometimes, the defence address was read by counsel, as in Montreal, and sometimes it was read by the prisoner.55 In the three cases of untainted acquittal by the Lower Canadian tribunal, the lawyers, emphasizing serious weaknesses in proof, probably helped gain those verdicts.56 They failed, however, where the defence case was strong but the crown deeply desired conviction: Ducharme [1], Morin [3], and Mott [14]. In such cases in Ireland, counsel were, at times, more successful: John Devereaux, mentioned below, for example. Dr Maher, after vigorous prosecution and defence by two advocates, was acquitted at Waterford.57 According to a pro-government observer at Dundalk, County Louth, minutes after counsel read a brilliant defence statement the prisoner threw himself on the mercy of the court!58 One major difference between the Irish experience and the Lower Canadian one was that, in Lower Canada, the top lawyers sympathetic to the defence, Louis Lafontaine and Charles Mondelet, were interned. According to the Dictionary of National Biography, the great John Philpot Curran avoided arrest in Ireland because of the protection given by the fair-minded King’s Bench Chief Justice Lord Kilwarden. As suggested earlier, both jurisdictions used deputy judges advocates (sometimes ‘acting’ in Ireland) as prosecutors and court advisers on the law. By the 1830s, such a conflict of roles was being remedied in the United Kingdom by the use of a separate military prosecutor.59 When an accused objected to cross-examination on matters not raised

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in direct testimony [1], Clitherow announced that the Montreal tribunal was not bound by any evidentiary rules whatsoever, certainly not those originated by the common law. Although this doctrine was soon entirely abandoned in theory, the fact that it could ever be entertained speaks volumes.60 Despite official rectification, the old rules were seldom enforced. Hearsay evidence favourable to the crown was always welcome. Chevalier de Lorimier was ‘proved’ a top-level rebel plotter on this basis [5] and paid with his life. Two Terrebonne accused were transported because speculative testimony was freely allowed on the ultimate aim – rebellion – of a group of men guilty of riot only [10]. The court publicly refused to give credence to witnesses in sympathy with the rebels [7] but thoroughly exploited informing accomplices, who thereby saved their lives. The deeply implicated scrivener Jean-Baptiste Trudeau of Napierville was a star crown witness in at least four of the trials [2, 3, 6, 7]. Leading questions by the crown were commonplace. Other tricks included charging the innocent so they could not testify [1, 3] and arresting potential duress witnesses to discourage like-minded persons from coming forward [4, 7]. Organized perjury was common. The main evidence against Vermonter Benjamin Mott, later transported, came from sixteen-year-old JeanBaptiste Couture, who had sworn two contradictory depositions on Mott’s involvement and admitted at trial that he had come from Vermont because officials told him that otherwise he would not be allowed to return home to Lower Canada [14]. Most of the Lower Canadian prisoners were reduced to ‘defences’ of desperation: disguised appearances at trial or other attempts to avoid identification, for example, and the ‘lunacy’ pleaded by L’Acadie farmer and transport coordinator for the area, Joseph Paré [3]. Paré was supposedly deranged annually by the autumn moon, which, however, proved strangely benign in New South Wales.61 Notary Hippolyte Lanctôt read a plea claiming ‘the inalienable right to be tried by my peers’ [11] and, when it was rejected, refused to take any further part in the proceedings.62 About a third of the accused at some stage in their trials threw themselves on the mercy of the court, citing a multitude of grounds including youth, dotage, mistaken idealism, lunacy, mere soldier status, family responsibility, coercion, prevention of bloodshed, and ignorance of the law. The court recommended that twenty-one of the convicted be given penalties less than death, which recommendations were acted upon uniformly. I have not made a comprehensive study of Irish pleas, but there were several desperate ones such as loss of memory, drunkenness, and assertions of duress without supporting proof. Throwing oneself on

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the court’s mercy was commonplace and the correspondence indicates that occasionally a court would recommend mitigation of the sentences, recommendations with which Cornwallis complied.63 About twenty-five Montreal defendants were the victims of clear miscarriages of justice. In the great majority of these, substantial guilt existed, but not guilt proved beyond a reasonable doubt. Such, for example, was the case of Léon (Léandre) Ducharme, a merchant’s clerk from Montreal and rebel of Chateauguay [1]. The leading crown witness, vindictive Tory magistrate John M’Donald, swore in remarkable detail that on 10 November young Ducharme had led an escort party taking him and other loyalist prisoners to the main rebel camp at Napierville. One can only imagine the various astonished responses when Ducharme called the Montreal prison’s bookkeeper and the court’s provost marshall to prove that he had been held in the prison constantly since 7 November. Despite this devastating blow to M’Donald’s honesty and very skimpy evidence as to Ducharme’s early activity, he was convicted and transported. There were also miscarriages of justice due to distortions of law and at least one almost certain condemnation of an innocent man. The evidence against respected, retired steamboat captain PierreHector Morin [3] was, in general, vague. Worse, much of it emanated from a notorious liar. It indicated that Morin had been able to move freely in Napierville while loyalists had been incarcerated. Some proof was unbelievable, such as that this cultivated man used to command was given only the humble rank of simple solider and sentry. Supposedly incriminating handwritten documents were refuted by several defence witnesses. The court, however, held that rebels always disguised their handwriting, an incredible holding entirely at variance with the proof offered in the immediately preceding case of Charles Huot, quartermaster at Napierville.64 Much extrajudicial evidence points clearly to Morin’s innocence. This includes a near-contemporary letter of his (March 1838) congratulating his son on joining the Royal Windsor Volunteers, formed to protect Upper Canada’s western borders,65 and a pardon-seeking petition signed by dozens of prominent Montrealers of both language groups, among whom, remarkably, was Robert Weir (owner-editor of that most bloodthirsty newspaper, the Montreal Herald).66 The court’s behaviour in the Morin case is explained by its assumption of the handwriting issue, its tendency to correlate propinquity with treason, its hostile approach to political neutrality, and the damning fact that the accused was the brother-in-law of the absent Dr Côté. The handling of evidentiary questions in Ireland fell as far short of the

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rule of law, however defined, as it would during the rebellion period in Lower Canada. Examples of hearsay and gross speculation abound. One Antrim magistrate successfully swore, about two brothers, that ‘from the report of the County ... they were very active men in the united business.’67 The key witness against William Byrne of Wicklow testified when asked by the court, ‘... Do you not believe that while he was with the rebels, he would rather have murdered than saved the life of a Protestant? [Byrne:] I believe it was from malice ... and I believe he would rather murder than save a protestant.’68 In several cases, courts allowed obviously leading questions by the prosecution (as the court itself had done in the previous quotation) and in at least one case permitted a crown witness to interpret the laws of treason and sedition.69 In Ireland, evidence given in court by accomplices of both genders was commonplace and perhaps the most effective weapon of the courtsmartial prosecutors. Notorious among them was Bridget ‘Croppy Biddy’ Dolan of County Wicklow, a seemingly amoral woman in her early twenties.70 A United Irish activist through many months, helping, for example, to burn several ‘baggage cars belonging to his majesty,’ she switched sides in September 1798 when the fortunes of war had clearly swung in favour the loyalists. Dolan appeared as the main prosecution witness in several courts martial (and a few regular court proceedings), beginning in mid-November 1799. In time she became known as a ‘female hyena’ and ‘libidinous wretch.’ Like other accomplice-witnesses, Dolan was used as an agent to ferret out the haunts of suspected rebels, and, like other such witnesses, too, she was coached, given immunity, and paid for her testimony. She received a pension for at least a few years after her services were no longer wanted. Dolan proved particularly valuable to the crown by placing important suspects at murder scenes, thus avoiding the liberal provisions of the Irish Amnesty Act of 1798, which extreme loyalist prosecutors, like Magistrate Thomas King, disliked intensely.71 Dolan’s sensationally graphic testimony in proceedings between November 1799 and April 1800 helped influence the courts martial to hand down several death sentences.72 One of the executed, William Byrne, probably got her right when addressing his hostile judges: ‘This Court saw that monster of immorality ... bear testimony against my life, with as indecent ... a levity, as when she confessed to have ... been at the murder of an Orangeman. The Court saw the laugh with which her testimony was accompanied – that laugh which made one shudder to see human nature so depraved.’73 Another interesting prosecution witness was Margaret Deacon, in the Waterford court martial of John Lacy, tried for treason. Although her evi-

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dence of Lacy’s activism was weak (as was that of the other witnesses), she was allowed to speculate repeatedly that Lacy agreed with his colleagues that she and other female Protestant prisoners of the rebels should be taken to a nearby church to be burned and so ‘make an Orange Pie,’ a gross sentiment which probably helped convince the Protestant jury of regular officers to condemn Lacy to death and Cornwallis to confirm the sentence.74 Hundreds of women appeared both for the prosecution and for the defence, although in most cases on the defence side their testimony was, predictably, given little weight.75 Similarly, in Lower Canada, none of the dozens of Canadiennes testifying for the defence had any influence in garnering acquittals. They were invariably classifed as liars by the deputy judge advocates. In only one of the eleven printed reports is a woman mentioned as testifying for the prosecution. As in Lower Canada, there were cases in Ireland where, almost certainly, the innocent were convicted. Presbyterian minister James Porter of Greyabbey in County Down, for example, was a wickedly clever political satirist, writing in the Northern Star of Belfast, organ of the area’s United Irish. Porter’s articles in 1796 were published later that year as the pamphlet Billy Bluff and the Squire, which attacked the government’s espionage system and in particular Anglican priest/magistrate John Cleland and head spy Lord Mountmumble, the Earl of Londonderry, who sat on Porter’s court in June 1798. Billy Bluff enjoyed immense popularity, even in the south, and was still a classic in the 1840s.76 The official report certainly does not reveal guilt beyond a reasonable doubt.77 Evident omissions in that report and persuasive extrajudicial evidence argue that Lord Londonderry ensured an innocent man’s execution.78 Shortly before and during the early part of the rebellion, torture forced suspects to confess, identify fellow United Irishmen, and locate arms caches. The main methods used were flogging, ‘half-hanging,’ and ‘picketing.’ The second involved repeated, near-fatal strangulations; the last, standing one-footed on a pointed stake. Sir Richard Musgrave himself, then a magistrate and contemporary chronicler, implied in his memoirs, that torture had been widespread, referring to it as a ‘practice’ that was justified on the grounds of necessity and results. Owing to the masterful efforts of two energetic floggers, squire Cooke Otway, who raised a yeoman corps, and High Sheriff Thomas Fitzgerald, County Tipperary had been free of trouble. Dublin had been saved by these methods as well.79 Musgrave lamented that such effective tactics had not been employed in County Wexford, which experienced full-scale rebellion with its attendant atrocities.80 The reaction of the liberal opposition also suggests that,

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for a time at least, torture was widespread. The United Irish Dublin paper, the Press, made a career of compiling and publishing dozens upon dozens of atrocities, real and fabricated. One of them (3 March 1798) involved a roasting in County Down where a father and son had their heads partly barbequed on an open fire to extort information on concealed arms.81 The moderate Whig Club of Dublin petitioned King George III against such barbarity and the Earl of Moira gave detailed examples of it in the House of Lords, both in Ireland and Great Britain.82 In the latter, his message (November 1797, March 1798) stressed that torture was part of a policy based on severity – curfews, arbitrary imprisonments, house burning for not turning in arms, and so on – which was bound to backfire.83 Armed by over a hundred affidavits and oral reports of eyewitnesses, Moira could confidently back his assertions. Musgrave claimed that torture was not government policy; indeed, the government fought against it. This could well be true under Cornwallis because there are no examples found after late June 1798. No use of torture has been discovered in Lower Canada. l e g a l i n t e r p re tat i o ns a nd p o l i t i c a l mes sag es The Montreal Court Martial operated on several fantastical assumptions of law. Rebels killing soldiers on the battlefield were guilty of murder, under common law, as well as treason. This was a convenient opinion when trying foreigners [6, 14] but one not shared by the attorney general, a few months earlier, or the British law officers.84 Contrary to highly respected treason jurist Michael Foster and the reasoning in M’Growther (a lieutenant in the Jacobite army for a some months), the deputy judge advocates successfully insisted [e.g. 4, 7] that a defence of duress required defendants to prove continuous coercion and was undermined by accepting any leadership role, however humble.85 The court also seems to have acted on the prosecution’s argument that any violent resistance to law enforcement during the troubles was high treason [10, Terrebonne]. In this case a few dozen men were attempting to protect their leaders from arrest. Contrast the case of Frost (1839–40), in which the prisoner had led 5,000 armed men into Newport, Wales, and had them shoot at regular troops. Chief Justice Sir Nicolas Tindal directed the jury that, if Frost’s motive had simply been to free local Chartists from jail, as opposed to intimidating Parliament into enacting radical constitutional reform, they should find him guilty of riot only. He was, however, convicted of treason.86

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At Montreal, there were two further legal distortions of great potential impact. In the cases of Charles Hindenlang, a French Protestant who commanded at Odelltown [6], and Vermonter Benjamin Mott [14], it was held by the court martial and agreed to by Ogden that persons from a country at peace with Britain who invaded the colony in support of the rebels were guilty of high treason. This ran contrary to principle and the position, public as well as private, of the legal authorities in Upper Canada.87 Similarly, it contradicted the view of Lord Durham’s special legal advisers, Thomas Turton and Charles Buller.88 Ogden certainly must have known of these opinions, since he was attorney general at all relevant times. It seems likely that legal doubts on point led in these cases to additional charges of murder. The court martial also held, in all the trials, that rebelling or even conspiring to rebel in an overseas colony, three thousand miles or so from Buckingham Palace, amounted to compassing the death of the queen. The precedent-setting case was that of David McLane, executed for high treason at Quebec City in 1797. Chief Justice William Osgoode, had instructed the jury that, artificial as it might seem, fostering revolt in an overseas colony supports ‘a warfare, by which the king’s personal safety is endangered.’89 I have commented elsewhere on the dubious nature of this doctrine, unsupported by British authority,90 but not on its expansion by the regular courts of both Canadas during the rebellion period.91 Osgoode, after all, was referring to a time of major war, whereas Britain was not at war with any nation in 1838–9. Judge James Macaulay, opening the Hamilton assizes, was the most comprehensive of the Canadian judges. After citing McLane, he asserted that no one could tell after the ‘ball of Revolution is set in motion at whatever extremity or distance, it may roll onwards ... till at length it reached the foot of the Throne ... and crushes the exalted occupant.’92 Of course, such a doctrine was convenient for the executive since mere conspiracy to rebel did not amount to the treason of levying war (there had to be an actual rising). The Canadian judges thus opened the door for treason indictments based on unsuccessful attempts by subjects to induce Americans to invade93 and on rebellious plots which did not result in insurrection. As we have seen in a previous essay by Paul Romney and Barry Wright, Hamilton lawyer Charles Durand was convicted and banished, in part at least, on the latter basis.94 While the court martial might be excused here because of the courts’ holdings, it was advised by professional lawyers Day and Mondelet and overseen by Ogden and the British law officers. Treason and like security proceedings are frequently used to

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convey political messages. The court martial conveyed two minatory messages, one being that treason was the mother of all variety of monstrous crime, this despite the almost total absence of proof pointing to rebel atrocities.95 The second stressed that neutrality during rebellion itself amounted to treason, a stance at variance with Michael Foster, William Blackstone, and Edward Hyde East.96 This came out, for example, in relation to duress and misprision (concealment) of treason. When SaintClément farmer Michel Longtin put forth his ‘good Samaritan’ defence (supplying provisions to needy loyalist prisoners taken by the rebels), the deputy judge advocates delivered a homily [8]: ‘If indeed he was sincere, let him, and all others who need the instruction, learn that there can be no middle course between loyalty and disaffection, and had he, and those who pretend to have been forced ... and those who remained inert, united manfully together to resist the tyranny of a few wicked [and] unprincipled men, he ... would not be on trial for his life.’ This was an extremely wide interpretation of ‘aiding’ rebels. As examples, the jurists mentioned above cited efforts that directly advanced the rebel cause, such as providing them with intelligence, provisions, and/or arms. Treason, moreover, was a concept based on treachery or betrayal, absent here. Such, then, were the specific messages, given wide newspaper coverage. Yet these were subordinate to the main purpose: to terrorize the Canadien populace. The printed arguments of the deputy judge advocates, when followed by the court, enable one to extrapolate legal positions and political messages for Lower Canada, even though no reasons for judgment were given. In Ireland, however, the absence of reasons and arguments of the acting judge advocates makes it impossible to perform this task in anything but an elementary way. The task is also complicated by the great variety of triers, which did not allow for the consistency of the Montreal tribunal. For example, there are trial reports which make it clear that mere propinquity to rebels did not necessarily raise a strong presumption of aiding, and, indeed, the accused were acquitted.97 But then there is the peculiar case of the Reverend Adam Hill, heard at Carrickfergus in August 1798. Charged with aiding rebels and being among them, Hill was found guilty only of ‘being present with the Rebels’ voluntarily. His sentence, though, was but three months in jail, as compared to transportation for life for Morin and Mott in Lower Canada.98 In Ireland, too, as in Lower Canada later, the courts were predisposed to believe that the strongest proof of death-threatening duress was manufactured. Such was so in Ireland even though several accused were found guilty of that precise crime.99 The Reverend Archibald Warwick, among

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others, provides a persuasive contrary case.100 I might also add that aiding rebels was widely interpreted. Mathew Keogh of County Wexford presented proof that he was no rebel but had governed Wexford town to prevent anarchy. He was hanged.101 Given that most defences in treason cases are irrelevant, it is even harder to extrapolate any but the most obvious prosecutorial political messages in the Irish proceedings. Certainly the trials and punishments proceeded on the common eighteenth-century notion of repressing violent dissent by combining the terror of taking lives with the gratitudeinducing mercy of lesser punishments. And, much more clearly than in Lower Canada, leaders were heavily punished but followers were not. This was so even before the passage of the Amnesty Act of late 1798. Leadership was often emphasized in the charges and the lack thereof in prisoners’ defences prior to the date of the enactment.102 Something can also be extracted from the courts’ censorship of defence statements. The report of John Lacy’s trial, for example, records that the accused did not ‘make any defence which could be entered on the proceedings to his advantage.’103 Censorship, it seems, was aimed at preventing not so much pro-independence statements as exhortations to unity between Roman Catholics and Protestants. This is precisely why Wolfe Tone was silenced by his court.104 Unity of ‘natural’ religious enemies in search of political justice was obviously thought by this court to be dangerous in the extreme – as indeed it was. p u ni shm e nt In Lower Canada, convictions resulted in an automatic sentence of death, although the carrying out of sentence fell within the discretion of the governor. Colborne meted out only four kinds of punishments105: death by hanging (12), transportation to New South Wales for life (58), banishment (2) and discharge on bail (27). The three sets of executions (held on the market days of 21 December 1838 and 18 January and 15 February 1839) are our focus here, while the fate of the transported convicts is taken up in Beverley Boissery’s essay in this volume. Colborne opposed capital punishment but saw extreme examples as necessary to deter further rebellion. Generally, the selection of those who faced the death penalty was governed not by whether these individuals were rebel leaders (many of the leaders had fled to safety in the United States) but by whether they were guilty of atrocities and whether their execution would serve a useful purpose at the local level.

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In Ireland, probably because of the variety of crimes tried, the courts martial and ultimately Cornwallis imposed a wide range of penalties, including those mentioned above but also transportation for shorter periods than life, jail terms, fines, flogging, the pillory, and banishment, both in general and under a precisely worded statute of 1799.106 This was the Banishment Act which permitted the government to send prisoners convicted of rebellion to any British ally for service in its army. In the spring a Prussian officer took charge of upwards of 300 men, some no doubt condemned by the regular courts.107 Scholars have never been able to establish the number of United Irishmen punished for rebellion-related crimes with any precision. This statement applies overall and in relation to the two most serious penalties, death and transportation for life. Nor do the figures offered always (over the entire period) specify by which courts the accused were condemned. R.B. McDowell, for example, estimates that at least 1,450 prisoners were punished by all courts in the eighteen months following the outbreak of insurrection. As to court-martial sentences of death and transportation, McDowell cites Castlereagh’s statement that, from about 20 June 1798 to February 1799, 418 were so tried, with 131 sentenced to death. Of these, 81 were in fact hanged, or approximately 62 per cent of the total. About 145 were sentenced to transportation for life, but how many actually went is not clear. George Rudé, while admitting vast documentary gaps, estimates that 300 or so insurgents of 1798–1800 landed in ‘Australia,’ but he does not distinguish between courts martial and regular tribunals and many of his transportees were sentenced prior to the actual outbreak of rebellion. So perhaps only a hundred or thereabouts of the rebels convicted by courts martial suffered the second most severe punishment.108 McDowell characterizes Cornwallis’s penal policy as one of ‘measured severity.’ In general, this can also be said of Colborne too. Only 70 out of a total of more than 1,000 convicted prisoners in Montreal suffered severe sentences. The governor, a man of wide military experience but also deeply held religious convictions, resisted the bloodthirsty demands of the English elite for many more executions. The low percentage of hangings in Lower Canada compared to Ireland may also reflect the repeal of the death penalty for many capital offences and the deepening aversion to capital punishment in the mother country by the second quarter of the nineteenth century. Colborne held the first set of executions in Montreal in the prison courtyard [(2), 21 December 1838], but, to ensure greater publicity, had the gallows for the next two sets [(5), 18 January 1839; (5), 15 February 1839]

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assembled on the wall facing the street which could and did accommodate thousands of spectators. All were held on a Friday, market day, which even in the winter drew the greatest number of nearby habitants to town. Colborne rejected the idea bruited about that the hangings should be staged in disaffected rural districts.109 His intention in part, therefore, was probably to terrify the prisoners in the jail. In Ireland, the idea seems to have been deterrence and retribution through drama. Locations were usually carefully chosen and included bridges and dissenting Protestant places of worship. The Reverend Porter was hanged on a small hill overlooking the Presbyterian meeting house, in view of his wife and seven children at their home, while licentiate Archibald Warwick, also of County Down, was returned to the village where he had taught and executed close by the church. Wexford activists were normally hanged from the town’s new bridge. In one instance, nine men were so executed, one after the other, before a large but sullen crowd, many of whom had recently cheered several dozen executions of Protestant loyalists at the same bridge.110 One part of the horrendous treason sentence was often, but not always, carried out: decapitation, with the severed heads paraded about and then affixed in prominent places, such as market places and courthouses, as they had been in England and Britain after Monmouth’s rebellion of 1685 and the Jacobite rising of 1745–6, for example. In Belfast, an oxen thief was clapped on the shoulders by his ‘victim-sentencer,’ who, ‘pointing to the gallows and the heads above it upon the market house spire, told him to take heart and go boldly for he should have plenty of his neighbours for Company.’ Perhaps because of his respect for a brave officer, Cornwallis remitted the part of Wolfe Tone’s sentence which ordered that ‘his Head shall be struck off, fixed on a Pike & placed in the most Conspicuous part of this City.’111 As mentioned, hanging alone was practised in Lower Canada, despite the imperial statute of 1814, which, while abolishing disembowelment, explicitly retained beheading.112 In addition to the fairly common drunken brawls and gallows speeches of religious remorse, defiance [Hindenlang, ‘vive la liberté’ (6)], and denial of guilt, the crowds were sometimes exhilarated or disgusted by the truly unexpected. In the first Montreal execution, Joseph Duquette literally experienced a ‘fate worse than death.’ Because the rope had not been adjusted properly, his head smashed open when it struck the gallows. Minutes of screaming and shouting ended when the hangman was successful in his second attempt. Bailiff Pierre-Remi Narbonne experienced a similarly excruciating fate before dying.113

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In Dublin, according to a letter published by The Times of London,’on his way through the streets towards the scene of his catastrophe’ a rebeldeserter named Duane ‘frequently thrust his head from the windows of the coach and laughed in a profligate contempt of his fate.’114 Some miles up the coast, at Drogheda in 1798, rebel Thomas Markey had his sentence commuted at the gallows itself.115 At Wexford Town bridge, a Catholic priest was so huge that the rope broke while he was alive. Soldiers also played soccer there with a prisoner’s head in the streets, including that on which his sister lived, so making sure that she saw this desecration.116 In at least one case, the court imposed the additional indignity of burial under the gallows.117 The award for aplomb undoubtedly went to Henry Munro, wealthy merchant as well as military leader in Down, who settled his final earthly accounts on a barrel placed next to the noose.118 In Montreal, selection was often arbitrary, meaning that clear correlation between rebel leadership proved at trial and selection of those who were to die was lacking, as illustrated by the case of the young Guillaume Lévesque. He suffered mere banishment because, as Colborne put it, he was connected to ‘Canadian Families of great respectability and known loyalty.’119 Prieur was saved by the intervention of Edward Ellice’s seigneurial family, which had been well treated by the Beauharnois rebels during the week of the rebellion.120 By contrast, four illiterate farmers, acting under orders of men who escaped to the United States, were hanged for the so-called Walker murder; they included a Joseph Robert, nearing his dotage and responsible, with his twenty-eight siblings, for 146 offspring!121 Habitant Amable Daunais, one of Chartrand’s acquitted murderers, went to the gallows for that crime, although he had acted merely as a common soldier during the 1838 rising.122 Social status had another arbitrary effect. One major object of the courtmartial proceedings was to terrify the Canadien middle class (six of the twelve executed), to whom the English elite from the 1790s on had tended to attribute almost magical powers over the farmers. Although two admittedly had held high positions (Joseph-Narcisse Cardinal and Chevalier de Lorimier), they were selected by Colborne primarily because of their perceived inordinate influence over the ‘ignorant habitants.’ Contrast the three other men of the law who went to the gallows. Notary Pierre-Théophile Decoigne [3] and bailiff Pierre-Rémi Narbonne [7] had acted as subordinate officers at Napierville and were of less importance than Joseph Paré, who had been in charge of rebel carting in the area. Decoigne, as a notary, wielded dangerous power over the common people, according to the governor, while Narbonne belonged to a ‘class of

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men [who] command a peculiar influence among the lower order of Canadian peasantry.’ Notarial student Duquette, in his early twenties, had tagged along after Cardinal, his patron, in Chateauguay. He was, however, reputedly manager of a tavern and hence an authority ‘among the rural population.’123 Contrast also wealthy habitant Joseph Dumouchelle, who had led the attack on Edward Ellice’s manor house and whose wife had recruited hundreds into the Beauharnois Chasseurs; he was only transported. One of Dumouchelle’s activist colleagues, wheelwright Toussaint Rochon, was described by the deputy judge advocates [5] as ‘conspicuously guilty.’ He was spared the rope at the last moment after Colborne decided that he was ‘a habitant of no influence.’124 The time a person faced the court martial added a further arbitrary element, since the governor stopped the hangings in mid-February. Bourdon [9], who had led an abortive attack on Fort Chambly, was lucky to be tried later that month. Moyse Longtin [12], involved in the Walker fatality, and Lanctôt [11], a commander at Odelltown, likely owed their lives to late trials in March. Hindenlang was executed as a warning to foreign ‘brigands’ and American Benjamin Mott would undoubtedly have followed him to the grave if tried earlier, as Colborne expressly stated.125 Aside from perpetrators of atrocity, those selected to hang following Irish court-martial trials were usually military and/or political leaders. Their roles were proved in court. Examples include Henry Munro, commander at the battle of Ballynahinch, County Down, and Bagenal Harvey, commander and council president in Wexford. There were, of course, exceptions. Henry Joy McCracken of Antrim and James Porter of Down were not proved guilty, much less proved to be leaders, although the former was. Archibald Warwick was acknowledged as being in the ranks but exercising no command. These exceptions occurred before Cornwallis took control and laid down his principles of capital punishment: there would be no death penalty unless the accused ‘have been leaders or Guilty of deliberate Murder and Robbery.’126 Contrast Colborne, whose main motive for punishing by death or transportation, as Beverley Boissery explains in her essay, was the perceived political influence of the offender over the ‘lower orders.’ su p e rvi si o n Martial law, in its judicial aspects, operated more fairly towards the accused in Ireland than in Lower Canada, although it was generally

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biased against them in both jurisdictions. The Irish civil courts remained open almost everywhere. In the assizes of the summer of 1798 and the spring of 1799, taken together, about 297 persons were charged with political offences. Fifty-seven were convicted, an astounding acquittal rate of 80.8 per cent.127 In Lower Canada, Colborne closed down the criminal sessions of the Montreal King’s Bench while the court martial sat.128 Of the 106 tried at Montreal, the court martial found seven not guilty, and four such verdicts were tainted, an acquittal percentage rate of 6.6 technically but 2.8 in reality.129 In Ireland, from May to mid-November 1798, by contrast, about 1,000 faced court-martial trials, with the acquittal rate being approximately 26 per cent.130 More than this, at least a few senior officers balked at proceeding by military tribunals and other officers were so lenient in speech that one crown solicitor despaired of convictions.131 Major-General Clitherow and his ranking colleagues showed no reluctance to use courts martial and we have this description from two of the Lower Canadian accused: ‘Some of our judges even did not spare us gross insults; some of them also amused themselves during the sittings sketching little figures hanging from gibbets and these coarse caricatures which they passed to one another before our gaze, appeared to amuse them greatly.’132 There was a striking contrast, too, between the control exercised over these military tribunals by the lord lieutenant and administrator/governor Colborne. Cornwallis spent most of the time devoted to army matters on the trials and punishments of state prisoners. Pitt was probably surprised that Cornwallis, reversing five years of policy, turned out to be a conciliator whose position was quite similar to that of the Earl of Moira. Excessive severity, both thought, could easily backfire into a conflagration threatening the British connection.133 It is not clear whence the former derived his liberal ideas. They were, however, longstanding. In the House of Lords during the 1760s, Cornwallis occasionally voted the advanced Whig line against the government on such controversial issues as those arising from the Wilkes and Stamp Act affairs, and in India he became an excellent judicial reformer, particularly with regard to criminal courts.134 The new lord lieutenant favoured virtually full Roman Catholic emancipation and did all he could to limit loyalist atrocities, especially by the yeomanry and militia (‘murder appears to be their favourite pastime’).135 He also insisted on fair court-martial trials and attempted, in meting out punishment, to distinguish between leaders and followers. His lenity in these areas made him very unpopular with the Protestant Ascendency,

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out for bloody revenge, and even with one of his senior advisers, Civil Secretary Edward Cooke.136 Within a week of taking office, Cornwallis had ordered the military not to punish rebels except with the consent of a general officer and pursuant to a general court martial.137 The effect of this policy is unclear, although it was obviously partial. Three weeks later, Cornwallis instituted a program of pardoning outwardly repentant insurgents who had been duped or coerced and began pressing for a general pardon subject to exceptions, which became the Amnesty Act passed locally in October.138 Although Colborne was later to praise his General Court Martial as the only possible tribunal, there were in fact alternatives, as we have seen, which equally could have ‘dispense[d] impartial justice between the Crown and the subject.’139 Cornwallis deeply distrusted the imposition of military rule over civilians, even treasonable ones. In July 1798 he wrote privately to his closest friend, General Alexander Ross, stating that, except for the state trials in Dublin, ‘there is no law either in town or country but martial law, and you know enough of that to see all the horrors of it, even in the best administration of it.’140 It is said of Lord Cornwallis that he ‘absolutely insisted on equitable hearings’ for the defendants, making him ‘most unpopular with loyalists.’ His ‘close scrutiny of courts martial kept sharp practices within limits’ and his rule ‘was to punish the ringleaders and spare their unfortunate dupes’141 while his ‘guiding principle was magnanimity in victory.’ Even Castlereagh, son of Lord Londonderry and hence, literally, a child of the Protestant Ascendancy, formed a favourable view of his superior’s suppression policy, combining as it did ‘firmness with mercy.’142 All this is true but subject to the major, chronological qualification that Cornwallis’s close scrutiny of courts martial did not begin until midSeptember 1798, by which time the long rumoured French invasion had been repulsed.143 Prior to this, verdicts and sentences were left to the area army commanders, in accordance with Cornwallis’s express orders.144 When Cornwallis did undertake the reviewing task, he was thorough, weighing evidence, mitigating many sentences,145 criticizing courts, and ensuring the impartiality of local prosecution committees.’ His very stance probably induced courts to behave themselves. In the case of John Devereux, a rebel leader in County Wexford, whose brother had been executed a year earlier, ambiguities in the evidence led to a sentence of seven years’ transportation which in the area was tantamount to an acquittal.146 Cornwallis’s direct intervention derived above all from concern about proof. In one case the lord lieutenant insisted that the military

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judges sitting in Dublin search out and hear testimony to the character of a man named Kennedy, the main witness against an accused. According to testimony, Kennedy was ‘a man of the most infamous Character He has ever known,’ after which the court concluded that he was ‘capable of every criminal invention and duplicity.’ The prisoner was discharged.147 In another proceeding, convinced that a plea of duress was valid, Cornwallis commuted the capital sentence to outright release upon the prisoner’s taking the oath of allegiance.148 Hearsay on the part of crown witnesses also induced him to commute one death penalty to transportation for life.149 The lord lieutenant was equally concerned that military men not be acquitted when proof of murder or other serious misconduct was clear. He reacted strongly and publicly.150 Perhaps his most dramatic acts lay in silencing the perjurer Bridget Dolan, referred to earlier. From December 1799 to January 1801, at least nine men were saved from the gallows because Dolan’s testimony had on so ‘many occasions’ been ‘discredited’ and the Irish law officers had soon decided that ‘no reliance could be placed’ on it.151 In January 1801 Cornwallis ordered that no death sentence should be implemented ‘where she is uncorroborated by other evidence.’152 He later applied the principle to a lesser sentence.153 It might be added that, in the summer of 1798, the lord lieutenant had entered into a bargain with almost eighty state prisoners against whom the proof was weak. In return for full exposure of the plot, they would be permitted to go to the United States as voluntary exiles for life. The U.S. government objected and in the end several were simply banished, with about twenty of the prime leaders interned for the remainder of the war against France at Fort George, Scotland, under very liberal conditions of confinement – separate apartments, exercise, books and newspapers, sea-bathing, and a daily pint of wine.154 Colborne’s approach was just the opposite. He confirmed convictions of several defendants on the grounds of their merely being near rebels (including one who was a spectator to a battle), despite the holding in the Messenger case (1668) that assisting rebels must be found as a fact by the jury and could not be presumed.155 He agreed to the acquittal of a probable informer, despite a protest from the unsuspecting attorney general.156 Arrested on 7 November 1838, and accused of major rebel activity on 10 November, Léandre Ducharme’s conviction was upheld despite convincing proof that he had been in the Montreal prison since the seventh. I have already examined the case of transportee Pierre-Hector Morin, guilty of propinquity and being the brother-in-law of Dr Cyrille Côté, but nothing else, as he brilliantly proved. Ducharme, Morin, and the battle

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spectator, Benjamin Mott of Vermont, were ultimately transported with life sentences to New South Wales. At this point, a few words are in order concerning judicial review of the operations of the Irish courts martial. The basic facts of the trials of Theobald Wolfe Tone, a Dublin Protestant commissioned in the French army in 1798 and captured on the invasion ship the Hoche, are familiar to many scholars. The trial’s profound consequences are less so. A founder of the United Irishmen in 1791 and known in some circles ‘as uniting in his own person the Alpha and Omega of the Irish Union’ of Protestants and Catholics, the courageous Tone was hauled off the ship, immediately dispatched to Dublin for trial before a court martial, and quickly condemned. He denied neither jurisdiction nor guilt: ‘I admit the charge against me in its fullest extent.’ He asked only for a soldier’s death by firing squad. When this was refused, he slit his throat with a razor, but lingered on from 11 to 19 November. In the interval, a motion for habeas corpus in the King’s Bench to quash the military proceedings was made by his friend, barrister John Philpot Curran. He argued passionately that ‘no court-martial could have cognizance of any crime imputed to him, while the Court of King’s Bench sat in the capacity of the great criminal court of the land.’ Curran stood ‘upon this sacred and immutable principle of the constitution – that martial law and civil law are incompatible; and that the former must cease with the existence of the latter.’ He ended by reminding the court of the case’s urgency because Tone might be executed that very day. Lord Chief Justice Kilwarden ordered the writ to be prepared immediately and that no execution take place. He did not hide behind the fact, as he well might have, that the Irish Parliament had by address (but without full debate) ratified Earl Camden’s issuance of the 24 May proclamation. When the military refused compliance, Kilwarden ordered the sheriff to take physical control of Tone and the offending officers into custody. Tone was too ill to be moved but the court again issued a ruling against his execution. The court’s willingness to issue a writ, which might well have allowed Curran to plead double jeopardy, seems remarkably impartial, given Tone’s admissions and the vengeful fear among the Protestant elite. But there may have been something here of a power play for jurisdiction, as it was sometimes interpreted to be by contemporaries.157 Whatever the case, the higher civil judges seem in general to have been adamant on the point.158 The implications for the administration of military justice over civilians were momentous. Courts martial sitting in Sligo and Castlebar – and probably other areas159 – were suspended right away. Military command-

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ers, in general, were ordered by the lord lieutenant to turn over prisoners, even those already convicted,160 to the civilian authorities. Perhaps the most remarkable feature of these eventgs is that opinion in the Castle accepted the decision as correct in principle. Castlereagh wrote London stating that court martial of civilians was valid only where and when war was raging to the point that the ordinary tribunals in those areas could not function. It was fine to widen the scope of martial law via the prerogative, to areas of low violence, and trust to an Indemnity Act, but only for a short time at the outset of rebellion. Otherwise, a statute was needed to comply with the spirit of the constitution. Cornwallis and even hard-line Civil Secretary Cooke agreed: ‘Martial law & Civil Process are not at issue: and I believe it is impossible that the former can be exercised whilst the Civil Courts ... hold their sittings.’161 The potential clash of jurisdictions was avoided only by the passage of the 1799 act, which was not popular with the Dublin bar, some high English officials, and the judges, who recognized it as a ‘lamentable but inevitable necessity.’ In the Irish House of Commons, on second reading, it was warmly defended by the attorney general on the grounds of necessity, earlier parliamentary approval, and the unfortunate results of Tone.162 Castlereagh later repeated the sentiments of his letter just described. Several MPs vehemently opposed this overthrow of fundamental law, a Mr Dobbs observing that there would be ‘nothing to hinder the Executive Government from taking Mr. Speaker from the Chair and ... shooting him.’163 Six Irish lords protested on Moira-like grounds, asserting that ‘the essence of the Constitution is universally subverted and ... Civil Government is changed to Military despotism.’164 Opinion was divided in Ireland by this extreme statute and dissent could be expressed in Parliament with no obvious repercussions. At the insistence of London, a Lords’ amendment to the bill asserted that martial law could be introduced by means of the royal prerogative, such as the 24 May proclamation. This assertion purported – dubiously – to state that the law and hence the act was not intended to be retroactive. To the extent that it was so in reality is academic since the Irish Parliament was sovereign.165 The act also laid down that courts martial were legal even if the regular courts were sitting. Nevertheless, a year later Cornwallis’s chief secretary, Viscount Castlereagh, explained to the Irish Commons that military tribunals would be used only in the last resort.166 In Lower Canada, the court-martial ordinance of 8 November 1838 elicited no discernable opposition among the anglophone and Canadien elites, in the Special Council, or the executive, nor was the ordinance dis-

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allowed by the British government. The Court of King’s Bench in Montreal was absolutely no help to accused rebels, actual and potential. As will be seen in the following essay, the lawyers for the accused in the first trial (Chateauguay) applied to that court in mid-December 1838 for a writ of prohibition based on far from frivolous arguments and with ten prisoners having been sentenced to hang. The court refused to hear the motion on the technical ground that the writ could be issued only during term. A similar application was made in early February 1839. It was rejected, with the judges also holding that no court but Parliament itself could pronounce on the vires of local ordinances. Thus, the appointed Special Council was given carte blanche and the impugned ordinance achieved untouchable status. Aside from security of tenure, the relative historical isolation of the senior Irish judges from partisan politics helps explain their genuine feeling for the rule of law. They did not sit in the cabinet by the late eighteenth century. By contrast, their counterparts in Lower Canada had often dominated the Executive Council before 1830. Also, as in England, Irish judges had ceased to give collective extrajudicial opinions to the executive on political questions of law. Despite widespread condemnation in the mother country, Lower Canadian judges in 1838 were expected to render such opinions and did so.167 There is no published evidence that Cornwallis attempted to intimidate the judges in Tone. They, of course, held office on good behaviour, and it would have been difficult to convince both houses of the Irish Parliament that a decision unpopular at the Castle breached this criterion. Only those houses could dismiss or suspend senior judges.168 More interesting, Cornwallis did not issue a proclamation giving the courts martial priority over the regular courts. After all, they had been established in the first place by such an executive instrument. Cornwallis accepted the logic of this decision and followed the advice of his law officers not to interfere with the regular courts.169 Since the Lower Canadian justices, being colonial, held office at the sovereign’s pleasure, Colborne had an easy time getting his way with the bench. Three judges who held the suspension of habeas corpus illegal were almost immediately suspended in November-December 1838. Their decisions were based on grounds which, everyone interested understood, would undermine the court martial.170 After the Court of King’s Bench rejected the Drummond-Hart application for prohibition, the defence lawyers petitioned Colborne on 19 December 1838 for a full hearing before the Executive Council and the colony’s judges. This was refused

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and two days later the first two prisoners were hanged. In contrast to Cornwallis’s actions with regard to Tone, Colborne suppressed all doubts about the vires of the court martial. He acted forcefully, though openly, in the habeas corpus cases. There were two incidents that nonetheless cast a shadow over Colborne’s supervision. The first can be traced to the words in the ordinance allowing the Montreal army tribunal to pass sentences ‘whether of death or otherwise.’ The officer-judges in the Chateauguay trial [1] used this provision to sentence in secret four of the ten convicted of treason to death and six to transportation for life. Colborne asked his various legal advisers if the court was empowered to condemn any traitor to a punishment other than death. Attorney General Ogden advised that the ordinance envisaged trials for crimes which had been such before its enactment (for example, treason, misprision of treason, or sedition) and the court’s sentences must be strictly in accordance with the common law. Hence, the six scheduled for transportation should have their punishments altered to death. The two civilian deputy judge advocates agreed. Solicitor General Andrew Stuart did not. On 8 December he advised that the ordinance should be interpreted by a passage mentioning persons ‘in any manner assisting in the said rebellion, or maliciously attacking the persons or properties of Her Majesty’s loyal subjects.’ It followed that the court martial could try new crimes created by the ordinance itself but not charges of high treason (which was not mentioned) by that name. The proceedings were, he distinctly implied, null and void.171 Colborne put Stuart under pressure to recant, and in three letters and an interview he did so. In reconsidering the case, he decided that the last words in the single charge (Report, 19–20), ‘incite and assist in a Rebellion,’ were crucial. How these secondary references could negate the obvious tenor of the charge which explicitly began with the word treason and stressed compassing and levying is not at all clear. The charge read: Treason against our Sovereign Lady the Queen, between the first and seventh days of November, in the second year of the reign of our said Lady the Queen: In this: That the ... [accused] did meet, conspire, and agree amongst themselves, and, together with divers others ... unlawfully and traitorously to subvert and destroy ... the Legislative rule now duly established in ... Lower Canada, and to depose ... the Queen from the Royal State and Government of the said Province; and did for that purpose, then and there ... incite and assist in a Rebellion ... and were engaged in acts of open warfare and rebellion against Her Majesty’s Government here.

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In their address to the court, moreover, the deputy judge advocates recurrently mentioned high treason as the charge, with compassing and levying being the two main counts. This left the question of punishment. Stuart now decided that the four death penalties were perfectly fine but the transportation sentences were invalid because ‘the Ordinance gives no power to the Court to sentence to Transportation.’ This was a narrow interpretation of ‘or otherwise’ and, of course, transportation was not unknown to the Lower Canadian criminal law. Indeed, even if we accept Ogden’s interpretation, it does not follow that the common law crimes had to be punished strictly according to the common law. The ordinance in using ‘death or otherwise’ seems to support this. During the Irish proceedings of 1798–1800, when identical words were found in the proclamation and statutes, sentences of transportation for treason were common. The Lawless Aggressions Act of Upper Canada, enacted 12 January 1838, permitted courts martial to choose sentences less harsh than death and this was sometimes done, as in Sutherland’s case.172 Moreover, had Ogden been correct about the penalties, convicted traitors sentenced to death, with-out commutations, should have suffered disembowelling while alive, beheading, and at least symbolic quartering. They were hanged only. All these problems were kept from the public and the defence lawyers, as were the doubts entertained by Attorney General Ogden that the ordinance might be ultra vires because of its retroactivity, a question explored in the next essay. c o nc l u si o n One conclusion that can be drawn from this comparative study is that an individual with power or influence and strategically placed can make a historical difference. Lord Cornwallis seems to have made one, limited though its scope may have been. To a much greater degree than Colborne, he was a strong believer in the rule of law and, in trying circumstances, implemented it to the point of saving many lives and not a few important legal principles. In doing so, Cornwallis reversed five years of increasingly repressive policy and was constantly at loggerheads with most in the Protestant Ascendancy. He convinced the very reluctant Portland and Pitt to go along, men who had fired the reforming Earl Fitzwilliam from the lord lieutenancy (1795–6), long delayed the Amnesty Act, and, as late as March 1799, feared disaster looming because of ‘lenient measures’ and longed to return to the punitive days of Lord Camden.173

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Comparisons of the courts martial in the two jurisdictions is instructive for Canadian historians. Both tribunals fell far below common law and statutory standards for procedure and evidence. The heaviest penalties imposed on convicts in the two jurisdictions seem roughly equal in severity, the gross irregularities of torture and retroactivity cancelling each other out. The acquittal rate even for capital crimes was far higher in Ireland. But the more serious contrast lies in the lack of supervision to protect the elementary interests of the accused by the governor or the Montreal Queen’s Bench. This comparatively ‘worse’ record happened more than a generation after 1798 and in a decade that saw the passage of the Great Reform Act (1832), a prime minister’s open acknowledgement of the wrongs of trying civilians by courts martial (1833), and the establishment of responsible cabinet government. All this goes to bolster the argument, as I have suggested before, that the General Court Martial in Montreal in 1838–9 represents the worst abuse of the rule of law in Canadian history. The final generalization is the most obvious of all. Civilian accused tried by courts martial shortly after rebelling have only the remotest of chances of anything resembling impartial trials, unless such military courts are rigorously supervised by superior powers to uphold elementary standards of fairness. If not, the potential for bias goes far beyond what even Lower Canada experienced. When it was first rumoured in London that army tribunals were to sit in Ireland, the editor of the Morning Post was outraged and, understandably, fearful: ‘Good God! Are men to be tried by ... those whose minds are inflamed with all the rage and fury of hostile faction ... by those whose swords are, perhaps yet reeking with the blood [of their enemies]?’174

NOTES 1 North American (Swanton, Vermont, exile patriote newspaper), 2 Nov. 1839. Unless otherwise specified, references to the proceedings of the Montreal Court Martial are taken from the principal printed record of the trials (eleven out of fourteen were printed): Report of the State Trials Before a General Court Martial Held at Montreal in 1838–9, 2 vols. (Montreal: Armour and Ramsay 1838). The numbers in the square brackets refer to the chronology of the trials. 2 For a fuller discussion of the issue, see Beverley Boissery’s essay in this volume on transportation to New South Wales.

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3 See also my article, ’The General Court Martial of 1838–39 in Lower Canada: An Abuse of Justice,’ in W. Wesley Pue and Barry Wright, ed., Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press 1988), 249. 4 In the battles of 1837–8, no more than four hundred rebels were killed; in the single Irish engagement at New Ross, about two thousand Union fighters were slain. About twenty thousand died in Wexford County alone, one-sixth of its population (according to an audio-visual presentation seen in June 2000 at the National Visitor Centre, Enniscorthy, County Wexford), while four hundred and fifty is the probable high number for Lower Canada. A handful of patriotes were butchered after battles. The estimate for Irish loyalists deaths is four hundred, to which one must add thousands of rebels. The burnings, rapes, and pillages in Lower Canada, severe as they were, cannot compare to the vastly larger number of similar atrocities in Ireland. In both jurisdictions, loyalists were responsible for most of the outrages. 5 8 Nov. 1838, MG 24, A 2 (Ellice Papers), vol. 13, NA; Quebec Gazette, 12 Nov. 1838 (as one example); Charles Grey to his father, Earl Grey, 14 Jan. 1839, in William Ormsby, Crisis in the Canadas 1838–1839: The Grey Journals and Letters (Toronto: Macmillan 1964), 179–83 (paraphrase of Colborne’s opinion). 6 See ‘The Chartrand Murder Trial: Rebellion and Repression in Lower Canada, 1837–1839,’ Criminal Justice History, 5 (1984), 129. 7 Editorial note on the report of the trial, as reprinted in the Patriot of Toronto, 21, 25 Sept. 1838. 8 Restoration jurists referring to measures such as the de facto act (11 Henry VII c.1) suggested that adherence to a de facto monarch (e.g., Cromwell and the Commonwealth) was not treasonable. 9 A year later Montreal witnessed a similar trial with lying witnesses, the same Mondelet argument, and François Jalbert discharged on a count of murdering ‘Jock’ Weir, a British officer, because of a hung jury: Procès politique: La Reine vs Jalbert (Montreal: F. Cinq-Mars 1839), NA pamphlet no. I–1759. Not surprisingly, later governors were sceptical about trial by jury in francophone Lower Canada: ‘It is perfectly notorious ... that no Lower Canada jury will convict for any Offence of a political nature,’ Sir Charles Bagot to Stanley, 23 March 1842, CO 42/490, PRO (re. a possible trial for seditious libel against satirist Napoléon Aubin). 10 There were precedents from 1774 and before – see, e.g., H. Morgan, ‘Extradition and Treason Trial of a Gaelic Lord: The Case of Brian O’Rourke,’ Irish Jurist, 22 (1987), 285–301. 11 This belief was proved accurate. When faced with another fait accompli of Colborne’s, the colonial secretary saw ‘no need of saying anything at present’:

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see Beverley Boissery’s essay in this volume on transportation to New South Wales, at n.30. Unless otherwise specified, I have relied on the following secondary sources: R.B. McDowell, Ireland in the Age of Imperialism and Revolution 1760–1801 (Oxford, U.K.: Clarendon Press 1979); Roger Wells, Insurrection: The British Experience 1795–1803 (Gloucester, U.K.: Alan Sutton 1983); Nancy J. Curtin, The United Irishmen: Popular Politics in Ulster and Dublin, 1791–1798 (Oxford, U.K.: Clarendon Press 1994). Editor’s note, Correspondence of Charles, First Marquis Cornwallis, 3 vols., 2nd ed. by Charles Ross (London: John Murray 1859), 2: 349–50 (hereafter Corn. Corr.). Later citations of a manuscript source do not imply that no printed copy exists. For reasons to be explained later, there was no significant rebel activity in Dublin or Belfast. Statutes of Ireland [SI] 1796, c.6 (Indemnity), 20 (Insurrection Act); SI 1797, c.1 (Habeas Corpus) and c.38 (amending the Insurrection Act). Pelham to Portland, 31 March 1796, Pelham Papers, Add. Mss. 33113, British Library, London, U.K. This sentiment echoed that of Lord Hale as expressed in his History of the Common Law: Martial law was ‘no Law, but something indulged in rather than allowed. Elizabeth’s reign saw wide use of martial law in Ireland, an expedient widely denounced by common law jurists. As Alan Orr shows in Treason and the State: Law. Politics and Ideology in the English Civil War (Cambridge, U.K.: Cambridge University Press 2002), the abuse of martial law became a bone of contention by the early 1640s. See also Orr, ‘England, Ireland, the Magna Carta and the Common Law: The Case of Connor Lord Maguire, Second Baron of Enniskillen,’ Journal of British Studies, 37 (2000), 389– 421. Pelham to Portland, 31 March 1796, Pelham Papers. Add. Mss. 33113, British Library. For a discussion of Scottish courts transporting convicts who had administered illegal oaths, see Beverley Boissery and Carla Patterson’s essay in this volume, at n.80. See London’s Morning Post and Gazetteer, 29 May 1798. See ibid. for text of the proclamation and n.15 above. SI 1799, c.11. SI 1800, c.2; (U.K.) (1801) 41 Geo.III, c.14, 61; (1803) 43 Geo.III, c.117. SLC 1838, 2 Vic. c.3. (U.K.), 41 Geo.III, c.14, s.3. 3 and 4 Wm.IV, c.4, ss.4–6, 13–16, 19, 21. See particularly S. Clark and James S. Donelly, eds., Irish Peasants: Violence and Political Unrest 1780–1914 (Madison: University of Wisconsin Press 1983),

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passim. Lord Althorp, government spokesman in the 1833 Commons debate, claimed that in Leinster alone during the previous year, there had been, among many other offences, 163 murders or attempted murders. In another county there had occurred a truly pathetic incident, when a ‘most respectable clergyman, eighty years of age’ was butchered for the sole ‘crime of collecting his tithes’: U.K., HC Parliamentary Debates, 3rd series, vol. 15, 1212–18 (hereafter Parl. Deb.). (1838) 1 and 2 Vic., c.109; (1839) 2 and 3 Vic. c.3. Parl. Deb., 3rd series, vol. 15, 739. Grey apparently forgot that by 1801 the minimum had been set at seven. Ibid., 1023–5. 3 St. Tr. 825. See also William Holdsworth, ‘Martial Law Historically Considered,’ Law Quarterly Review, 18 (1902), 117 at 134–6. Ibid. William Forsyth, Cases and Opinions on Constitutional Law (London: Stevens and Hayes 1869), 188–9 (28 Jan. 1757). See text below. Forsyth, Cases and Opinions, 189–92. See also Orr, ‘England, Ireland, the Magna Carta.’ Ibid., 212; Holdsworth, ‘Martial Law,’ 128, approving Justice Cockburn’s reasoning. Printed by Forsythe, Cases and Opinions, 198–9 (to the Colonial Secretary Glenelg). See also the references in volume 1 of this series, F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Law, Politics, and Security Measures, 1608–1837 (Toronto: Osgoode Society/University of Toronto Press 1996), at 376n.126. Queen’s Advocate Sir John Dodson, Campbell, and Rolfe to Glenelg, 21 Aug. 1838, Forsythe, Cases and Opinions, 199–204. See also, e.g., Charles Townshend, ‘Martial Law: Legal and Administrative Problems of Civil Emergency in Britain and the Empire, 1800–1940,’ Historical Journal, 25 (1982), 167 at 171–2. Copy of their oath is found in RG 8, Series I (C Series), vol. 173, 97, NA. The more affluent secondary leaders included notary and MPP JosephNarcisse Cardinal (Chateauguay); notary Chevalier de Lorimier, Dr Henri Brien, wealthy farmer Joseph Dumouchelle, and country merchant FrançoisXavier Prieur (all Beauharnois activists); merchant, rebel organizer, and military officer Louis Bourdon of St-Césaire; Quarter-Master Charles Huot, a notary; and Nelson aide-de-camp Guillaume Lévesque. For an example, see n.42 below. Pitt to Liverpool, 12 June 1798, Corn. Corr., 2: 352. Although defeated at Yorktown, Cornwallis had proved the most aggressive of the British generals dur-

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ing the War of Independence, routing General Horatio Gates at Camden, South Carolina (1780), for example. As governor general of India, 1786–93 he won fame by putting down the powerful warrior-prince Tippoo: ibid., 1 and 2 passim. See, e.g., court martial of John Lacy of Waterford, 15 May 1799, Rebellion Papers [RP], 620/6/70/7, National Archives of Ireland [NAI]. 27 St. Tr. 1077; Thomas Cooke, ed., Report of the Trial of Richard Maher, of the City of Waterford, Esq. M.D. for High Treason and Disaffection to the King and Constitution, before a General Court-Martial, Held at Waterford, in June, 1798 (Dublin: W. Porter 1798), 3. Thomas Bartlett, ‘Bearing Witness: Female Evidence in Courts Martial Convened to Suppress the 1798 Rebellion,’ in D. Keogh and N. Furlong, ed., The Women of 1798 (Dublin: Four Courts Press 1988), 64 at 71–2. SI 1798, c.55 (s.5 for exceptions). Charles Dickson, Revolt in the North, Antrim and Down in 1798 (London: Constable 1997), 146. Ibid., 189–92. A.T.Q. Stewart, The Summer Soldiers: The 1798 Rebellion in Antrim and Down (Belfast: Blackstaff Press 1995), 15–18, 251–4. Morning Post, 29 Sept. 1798. SI 1765, c.21. R. v. Jackson (1794–5) 25 St. Tr. 783 at 881; R. v. Henry and John Sheares (1798) 27 St. Tr. 255 at 388. The British acts are (1696), 7 and 8 Wm.III c.3; (1708), 7 Anne c.21. See the following essay. See the memoir by James Porter, 1844, D3579/2, PRO, for Northern Ireland, Belfast, 5–6. The what, when, and where were specified in Lower Canada. Porter’s father had been charged with ‘Treason Rebellion and Sedition and being in divers Treasonable, Rebellious and Seditious acts Contrary to his Majesty’s peace his Crown & Dignity’: RP, 620/2/15/54. n.42 above, 4,42. See RP, 620/2/9/6 and 620/2/15/45. See, e.g., for Ireland, Morning Post, 1 Nov. 1798. The good faith with which this was implemented in either jurisdiction is unknown to me. See, e.g., R v. John Devereaux (1798–9), 29 St. Tr. 1137 at 1179–90; n.42 above, 28–46; to Jack , Dundalk, 18 Aug. 1798, RP, 620/3/27/5. Edouard Therien [1], Antoine Doré [7], and Isadore Tremblay [8]. See reference in n.42 above. See last reference in n.55 above. As required by the Irish Coercion Act of 1833, mentioned above. See also T.F. Simmons, Remarks on the Constitution and Practice of Courts Martial, 2nd ed.

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(London: F. Pinkney 1835), 152–3. There was one major difference between the two colonies: in Ireland the judge advocates’ prosecutorial summaries were not included with the reports, thus presenting the historian with added difficulty in assessing the Irish proceedings. See Clitherow to the military secretary, 28 May 1839, CO 42/296; Col. S.P. Eustace (of the Court) to Clitherow, s.d., ibid. In exile, Paré constructed a complicated and innovative fish trap, much admired by his fellow prisoners. See F. Murray Greenwood, Land of a Thousand Sorrows: The Australian Prison Journal, 1840–1842, of the Exiled Canadien Patriote, François-Maurice Lepailleur (Vancouver: University of British Columbia Press 1980), 8–9. Lanctôt to his children, 19 Aug. 1878, MG 24, B 163 (Lanctôt Papers), NA; L’Aurore des Canadas, 15 March 1839. See, e.g., to General Sir Charles Askill, 15 Oct. 1798, Home Office [HO] 100/ 86 (p.77, original sentence unknown); to General Dundas, 20 Oct. 1798, ibid. (original sentence: armed service overseas for life). Drunkenness played a role in the second case. The signatures on the more than twenty-five extant warrants issued by Huot (e.g., Événements, 1837–1838/1837–49, 2647, ANQ (hereafter Évén.]) and on a voluntary examination after arrest (16 Nov. 1838, ibid., 2505) are virtually identical. To P.-H. Morin, Jr, 11 March 1838, Évén. 2546. Morin, however, was angered by the anti-Canadien prejudice shown by the English after the 1837 rebellion: ibid. 9 Jan. 1839, Évén. 2549. A similar petition circulated in Quebec: Campbell to Goldie, 23 Jan. 1839, RG 4, A 1 (S Series), vol. 567, NA. See also the persuasive, highly concrete deposition by Dr Côté’s wife, Margaret, s.d., ibid. For an extended discussion of the Morin case, see Beverley Boissery, A Deep Sense of Wrong: The Treason, Trials, and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion (Toronto: Osgoode Society/Durdurn Press 1995), 84–90. RP, 620/2/8/10/5. See also, e.g., 620/2/8/1; 620/2/15/54. But also see the Morning Post, 23 June 1798, where it is reported that the court allowed hearsay evidence in favour of the accused. (1799) 21 St. Tr. 1077 at 1084. See also, e.g., RP, 620/2/9/6. Trial of Richard Mayer. This report also contains examples of leading questions. Unless otherwise indicated, the following is based on Ruan O’Donnell’s wellresearched and interesting essay, ‘Bridget “Croppy Biddy” Dolan: Wicklow’s Anti-heroine of 1798,’ in Keogh and Furlong, ed., Women of 1798, 87. SI 1798, c.55. That Dolan was coached by King seems certain. This illiterate

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woman, for example, used the learned clause: ‘he was shot accordingly.’ It is suggestive also that in two different trials she had rebels use almost identical, striking expressions: RP, 620/17/30/41 and 42. One example: ‘Prisoner John Nowlan presented a gun and fired at [captive yeoman James] Wheatby [June 1798]. Wheatby ... fell, but rolled about, the Prisoner reloaded his gun and again discharged it at Wheatby but he was not killed ... Nowlan struck Wheatby on the head with the Breech ... then gave his gun to another person, and got a Bayonet screwed on a pole with which he stabbed the said Wheatby.’ Quoted and corrected in O’Donnell, ‘Bridget Dolan.’ 107. Proceedings on the Trial of William Byrne (1799) 27 St. Tr. 1077 at 1111. Court martial of John Lacy, RP, 620/6/70/7. Bartlett, ‘Bearing Witness,’ 70–84. Curtin, United Irishmen, 185–7. RP, 620/2/15/54. See James Porter’s memoir of 1844, n.51 above; William Thomas Latimer, A History of the Irish Presbyterians, 2nd ed. (Belfast: James Cleeland etc. 1902), 397–8; Dickson, Revolt in the North, 189–92; Stewart, Summer Soldiers, 174, 251– 4. I may have come across an undetected falsity in the record. Opening the second day’s proceedings, after the crown’s proof was in, Porter purportedly ‘pleaded guilty & threw himself on the mercy of the court.’ Such a plea runs counter to the evidence in the references cited, much of it primary. It is suspicious, too, that the court’s verdict referred to the evidence but not the plea. Of fourteen comparable Ulster examples I found, reference was (naturally) made to the acknowledgment of guilt in eleven of them: RP, 620/2/8/10/3, 4, 7; 620/2/9/2; 620/2/15/23, 34, 37, 45, 51, 52, 56. The contrary cases: 620/2/8/1; 620/2/15/36, 41. Fitzgerald himself boasted that, by flogging fifty people, he had saved the lives and property of 500,000. Appendices 11 and 22. Curtin, United Irishmen, 217–20. P. O’Higgins, ‘Wright v. Fitzgerald Revisited,’ Modern Law Review, 25 (1962), 413 at 414. O’Higgin’s article is a useful study of the notorious flogger, Thomas Fitzgerald. For the parliamentary debates see Parliamentary History, vol. 33, passim. A modern, specialist historian has concluded that severity in 1797, including torture, was designed to provoke a premature uprising: Dickson, Revolt in the North, 111–12. For Ogden’s opinion, see Greenwood, ‘Chartrand Murder Trial,’ 141. For the law officers, see their report to Glenelg, 21 Aug. 1838, Forsyth, Cases and Opinions, 199–204.

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85 For references to the treason jurists, see my essay on the Colonel John Prince affair in this volume. M’Growther’s case is (1746), Fost. 13. Foster concluded that, if the original threats (of death or, according to Blackstone, grievous bodily harm as well) were proved and some evidence offered of being narrowly watched thereafter, such was sufficient to excuse (216–17). Three prisoners seem to have met Foster’s test (Pascal Pinsonnault and Théophile Robert, 4; Pierre Lavoie, 7). 86 R. v. Frost (1839), 4 St. Tr. (n.s.) 85. 87 See my essay on Prince in this volume. 88 Turton and Buller’s opinion, October 1838, MG 24, A 27 (Durham Papers), vol. 21, NA. 89 (1797) 26 St. Tr. 721. 90 Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: Osgoode Society/University of Toronto Press 1993), ch. 7. 91 Toronto Patriot, 13 March 1838 (Chief Justice Robinson); Quebec Gazette, 24 March 1838 (C.J.L.C.); Kingston Chronicle and Gazette, 5 May 1838 (Justice McLean). 92 More reasonable was the holding by the Irish King’s Bench, Dublin, in 1798, during the French Revolutionary War, that conspiring to levy war in nearby Ireland equalled compassing: Proceedings on the Trial of Henry and John Sheares (1798) 27 St. Tr. 255 at 363–79, 387–8. 93 Soliciting alien amys to invade the realm did not constitute adhering (unless they actually invaded), but was compassing. The Upper Canadian judges, referred to at n.91 above, accepted that this was compassing in the far distant Canadas as well. 94 Report on the trial by Chief Justice Robinson, 16 May 1838, in the Executive Council minutes, 21 May 1838, R G 1, E 21, Lower Canada State Book K, NA. 95 Two trials were devoted to portraying the so-called Walker murder, in which an English-speaking farmer had been fatally shot by rebels in La Tortu, as typical of treason’s legacy [4, 12]. This despite evidence from a crown witness that the loyalists had opened the firing. Even the attack and capture of Edward Ellice’s manor house at Beauharnois, which had been bloodless except for one defender shot in the thumb, was pressed into service [5]. The incident was characterized as a near-calamity, proving that ‘he who, forgetting his duty ... leagues with traitors, knows not into what abyss of crime his perilous course may lead him.’ 96 These jurists, for example, stated that surrendering a castle to rebels through cowardice or imprudence rather than treachery did not constitute high treason, although it was a serious offence under military law. 97 See, e.g., RP, 620/2/8/9 and 620/2/9/5/2 (the acquittal here also owed much to the influence of the Londonderry family).

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98 RP, 620/2/9/6. His case occurred before Cornwallis began his detailed critiquing of the trial reports, as treated below. 99 See, e.g., RP, 620/8/10/5, 7 and 11. 100 RP, 620/12/15/32. See also, e.g., 620/2/8/4, 620/12/8/10/10, 620/2/9/8, 620/2/15/58. 101 Gahan, People’s Rising, 240. 102 In the charges: e.g., RP, 620/2/8/11 and 13, 620/2/9/18 and 28. In the defences: e.g., RP, 620/2/9/24 and 28. 103 RP, 620/6/70/7. 104 See n.157 below. 105 See Greenwood, Legacies of Fear, 305 n.42. 106 SI 1799, c.36. 107 The Times (London), 15 April 1799. 108 George Rudé, ‘Early Irish Rebels in Australia,’ Historical Studies, 16 (1974), 17, particularly at 19–23 and in his Appendix, ‘Case Histories of selected Irish rebels of 1797–1802’ (30–5). In this, the large majority were not tried by courts martial after May 1798. I am assuming that a prisoner would normally fear transportation for life more than conscription into the Prussian army because of the horrendous death rate of prisoners transported in the early ships; and the relative inability to escape confinement and return home from New South Wales. 109 See, e.g., Montreal Herald, 4 Feb. 1839. 110 Dickson, Revolt in the North, 146; Gahan, People’s Rising, 229, 240–2, 254–5, 297; Jackson, Narrative, 25, 68–9. Insurgents named Ledwich and Wade, who had led the abortive attack (the only one) on Dublin (from the southwest), were hanged after a court martial on Queen’s Bridge. See also Musgrave, Memoirs, 201, for another example. 111 To General Craig, 11 Nov. 1798, HO 100/86, 85. 112 Gahan, People’s Rising, 242, 255, 297; Stewart, Summer Soldiers, 250, 253–4; Dickson, Revolt in the North, 250–1 (quotation); 54 Geo.III, c.146. Rev. Porter was spared the indignity of beheading, as was John Henry Colclough (Wexford) on the intercession of his wife. 113 Montreal Gazette, 16 Dec. 1838, 22 Jan. 1839. 114 12 April 1799. 115 Memoirs of Miles Byrne, ed. by his widow, 3 vols. (Paris: Gustave Bossange 1863), 3: 182–3. Byrne had been a rebel leader. 116 Gahan, People’s Rising, 255; Jackson, Narrative, 70. 117 Court martial of Hugh Boyle at Coleraine, County Derry, RP, 620/8/10/10. 118 Dickson, Revolt in the North, 200. The executioner also bungled this hanging: ibid.

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119 To Glenelg, 22 Jan. 1839, CO 42/293. 120 F.-X. Prieur, Notes of a Convict of 1838 [1864 in French], trans./ed. George Mackaness (Dubbo, New South Wales: Review Publications 1949), 39. 121 Petition seeking clemency for Robert, 14 Jan. 1839, RG4, Al (S Series), vol. 556; L’Ami du Peuple, 19 Jan. 1839. 122 Colborne to Glenelg, 19 Feb. 1839, CO 42/293. The teacher Nicolas was executed for the same reason. 123 Same to same, 19 Dec. 1838, CO 42/284; IUP, vol. 10. 124 Same to same, 19 Feb. 1839, CO 42/293. 125 Ibid.; same to Normanby, 5 May 1839, CO 42/295. 126 to General Nugent, 27 Sept. 1798, HO 100/86, 68–9. 127 Unless otherwise specified, details on the Irish courts martial are taken from McDowell, Ireland in the Age of Imperialism and Revolution, ch. 18. 128 SLC 1838. 129 See Greenwood, ‘Court Martial of 1838–38,’ 255, 283 n.53, 284n.79. I have raised the tainted by one: Louis Lemelin [3] tried to avoid testifying for other defendants. 130 Bartlett, ‘Bearing Witness,’ 68, claims that until martial law fell into disuse in 1801, more than eight hundred military trials (and many had more than one accused) have extant records. 131 Beside McDowell, see J. Pollock to Castlereagh, Newry, County Down, 17 Aug. 1798, RP, 620/3/27/4. 132 Prieur, Notes of a Convict of 1838, 37. To the same effect, Hypolite Lanctôt to his children, 23 April 1878, Lanctôt Papers. 133 Cornwallis to Portland, 8 July 1798, to General Alexander Ross, 13 July 1798, and Pitt, 8 Oct. 1798, Corn. Corr., 2: 358–61, 363–4, 417–18. Cornwallis convinced, the home secretary, the Duke of Portland: Portland to Cornwallis, 13 July 1798, ibid., 366. 134 Editorial note, ibid., 2: 11–13; Dictionary of National Biography (DNB), 4: 1159, particularly 1163–5. 135 Roman Catholics, he thought, should be admitted to the Irish Parliament and public office and be given some moderation of tithes. See references in the previous note. 136 Cooke to Castlereagh, 9 Nov. 1798, Cast. Corr., 431–2; Cornwallis to Ross, 18 Dec. 1800, Corn. Corr., 3: 313. 137 Castlereagh to General Steuart, 25 June 1798, ibid., 2: 355. 138 Cornwallis to Portland, 8 July 1798, ibid., 358–61. 139 Colborne to Glenelg, 19 Dec. 1838, CO 42/284; I.U.P., 10: 273–5. 140 Cornwallis to Ross, 24 July 1798, Corn. Corr., 2: 370–1. 141 In addition to McDowell, see Bartlett, ‘Bearing Witness,’ 67–8, 73–4, 81–2;

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Stewart, Summer Soldiers, 246, and the DNB reference in n.134 above. See also Kevin Whelan, ‘ ’98 after ’98: The Politics of Memory,’ in his The Tree of Liberty: Radicalism, Catholicism and the Construction of Irish Identity (Cork, Ireland: Cork University Press 1996), 133 at 142–5. Castlereagh to Wickham, 6 March 1799, HO 100/8, 6, 34–5. Ibid.: ‘Numbers were tried and executed by orders of the General Officers whose cases never came before the Ld Lieutenant.’ The generalization is also supported by the general correspondence in HO 100/86, the trial reports in RP, and the Morning Post of London, which kept a close watch on the courtmartial proceedings in Ireland. It is in this early period that many of the worst abuses known to me are found. The prosecution cases against Porter and Warwick were weak and yet both were hanged. Henry Joy McCracken, rebel leader in Antrim, was guilty, but his guilt was not proved in court beyond any reasonable doubt or even on the balance of probabilities. Indeed, his conviction and execution ‘despite counsel’s assistance’ were based on the evidence of two men he had never seen before. Almost certainly they had been coached by the military to perjure themselves, to the point of precisely identifying a distinctive mark on the accused’s neck: Stewart, Summer Soldiers, 242–6. Cornwallis was, however, concerned to impose severe sentences on persons who had attempted to seduce military men from their allegiance, e.g., once changing a banishment sentence to transportation for life: notes, 14 Sept. 1798, HO 100/86, 61–2. Whelan ‘ ’98 after ’98,’ 142–5; Proceedings on the Trial of John Devereux (1799/ 1800) 27 St. Tr. 1137. RP, 620/3/16/4; Morning Post, 1, 3 Nov. 1798 (re. trial of one Loftus). — to General Craig, 20 Sept. 1798, HO 100/86, 65–7. — to General Dundas, 22 Dec. 1798, ibid., 99. See, e.g., Trial of Hugh Woolaghan; Cornwallis to Pitt, 17 Oct. 1798, Corn. Corr. 2: 421–2. See also same to Portland, 16 Nov. 1798, and ancillary documents, ibid., 433–40. RP, 620/17/30/19, 42. Note dated 19 Jan. 1801 in RP, 620/17/30/42. RP, 620/17/30/28. See, e.g., besides McDowell, Cornwallis to Portland, 26 July 1798, Cooke to Wickham, 28 July 1798, Cornwall to Portland, 13 Sept. 1798, same to same, 29 Oct. 1798 (2x), Corn. Corr., 2: 372–4, 377–8, 404–6, 425–6, 427–8; Portland to Cornwallis, 3 March 1798, ibid., 3: 70; ‘A Narrative of such verbal and written Communications as have passed between Government and the State Prison-

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162 163 164 165 166

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ers,’ c.14 Sept. 1798, Cast. Corr., 2: 347–53; documents 24–30 in Gilbert, Documents relating to Ireland. Greenwood, ‘Court Martial of 1838–39,’ 260, 284n90; 6 St. Tr. 879 at 913–14 (Judges of England). Ibid., 254, 283n.55. For the trial of Tone, besides McDowell, see 27 St. Tr. 613; Tone’s address to the court martial, 10 Nov. 1798, HO 100/79, 96–7; Dublin Journal, s.d.; William T.W. Tone, ed., Life of Theobald Wolfe Tone: Memoirs, Journals and Political Writings [1862], introduced by Thomas Bartlett (Dublin: Lilliput Press 1998), xxvii–xxviii, 873–85. Corn. Corr., 3: 12–15 [editorial note and letter to the government from Justice William Downes, KB, 25 Oct. 1798 (re Waterford Assizes)]; Tone, Life of Wolfe Tone, xxvii–xxviii, 873–95. Captain Taylor, military secretary to Lt. George Daly, 16 Nov. 1798, and to General French, 21 Nov. 1798, HO 100/86, 43–4. — to General Nugent, 8 Feb. 1799, and to General Johnson, 4 Jan. 1799, ibid., 94. 109. Cooke to Wickham, 12 Nov. 1798, HO 100/79, 98–9; Castlereagh to same, 16 Nov. 1798, Cast. Corr., 1: 445–8; Cornwallis to Portland, 28 Feb. 1799, Corn. Corr., 3: 68–70 (paraphrasing part of Castlereagh’s speech on what became the Rebellion Act). The Times, 4 March 1799. Ibid. See also McDowell, Ireland in the Age of Imperialism, 667–8. Protest, c. 12 March 1799, HO 100/86, 144–5. This general question is discussed in the following essay. One might add Wright v. Fitzgerald (1799) in which the King’s Bench held that an act of indemnity did not necessarily excuse overzealous and brutal treatment of suspected rebels. The defendant, against whom damages were awarded, was the notorious flogger from Tipperary, Musgrave’s hero, who was known to whip patently innocent men, as in this case: 27 St. Tr. 759; O’Higgins, ‘Wright v. Fitzgerald Revisited,’ 413. Editor’s note, Corn. Corr., 2: 387n.2 (by way of exception, the lord chancellor, as political an animal as any in England, was invariably in the cabinet; Legacies of Fear, ch. 2, Conclusions; Greenwood, ‘Court Martial of 1838–39,’ 254, 269–70. SI 1781–2, c.50. Cornwallis to Portland, 10 Dec. 1798, 28 Feb. 1799, Corn. Corr. 2: 10–12, 68– 70. The law officers did not express an opinion on the merits. Greenwood, ‘Court Martial of 1838–39,’ 282n.48.

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171 Ibid., 254, 282nn.48–9; Stuart to Colborne, 18 Dec. 1838, Stuart Papers, MG 24, B 12, NA. Both interpretations are defensible. In favour of Ogden’s view, the ordinance referred to ‘offences,’ which may have meant common law offences, and in section 4, saving the prerogative, it referred expressly to ‘traitors’ and suppressing ‘treason.’ Stuart’s construction can be supported by the absence of any reference to ‘crimes’ as had been done in the 1799 and 1803 acts. Furthermore, the ordinance suspending habeas corpus, also passed on 8 Nov. 1838, referred to the common law crimes of high treason and misprision of high treason by name. Similarly, Colborne’s general order no. 6 (Report of the State Trials before a General Court Martial, 10–13), dated 27 Nov. 1838, authorized the court martial to deal with all offences from the first of the month ‘in furtherance of such rebellion ... or in aiding, or in any manner assisting the same.’ There was no mention of common law crimes. 172 See my essay and that of Barry Wright in the Upper Canadian section. 173 Wicklow to Castlereagh, 4 March 1799, HO 100/86, 15–18. 174 29 May 1798.

10 The Montreal Court Martial, 1838–9: Legal and Constitutional Reflections* F. MURRAY GREENWOOD

This sequel to the preceding essay explores the vires or constitutionality of the ordinance passed by the Special Council on 8 November 1838 authorizing trials of civilians in peacetime by courts martial (app. D, L.C. doc.5). Steven Watt’s essay in this volume provides an overview of the council’s state security-related ordinances, including an earlier attempt to bypass regular trials (of prisoners from the 1837 rebellion) through Lord Durham’s controversial Bermuda Ordinance. The court-martial ordinance (applied to prisoners from the 1838 rebellion) lies at the heart of the legality of the Montreal Court Martial and raises broader constitutional issues concerning the court martial of civilians and legislative authority. The jurisdiction of the Montreal Court Martial encompassed political offences committed as early as 1 November 1838, although the ordinance itself was not passed until seven days later. This investigation, done comparatively, asks the following questions. How was the ordinance different from the Irish and British statutes (1799, 1803, 1833) which authorized courts martial? What did the common law say on the issue? What was the extent of criminal law power then entrusted to colonial legislatures? What similar measures were there in other jurisdictions? To extend the comparative examination, I ask a further question: How would the ordinance, or a similar statute, have fared if it had been passed in the United * Final revisions to this essay were completed by Chris Greenwood following Murray Greenwood’s death in December 2000.

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States? I deal first with the trial of civilians in peacetime and then with the retroactive effect of the ordinance. t h e t r i a l o f c iv i l i a ns b y co u r t s m a rti a l i n peac eti me The Defence Attack on the Courts-Martial Ordinance As noted in Steven Watt’s essay, two Quebec judges, Elzéar Bédard and Philippe Panet, held on 21 November 1838 that the ordinance suspending habeas corpus was ultra vires the Special Council since it had no power to alter the criminal law.1 It was immediately clear to interested contemporaries and judges that this decision, if allowed to stand, would have wider implications, invalidating the courts-martial ordinance.2 The Bédard-Panet reasoning was based on a proviso in the statute constituting the Special Council.3 The Special Council was granted the legislative powers of the Lower Canadian legislature, but with the following (among others) notable exception: ‘Nor shall it be lawful by any such Law or Ordinance to repeal, suspend or alter any Provision of any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom, or of any Act of the Legislature of Lower Canada as now constituted [i.e., as now being suspended], repealing or altering any such Act of Parliament.’ It is clear from Hansard that the framers of the proviso were attempting to protect from change, at the hands of an appointed body, certain fundamental provisions in the Constitutional Act of 1791 dealing with religious rights (Roman Catholic and Protestant) and the land-law sections in the Canada Tenures Act of 1825 as amended by the Lower Canada legislature in 1829.4 The framers had not intended any restriction on the council’s authority to amend the criminal law as introduced or reintroduced by the Quebec Act of 1774 and certainly not to prohibit it exercising the traditional power to suspend habeas corpus – which would have been foolish in the circumstances. Such were the actual intentions, but these were not properly translated into law. Literally interpreted, the proviso could be taken to enact that the council had no legislative authority over the criminal law. This was in fact admitted on one occasion by Prime Minister Lord Melbourne and by Parliament itself in 1839 when it clarified the meaning of the proviso.5 In assessing the Bédard-Panet interpretation, one must remember that judges in the nineteenth century tended to give effect to the literal wording in a statute – even though the result was absurd – if no other grammatical construction seemed possible.6 Bédard, interestingly, was well

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aware of the political aims of the proviso’s framers, but he felt bound to apply what Parliament had actually said.7 The Bédard-Panet holding can therefore be supported, using nineteenth-century canons of interpretation, as reasonably arguable. Three eminent law lords, Brougham, Lyndhurst, and Denman, had made this precise argument on the Bermuda Ordinance (see app. D, L.C. doc.4).8 While I believe there was a possible way of navigating around the literal construction, no one found it at the time.9 Officials and the English press characterized the decision as a propatriote ‘insurrection’ from the bench, designed to allow Canadiens to escape court-martial trials – a grossly exaggerated viewpoint.10 The colony’s administrator, Sir John Colborne, reacted to the result by asking Chief Justice James Stuart and the Queen’s Bench, Montreal judges to render an extrajudicial opinion on the Bédard-Panet holding (a constitutionally questionable consultation but a common practice in colonial Canada).11 The judges’ conclusion was that the proviso had been included solely out of an abundance of caution to ensure that imperial statutes applying to the colony, which did not expressly delegate a power of amendment to the local legislature, could not be changed by a Lower Canadian legislative body such as the Special Council.12 The British law officers – who proved not to be terribly diligent when it came to the court martial of Lower Canada – agreed.13 This idea was senseless, since no one had ever doubted this common law rule of repugnancy, which had been clearly set out in 1833.14 Nor did the argument square with the text of the proviso which expressly referred not only to imperial acts but also to Lower Canadian statutes which had altered British acts.15 The opinion nevertheless provided Colborne with the pretext he had been seeking. Bédard and Panet were suspended from office, as was TroisRivières judge Vallières de Saint-Réal, who handed down a similar decision in December.16 Dismissal or suspension of a judge for a mere judicial opinion was unprecedented in both post-1688 Britain and the colonies which became the Dominion of Canada. Colborne’s action surprised Chief Justice John Beverley Robinson in Upper Canada and caused the administrator himself considerable worry, but it was readily accepted by the Colonial Office.17 The suspensions further intimidated the bench. Montreal Judge Jean-Roch Rolland, who had privately applauded the Bédard-Panet stance, was transferred to Trois-Rivières and handed down a decision early in 1839 upholding the habeas corpus suspension, a decision that permanently damaged his reputation in liberal Canadien circles.18 In February the Quebec Queen’s Bench in effect ‘reversed’ Bédard-Panet.19

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Defence lawyers Lewis Drummond and Aaron Hart argued the PanetBédard position in the first trial at the Montreal Court Martial. They met only unreasoned rejections from the presiding military judges. In midDecember 1838 they sought to raise this and other issues before the Court of Queen’s Bench for the District of Montreal, by applying for a writ of prohibition.20 The application was denied on the technical ground that the writ could be granted only during term.21 On 19 December, counsel wrote Colborne to ask for a full hearing before the council and all the judges, a request that was rejected the next day.22 On the 20th, Drummond and Hart submitted to the administrator an ‘Argumentative Petition’ which they had been working on for the past fortnight.23 This document, which ran to more than 8,000 words, detailed the main arguments and included a host of minor ones,24 all aimed at proving that the court-martial proceedings ‘have been illegal, unconstitutional and unjust.’ Colborne ignored this intervention. In early February, defence counsel finally succeeded in having the Court of Queen’s Bench pronounce on the Bédard-Panet contention.25 According to a letter written by one of the judges, George Pyke, the court, in rejecting the application, had also held that the validity or otherwise of any of the Special Council’s ordinances, even when allegedly repugnant to Imperial statutes, could not be decided in any colonial court but was within the exclusive purview of Parliament.26 This remarkable doctrine – a favourite idea of the local law officers and crown counsel,27 of the administration,28 and of the English-language newspapers – contended that the Special Council, like any colonial legislature, was a delegate of Parliament answerable only to it for breach of its mandate and that judicial review was an American heresy to be vigorously combatted in a British colony.29 Most directly, it flew in the face of an 1833 imperial act which unequivocally declared that repugnant statutes enacted by the colonial legislatures ‘are and shall be null and void to all intents and purposes whatsoever.’30 Nor can it be squared with an 1829 decision by a unanimous Court of King’s Bench (Quebec) which did hold a colonial statute void for repugnancy.31 The doctrine indeed implied what was absurd: that Parliament, not the courts, had the monumental duty of ensuring that all bodies exercising delegated legislative authority did not exceed their powers. The Montreal decision meant that the council had been given carte blanche and that the Queen’s Bench judges had abdicated any significant role in preserving the rule of law. No doubt they were happy, too, to have found a way of reassuring the ‘loyal’ population that all was completely

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above board. The result, according to the Montreal Gazette, was to sustain the ‘legality and force of the whole measures of the Executive Government and Special Council’ with regard to the court martial. It could not fail to be ‘most gratifying to every loyal subject in the country, who will thus be confirmed in his respect for the lawful authority of the Province.’32 No full consideration of the legality of the court martial was made by Colborne, his military nominees, the judges of Lower Canada, or the British law officers. Attempts to bring these matters to the attention of Parliament and the Judicial Committee of the Privy Council failed. A relevant petition by interned lawyers Louis La Fontaine and Charles Mondelet was tabled by one MP, J.T. Leader, and then ignored in the Commons.33 The House likewise paid no attention to Daniel O’Connell’s attacks on the use of capital punishment in the Canadas, although the government was apprehensive that it might.34 Bédard pleaded his case in London but the Colonial Office decided not to bring the matter before the Judicial Committee, lest Lord Brougham and his colleagues find for the suspended judges.35 Neither defence counsel nor the British law officers dealt with the vital question of the powers of a dependent, colonial legislature. The Limited Power of the Special Council Until the Colonial Laws Validity Act of 1865, colonial legislatures (except for the United Canada after 1840), like other subordinate lawmaking bodies, were not vested with the power to contravene fundamental principles of the common law, as well as British statutes applying to the colony in question.36 Support for this proposition comes from the writings of Sir William Blackstone and George Cornewall Lewis, an expert on colonial law;37 various judicial decisions, including the famous case of Campbell v. Hall (1774);38 several British law officers’ reports;39 and acts of Parliament, including the one mentioned above.40 What was ‘fundamental’ is, and was, obviously difficult to determine, but radical departures from the settled rules of criminal law would certainly have qualified.41 Support may also be drawn from the parliamentary debate leading to the disallowance of Lord Durham’s Bermuda Ordinance.42 Several statements were made in the two Houses to the effect that neither the Lower Canadian legislature nor its successor, the Special Council, had power to alter basic rules of the criminal law, such as denying the right to jury trial in cases of high treason. A Judicial Committee judge, Lord Denman, for example, said that his principal objection to the Bermuda Ordinance was ‘not founded on a technical point of law, but arose from his feeling that it

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was a gross violation of the first principles of the constitution.’ Lord Stanley, a former colonial secretary, expressed grave doubts ‘whether it was competent for the Legislature ... so far to depart from the Criminal Law of England, as to abrogate ... trial by jury.’ Sir Charles Edward Grey, formerly a judge in India, claimed that Durham’s statute represented ‘a departure from the fundamental law creating the legislative power and would be going beyond it.’ Barrister Sir William Follett ‘relied upon the great principle that the colonial legislature could not pass an act that should be contrary altogether ... to the principle ... of the criminal law of this country.’43 These arguments were sufficiently persuasive and unsettling that Parliament was moved to alter the law. Section 3 of the Canadian Act of Union, 1840, expressly restricted repugnancy to conflicts with imperial statutes, a provision that anticipated and became the conscious model for the principal sections of the Colonial Laws Validity Act almost a generation later.44 The ordinance, authorizing trials of civilians by courts martial, breached what were considered fundamental rights in Britain. One could start by citing Magna Carta, Blackstone, and much else on the critical importance of trial by jury in capital cases. Trial of non-military persons by military tribunals had been roundly condemned by any number of jurists back to Edward Coke and by the courts in the 1790s – to say nothing of Parliament in a statute of 1322, the Petition of Right, 1628, and the first Mutiny Act of 1689.45 The last, in providing penal discipline by courts martial for regular troops, included this telling preface: ‘and whereas noe Man may be forejudged of Life or Limbe ... by Martiall Law or in any other manner than by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme ...’46 It must be stressed that the ordinance of 8 November went far beyond even Parliament’s latest intervention into the Irish disturbances (1833), which asserted that the ‘general Alarm and Intimidation’ generated by the tithe warriors had tended ‘to frustrate the due Course of public Justice.’ In Lower Canada the courts had never ceased to sit and certainly by the end of November were beyond any risk of intimidation by rebel sympathizers. An ordinance of 16 November 1838 did declare that the rebellion would be deemed to last until Colborne provided otherwise. It also decreed that, even after such a proclamation of peace, the court martial could continue to try prisoners, a telling admission that the motive was purely and simply to avoid juries.47 On this basis, the ordinance was almost certainly ultra vires and would likely have been held so by the Judicial Committee.

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Comparative Analysis of Courts Martial of Civilians in Other Jurisdictions What are the ramifications of these arguments and what comparisons can be made between the Montreal Court Martial and courts martial in other jurisdictions? First, quite obviously, the British Parliament was sovereign and able to provide for the trial during peace of civilians before courts martial. It had done so in 1803 and 1833. The same conclusion can be applied to Ireland’s 1799 statute which authorized courts martial, since the Irish Parliament was also sovereign by that date.48 But how did the situation in Lower Canada compare to the courts martial of Upper Canada in 1838–9 and to those used by President Abraham Lincoln during the American Civil War? Upper Canada The Lawless Aggressions Act, discussed at length in many of the Upper Canada essays in this volume, is the most proximate comparison. It was unsuccessfully attacked as unconstitutional by two accused on the grounds that it breached international law.49 This contention was properly rejected. As the British law officers indicated in their opinion of 21 August 1838, there was indeed constitutional capacity to legislate specifically on the rights and duties of foreign nationals within the colony and thereby supplement the law of nations.50 The Alien Acts of Lower and Upper Canada (1794, 1804) and the latter’s Naturalization Act of 1828 had done precisely that, without generating any doubts as to vires.51 As suggested in my essay on Colonel John Prince, the creation of a new felony applicable to foreign raiders, triable by the ordinary courts, was also valid, particularly since the act thereby punished what the United States neutrality laws themselves prohibited.52 As discussed in the Upper Canada essays, sections 1 and 2 of the Lawless Aggressions Act subjected foreign invaders and British subjects respectively to trial by court martial for the lawless aggressions offence. In the case of foreign invaders, precedents that expressed hostility to the trial of civilians by courts martial during peacetime (that is, when the regular courts were in session) could be distinguished. First, the raiders were not under the protection of the crown and hence were not committing treason, and second, the ‘rule of law’ did not necessarily protect aliens, as was held in a case on the defence of state necessity a decade later.53 These arguments did not apply to British subjects and for that reason section 2

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was probably ultra vires since it clearly breached a fundamental norm of the British legal order. As Barry Wright’s essay indicates,54 this analysis supports John A. Macdonald’s contention that the deprivation of the special guarantees for treason accused vitiated the proceedings – at least where British subjects were concerned. Aliens (that is, foreign invaders) could not commit treason and the special guarantees in the act of King William III applied only to cases of high treason and not to other offences. By contrast, British subjects, who enjoyed the protection of the crown, were entitled to the full rights associated with their allegiance. The acts committed by subjects under the Lawless Aggressions Act amounted in substance to high treason and arguably no colonial legislation could remove the right to the guarantees simply by changing the name of the crime.55 The United States Unfortunately, American comparisons are less proximate, occurring almost a generation later. The question did not arise in the United States until the 1860s, when, during the Civil War, President Lincoln issued military commissions to try persons suspected of certain crimes in a number of northern states. In October 1864 federal troops in Indiana charged Lambdin P. Milligan with giving aid and comfort to the Confederacy and conspiring against the United States, and in 1865 a court martial sentenced him to hang. His lawyers sought habeas corpus and the case ended in the United States Supreme Court under the title Ex parte Milligan, but not before President Andrew Johnson commuted the sentence to life imprisonment. After the decision, he was released and never retried.56 All judges agreed that authorization by presidential commission was null, but they divided 5–4 on the hypothetical question of whether Congress could have authorized such a trial. On the first question, Mr Justice Davis, for the majority, reasoned that the constitution did not confer any judicial power on the military but instead vested it ‘in one Supreme Court and such inferior courts as Congress may ... establish.’57 It could not be imagined that the president’s commission was a court ordained by Congress and the president was confined to executing, not making laws. On the second issue, Davis cited two constitutional provisions which such a statute would breach, thus being void: the right to be tried by judges holding office on good behaviour and by a jury (Art.3, ss.1,2). He

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also lambasted the very idea of martial law when and where the courts were open. Referring to the constitution in general, he wrote: ‘No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.’ As for court-martial trials, ‘Congress could grant no such power; and to the honor of our national legislature ... it has never been provoked ... even to attempt its exercise.’ Martial law could not arise from an imminent invasion. ‘The necessity must be actual and present.’ If the invasion or insurrection was over, there was no basis for trying civilians by courts martial. The minority viewpoint, as expressed by Justice Salmon Chase, would have given Congress more lattitude. Where substantial peace existed, Congress could not authorize courts martial,58 but ‘what we do maintain is that when the nation is involved in war, and some portions ... are invaded, and all are exposed to invasion, it is within the power of Congress to determine to what states or districts such great and imminent danger exists as justifies the authorization of military tribunals for the trial of crimes ... against the public safety.’ Justice Frank Murphy, in dissent, proposed a third test stressing that the ‘public danger’ must be so ‘immediate, imminent, and impending’ as not to admit of delay and not permit the intervention of ordinary constitutional processes.’ A second dissenter, Justice Robert Jackson, argued that the courts stay out of these cases of alleged military necessity, lest they should sanction illegality which could be extended indefinitely.59 Immediately after the Civil War, Congress, under the dominance of Radical Republicans, passed legislation providing for the trial by court martial of southerners thought to be subversive. In a first appeal to the Supreme Court of the United States, a newspaper editor from Mississippi named William McCardle successfully challenged the validity of the military tribunal which was to try him. In conference a majority of judges had upheld Ex parte Milligan, but, fearful of the Radical Republicans, decided not to announce their decision so that Congress could deny the defendant’s right of appeal. This was done and McCardle’s appeal was denied on a rehearing.60 The Milligan case is still arguably the law,61 but, given its hypothetical nature, the 5–4 decision, and the argument of necessity, it could be undermined in another great crisis on American territory, such as the one that just occurred in September 2001. Indeed, two modern scholars have proposed three criteria, as well as the Milligan holding, to justify or not the use of martial law including trial

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of civilians by court martial.62 One derives from the minority in Milligan and the majority judgment in Korematsu v. United States (1944) upholding the internment of Japanese Americans.63 Justice Hugo Black, speaking for the court, justified the internment because the nation was in a situation of the ‘direst emergency and peril,’ with the west coast facing possible attack. The authors conclude from these cases that, when ‘an area of the country is in an actual or potential theatre of military operations, the government may engage in actions that would be unconstitutional in peacetime.’ Had a body similar to the Montreal Court Martial ever been created in the United States, it is clear that the rationale in Milligan would have condemned it.64 There was simply no military necessity or peril or reasonably apprehendable threat. The second Lower Canadian rebellion was over by 10 November 1838, with the patriotes crushed. They had not been supported actively by individual Americans, and the United States government itself had attempted to enforce strict neutrality. The leaders, Cyrille Côté and Wolfred Nelson, were rejected by most of their erstwhile supporters and, despite government fears, there was no foreseeable chance of a third uprising. Lieutenant-Colonel Charles Grey, formerly a member of the Special Council, a senior military commander, and the leading pacifier of the countryside, provides excellent witness. In December 1838, about three weeks after the court martial began to operate, he learned from farmer Joseph Dumouchelle, a patriote leader in Beauharnois, that ‘one in 400 [habitants] would not attempt it again – and to be sure they have had a lesson.’ Grey was inclined to believe his informant and in March 1839 concluded that ‘even a war with the United States would not encourage the French Canadians to rise again at the present moment.’65 Thus, the state of war postulated by all later American versions of the martial-law power had not existed when the Montreal Court Martial engaged in its operations. t h e r e t roac t i ve e ffe c t o f th e co u rt s- m a r t i a l o rd i na n c e As was the case with the trial of civilians by courts martial in peacetime, the retroactive effect of the 8 November ordinance gives rise to a technical issue based on statutory interpretation, and a more fundamental issue related to colonial dependency before 1865, or 1840 in the case of the United Province of Canada. The first was raised by counsel for the prisoners; the second was not.

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The Argument Raised by the Defence Lewis Drummond and Aaron Hart argued that the ordinance of 8 November was so worded that it could not be stretched to apply to those prisoners arrested (rather than acting treasonably and caught later) before the date of enactment. The ordinance authorized the governor to issue orders to military officers and others to suppress the uprising (back to 1 November) by any means necessary and in particular to punish ‘according to martial law, either by death or otherwise.’ This segment did not necessarily envisage any courts, even field courts martial. The ordinance went on to authorize those receiving Colborne’s orders ‘to arrest and detain in custody all persons heretofore or now engaged in such rebellion, or suspected thereof, and to cause all persons so arrested and detained in custody to be brought to trial in a summary manner by courts martial, to be assembled’ by the governor. Since the orders could not have issued before 8 November, persons arrested for rebellious activity before that date could not have been ‘persons so arrested’ and subject to trial by court martial. True, their trials might have been justified under the vague first segments, but this would have affronted the well-established rule of construing penal law in favour of the accused in doubtful cases. Drummond and Hart put this argument in the first trial and were rejected, without reasons, by the tribunal. In mid-December they applied to the Montreal Court of Queen’s Bench for prohibition on this as well as other grounds. As mentioned, the court held merely that the writ could be issued only in term. Colborne ignored all pleas based on the argument. As a result, of the men arrested between 4 and 7 November, two were executed, five transported for life, and one convicted but discharged after posting bail.66 The Principle against Retroactivity in English Law Hostility to retroactive legislation dates back at least to Greek and Roman times.67 In English legal history such is found in the writings of Henry Bracton (1250) and, more important, the influential judge and jurist Edward Coke. He considered ex post facto laws, when they affected innocent parties adversely, as contravening a principle of basic justice. After Coke, the concept was taken up by other commentators, of whom Blackstone was one, and the courts, which interpreted dozens of statutes in a rigorously prospective manner.68 Parliament itself sanctioned this attitude in 1793 when it changed the traditional, backdating rule that an act

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came into force on the opening day of the session. Henceforth, absent a contrary provision, it would begin to operate only on the day royal assent was given. The preamble condemned the older practice as ‘liable to produce great and manifest injustice.’69 In criminal law, the injustice was patent and generally recognized. A maxim of Sir Francis Bacon was aimed at showing this (1630) and there was an eighteenth-century court decision on point stating that ‘an Act of Parliament shall never be so construed [retroactively] as to do an injustice.’70 True, there was a precedent illustrating perhaps the precise thing the more learned parliamentarians of 1793 had in mind. In R v. Thurston the defendant had killed a bailiff attempting to serve an illegal civil warrant of arrest on 29 May 1660.71 Soon afterwards an act of Parliament was passed legalizing such warrants, and applied back to the session’s beginning, 15 April 1660. The accused’s counsel agreed that statutes related back, but that it could not have been the intent to make the deed ‘murther ex post facto which was not so when the fact was done.’ The report ends thus: ‘The Court said nothing. But afterwards in Easter term 16 Car. 2, I [the reporter Levintz] heard Thurston plead his pardon of this murder, whereby it seems as if the opinion of the Court was against him.’ Three points should be made about this case. First, the court may have found murder regardless of the warrant’s illegality. Second, the accused was pardoned. Third, the precedent antedates the Glorious Revolution and thus can be disregarded since such authoritarian judicial or legislative precedents were highly unlikely to have much appeal to judges in the late 1830s. In any event, the act of 1793, by distinct implication, destroyed any force Thurston might have had. Blackstone is eminently quotable on the subject of retroactive crimes. After describing how Caligula ‘wrote his laws in a very small character, and hung them up on high pillars, the more to ensnare the people,’ the jurist proceeds: ‘There is a still more unreasonable method than this, which is called making of laws ex post facto; when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.’72 Unfortunately, Blackstone did not refer to other aspects of criminal law, nor do there appear to be any such clear cut condemnations by the courts.

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Retroactivity in Procedural and Evidentiary Matters73 The record on matters of procedure was decidedly mixed. On the plus side were the 1752 statute ‘for better preventing the horrid crime of murder’ and the Treason Act of 1800.74 The first introduced such innovations as mandatory dissection, execution generally to take place two days after sentence, and isolation of the convicted on a diet of bread and water.75 It explicitly stated its term of application as being ‘the first day of Easter term,’ some months after the opening of the session (14 November 1751). The second applied mainly to the assassination of the king or its attempt. While maintaining such crimes as treasons, it enacted that proceedings (except penalties) should follow the rules for murder trials, meaning that the special guarantees afforded accused traitors were eliminated in these cases, as was made explicit, out of an abundance of caution, later in the act. Four uses of the verb ‘shall’ indicate the future alone was contemplated. There was one instance following the Jacobite rising of 1745–6 where the accused were potentially liable to be prejudiced. ‘An Act for the More Easy and Speedy Trial of Such Persons as Have Levied, or Shall Levy War against His Majesty’ stated that trials in the counties of the treasons, as the law required, would be highly inconvenient, in that delay would be inordinate, judges would be forced to neglect other duties outside those places, and the freeholders in Scotland and the northern counties would have to attend innumerable grand-jury proceedings and trials.76 The act allowed the king to appoint any county for trial of those and only those then in custody who had been apprehended in arms. It was exploited in one case only. A commission allowing the trial of suspected rebels in Surrey was issued and implemented against thirtyseven men in the summer of 1746. A similar commission for Middlesex was granted but not acted upon.77 The act of 1746, although retroactive, was not disadvantageous in practice to the accused. Thirty-six of the Surrey accused had been captured at Carlisle in Lancashire which the Pretender’s forces had taken and where they had engaged in burning down some of the residents’ houses.78 Surrey had never been threatened by the rebel forces.79 Furthermore, the Surrey court agreed to long delays so that defence witnesses could attend: eleven days for residents of England and a full three weeks for Scotsmen.80 A number of cases clearly contravened the principle of no harmful retrospective criminal law. In January 1696/97 Parliament ordered the exe-

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cution of Sir John Fenwick for plotting to bring about a French invasion to restore the former James II. Sir John was soon after beheaded. The Act of Attainder, which passed both Houses by modest majorities, was made necessary because the crown could produce only one witness.81 The statute alleged that Fenwick had promised time after time to reveal all but never did and meanwhile one of the two witnesses, a Cordell Goodman, used to indict, had ‘withdrawn.’ The accused was given a limited form of trial in the Commons.82 He was allowed two prominent counsel but could not cross-examine the prosecution’s witnesses. No witnesses for the defence were called despite his having the right to do so and, of course, the newly sanctified two-witness rule was ignored. On the other hand, acts of attainder were then perfectly legal and constitutionally acceptable to most taking part in the political process. The second example relates to the suspension of habeas corpus, effected about a dozen times between 1689 and 1794.83 These statutes applied principally to persons arrested on suspicion of treason (normally, an illegal detention) and those charged with same (who could normally force a trial in the forthcoming assizes). The suspending acts applied to persons already in prison for these reasons, that is, they were expressly retroactive. Retroactivity for Substantive Capital Crimes While the record with respect to procedural retroactivity in English law is mixed, a different story emerges from a study of the enacted crimes themselves. I have thoroughly searched the British statute books for the eighteenth century to discover whether any enacted or expanded substantive capital crimes had been made retroactive. In doing this, I used the massive appendix in Leon Radzinowicz’s History of English Criminal Law, volume 1, entitled ‘Capital Statutes of the Eighteenth Century,’ as a guide.84 Altogether, ninety-one statutes were examined. A few were slightly ambiguous, but, given the great hostility to ex post facto laws in this area, they would almost certainly have been interpreted prospectively.85 None was explicitly retroactive. Many indeed were expressly prospective, using such words as ‘for the future’86 and ‘from and after the passing of this act.’87 The general point made here holds true even at times when the government was genuinely apprehensive. During the early 1720s, for example, widespread assaults on the king’s forests occurred (involving, for example, the killing and stealing of deer), by men and women with blackened faces who claimed the Hanoverian

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king and his aristocratic favourites had usurped common rights. This agitation, often interpreted by Whitehall as a Jacobite plot, resulted in the notorious Black Act, whereby Parliament created about fifty new capital offences in a single section.88 It was assented to on 27 May 1723 while the assaults, though fast petering out, were still occurring here and there. The statute nevertheless explicitly applied only to the future. It was to be enforceable, not from the opening of the session, as was the then legal rule, nor even from the date of royal assent, but from the first of June. There were exemplary executions, soon after, under this Draconian act, which, for example, made appearing disguised in a forest armed with a wooden stick a crime punishable by death. Towards the end of the same century, amidst great panic that a local ‘French Revolution’ was brewing, William Pitt’s nervous majority – aware from the 1794 state trials that juries disliked the elastic constructive treasons long beloved by judges and prosecutors – ensured that Parliament passed the severe Treason Act of 1795.89 Its first section characterized dozens of acts as traitorous, deserving of death. Many eliminated doubts as to the law; many others created new treasons, for example, merely plotting to intimidate Parliament by political demonstrations or conspiring to foment revolt in a distant colony.90 Despite ‘apprehended insurrection,’ the act was to come into force only ‘after the Day of the passing of this Act.’ The same prospective application was found in the so-called ‘Six Acts’ of 1819, passed to avert a perceived, potential uprising of the impoverished ‘lower orders’ led by constitutional radicals pressing for such things as universal male suffrage, a boycott of excised goods, and free trade. These penal laws restricted the rights to freedom of speech, press, and assembly, enlarged the powers of search and seizure, and prohibited training in the use of arms, as well as taxing all forms of political literature.91 A possible qualification must be addressed. Two older cases, dating from 1774 and 1801 respectively, have been characterized as having justified judge-made retroactive crimes.92 In the first, Jones v. Randall, Lord Mansfield wrote for a unanimous King’s Bench that ‘whatever is [contrary to good morals] ... the principles of our law prohibits and the King’s court, as the general censor and guardian of the public manners, is bound to restrain and punish.’93 The case, however, dealt not with a criminal offence but with contract law, namely, a wager that the court found enforceable. Thus, as far as criminal law is concerned, Mansfield’s statement was obiter. The second case, R v. Higgins, involved the question of whether soliciting a servant to steal his master’s goods was a misde-

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meanour. All four judges who participated in this King’s Bench decision (including Lord Chief Justice Lloyd Kenyon) decided that such was indeed a crime, according to judicial precedents. One, Soulden Lawrence, went further, stating that ‘all offences of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable.’94 If the meaning of these two statements were stretched to the limit, it would mean only that in the generation of Mansfield and Lawrence it was thought that judges still had the ancient power to create and develop new offences (they had done with rape and arson).95 Had the courts actually taken this route, Parliament undoubtedly would have intervened. In any event, I am dealing here with retroactive statutes, not cases. Retroactive Change of Tribunal Aside from Fenwick’s Act of Attainder, I have located no retroactive change of tribunal to try indictable offences. The examples found that most clearly resemble the Lower Canada case are the two coercive statutes applying to Ireland in 1803 and 1838. The first was to come into force ‘from and after the passing of this Act.’96 The second was even more ‘prospective.’ The statute came into operation in a ‘proclaimed District’ only ‘the Day after that on which such Proclamation shall be published [there] ... by affixing a Copy thereof on’ certain indicated ‘conspicuous’ places.97 Yet there is no doubt that, given the doctrine of sovereignty, no retrospective change in tribunal to the detriment of the accused, enacted by Parliament, could have been or can be challenged in the British courts. By contrast, the retroactive provision in the Lower Canada ordinance was passed by a non-sovereign legislature. Was it invalid as contravening a fundamental principle of the common law? The general antipathy in the mother country would suggest a positive answer, as would the 1803 and 1833 precedents. There were also local precedents. When legal advisers Thomas Turton and Charles Buller proposed to punish some of the captured leaders of 1837 ‘certainly, but lightly by means of an ex post facto law,’ Lord Durham was aghast at the certain political outcry in England.98 Colonial Secretary Lord Glenelg instructed Durham that procedural innovations were warranted for future disturbances but on no account should a special tribunal be formed with retroactive jurisdiction.99 Doubts were expressed, privately, by ‘royalist’ Attorney General Charles R. Ogden, in one of a series of questions he drafted on 8 December 1838 for provincial Chief Justice James Stuart and the judges of the Montreal Queen’s Bench: ‘2. Can the said Ordinance ... in any wise, be considered ... an Ex post facto

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law, and, if it can be so considered, was the Provincial Legislative authority incompetent to pass such an Ordinance?’100 These doubts were never publicly revealed and had no influence on the judges addressed or on Ogden’s later behaviour. But the question, for persuasive resolution, requires assessment of the probative effect of what happened to Fenwick and the habeas corpus suspensions. The case against the Fenwick precedent can be made. First, acts of attainder were rapidly becoming obsolete before the turn of the nineteenth century. Second, the special guarantees in the acts of William and Anne had firmly imbedded themselves by 1838–9 as part of the Glorious Revolution’s legal inheritance. While the royal court was reluctant to have the Treason Trials Act of 1696 enacted and judges were as initially hostile as Parliament in Fenwick, this authoritarian attitude gradually changed.101 Despite Foster’s gloom, the far-reaching extensions of William’s act made in 7 Anne, c.21, as mentioned in the Introduction, did ultimately come into force, being first used in Lord George Gordon’s trial, 1781.102 If ever Parliament was tempted to whittle down the special protections, it came in 1795 when, in a state of serious alarm, many constructive treasons were enacted. Yet, instead of diminishing them, Parliament expressly saved them. True, these protections were removed in the case of killing the king or attempting to do so (1800). But here there was some rationale, as explained by the contemporary jurist Edward Hyde East: ‘... it was thought incongruous that greater privileges and indulgence should be allowed to a prisoner upon his trial under a charge for assassinating or attempting the life of his sovereign, than if he had made the same attempt upon the life of any of his majesty’s subjects.’103 Even if the reader disagrees with this, on the grounds that the weight of prosecution and public opinion would usually be enormous (Hadfield, though, was acquitted), the 1800 act stands as an isolated exception to the gradual adoption of the guarantees as part of the revolutionary settlement of 1689 and after. This can be seen in the favourable acceptance of them by the highly conservative East in 1803.104 The point is also proved by noting the liberal interpretations of the guarantees by crown and bench in the eighteenth and first half of the nineteenth century. Among many small interpretative benefits afforded accused traitors, it came to be common practice to exclude Sunday from the delay periods and to define ‘trial’ as arraignment.105 The zenith of liberal application was reached in the case of Chartist John Frost (1839–40), condemned to death for levying war in Wales. His life was spared because of a mere technical flaw (and despite implied waiver), in that the

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list of witnesses had not been tendered at the same time as the indictment copy, even though each was delivered ten or more days before arraignment.106 Thus, it is highly unlikely that the Judicial Committee in 1839 would have accepted the Fenwick Act of Attainder as a persuasive precedent, particularly since even the sceptical Foster understood the benefit of the two-witness rule.107 There can, by contrast, be little doubt that this Judicial Committee would have accepted the retroactive suspensions of habeas corpus as reasonable. There were just too many precedents and most of those had occurred when the government genuinely, and with some justification, feared a combination of French invasion and widespread insurrection. The statute of 1696 referred to the ‘most horrid ... conspiracy ... by papists ... for assassinating his Majestys royal person in order to the encouraging an intended invasion from FRANCE.’108 In one case (1746) invasion and rebellion had already occurred. In all instances the acts were temporary (no more than a year). But these acts did not go as far as a retroactive change of tribunal in treason cases. The suspending acts did not change the form of trial by professional judge, grand jury, petit juries, and special guarantees, whether such trials took place, by special dispensation, during the suspension (as did that of David McLane, 1797, in Lower Canada and those of the state prisoners tried in Surrey, 1746 and London, 1794) or after. To illustrate, in principle, the gross breach to the rule of law involved in establishing retroactive tribunals, I offer one hypothetical example and reflections drawn from my study of the Montreal Court Martial. Consider the case of demonstrators who refuse to disperse within a half-hour of the reading of the Riot Act because they do not believe that they are ‘riotously assembled,’ thus making themselves liable to life imprisonment. Would it be fair to have them tried by a tribunal established after the alleged riot and consisting only of ‘judges’ appointed by the provincial attorney general? Had they known that such a ‘court’ would try them, many would surely have dispersed, however righteously angry. Had the rebels of 1838 known from 1–7 November that a court martial would be authorized, it is virtually certain that a great many would have modified their behaviour. Would those of Terrebonne have shot at persons (wounding one) who had come to arrest them on the sixth? Two were transported for life. Would those at Saint-Constant have engaged in a shooting match with loyalists (killing one)? Four were executed and four transported. Would even half the rebels who turned out done so? The argument against retroactive tribunals bears a close analogy to what Blackstone wrote about substantive crimes.

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For these reasons, the retroactive provision in the Lower Canadian ordinance of 8 November 1838 would have been found ultra vires, if properly adjudicated. I would suggest the same, but with less assurance, about the removal of special guarantees regarding indictment, panel, and witnesses for accused traitors found in the acts of William III and Anne and before. Certainly, the denial of full defence by counsel on charges of treason must have been null. From the beginning of the Glorious Revolution, this reform was generally accepted and was articulated clearly in the 1696 Treason Act.109 It was praised by both Foster and Blackstone, the former stating that, given the power and determination brought to bear by the crown in state trials, ‘it is extremely reasonable to allow the prisoner the assistance of counsel to the full extent of the act.’110 By 1836, unqualified defence by counsel in felony cases had been enacted by Parliament.111 It is clear that a sovereign parliament unconfined by fundamental law, such as that of Britain, could legally have created a retroactive tribunal. In fact, the sovereign Parliament of Ireland did this indirectly by the statute of 1799 which, in effect, retroactively validated the prior courts martial established by royal prerogative. It is also strongly arguable that colonial legislatures could not do so prior to the Colonial Laws Validity Act, 1865 or, in the case of the Canadas, prior to the Act of Union, 1840. Retroactivity in the United States Article 1, sections 9 and 10 respectively, of the American constitution prohibits both Congress and the state legislatures from passing any ‘ex post facto Law.’ These provisions have been interpreted as applying to criminal laws only.112 I have found no judicial holdings on retroactive tribunals, the cases referring to substantive crimes, deprivation of defences, penalties, statutes of limitations, and evidence. There are a host of decisions, however, that indicate in general language the wide scope of these provisions. Any retroactive law that ‘alters the situation of the accused to his disadvantage’ is null, as is any such Act ‘which deprives the accused of any substantial right or immunity possessed by him before’ or, again, aims ‘to retrench the rules of evidence, so as to make conviction more easy.’113 A retroactive tribunal like that of Lower Canada in 1838–9 obviously altered the situation to the disadvantage of the accused; it deprived them of the substantive right to trial by jury and retrenched evidentiary rules to make convictions easier, by denying defence counsel the right to examine/cross-examine witnesses. On that basis, it seems likely that, if a

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retroactive statute similar to the Lower Canadian ordinance of 8 November 1838 had ever come before the American courts, it would have been declared void. co nc l u si o n The Lower Canadian courts-martial ordinance clearly breached basic norms of the common law. The legislation was probably ultra vires for any of these contraventions: authorizing the trial of civilians by military tribunals in peacetime; denying the special guarantees in treason cases; and being retroactive. This conclusion is strengthened when it is remembered that the ordinance was colonial legislation and that the Special Council was an appointed body. It would have been natural for the British authorities to deny nominated legislatures the degree of legislative power accorded elected ones. The appointed Legislative Council of the province of Quebec had had no authority to impose import duties or criminal penalties greater than ‘Fine or Imprisonment for Three Months’ unless or ‘until the same shall have received His Majesty’s Approbation.’114 These restrictions were lifted in the Constitutional Act of 1791, which granted representative government to the Canadas.115 Moreover, the Colonial Laws Validity Act of 1865 granted only those colonies with a ‘Representative Legislature’ the authority (under restrictions) to amend their own constitutions and confined the amending power of other colonial legislatures to altering the law courts.116 In future volumes in this series, there will be references to retroactive criminal law during the Fenian threats of the 1860s and the October crisis of 1970, as well to subordinate legislation authorizing the trial of civilians by courts martial under the War Measures Act of 1914. Despite the enactment of the Charter of Rights and Freedoms, one must wonder whether Canadians today have substantially more protection by fundamental law than suspected Lower Canadian rebels had in 1838–9. Sections 11(g) and 11(h) of the Charter prohibit retroactive creation of crimes and imposition of more severe penalties, but there is no specific bar to harmful ex post facto rules of evidence, procedure, or tribunals, although such practices might be struck down under section 7, which denies deprivation of ‘life, liberty and security of the person ... except in accordance with the principles of fundamental justice.’ The trial of civilians by courts martial in peacetime would probably be seen as violations of sections 7, 11(d) (trial by an ‘independent and impartial tribunal’) and 11 (f) (prescribing the right to a trial by jury where the maximum penalty is at least five years in

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prison). Yet these protections are subject to judicial interpretation and consideration of reasonable public interests under section 1. Certainly, the Canadian track record of judicial deference in matters of state security should generate some reservations about the possibilities of judicial review in this area. Moreover, contrary rulings upholding civil liberties and due process could be swept away in a crisis (real or otherwise) by governments using section 33. The recent Canadian anti-terrorism and public-safety legislation suggests that we have not broken the historical pattern of sweeping responses to real and apprehended security threats, while today in the United States the proposed trial of foreign civilians by military tribunals demonstrates the fragility of fundamental constitutional protections and international agreements.117 Sadly, we may not have seen our last retroactive trial of civilians by courts martial.

NOTES 1 Their judgments and the justification they provided for the colony’s administrator, Sir John Colborne (29 Nov. 1838) are found in CO 42/281, NA. I have not repeated full citations given in the previous essay. 2 Bédard to former Governor Gosford, c.10 Nov. 1838, ibid., vol. 295; Jean-Roch Rolland (Montreal judge) to Bédard, November 1838, ibid. (trans. extract); Special Councillor Samuel Gerrard to Edward Ellice, Sr, 6, 19 Dec. 1838, MG 24, A 2 (Ellice Papers), vol. 13, NA; Le Canadien, 23 Nov. 1838. These examples could easily be multiplied. See also for context the essays of Jean-Marie Fecteau and Steven Watt in this volume. 3 An Act to Make Temporary Provision for the Government of Lower Canada: (1838) 1 Vic., c.9. 4 (U.K.) 31 Geo.III, c.31; (U.K.) 6 Geo.IV, c.59, as amended in SLC 1829, c.72. The Tenures Act had introduced the whole corpus of English land law as applicable to real estate held under socage tenure (e.g., in the Eastern Townships), but much of the French law (re mortgages, conveyancing) had been restored by the 1829 amendment. The framers of the proviso were Lord Stanley, a former colonial secretary, and barrister Sir William Follett (who moved the amendment). See their remarks on this in Parl. Deb., 3rd series, vol. 40, cols. 388–92 (26 Jan. 1838). See also the remarks of Follett in ibid., vol. 44, cols. 1264–5 (14 Aug. 1838). 5 Parl. Deb., 3rd series, vol. 44, col. 1141 (10 Aug. 1838); An Act to Amend an Act of the Last Session of Parliament for Making Temporary Provision for the Government of Lower Canada (U.K.) 2 and 3 Vic., c.53, s.4. The proviso was

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repealed, but the council was expressly forbidden to legislate on the rights of the clergy of all denominations and on land tenure. In the case of a proviso undermining enacting clauses, for example, the proviso was preferred on the grounds that it represented the last expressed intention of the law giver. A.-G. v. Governor & Co. of Chelsea Water-Works (1832), Fitzg. 195. Bédard cited this case in his reasons for judgment. See n.2 above. Parl. Deb., 3rd series, vol. 44, col. 1062 (9 Aug. 1838, Lord Brougham), 1087–8 (s.d., Lord Lyndhurst), 1162 (13 Aug. 1838, Lord Denman). One could argue, from the omission of any reference to amendments made to British statutes by the Legislative Council (which legislated for the old province of Quebec from 1775 to 1791), that the framers had intended to protect imperial acts back in time to the Constitutional Act of 1791 but not earlier. See Greenwood, ‘General Court Martial,’ 269. Ibid.; Greenwood, Legacies of Fear, 32–4, 226, 257–6, 260; Canadian State Trials I, 38–9, 262, 268, 365, 488, 493–4. 7 Dec. 1838, CO 42/281. Campbell and Rolfe to Glenelg, 25 Jan. 1839, 4 Feb. 1839, CO 42/300. The law officers had earlier advanced the unintelligible argument that the proviso’s prohibitions had to be confined to ordinances of the same nature as those prohibited earlier in the act (levying taxes, changing the composition of the assembly): law officers to Glenelg, 8 Jan. 1839, ibid. An Act to Regulate the Trade of the British Possessions Abroad, 3 and 4 Wm.IV, c.59, s.56. The proviso was thus obviously designed to freeze certain British statutes previously amendable in the colony: i.e., it went much further than the traditional repugnancy rule (as declared in the 1833 act), which dealt solely with locally unamendable imperial statutes applying to a colony or colonies ex proprio vigore. Colborne to Glenelg, 14 Dec. 1838, 21 Jan. 1839, CO 42/281, 293. Campbell and Rolfe to Glenelg, 4 Feb. 1839, CO 42/300. See Greenwood, ‘General Court Martial,’ 288 n.173. Ex parte John Teed, Quebec Mercury, 16 Feb. 1839. See, for example, Montreal Gazette, 13, 15 Dec. 1838, Montreal Transcript, 15 Dec. 1838. Justice George Pyke to James Reid, 24 Feb. 1839, MG 24, L 3 (Collection Baby), vol. 20, NA. Goldie to Drummond and Hart, 20 Dec. 1838, RG 4, C 2 (Letterbooks of the Provincial Secretary for Lower Canada, 1825–1865), vol. 19, NA. Cardinal et al. to Drummond and Hart, 6 Dec. 1838, RG 4, B 37 (‘Rebellion

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25 26

27 28

29 30 31

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Records, 1837–1838’), vol. 1, NA; North American, 20, 21, 27 Nov. 1839 (copy of original text). A translation was published in ‘Un Etudiant en Droit,’ Procès de Joseph N. Cardinal, et autres (Montreal: John Lovell 1839), NA pamphlet 1–1698 at 108–44. The petition was dated 12 Dec. 1838. Examples: failure to discharge a potential defence witness, although there was no evidence against him; refusal to extend the special treason guarantees concerning witnesses, indictment, and jurors; absence of some members during parts of the hearing; refusal to record questions ruled out of order. Issues of the Montreal newspapers for early February 1839 contain details of the application and hearing. Pyke to Reid, 24 Feb. 1839, Collection Baby, vol. 29. The decision was handed down 8 Feb. 1839, one week before the third set of executions. Pyke had not attended the court, owing to illness. See, for example, Judicial Decisions on the Writ of Habeas Corpus ad Subjiciendum (Trois-Rivières: n.p. 1839), NA pamphlet I–1749, 10, 14. RG 1, E 1 (Minutes of the Executive Council), 8 Dec. 1838, vol. 42, NA; Col. Charles Grey to Earl Grey, 22 Dec. 1838, in W. Ormsby, ed., Crisis in the Canadas, 1838–1839: The Grey Journals and Letters (Toronto: Macmillan 1964), 168; Colborne to Glenelg, 14 Dec. 1838, CO 42/281; Gerrard to Ellice, 19 Dec. 1838, Ellice Papers, vol. 13. See, for example, Quebec Gazette, 26, 30 Nov., 5 Dec. 1838; Montreal Transcript, 15 Dec. 1838; Courier, 6 Feb. 1839; Montreal Gazette, 9 Feb. 1839. An Act to Regulate the Trade of the British Possessions Abroad, (U.K.) 3 and 4 Wm.IV, c.59, s.56 (emphasis mine). Gillespie v. Perceval (1829), Stuart’s Reports, 365 at 368–75 per Chief Justice Sewell. It was also inconsistent with the clear assumptions on which an 1836 Upper Canadian decision had been based, and on which a contemporary case in the Queen’s Bench would be shortly decided. See: Gordon v. Fuller (1836) 5 U.C.Q.B. 174 at 175–90 per Chief Justice Robinson (for the majority, especially at 180–4). This lawful authority was soon pushed to the limit in an enactment of 9 Feb. 1839 providing for the conviction of alleged traitors in absentia. The council was doubtless encouraged by the decision to enact (19 March 1839) An Ordinance to Provide for the More Speedy Attainder of Persons Indicted for High Treason, SLC 1838, c.27. It does not appear that the ordinance was in fact enforced: document found at 5511–2, vol. 24 of MG 24, B 14 (Lafontaine Papers), NA. Parl. Deb., 3rd series, vol. 45 at cols. 627–8 (14 March 1839). Ibid at cols. 919–20 (27 Feb. 1839); vol. 46 at cols. 627–8. Unsigned document analysing the options open to the Colonial Office in the

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judges affair: CO 42/295/149–69 at 156–7. For Bédard’s activity in London defending himself and his suspended colleagues, see his letters in CO 42/304. In the end the judges were found to have been in error but not motivated by disloyalty. They were restored to office shortly before the union of the Canadas came into force. 28 and 29 Vic., c.63. George Sharswood, ed., Commentaries on the Laws of England, 4 vols. [1765–70] (Philadelphia: J.B. Lippincott 1859), 1:91; An Essay on the Government of Dependencies (London: J. Murray 1847), 207. 20 St. Tr. 239 at 323 (per Lord Mansfield). See also Winthrop v. Lochmere [1727 (P.C.)], analysed in D.O. McGovney, ‘The British Origin of Judicial Review of Legislation,’ University of Pennsylvania Law Review, 93 (1944), 1 at 13–20; Leonard Watson’s case (1839), 9 A. & E. 731. See, e.g., reports of the law officers to Colonial Secretary Lord Newcastle, 25 March, 12 April 1862, CO 13/110. See also D.B. Swinfen, Imperial Control of Colonial Legislation 1813–1865 (Oxford, U.K.: Clarendon Press 1970), 56–63, 167–83. See also Colonial Evidence Act (1843), 6 and 7 Vic., c.22. Swinfen, Imperial Control, 58–63. As outlined in Steven Watt’s essay in this volume, the main provisions objected to were those transporting eight patriotes to Bermuda on the basis of a so-called confession and the banishment on pain of death, for merely returning to Lower Canada, of sixteen others then in the United States. The Bermuda Ordinance was ultimately disallowed but solely on the grounds of its extraterritorial application. HL and HC Parl. Deb., 3rd series, vol. 44, col. 1162 (HL, 13 Aug. 1838, Lord Denman); vol. 44, col. 1241 (HC, 14 Aug. 1838, Lord Stanley); vol. 44, col. 1260 (HC, s.d., Follett); vol. 44, col. 1286 (HC, s.d., Grey). (U.K.) 3 and 4 Vic., c.35; report from the British law officers to Colonial Secretary Cardwell, 28 Sept. 1864, CO 13/116. For a review of these and other authorities, see R. O’Sullivan, Military Law and the Supremacy of the Civil Courts (London: Stevens and Sons 1921), 8–33. The two cases are Grant v. Gould (1792), 2 Bl. H. 69 (C.P.); and Wolfe Tone’s case (1798), 27 St. Tr. 614 (Ir. K.B.). 1 Wm. and Mary, c.5, preamble. An Ordinance to Declare and Define the Period When the Rebellion ... shall be Taken and Held to Cease, 2 Vic. c.5 2nd sess., 1838. Colborne proclaimed the rebellion over as of 24 Aug. 1839. Until 1782–3, the Irish legislature was dependent on the king-in-council and on Parliament. In those years, such restrictions were lifted, so that the Irish

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Parliament became sovereign, its sole formal constitutional link to Britain (until the 1801 union) being a common monarch. See F.W. Maitland, The Constitutional History of England (Cambridge, U.K.: Cambridge University Press 1908; repr. 1963), 333–5. Defence of T.J. Sutherland, 2 April 1838, CO 42/446; Justice Jonas Jones’s notes on the trial of James Morreau (to Macaulay), 23 July 1838, IUP, vol. 10; Patriot, 31 July 1838 (report of Morreau’s trial). Forsythe, Cases and Opinions, 199–204, particularly at 202. SLC, 1794, c.5; SUC, 1804, c.1; Con. Docs. 2: 422–7. Albert B. Corey, The Crisis of 1830–1842 in Canadian-American Relations (New Haven, Conn.: Yale University Press 1941), 44–56, 100–1. Buron v. Denman (1848), 2 Ex. 167. See Barry Wright’s essay in this volume. The only possible ‘precedent’ found: in 1848 a number of constructive treasons established by the Treason Act of 1795 were made into treason felonies. But the later statute dates from a decade after our events and made its crimes noncapital. 36 Geo.III c.7; 11 and 12 Vic., c.12. For the 1795 act, see Canadian State Trials I, 25–7, 259, 263, 296. 4 Wallace 2. Art.3, s.1. This in itself contrasts with the power of Parliament and its actual exercise in Lower Canada. His judgment stood alone, runs contrary to the general rule that courts must come to some conclusion in cases, and seems to emphasize court strategy, not law. What the courts could do after the threat was clearly over, Justice Jackson did not say. In British law, the courts had ex post facto jurisdiction to assess the alleged military necessity. See: R.F.V. Heuston, Essays in Constitutional Law, 2nd ed. (London: Stevens and Sons 1964), 150–63. 7 Wallace 506. See also Charles Fairman, Reconstruction and Reunion, 1864– 1868, 2 vols. (New York: Macmillan 1971), 1: ch. 10. A local U.S. district judge condemned martial law in Hawaii following Pearl Harbor. The decision applied Ex parte Milligan but only as against the governor and the president, not Congress. The Supreme Court avoided the constitutional issue: Duncan v. Kahanamoku (1946), 327 U.S. 304. See also Rotunda and Nowak, Treatise on Constitutional Law, 1: 552–3 (n.110 below); Ralph A. Rossum and G. Alan Tarr, American Constitutional Law, 4th ed., 2 vols. (New York: St. Martin’s Press 1995), 1: 200–1. Ibid. 323 U.S. 214. The civilian plotters of President Abraham Lincoln’s assassination pleaded

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the incompetence of the Military Commission which tried them. These objections were considered and rejected by the commission without reasons reported. It must be remembered that the war was still raging and Washington, the seat of government, was obviously vulnerable to terrorists. See ‘The Trial of the Conspirators to Assassinate President Lincoln,’ 1865, J.D. Lawson, ed., American State Trials ... (repr. Wilmington, Del.: Scholarly Resources 1972), 8:25. See Greenwood, ‘General Court Martial,’ 250–1, citing primary sources. Ibid., 260–1, 270–1, 285n.95. Unless otherwise specified, this and the following paragraph are based mainly on Elmer E. Smead, ‘The Rule against Retroactive Legislation: A Basic Principle of Jurisprudence,’ Minnesota Law Review, 20 (1935–6), 775. Commentaries, 1:46. For the judicial precedents see Smead, ‘Rule Against Retroactive Legislation,’ 778–9. 33 Geo.III c.13. In the developments since Coke, the concept applied to all forms of statute law, whether dealing with criminal, civil, admiralty, or other matters; solely if parties were detrimentally affected; and only when Parliament did not otherwise provide – for that body was sovereign, imbued with ‘Omnipotence’ in contemporary usage. Smead, ‘Rule against Retroactive Legislation’; Couch, qui tam, etc. v. Jeffries (1769), 4 Burr. 290. (14 and 15 Ch.III), 1 Lev. 91 (K.B.). Commentaries, 1:46. The cases in this section deal with all facets of British practice from 1688 to 1838, including evidence and penalties under ‘procedure,’ except where benefit of clergy was removed, which was tantamount to the creation of a new crime. 25 Geo.II c.37; 40 Geo.III c.93. It also legalized judicial orders for hanging in chains (gibbetting). (1746) 19 Geo.II c.9. R v. Townley (1746), 18 St. Tr. 329 at 329, including the second note. Ibid., 336. I do not know all the results, but the life of one man, Aeneas Macdonald, was spared following a Surrey jury’s recommendation to mercy. Macdonald, born in Britain, had grown up in France. He was not even transported but banished for life from the king’s dominions: Sir Michael Foster, Report of Some Proceedings on the Commission for the Trial of the Rebels in the year 1746 ... (London, 1792). Another man who pleaded duress had his death sentence commuted: Alexander M’Growther’s case, ibid., 13. R v. Townley, 330–1.

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81 9 Wm.III c.4; ‘Proceedings in Parliament against Sir John Fenwick, Bart. upon a Bill of Attainder for High Treason’ (1696–7), 13 St. Tr. 537 at 749, 755–6. The vote was 189–156 in the Commons; 66–60 in the Lords. (The dual dating is given, resulting from differences in Old Style and New Style dates.) 82 Ibid. 83 Canadian State Trials I, 32–3. 84 A History of English Criminal Law and Its Administration from 1750 (London: Stevens and Sons 1948), 611–59. I did not look at acts where the offences were within benefit of clergy. I also have not made an exhaustive sampling of the British statute book, 1688–99 or 1800–38, but no cases of retroactive substantive crimes from those periods have come to my attention. 85 See, e.g., (1717) 4 Geo.I c.11; (1776), 16 Geo.III c.40. 86 (1721) 8 Geo.I c.22; (1722) 9 Geo.I c.28. 87 (1795), 35 Geo.III c.66, ss.3–9; (1797), 37 Geo.III c.46, ss.3–9. 88 (1723) 9 Geo.I c.22. For an excellent, comprehensive account of the assaults and the act see E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (London: Penguin Books 1975). 89 36 Geo.III c.7. For its background see Canadian State Trials I, 241–63. 90 See Greenwood, Legacies of Fear, 21 and ch. 7. 91 The Six Acts are 60 Geo.III and 1 Geo.IV c.1, 2, 4, 6, 8, 9. For background see M. Loblan, ‘From Seditious Libel to Unlawful Assembly,’ Oxford Journal of Legal Studies, 10 (1990), 332–40. Five of the acts (excepting c.4) imposed penalties for various offences (all non-capital). Except for c.1 and 2 all were explicitly prospective – e.g., c.6, s.40, ten days after royal assent for illegal meetings outside greater London. 92 See particularly Wolfgang Friedman, Law in a Changing Society, 2nd ed. (Middlesex, U.K.: Penguin Books/Stevens and Sons 1972), 74–60. Characterization of the Mansfield statement as pertaining to criminal law may be found at 74, 77. 93 Loftt 383 at 385. 94 2 East 5. 95 The issue arose again in the twentieth century, to the scandal of the legal community. Canada avoided the problem in its recodification of 1954–5 by enacting section 8 prohibiting prosecution for common law offences. 96 43 Geo.III, c.117, s.1. 97 3 and 4 Wm.IV c.4, s.6. 98 Buller, ‘Sketch of Lord Durham’s Mission to Canada in 1838,’ RPAC, 1923, 341 at 351–2. 99 26 Oct. 1838, IUP, vol. 10. This dispatch may not have arrived before the court martial began operations but certainly had by the time of the first executions

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on 21 Dec. 1838. Colborne ignored his instructions and Glenelg deferred to the man in the field. RG 4, A 1 (S Series), vol. 558, NA (emphasis mine); Greenwood, ‘General Court Martial of 1838–39,’ 254. Foster, Report of ... Proceedings ... [and] Discourses, 221–2, 299. Ibid., 249–51; East, Pleas of the Crown, I: 111–12. Ibid., 107. Ibid., 106. Ibid., 112; Foster, Report of ... Proceedings ... [and] Discourses, 229–30. R. v. Frost (1839), 4 St. Tr. (n.s.) 85. Foster, Report of ... Proceedings ... [and] Discourses, 221, 235–6. 7 and 8 Wm.III c.11. Alexander H. Shapiro, ‘Political Theory and the Growth of Defensive Safeguards in Criminal Procedure: Origins of the Treason Trials Act of 1696,’ Law and History Review, 11 (1993), 215; Foster, Report of ... Proceedings ... [and] Discourses, 229. Commentaries, 1: 355–6; Foster, Report of ... Proceedings ... [and] Discourses, 229, 231–2. Trials for Felony Act (1836), 6 and 7 Wm.IV c.114. See, generally, J.M. Beattie, ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,’ Law and History Review, 9 (1991), 221–67. Calder v. Bull (1798), 3 Dall. (U.S.) 386 (U.S.S.C.). See Black’s Law Dictionary, 4th ed. rev. by Publisher’s Editorial Staff (St Paul, Minn.: West Publishing 1968), 662–3, for a review of the cases. See also Bouvier’s Law Dictionary and Concise Encyclopedia, 3rd ed. rev. by Francis Rawle, vol. 1 (Buffalo, N.Y.: William S. Hein 1984), 1104–6, and Ronald Rotunda and John E. Nowak, ed., Treatise on Constitutional Law; Substance and Procedure, 3rd ed., 4 vols. (St Paul, Minn.: West Publishing 1992), 2: 470. Quebec Act, 1774, 14 Geo.III c.83. 31 Geo.III c.31. 28 and 29 Vic., c.63, s.5. A representative legislature was defined in section 1 as comprising ‘a legislative body of which one-half [or more] are elected by inhabitants of the colony.’ See F. Murray Greenwood, ‘L’insurrection appréhendée et l’adminstration de la justice au Canada: Le point de vue d’un historien,’ Revue d’histoire de l’Amérique française, 34 (1980–1), 57. Reference to these legal responses in the wake of the events of 11 September 2001 were added by Barry Wright.

11 ‘Women’s Work’: Women and Rebellion in Lower Canada, 1837–9 B E V E R L E Y B O I S SE R Y and CA R L A P A T E R S O N

Though there have been studies of women and crime in Canada, little has been written about female participation in the ‘highest’ form of crime, that directed against the state.1 This is related to a larger neglect of women’s political involvement before mass female enfranchisement. Recent historical investigation, however, has widened the notion of ‘politics’ and drawn attention to ways in which Canadian women participated in political life before acquiring the vote early in the twentieth century. The interest shown by historians of women in the sphere of ‘informal politics’ has been paralleled by a concern on the part of legal historians with ‘informal law,’ that is, means other than the letter of the law used to establish and preserve social order.2 These expanded concepts of politics and law have shaped our understanding of female participation in the rebellions of 1837–8 in Lower Canada. Political offences by Canadiennes during the rebellions are not well documented. The massive Événements series in the Archives nationales du Québec gives almost no indication that women engaged in treason, and a government list of the 1,356 prisoners jailed for treasonable offences in the period contains no female names.3 The muteness of the sources has led previous investigators to conclude that women were only peripherally involved in the rebellions. Allan Greer, in particular, has argued that they displayed little attachment to the patriote movement and little interest in politics generally.4 In our view, the paucity of evidence concerning women and security crimes should not be construed as evi-

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dence of their lawfulness. We believe that they played an integral part in the 1837–8 insurrections in Lower Canada, and that their absence from the prisoner’s dock and cell says more about the attitudes and concerns of those in positions of authority than it does about the women themselves.5 An examination of why female rebels were not tried by the state may seem to deviate from the central concerns of this volume. However, Lower Canadian women acted in concert with men who did stand trial, and an assessment of security measures that failed to consider female culpability would be deficient. In discussing the experiences of Lower Canadian women and official responses which were not directly reflected in trial proceedings, we seek to highlight dimensions of the rebellion crisis which have been insufficiently explored in the past. e a rly ac t i vi sm There is little question of the rebelliousness of earlier generations of Canadiennes. The women of New France have long been recognized as relatively unconstrained and uninhibited femmes, who laboured out of doors, moved freely in the world of commerce, and readily voiced their opinions and joined in popular protest.6 In 1678–9, for instance, two appeared before the Conseil souverain for uttering insults at the governor,7 and in 1714 women from the community of Côte Saint-Leonard became embroiled in a dispute with church authorities. When a bailiff appeared on the scene, they threatened to kill him and throw him into the marsh. During the food shortages of the Seven Years’ War, women were especially defiant, demonstrating and confronting government officials in both Montreal and Quebec.8 Female activism did not abate with the Conquest. In 1775, during the American invasion of Quebec, women in the environs of the town assumed the role of firebrands, inciting neighbours to disobedience. One, the ‘wife of Augustin Chabot, ironically surnamed the “Queen of Hungary,”’ reportedly infected almost all the members of the community ‘by her seditious talk.’ Apparently she had ‘quite a tongue’ which ‘greatly excited’ the people of Saint-Pierre. The appellation ‘Queen of Hungary’ was applied not only to Chabot’s wife but also to the widow Gabourie,9 singled out as especially harmful because she ‘often held assemblies at her home’ to raise ’spirits against the government.’ It seems that the widow served strong drink ‘to better achieve her detestable goal.’ The wife of Etienne Parant, too, might have qualified for the title of Hungarian queen. Not only was she deemed responsible for the disloyalty of her

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husband, a militia captain, she was also said to be a persistent troublemaker, who continually preached sedition and issued forth ‘with a thousand impertinences against the curés and all honest men.’10 Anti-government sentiment was also expressed by Martha Walker of Montreal and L’Assomption. She and her husband, Thomas, came to the province of Quebec in 1763. After establishing himself, Thomas became the leading spokesman for the Montreal merchants in their troubles with the military. Such was the animosity that one night several officers broke into the Walkers’ house and cropped one of Thomas’s ears. Not surprisingly, Thomas and Martha turned against the government when attempts to redress their wrongs were not successful. By 1775, Thomas was agitating to represent Quebec at the Continental Congress in Philadelphia and receiving letters from such revolutionary luminaries as Benjamin Franklin, Benedict Arnold, and Ethan Allan. Suspicion and feeling against him was so high that Thomas fled to L’Assomption and the governor then launched an attack against their manor house. On 25 October, Civil Secretary Hector Cramahé was able to advise Secretary of State Lord Dartmouth that the attack and surrender of the Walkers’ house ‘had a good effect.’11 Both Thomas and Martha were arrested and charged with high treason. According to her journal, Martha asked why she had been apprehended. ‘“Oh! We know what you have done,” [the arresting officer replied], then imitating my Voice & Manner, he said: “Esperez Mes Enfans, Esperez; nous verrons!”’ He explained that, unlike her husband who had been put in irons and jailed, ‘“the Gov’r in consideration of your Sex, Allows you to go to your own house.”’12 The invading American army freed both Martha and Thomas after capturing Montreal in 1775. The Walkers then left Quebec for Massachusetts where they remained committed revolutionaries. Women continued to be politically active in the turbulent years of the 1790s. In 1794 six hundred men and women to the north of Mount Royal were said to have armed in preparation for an invasion of Lower Canada by revolutionary France.13 Though the invasion failed to materialize, two years later men and women throughout the province challenged governmental authority in the Road Act riots. In August 1796 inhabitants of Quebec and the surrounding district protested the reintroduction of a corvée to maintain city roads by removing the wheels of their carts. When the leaders of the protest were arrested, five hundred women shouted menacing words at the officers of the law.14 In October, agitation broke out in Montreal when a constable, Jacob Marston, attempted to arrest a resident,

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Luc Berthelot, who had been fined for refusing to work on the roads. The unfortunate Marston was severely beaten by half a dozen men urged on by Berthelot’s spirited wife, Scholastique Mathieu. Arrested two days later, Berthelot was rescued almost immediately by a crowd of supporters. The incident triggered a rash of disturbances and was said to have spurred ’such a pitch of popular Frenzy as to render ... the Civil Power insufficient to compel obedience.’ Both husband and wife were fined. In addition, Berthelot was sentenced to three months in prison although their lawyer, David Ross, thought Mathieu unquestionably the more guilty. However, she did not spend time in jail – perhaps another example of an unofficial policy of ‘in consideration of [her] sex.’15 From at least the seventeenth century, women in French Canada participated in the world of politics, opposing civil and religious officials, fomenting dissent, and taking part in popular demonstrations.16 According to Allan Greer, however, their activism did not endure. He maintains that by 1837 a republican ideology of separate spheres had taken hold in Europe and North America and that the patriotes of Lower Canada embraced and indeed furthered the view that, by nature, women were fitted for the domestic realm and men for the sphere of citizenship and politics.17 That such ideas were being articulated in the late eighteenth and early nineteenth century is indisputable and that they were incorporated at some level into the mindset of Lower Canadian rebel leaders also is evident, but Greer goes further by linking acceptance of the cult of female domesticity on the part of radical men to a profound decline in political interest and involvement among French-Canadian women.18 He suggests that the female inhabitants of Lower Canada accepted the limited role prescribed for them and shunned active participation in the 1837–8 uprisings. In our opinion he makes an unwarranted leap from ideology to experience and wrongly portrays rebellion-era women as lacking in patriote zeal and uninterested in affairs beyond the hearth.19 p u b l i c ac t i vi t y In the 1830s, women in Lower Canada still maintained a presence in the public realm. According to an 1825 census, 20 per cent of Montreal women worked outside their homes and more than 25 per cent of the town’s labour force was comprised of females. Though one might assume from the patriarchal tenor of the Coutume de Paris that women did not participate in the commercial sphere, ‘in reality, women worked everywhere.’20 Widows and spinsters frequently ran taverns, market stalls, and

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other small undertakings dealing with food, drink, and lodging. Married women were also active in business and often had considerable economic and legal freedom. A woman who operated as a feme sole trader could ‘bind herself without her husband’ and was able to enter into most forms of contract. Women whose property was separate from that of their husbands, such as Josephte Frechette of Saint-Charles, could wield significant power. Frechette served as a postmistress and merchant in her town and invested in the Nelson distillery.21 The concerns of rural women also reached beyond the confines of the home. Habitant women were responsible for maintaining the vegetable garden and caring for the livestock, and worked in the fields as well, particularly during periods of intensive labour or when their husbands and sons were employed elsewhere.22 Such duties provided opportunities for initiative and independence. The British observer, Hugh Murray, described one ‘female cultivator, who almost every week mounted her pony, and sallied into the bush in search of stray cattle; and sometimes a day or two elapsed before she and they returned.’23 In a study of protest among Prince Edward Island women in the 1830s, Rusty Bitterman argues that historical accounts of rural women in pre-industrial North America have tended to misrepresent them as protected housekeepers and caregivers. He points out that the lives of farm women were generally ‘much rougher and the bounds of work much broader’ than the literature has portrayed, and that such women were often less preoccupied with domestic matters than we have been led to believe.24 Bitterman’s work is suggestive in exemplifying in a Canadian context the argument that women who ‘worked shoulder to shoulder with men’ were also likely to protest alongside men.25 Les femmes of Lower Canada participated not only in the wider world of work but in the life of the community. The centre of habitant existence was the parish church, where each week ‘young and old, men and women’ gathered for Mass and for ‘purposes of business, love, and pleasure.’ Women were active in the celebrations that drew the community together, as well as in the regulation of social life. They took part in charivaris, aimed at rebuking individuals suspected of transgressing church doctrine, and involved themselves in the judicial system.26 Numerous women, for example, gave evidence in the trials of suspected rebels in 1838–9 (see Murray Greenwood’s first essay on the Montreal Court Martial).27 In the first Aaron Walker murder trial, Margaret Faille testified that her son, Pascal Pinsonnault, had been coerced into joining the Laprairie patriotes, had taken no further part in the rebellion

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after Walker’s death, and had voluntarily surrendered a month later.28 The testimony was corroborated by Faille’s daughter. When questioned about her brother’s involvement in politics before 3 November, she replied that he had ‘declared that if a rebellion should be brought about by the Americans, he would never obey their orders as they could only proceed from scoundrels.’29 The testimony of Faille and her daughter, like that of other female defence witnesses, was discredited by the officers and deputy judge advocates as biased.30 However, when women gave evidence for the crown, their words carried greater weight. Loyalist settler Elizabeth Boyce testified, in the same trial, that when Pinsonnault and other armed men entered her house they said, ‘Every body must ... [rebel],’ and took her husband, Richard, ‘away undressed, and I sent his clothes after him.’31 The court had no trouble with her credibility. After the verdicts of 1838–9 had been handed down, women continued to play a role in the judicial process through petitioning. Joseph Duquette’s mother addressed Sir John Colborne, entreating that her young son had been led astray by older men and maintaining that he had not spilled a single drop of blood. Eugénie Saint-Germain appealed to Lady Colborne, begging that she intercede on behalf of her husband, Joseph-Narcisse Cardinal, because ‘the death warrant is already signed!! ... Tomorrow! alas, tomorrow! God! God!’32 Women pleaded for the commutation of sentences and, in cases that culminated in transportation, for the return of their sons and husbands. At every stage of the process, from deposition to disposition, they demonstrated understanding (albeit probably limited) of the legal system and the ability to work with and within it.33 Petitioning had long been an accepted way for disenfranchised women, as well as men, to act politically.34 For almost half a century, however, some Lower Canadian women had been able to exercise formal political rights through voting. In 1792, for example, Victoire Martineau, a female property holder in Quebec, presented herself at a polling place and had her vote recorded.35 According to the Constitutional Act of 1791, the make-up of the House of Assembly was to be determined by the ‘Votes of such Persons as shall severally be possessed, for their own use and Benefit, of Lands or Tenements ... held in Freehold, or in Fief, or in Roture ... and being of the yearly Value of Forty shillings Sterling, or upwards.’36 The provisions outraged some British officials, such as Upper Canada’s chief justice, William Osgoode, but qualified women voted nonetheless, at times constituting a significant minority. In the 1832 by-election in Montreal West, roughly one-seventh of the electors (199 of the 1,376) were female.37 Women continued to apply the right to choose their lead-

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ers well into the 1840s, despite a bill attempting to disenfranchise them in 1834.38 pat ri o t i sm Active in and conversant with the workings of the larger world, women in Lower Canada were not isolated from the political developments of the 1830s. In 1833 a number of Montreal women grouped together in a Club des femmes patriotes.39 Four years later, when patriote leaders followed the example of American revolutionaries by calling for a ban on imported goods, women in the colony began to spin, weave, and stitch their own clothing. Mesdames Peltier and Lafontaine supported the cause by appearing in ‘exquisite’ gowns and boots of ‘étoffe du pays.’40 Women fashioned outfits not only for themselves but also for their menfolk. Élise Beaupré, for instance, created a resplendent ensemble for her patriote husband, Édouard-Étienne Rodier. He entered the House of Assembly wearing a ‘frock coat of granite colored’ homespun, ‘inexpressibles [trousers] and vest of the same material, striped blue and white; straw hat and beef [cowhide?] shoes, with a pair of home-made socks.’41 During the spring and summer of 1837, the patriotes held a series of protest meetings in the environs of Montreal. In various villages, hundreds gathered to hear Louis-Joseph Papineau and others appeal to their sense of wrong and hint at plans to take matters into their own hands. While men responded by resigning their commissions as justices of the peace and militia officers, women continued to use their needlework and decorating skills to promote the patriote vision. In the village of Saint-Benoît, for example, ‘all the houses ... were decorated with flags and banners of much richness, bearing various appropriate devices.’42 Particular efforts had been taken at the home of the local leader, Jean-Joseph Girouard, where an arch with ‘twined branches of maple, overhung the gateway. This was surrounded by a civic crown formed with flowers and leaves of maple, beneath which appeared, on a strip of white silk, the appropriate inscription: – “Honneur à Papineau”!’43 According to the radical newspaper, the Vindicator, ‘the whole of this was truly an exquisite piece of workmanship, and plainly displayed throughout how much it was indebted to feminine taste and patriotism for its beautiful arrangement.’ The Vindicator’s commentary on the anti-coercion meetings conveys the uneasiness of male leaders at the political involvement of women. It commented on their loveliness, portraying them as the ‘gentler sex at home,’ who waved handkerchiefs and tossed rose petals from upper-story

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windows.44 Yet it is also reveals the significant part women played in the proceedings and how much the patriotes valued their support. Women were described as standing not only behind windows but ‘in readiness,’ outside their houses, and were characterized not only as ‘lovely and charming women’ but as ‘warm-hearted Patriots’ and ‘allies.’45 Canadiennes also acted more formally. Two months after the protest meeting at Saint-Benoît, Émilie Berthelot, the wife of Jean-Joseph Girouard, submitted a petition to the patriote central committee on behalf of a group of women wishing to form an Association des dames patriotiques du comté des Deux-Montagnes. The initiative shown by the women seems somewhat at odds with the qualified assertion of their aim: to contribute to the success of the patriote cause ‘insomuch as the feebleness of their sex permits.’46 As Janice Potter-MacKinnon has argued in the case of Loyalist women, however, recourse to a ‘language of enfeeblement’ can be an expression of dominant social perceptions (such as those permeating the Vindicator) which does not accurately reflect female capabilities or even self-image.47 Certainly, there is little to suggest that the dames of SaintBenoît acted feebly. Not only did they promote the policy of nonconsumption of imported goods, they produced various subversive flags. One, designed and woven by Marie-Victoire Fèlix and Madame Damien Masson (and carried into the Battle of Saint-Eustache in December), had a branch of maple surmounted by pine cones and a fish, with a ‘C’ (for Canada) and a ‘J.Bte’ (for Jean-Baptiste). Another had the words ‘Legislative Council’ framed by three death heads.48 Women from other parishes soon followed the lead of Berthelot and her compatriots. On 10 September, two hundred and fifty women from Saint-Antoine ‘celebrated ... their love of country and their patriotism by a public dinner, from which every imported article was rigidly excluded.’ Toasts were drunk and a male honour guard discharged a ‘feu de joie.’ Wishing to demonstrate their ability to ‘act in case of need,’ many of the women fired muskets as well. ‘When the women of Canada are displaying such patriotism,’ noted the Vindicator, ‘it is not very probable the men will be backward when the day of trial comes.’49 In October 1837, when the final protest meetings were held in the Richelieu region, it became obvious that matters were reaching a boiling point. The Assembly of Six Counties decided to train a patriote militia and endorsed the Fils de la liberté organization modelled on the American Sons of Liberty. Proclaiming a state of anarchy in the colony, the assembly ratified motions declaring that henceforth the people (not the governor)

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would elect magistrates and militia officers. Women were present at those meetings, together with a banner giving ‘Honour to the patriotic ladies.’50 As ‘the day of trial’ approached, political matters gripped the minds of both women and men. According to one well-placed observer, it was impossible not to be interested in the events that were unfolding. Politics, Cordélia Lovell wrote her sister on 11 November 1837, ‘engrosses everyone, it is the subject of all conversations.’51 For some women, however, rebellion was more than a topic of conversation. Going beyond the visible support of patriote policy and the collective exertions of ‘associations des dames,’ some Canadiennes engaged in treason. t re a so n Though it is unclear if Lower Canadian women ever took up arms, they certainly challenged state authority as they found new ways to advance the patriote cause.52 Perhaps the most common was the provisioning of those who did wield guns and swords. The aid rendered could be substantial, as when Madame Dessaulles gambled the possible forfeiture of her seigneury by supplying the patriote army at Saint-Charles.53 It could also be ingenious. Just before the battle of Saint-Denis, Madame Pagé constructed body armour for her husband from sheets of folded paper. Amazingly, it kept him from harm, ‘for in the mêlée a ball otherwise intended for his destruction got no farther than the fourth fold.’54 Another form of provisioning was the production of ammunition. There is considerable evidence that, in Upper Canada, both loyalist and rebel women melted lead and manufactured the bullets and their casings used by fighting forces. Margaret Caughill and a companion, for instance, ’sat up all night running bullets, and we had an apronful in the morning ... [she] turned the grindstone, too, for one of the officers to sharpen his sword.’55 In Lower Canada, similarly, two young women, les demoiselles Labrie and Berthelot, are reported to have melted bullets. It would be surprising, however, if there were not many more women whose ‘kitchens became guard rooms’ when necessity demanded.56 In addition to provisioning, Lower Canadian women tended to wounded soldiers, applying first aid and nursing them back to health as best they could.57 Thérèse and Louise Dormicourt of Saint-Denis, for example, looked after four injured men. When one died, they buried him decently. Though these women were not known to be rebel sympathizers,

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they were perceived as such by loyalist troops. Evidently believing that expressions of humanity should be reserved for government supporters, the troops pillaged the sisters’ house.58 Championing the patriote cause took other forms, too. Especially after the 1837 rebellion, when many husbands and fathers were abroad, Canadiennes inculcated their children with patriote ideology. Hyacinthe Masson was just one who acknowledged the influence of his mother. He maintained that she had passed on ‘an ardent love for the country in which I was born’ and ’so magnetized me with patriotism that I could willingly lay down my life for the cause.’59 Women also played a role in the patriote secret society, the Frères Chasseurs. Somewhat akin to the Masons, the Chasseurs connected the rebels into a compact, easily controlled body. To ensure secrecy, initiation into the organization was designed to be as frightening as possible. Potential recruits were blindfolded and taken to barns, inns, or houses where an oath was administered and they swore to preserve the society’s secrets, ‘to aid with ... advice, care and property, every brother Chasseur in need, and to notify him in time, of misfortune that may threaten him.’ If they reneged, they consented to have their property destroyed and their throats ‘cut to the bone.’60 At this point the blindfolds were whipped off and the new Chasseurs found themselves surrounded by grim faces and long daggers pointed at their necks. It was not unusual for such meetings to be held in female-owned quarters. In Chateauguay, Madame Duquette and Elizabeth Saint-Denis, known as ‘the widow Boudria,’ hosted such events.61 The most compelling case for female involvement in the 1838 rebellion can be made from Chasseur meetings in the parish of Sainte-Martine, in the seigneury of Beauharnois, south of Montreal. These initiations were held in the house of Joseph Dumouchelle, a prosperous habitant, and the only known habitant aigle (a leader of 500 men). At the ceremonies, his wife, Marguerite-Julie Cornelier, administered the oath of membership. Dr Jean-Baptiste-Henri Brien, a liaison between the leaders in the United States and the organizers in the parishes, attended on various occasions. He later explained that, since Dumouchelle was ‘not able to read, his wife received the oath of discretion, and read to each candidate the form of the oath, and the conditions on which they entered the association.’62 Cornelier clearly played more than a peripheral part in the organization. Her involvement, and that of other women, must have been customary. Otherwise, the newly recruited Chasseurs would have reacted when they heard a female voice and the fear induced by their oaths

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would have been undermined. That a woman swore them into the secret society and that this was apparently accepted as commonplace is the best refutation of Greer’s thesis of non-involvement. The case for Cornelier’s importance can be strengthened by the fact that she continued to administer the Chasseur oath when Brien, who was highly literate and a leader, was present. Can Brien’s statement be relied on? Certainly the authorities believed it. His confession formed the basis of many cases against jailed patriotes and differences in sentencing. Furthermore, his declaration that Cornelier administered the Chasseur oath in Sainte-Martine was corroborated some years later by the historian Robert Sellars, who recalled that in ‘Beauharnois and Chateauguay the women were the most active in promoting the society, and by them the oath was frequently administered.’63 According to the 1352 Statute of Treasons, treason took three principal forms: compassing (imagining or plotting the monarch’s death) levying war (participating in armed rebellion) and adhering to the king’s enemies in wartime.64 By the end of 1839, these definitions had been stretched in both Britain and the Canadas so that even being a good Samaritan or a spectator during a battle between rebel and loyal forces became treason. At the General Court Martial in Montreal, for example, habitant Michel Longtin swore that his rebellion consisted of provisioning needy loyalist prisoners of the rebels.65 Benjamin Mott of Vermont in the fourteenth Montreal trial defended himself by saying that he had been a mere spectator to a battle. This, the court interpreted as ‘countenancing traitors,’ an activity making Mott as guilty as the traitors themselves.66 An arguably minor activity such as melting lead for bullets also constituted a crime against the state. Antoine Daigle’s post-rebellion claim for recompense, for example, was denied on the grounds that ’sometime before the Troubles he ... suffered bullets to be cast in his kitchen.’67 The Montreal Court Martial even declared perjury a form of treason. When an accused offered what the deputy judge advocates thought was a perjured defence, they averred that it had ‘confirmed his guilt, and whatever may have been his criminality before, he has now added to it an aggravation calculated with irresistible force to drag him to destruction.’68 Yet, for all their activities as well as the elasticity of the law, no Lower Canadian female was tried or even arrested for treason in the rebellion years. Why not? To answer that question, we concentrate on the case that could have been made against Marguerite-Julie Cornelier, whose treasonable behaviour seems undeniable. According to treason law, she was guilty of both compassing and levying.

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t h e p ossi b l e c a se aga i nst c o r n eli er Wording of the Statute Linda Kerber’s studies of women and politics show that some of the embryonic American states clearly specified treason as non-gender specific.69 A 1777 North Carolina statute declared that, following a conviction of high treason, the traitor would ’suffer Death without Benefit of Clergy, and his or her Estate ... be forfeited to the State.’70 New Jersey specified in 1778 that a female traitor might be fined £300 and jailed. A Massachusetts law (1777) stated that ‘every person who shall be attainted of treason within this State, whether male or female, shall be punished by being hanged by the neck until they are dead.’ The relevant statute applicable to Lower Canada was not so clear at first glance. Various clauses in the 1352 Statute of Treason are gender specific: ‘when a man doth compasse’; ‘if a man doe violate the king’s companion’; or ‘if a man doe levie warre.’ By 1641, however, it was commonly accepted that the treason statute applied to both sexes. As the great jurist of the time, Edward Coke, pronounced: ‘Quant home, & etc ... extendeth to both sexes, home including both man and women.’71 Cornelier’s sex alone, therefore, would not have excluded her from prosecution. Doctrine of Feme Coverture In both England and Lower Canada, wives were protected from prosecution for certain crimes by the doctrine of feme coverture or spousal coercion.72 This held that a married woman could not act independently of her husband. When she committed a crime in his presence, coercion was presumed and thus she was incapable of mens rea (the intent to do wrong). This concept was upheld in an 1801 American case which examined the role of wives in times of revolution and rebellion.73 During the American Revolution, Massachusetts required its residents to take loyalty oaths.74 Failure to do so resulted in the confiscation of property. The impact on wives was clearly defined. Only by remaining in the United States or in any land under its control would a wife or widow of a Loyalist be entitled ‘to the improvement and income of one third part of her husband’s real and personal estate.’ This, of course, begged the question of whether a wife could go against her Loyalist husband in an era that honoured coverture. In 1801 the question went to court when James Martin appealed for the return of land which had been confiscated

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from his mother and which she had owned in her own right. One of the questions posed by his lawyer, George Blake, went to the heart of the position of women in the state. They were inhabitants, certainly. But did residence confer membership? Blake asserted that under ‘the strict principles of law, a feme covert is not a member; has no political relation to the state any more than an alien ... The legislature intended to exclude femescovert and infants from the operation of the act; otherwise the word inhabitant would have been used alone, and not coupled with the word member.’ Rubbish, countered the defence (Attorney General James Sullivan and Solicitor General Daniel Davis): ‘Are not all the citizens members: infants, idiots, insane or what may be their relative situations in society? Cannot a feme-covert levy war and conspire to levy war? She certainly can commit treason; and if so, there is no one act mentioned in the statute which she is not capable of performing.’ As Kerber points out, Sullivan and Davis ‘articulated a case for the politicized married woman,’ basing their case on many of the ideological principles that had driven the Revolution. As patriots waited for their republic, not only military succour was needed: emotional and mental assistance – from women as well as men – was required as well. That women shared in this form of citizenship was indubitable. Therefore, Sullivan and Davis argued, they shared the obligations of citizens. They were not mere ‘children’ to be guided by their husbands’ wisdom, nor were they aliens. When James Martin’s mother had refused to take her oath of loyalty and had left Massachusetts she had made a conscious choice, and, in doing so, she had forfeited her property. By an unanimous verdict, the Supreme Judicial Court of Massachusetts decided against this defence. Judge Theodore Sedgwick pointed out that the doctrine of coverture exempted women from punishment for crimes committed jointly with their husbands, asking, ‘Could a wife be punished if she allowed her husband to choose their place of residence? Because she did not ... rebel against the will of her husband?’ Sedgwick could not imagine women taking up arms and fighting alongside their husbands. Nor could he envisage any other situation than that provided by his understanding of the English common law. Only Justice Simeon Strong seemed to understand, albeit faintly, the law of treason vis-à-vis the common law when he wrote that a married woman was ‘bound’ to obey her husband’s ‘commands ... except perhaps in treason and murder.’75 But, as every jurist acknowledged, all are principals in treachery. There are no accessories and no doctrine of spousal coercion or coverture.

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Joseph Dumouchelle’s involvement in the 1838 rebellion would not have prevented the authorities from acting against his wife, Cornelier. Possible Precedents Is it conceivable that the authorities held back because there were no precedents? As pointed out earlier in this essay, Martha Walker had been arrested together with her husband and charged with treason and only the American occupation of Montreal may have prevented their trials. Two English women were not as fortunate. Lady Alice Lisle and Dame Elizabeth Gaunt had the misfortune to be caught up in the aftermath of the Duke of Monmouth’s rebellion in 1685. Both had given aid and succour to men suspected of fighting in the rebellion – a meal, beer, and a bed, and a meal and £5 respectively. Both were convicted and executed. The more legally interesting case of the two is that of Lady Lisle.76 The widow of a ‘regicide’ (that is, one of Charles I’s judges),77 Alice Lisle had the misfortune to be tried before the notorious Lord George Jeffreys at the ‘Bloody Assize’ in August 1685 under the charge that she ‘didst entertain, conceal, Comfort, uphold and maintain ... John Hicks.’ Hicks, described as a ‘dissenting [Presbyterian] minister,’ had fought with Monmouth and would eventually hang. At the time of her trial, Lisle was old, infirm, and sufficiently deaf that a friend was allowed to stand nearby ‘to give her all assistance that he could.’ Jeffreys bullied the main witness, John Dunne, disgracefully. When Dunne could not recall a fact, he blustered, ‘Alack-a-day, we must needs have it. Come refresh your memory a little.’ And, to help Dunne regain his memory, the judge ordered a candle be held close to his nose. When that did not produce the necessary result, Jeffreys exploded: ‘Be ingenuous, tell the truth. Oh! How hard the truth is to come out of a lying Presbyterian knave.’ Lord Jeffreys left no doubt at all about his personal philosophy. When the unfortunate Dunne finally answered a question to the judge’s satisfaction, Jeffreys asked, ‘And why didst thou tell so many lyes then? Jesu God! That we should live to see any such creatures among mankind, nay ... to the shame and reproach ... of our nation and religion: is this that ... [which] is called the Protestant religion: a thing so much boasted of, and pretended to? ... I pity thee with all my soul, and pray for thee.’ Against this, Lady Lisle did the best she could. When she once failed to cross-examine, Lord Jeffreys suggested that ‘perhaps her questions might endanger the coming out of the truth’ and concluded that her silence car-

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ried ‘a very foul face upon my word.’ She did object to the testimony of another witness on the grounds that, while searching her house for the suspected rebels, he had broken into a trunk and stolen her best linens. Therefore, it was in his best interest to have her convicted, otherwise she could charge him with theft. In her defence, she swore that she had stayed in London ‘till all the rebellion was past,’ that she had ‘never uttered a good word for the rebels, never even harboured a good wish for them in my mind.’ She was well aware of her obligations to her sovereign. Her son had fought on the side of James II and it was she ‘that bred him up to fight for the king.’ Yes, she had taken Hinks into her house but she had never imagined he had taken part in the rebellion. He was a Presbyterian minister, a man she knew who ‘used to preach, not ... fight.’ These protestations counted for naught. Lord Jeffreys pointed out in his charge to the jury that three witnesses had sworn to the participation of Hinks in the rebellion, and though Lady Lisle was ‘out of the rebellion,’ she had received him into her house and harboured, comforted, and concealed him. ‘Neither her age nor her sex’ should sway the jury’s sympathies. Rather they should do their duty as ‘loyal men’ and ‘good Christians.’ For all his moralizing and hectoring, the lord chief justice missed the main point of law which was obvious to the jury. One member asked ‘whether it be the same thing, and equally treason, in receiving him [Hicks] before he was convicted of treason, as if it had been after.’ Jeffreys replied that it was ‘all the same, that certainly there can be no doubt.’ One member wondered how they could convict Lady Lisle if she did not know Hinks was a traitor or that he was actually in Monmouth’s army. Eventually, ‘persuaded’ by Jeffreys, they rendered a guilty verdict and she was sentenced to be burnt alive. The king, upon petition, ‘graciously’ condescended to allow a substitute form of death. Lady Alice Lisle was beheaded on 2 September 1685. Four years later, during the reign of William and Mary, ‘An Act for Annulling and Making Void the Attainder of Alice Lisle’ was passed. Legally, Lisle should not have been tried until Hinks, the principal traitor, had been convicted of treason. Treason jurist Hale was clear on the point: ‘If he [the secondary offender] is indicted by a separate indictment, he shall not be tried until the principal be convicted ... for though in the eye of the law they are both principals in treason, yet in truth he [the secondary offender] ... is so far an accessory that he cannot be guilty if the principal be innocent.’78 Foster agreed, writing: ‘In the case of Mrs. Lisle, whose

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hard fate it was to fall into the hand of perhaps the worst judge that ever disgraced Westminster ... no regard was paid to this doctrine.’79 There was therefore a precedent for trying women for treason. Cornelier’s crime far exceeded that of Alice Lisle. Cornelier had not merely given aid. She had, under a then elastic law, compassed the queen’s death by initiating men into a secret society – men who would later take up arms against Her Majesty’s forces. She had conspired to rebel and insurrection had followed. Since there were only principals in treason, she was clearly guilty of that offence. Surely the Lower Canadian law officers knew of her crimes and the cases of Gaunt and Lisle. Even if they quibbled about Dumouchelle being the ‘principal’ traitor, Cornelier could have faced trial after his conviction in January 1839. Format of a Possible Trial and Charges On 8 November 1838 the Special Council authorized courts martial and thus put civilians on trial for their lives before a military court. The General Court Martial held at Montreal raised considerable controversy80 and it is conceivable that the authorities might have been squeamish about subjecting a woman to trial by it. There was, however, some precedent for such an action. Irish historian Thomas Bartlett has found evidence that a Catherine Kelly faced trial before a 1799 court martial at Clonmel for ‘being concerned with divers other persons not yet taken in the murder of John Delahunty.’ According to him, ‘no one appeared to prosecute her and she was acquitted.’ He also searched unsuccessfully for the record of a Catherine Whelan who apparently was convicted by a court martial in New Ross for ‘urging the killing of Protestants’ and sentenced to transportation in 1798.81 Although it is unlikely that Lower Canadian authorities knew of these possible precedents, Cornelier could have been held over and tried for high treason by the criminal courts or simply charged with administering illegal oaths. Precedent for this should have been known in the colony. In 1798 Scottish courts tried three men (one in absentia) for the crime of ‘sedition and Administering Unlawful Oaths.’ George Mealmaker, a Dundee weaver, David Black, and James Paterson had sworn recruits into the United Scotsmen which had branches throughout Scotland. Like the Frères Chasseurs, the organization was modelled on Masonic lines with secret signs and passwords. After conviction, Mealmaker was transported for fourteen years, Paterson’s sentence specified five years ‘beyond the seas,’ and the fugitive Black had his property confiscated.82

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Although these cases were reported in Howell’s State Trials, the authorities may have felt that they lacked the jurisdiction to follow suit and prosecute merely for administering secret oaths. Two days after Brien penned his confession, the Special Council passed an ‘Ordinance for More Effectually Preventing the Administering Unlawful Oaths, and for Better Preventing Treasonable and Seditious Practices.’83 Upon conviction, an accused would ‘be adjudged guilty of felony, and may be transported for any term of years not exceeding twenty-one.’ The wording was prospective and that might explain Cornelier’s fate. But it must also be remembered that swearing recruits into the Frères Chasseurs helped send some males to the gallows and others to New South Wales. Evidence or Lack Thereof One last possibility must be raised when considering the lack of legal action against Marguerite-Julie Cornelier. Did the authorities fail to proceed against her because of a lack of evidence? The statute 25 Edward III, especially as amended in 1696, protected the accused insomuch as two witnesses had to swear to the overt act(s) of treason. Certainly Brien could have been one. Even if the General Court Martial had ceased functioning by the time the authorities thought fit to bring Cornelier to trial, she could have been tried in an ordinary court and Brien, as part of his conditional release from the sentence of death, could have been compelled to testify. And, surely, given the scope of Dumouchelle’s operation and the number of recruits sworn into the Sainte-Martine Chasseurs, there must have been at least one other man willing to barter his release from jail for testimony against her. n o n - j u d i ci a l fac t o rs a nd p o ssi b le expla nati o n s Since there is no legal reason for Cornelier not to have had a ’state’ trial, we turn to the non-judicial realm for explanations. ‘In Consideration of Your Sex’ If Lower Canadian authorities had proceeded against Cornelier in 1838, they would have been forced to admit that a woman had participated in what was considered ‘man’s work,’ namely, insurrection against the state. Such an admission would have run counter to the ideology of domesticity and earlier responses to female activism. As indicated above,

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while Thomas Walker was put in irons and arrested in 1775, Governor Carleton considered Martha’s gender in ordering house arrest. In the Irish rebellion of 1798, women were also treated differently from men. Lady Pamela Fitzgerald, for instance, who carried messages for her husband, was made to leave the country rather than stand trial for her crime. Regarded as having been ‘“unsexed” by designing men’ and as ‘abject objects of pity (or repulsion),’ women such as Fitzgerald were not considered to be ‘fit subjects for judicial condemnation.’84 The policy of considering a rebel’s sex may well have continued into the late 1830s and been prominent during prosecutorial discussions in Lower Canada. It may also explain why the authorities failed to proceed against Maria Wait, a young woman from Upper Canada who was indubitably guilty of treason. Her husband was among the Short Hills raiders who were convicted of treason and lawless aggression as described in Colin Read’s essay in this collection. Maria and her husband, Benjamin, came from the Niagara region.85 By May/June 1838, they had become convinced that only force would give Upper Canadians ‘liberty.’ To that end, Benjamin went to the United States and became a captain of about thirty men and part of the Short Hills raiders.’86 Maria stayed home, where, by the standards of the day, she should have been preoccupied with the birth of her daughter, Augusta. Instead, she focused on rebellion. She and her husband maintained a correspondence but, unknown to either, the government intercepted Maria’s letters. In a particularly damning one, dated 7 June 1838, she clearly stated her beliefs. Moreover, she gave treasonable advice to Benjamin, writing that ‘the utmost secrecy should be observed until you are sufficiently able to make a successful attack upon some place where you may deem it the most profitable. But by no means risk an open battle. Your lives are far too precious, and cannon would do you no good in the woods [even] if you had thousands of them.’ Why should Benjamin accept this counsel? Because, she wrote, it came from, ‘a heart wholly absorbed with the cause of her country, and the safety of her beloved friends.’ She spoke of dissension and her sincere hope that the dissidents ‘may yet consider the importance of being more united’ and ‘join their efforts with others in the glorious struggle to wrench Canada from the hands of her oppressors. Oh! That you could all feel willing to do anything even the most humble [task] for the sake of liberty how soon would you be a firm, united and invincible band. We

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should then soon see the standard of freedom floating throughout Canada [giving] ... peace, security and all its concomitant blessings to the utter confusion of ananarchy [sic] and tory Power forever. Was I a Joan of Arc I would be by your side. But alas! I am but a feeble woman.’87 In receipt of this and similar letters, the Upper Canadian authorities made no move against Wait. The fact that the letter did not reach its intended recipient mattered naught. That issue had been decided more than a century earlier when, in his ‘Discourse on High Treason,’ jurist Michael Foster asked, ‘How far words and writing can be considered overt acts’ of treason? In answer he referred to Gregg’s case (1707/8), where England’s judges were asked ‘whether the writing and sending Intelligence to the Enemy be not an Overt Act of Compassing and Imagining the Death of the Queen [Anne] and also of adhering to her Majesty’s Enemies tho such Intelligence be Intercepted before it comes to the Enemy.’ The twelve judges unanimously decided that it was. Foster commented that the ‘letters were written in prosecution of certain determinate purposes, which were all treasonable.’88 The writer’s intent to help those who would engage in treason sealed Gregg’s fate. Maria had written the letters to help and encourage Benjamin, his fellow raiders, and others who later committed treason. To all intents and purposes, she had acted exactly in the same way as William Gregg, who was convicted of treason and hanged. Maria, however, was allowed to continue writing letters. She aided rebels in jail as best she could, was instrumental in saving Benjamin from the gallows, and even travelled to England to intercede with Queen Victoria for a pardon. Instead of being arrested and charged, Maria Wait had access to all levels of government – colonial and imperial. Could the double standard of the legal authorities be any clearer? Furthermore, although proceeding against a woman would have been difficult at any point during the rebellion years, to have done so after February 1839 would have been extremely hazardous. As Barry Wright has argued, public attitudes and values influence government reaction in security crises.89 After the middle of February, the lust for rebel blood in Lower Canada had abated. No more executions occurred. The jails in Montreal and the surrounding areas were overcrowded with male prisoners and authorities were working hard to process them. To have tried Cornelier before the General Court Martial in this atmosphere would have risked provoking the province into a third revolt, or, at the very least, riotous activity – which Colborne wanted to avoid at all cost.

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Punishments Endured Even before the last skirmish in each rebellion had ended, reprisals began. Vindictive loyalists set the houses, barns, and sheds of suspected patriotes afire after pillaging their contents. Rank-and-file British regulars stood by, and even participated, as women were raped and mothers and children forced to search for shelter in freezing weather. The fate of one such woman, Marie-Victoire Fèlix (the wife of J.-B. Dumouchel, and relative of Joseph Dumouchelle and Marguerite-Julie Cornelier),90 was documented by Stewart Derbishire. Derbishire toured the province in 1838 as an investigator for Lord Durham. When he reached Saint-Benoit, he heard that ‘having had seven houses belonging to the [Dumouchel] family burned down, the whole of their property, cattle &c taken, her husband & two sons in prison, [Fèlix] was subject in the miserable hut in which she had taken refuge to the visits of the Volunteers who ... threatened her with their drawn swords ... close to her face and almost depriv[ed] her of life by terror.’91 Marie-Victoire Fèlix was not the only one to suffer such treatment. That pillaging and burning were widespread after the 1837 rebellion can be proved by documents submitted in the 1840s to the various commissions investigating the rebellions’ aftermath. Claim after claim detailed losses of furniture and effects pillaged or destroyed by Her Majesty’s troops. The Saint-Benoit Dumouchels claimed £3905.2.11 for their losses. The commissioners, notorious for paring down claims, awarded the estate £1941.12.3.92 In addition, Marie-Victoire claimed £57.16.0 for compensation for her personal effects. She received £36.10.0.93 Sadly, the looting and atrocities of 1837 pale when compared with those following the 1838 rebellion. As administrator of Lower Canada and commander-in-chief of Her Majesty’s Forces, Colborne ordered that property thought to belong to any suspected rebel should be destroyed. Although he later countermanded his orders, it was too late for many. Undisciplined regiments, such as the Glengarry militia from Upper Canada, happily obeyed, using plunder and destruction as punitive weapons. Of the more than six hundred Glengarries who arrived in Lower Canada as infantry, five hundred and fifty returned home as cavalry. Petty men used the opportunity to settle old scores. Lieutenant-Colonel Charles Grey, son of the former British prime minister Earl Grey, admitted that while the loyalists had cause for revenge ‘they have again got the upper hand ... [and] are disposed to exact too severe a retribution and require to be kept in order.’94

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Order was the last thing on some men’s minds. According to two patriote refugees, several women had been raped in the Beauharnois area. One, a pregnant sixteen year old, died after six soldiers gang-raped her, her twelve-year-old sister, and her mother.95 Louis Lafontaine referred to similar incidents in a petition to the House of Commons, and the patriote Vermont newspaper, the North American, detailed others, including the case of two Tory women who had taken a wounded patriote into their house and given first aid.96 It reported that the Glengarries had returned, opened the dressings, and let the man bleed to death. Then they raped ‘four respectable young ladies.’ The newspaper adamantly declared that this was not an isolated incident and that ‘other women have been Colbornized in the same manner.’97 The Glengarries’ savagery disturbed their commander, Colonel Angus Macdonell, who apparently could not control it. He witnessed the distress of Canadien women and children ‘on beholding their houses in flames’ and their ‘husbands, fathers, sons and relations’ being dragged away as prisoners. Macdonnell saw ‘women perishing in the snow, small children frozen stiff by their side’ and ‘half grown children running frantic in the woods, frightened at the sight of friend or foe.’ He reported that, if Canadiens did not answer a Glengarry knock on their door, ‘their houses were consigned to the flames,’ as the troops then reasoned that they must be rebels. Retribution was merciless; quarter was not a word in the militiamen’s vocabulary.98 Accounts of the atrocities came from all sides. Jane Ellice, daughter-inlaw of the seigneur of Beauharnois, Edward Ellice, was taken prisoner the night of 3 November 1838. In her room in the parish priest’s home, she stayed up until 4 A.M. on 11 November ‘watching the village in flames; an awful sight but very beautiful.’ Her last impression came from the boat taking her across the St Lawrence to Montreal the following morning. She looked back at the manor house where she had spent the summer and saw ‘the water ... lighted up by the reflection of the villages burning in all directions.’ Estimates put the swath of flame as being six miles wide. Blood stained the roads and women and children fled in all directions – such were ‘the melancholy consequences of civil war.’99 Among those fleeing was Joseph Dumouchelle. He would eventually be captured in a state of complete starvation.100 It was up to his wife to salvage whatever she could of their belongings. As her house, stables, and barns burnt, Cornelier began a careful inventory of the contents. Her foresight ensured that, although the rebels had been beaten militarily, she could some day fight for compensation.101 An affidavit sworn before a

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notary early in 1839 claimed £1,107.6.4 for pillaged and destroyed items, ranging from her stone house (£365) to sixty chickens. Recompense would be more than a decade away, however; in the meanwhile, she and others trudged their way to relatives, hoping for refuge. The total devastation in 1838 was horrendous. In all, 2,502 families were pillaged and 221 houses burnt, with the total damage in the rebellious areas estimated at $695,833.102 The repression had been an official policy designed to avoid a third rebellion. It was likely an unnecessary precaution. Those suspected to have betrayed their country found themselves ‘exposed to the pitiless blasts of a Northern winter, without shelter, without food, and almost without clothes.’103 The Montreal Herald proclaimed: ‘The punishment of the leaders ... would not make so deep ... an impression on the people as the sight of strange farmers settled on the land of each agitator in each Parish. The sight of the widow and orphan hawking their wretchedness around those wealthy houses of which they should be dispossessed would have a good effect.’104 Many agreed. Cornelier’s small parish of Sainte-Martine, in the seigneury of Beauharnois, received the most vindictive treatment. In monetary terms only the village of Napierville, where Robert Nelson had read his ‘Declaration of Independence’ and proclaimed himself president, sustained more damage. Though the destruction of the parish cannot definitely be linked to the treasonable activities of Marguerite-Julie Cornelier and other female rebels, it is clear that women paid terribly, whatever their degree of complicity. Other than taking their lives, what worse punishment could the law inflict than that meted out by the Glengarries and their like? As one militiaman sadly reminisced: ‘We were young and it was a kind of frolic to us; but oh, those women and children! I wake in the night and think I hear them yet. Losh! I’ll never forget it – a woman with a child under each arm, others tugging at her skirts. But we did them no harm; we only burnt everything up. The Colonel told them they needn’t be afraid; but what was the good of stopping when their homes were to be burnt! They went off to the woods, and, man! it was terrible – terrible.’105 Subjugation, of course, has always been part of military policy. The events of 1838 and 1839 were no different. Oblivious to the legal nicety that war was no longer raging, British regulars and militiamen inflicted their particular brand of retribution on the area south of Montreal for months. The legal system turned a blind eye. The Glengarries gained only riches and glory. No man – private, colonel, or magistrate – was ever held to account. No woman was ever arrested or charged with treason in the rebellion

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period. Yet, indubitably, some were guilty of treason. In terms of punishment, de facto policy triumphed, it seems, over the rule of law.

NOTES 1 Recent studies of the criminal activity of Canadian women include: André Lachance, ‘Women and Crime in Canada in the Early Eighteenth Century, 1712–1759,’ in R.C. Macleod, ed., Lawful Authority: Readings on the History of Criminal Justice in Canada (Toronto: Copp Clark Pitman 1988), 10; Carolyn Strange, ‘Wounded Womanhood and Dead Men: Chivalry and the Trials of Clara Ford and Carrie Davies,’ in Franca Iacovetta and Mariana Valverde, eds., Gender Conflicts: New Essays in Women’s History (Toronto: University of Toronto Press 1992), 149; Karen Dubinsky and Franca Iacovetta, ‘Murder, Womanly Virtue, and Motherhood: The Case of Angelina Napolitano, 1911– 1922,’ in Tina Loo and Lorna R. McLean, eds., Historical Perspectives on Law and Society (Toronto: Copp Clark Longman 1994), 161; F. Murray Greenwood and Beverley Boissery, Uncertain Justice: Canadian Women and Capital Punishment, 1754–1953 (Toronto: Osgoode Society/Dundurn 2000). 2 See, particularly, Rusty Bitterman, ‘Women and the Escheat Movement: The Politics of Everyday Life on Prince Edward Island,’ in Janet Guildford and Suzanne Morton, eds., Separate Spheres: Women’s Worlds in the 19th-Century Maritimes (Fredericton: Acadiensis Press 1994), 23; Gail Campbell, ‘Disfranchised but Not Quiescent: Women Petitioners in New Brunswick in the Mid-19th Century,’ in ibid., 39; ‘Introduction,’ in Loo and McLean, eds., Historical Perspectives on Law and Society, 2–3. See also Ernest A. Clarke and Jim Phillips, ‘Rebellion and Repression in Nova Scotia in the Era of the American Revolution,’ in F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Law, Politics, and Security Measures, 1608–1837 (Toronto: Osgoode Society/University of Toronto Press 1996), 172 (hereafter Canadian State Trials I). 3 Rapport de l’Archiviste de la Province de Québec (Quebec: L.-Amable Proulx 1926), 146; British Parliamentary Papers, Colonies, Canada, Session 1840–41, 14 (Shannon, Ireland: Irish University Press 1969), vol. 14, 407–25. 4 Allan Greer, The Patriots and the People: The Rebellion of 1837 in Lower Canada (Toronto: University of Toronto Press 1993), 214–15. Although the Clio Collective, Quebec Women: A History, trans. Roger Gannon and Rosalind Gill (Toronto: Women’s Press 1987), accords greater importance to women’s contributions, it, too, 118–21, views the insurrections as essentially the work of men. The perspective of these works deviates from that of Marcelle Reeves-

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Morache’s pioneering study, ‘La Canadienne pendant les Troubles de 1837– 1838,’ RHAF, 5 (1951), 99, which portrays women as active collaborators. We do not, of course, wish to assert that all Lower Canadian women committed treason or sedition. As Greer, Patriots, 8, aptly remarks, most individuals who find themselves in a revolutionary situation continue to go about their ordinary lives. We do, however, wish to offer new evidence concerning female rebelliousness and to challenge the view of women in this period as passive and apolitical. Jan Noel, ‘New France: Les femmes favorisées,’ Atlantis, 6 (1981), 80; Alison Prentice et al., Canadian Women: A History (Toronto: Harcourt Brace Jovanovich 1988), 49–56; Clio Collective, Quebec Women, 89–92. R.-L. Séguin, ‘La Canadienne, aux XVIIe et XVIIIe Siècles,’ RHAF, 13 (1960), 497–8. Terence Crowley, ‘“Thunder Gusts”: Popular Disturbances in Early French Canada,’ Canadian Historical Association, Historical Papers (1979), 19–22. ‘Journal ... pour l’examen des personnes qui ont assisté ou aider les rebels ... 1776,’ Rapport de l’Archiviste de la Province de Quebec (Quebec: L.-Amable Proulx 1927–8), 447. Translations from this source are by F. Murray Greenwood. The title would seem to refer to Maria Theresa, the Hapsburg monarch, who became queen of Hungary in June 1741 and who made a dramatic and successful appeal for Hungarian support in the war against Prussia and its allies several months later. The appearance of the young mother before the Hungarian Parliament and the loyalty she inspired became legendary. See Edward Crankshaw, Maria Theresa (London: Longmans, Green 1969), 70–81. ‘Journal,’ 480 and 470 respectively. CO 42/34, NA. See also 30 Sept., 9 Nov. 1775; vol. 35, 14 May 1776 (Carleton to Germain), encl. 2. See also the biography of Thomas Walker in DCB, 4: 758–60. Strangely enough Mrs Walker’s journal (n.12 below) is not cited. [Mrs Thomas Walker], A Diary of the Invasion of Canada 1775 (Contoocock, N.H.: New Hampshire Antiquarian Society 1876), quotation at 49. F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: Osgoode Society/University of Toronto Press 1993), 78. Crowley, ‘Thunder Gusts,’ 30; Greenwood, Legacies, 132. Greenwood, Legacies, 89–90. Berthelot received two fines, one of £10 and one of £5. The Canadiennes were not the only colonial women to have acted politically. As Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill: The University of North Carolina Press 1980), ch. 2, and Janice Potter-MacKinnon, While the Women Only Wept: Loyalist Refugee Women

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(Montreal: McGill-Queen’s University Press 1993), ch. 2, show, both Patriot and Loyalist women in the American colonies participated in the revolution, and as Cecilia Morgan, Public Men and Virtuous Women: The Gendered Languages of Religion and Politics in Upper Canada, 1791–1850 (Toronto: University of Toronto Press 1996), 39–43, indicates, women in Upper Canada demonstrated political capability in the War of 1812. On historical treatment of Upper Canada’s most famous female patriot, see Cecilia Morgan, ‘“Of Slender Frame and Delicate Appearance”: The Placing of Laura Secord in the Narratives of Canadian Loyalist History,’ Journal of the Canadian Historical Association, n.s., 5 (1994), 195. On the political behaviour of women in the mother country, see Linda Colley, Britons: Forging the Nation 1707–1837 (New Haven, Conn.: Yale University Press 1992), ch. 6; and Malcolm I. Thomis and Jennifer Grimmet, Women in Protest 1800–1850 (London: Croom Helm 1982). Greer, Patriots, 189–218. For an analysis of how late-eighteenth- and earlynineteenth-century ideas about women were incorporated in civil law in Europe, see Dorothea Wayand, ‘Women in Enlightenment and Revolution and Their Position in the First Modern Civil Codes,’ Canadian Journal of Law and Society, 7 (1992), 93. Greer perhaps overstates the case for patriote acceptance of separate-spheres ideology. He makes much of Papineau’s support of the 1834 bill disenfranchising women. The Clio Collective, Quebec Women, at 104, suggests, however, that parti canadien support for this bill owed as much to political expediency as to philosophical principle. Though Greer, Patriots, 216–18, does provide examples of political activism among constitutionalist women, he fails to explain why such involvement would be restricted to conservative females. In the Introduction to Separate Spheres, Guildford and Morton, 9–12, consider the applicability of separatespheres ideology to the reality of women’s lives and refer to ‘the gap between experience and ideology.’ Clio Collective, Quebec Women, 89–90; Brian Young, ‘Getting around Legal Incapacity: The Status of Married Women in Trade in Mid-Nineteenth Century Lower Canada,’ in Peter Baskerville, ed., Canadian Papers in Business History (Victoria: University of Victoria 1989), 6; Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866 (Montreal: Osgoode Society/ McGill-Queen’s University Press 1994), ch. 7. Though the Coutume de Paris stipulated communauté de biens, it was possible for spouses to keep their property separate through a marriage contract. According to Bettina Bradbury, et al., ‘Property and Marriage: The Law and Practice in Early Nineteenth-Century Montreal,’ Histoire sociale–Social History, 26 (1993), at 9, séparation de biens was increasingly chosen by propertied Montreal

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couples in the period from the 1820s to the 1840s; RG 19, vol. 5464, NA; British Parliamentary Papers, Colonies, Canada (Shannon, Ireland: Irish University Press 1969), xiv. Clio Collective, Quebec Women, 89. Hugh Murray, An Historical and Descriptive Account of British America; Comprehending Canada Upper and Lower ..., 3 vols. (Edinburgh: Oliver and Boyd 1839), 1: 344. Bitterman, ‘Escheat Movement,’ 30–1. The phrase is taken from John Bohstedt, ‘The Myth of the Feminine Food Riot: Women as Proto-Citizens in English Community Politics, 1790–1810,’ in Harriet R. Applewhite and Darline G. Levy, eds., Women and Politics in the Age of the Democratic Revolution (Ann Arbor: University of Michigan Press 1990), 21. Murray, Historical and Descriptive Account, 2: 57, 73, 81–2; Greer, Patriots, 73. For an examination of female evidence in an earlier set of state trials, see Thomas Bartlett, ‘Bearing Witness: Female Evidences in Courts Martial Convened to Suppress the 1798 Rebellion,’ in Dáire Keogh and Nicholas Furlong, eds., The Women of 1798 (Dublin: Four Courts Press 1998), 64. We owe this reference to Laurie Campbell. Report of the State Trials, before a General Court Martial Held at Montreal in 1838– 1839: Exhibiting a Complete History of the Late Rebellion in Lower Canada, 2 vols. (Montreal: Armour and Ramsay 1839), 1: 266 (hereafter Report of the State Trials). Ibid., 1: 270. Ibid., 1: 291. Ibid., 1: 254. North American, 27 Nov. 1839; J. Douglas Borthwick, History of the Montreal Prison from A.D. 1784 to A.D. 1886 (Montreal: A. Periad 1886), 87–8. Women had traditionally participated in the rituals associated with the final stage of punishment. In 1797, as Greenwood, Legacies, 3, 165, notes, women from Quebec City screamed out offers of marriage in the belief that they might save the American, David McLane, from being hanged for treason. In the rebellion era, women in Upper Canada at least continued to be prominent at scenes of execution. According to some Toronto newspapers (Palladium, 17 Dec. 1837, Patriot, 20 Dec. 1837, Christian Guardian, 19 Dec. 1837), the majority of those who witnessed the hanging of Julia Murdoch in December 1837 were females, as were many of those present at the hanging of ‘General’ James Moreau the following year. Niagara Reporter, 3 Aug. 1838. Campbell, ‘Disfranchised,’ 119. She did not vote for the ‘government’ candidate, William Grant. Poll Book, 1792, MG 24, B 31 (Young Family papers), vol. 2, NA.

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36 Constitutional Act of 1791, 31 Geo.III (1791), s.20. There was an urban franchise as well. 37 Fernand Ouellet, Lower Canada 1791–1840: Social Change and Nationalism, trans./adapt. Patricia Claxton (Toronto: McClelland and Stewart 1980), 226. 38 Although the bill passed the House of Assembly, it was not assented to and Canadien women were not officially barred from voting until 1849. For a thorough examination of the topic, see Natalie Picard, ‘Les femmes et le vote au Bas-Canada de 1792 à 1849’ (unpublished M.A. thesis, Université de Montreal 1992). We owe this reference to Patricia Kennedy and Jean-Marie Fecteau. 39 Clio Collective, Quebec Women, 117. 40 Vindicator, 20 Oct. 1837. 41 Cited in Robert Christie, A History of the Late Province of Lower Canada, 6 vols. (Quebec, Montreal 1848–55), 4: 373–4. 42 Vindicator, 6 June 1837. 43 Ibid. 44 Vindicator 6 June, 25 July 1837. On this point we agree with Greer, Patriots, 213. 45 Vindicator 6 June, 25 July, 15 Aug. 1837. 46 Reeves-Morache, ‘La Canadienne,’ 99. 47 Janice Potter-MacKinnon, 8, 104, 150–1. 48 Reeves-Morache, ‘La Canadienne,’ 100–2. On the retribution, meted out to Fèlix after the rebellion, see text at nn.90–3 below. 49 22, 29 Sept. 1837. 50 Reeves-Morache, ‘La Canadienne,’ 100. 51 Abbé A. Couillard-Després, Histoire de la Famille et de la Seigneurie de SaintOurs, 2 vols. (Montreal 1917), 2: 286–7; quoted in Reeves-Morache, ‘La Canadienne,’ 100–1. 52 While women may not have used weapons in battle, they were not afraid to brandish them. The women of Saint-Antoine have already been mentioned. In his Mémoires (Montreal: 1903), 44, cited in Reeves-Morache, ‘La Canadienne,’ 101–2, Robert-S.-M. Bouchette described his encounter with Émilie Boileau, who approached him at a Chambly patriote meeting with a pistol in her right hand. 53 Événements, 1837–1838/1837–1849, 302, ANQ. 54 Robina and Kathleen Lizars, Humours of ’37 Grave, Gay and Grim: Rebellion Times in the Canadas (Toronto: William Biggs 1897), 339. 55 Ibid., 313. See also 321–2, 366. 56 Reeves-Morache, ‘La Canadienne,’ 102; Morgan, Public Men, 95. 57 North American, 3 July 1839; RG 4, B 24, vol. 2, NA. 58 ‘Report of the Commissioners relating to Compensation for Losses Sustained during the Rebellion in Lower Canada,’ Parliamentary Papers, 14: 438.

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59 Lizars, Humours, 340. 60 For a fuller description of the Chasseurs see Beverley Boissery, A Deep Sense of Wrong: The Treason, Trials and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion (Toronto: Osgoode Society/Dundurn Press 1995), 31–4 (quotation from 33) and references therein. 61 One of the causes for the 1838 rebellion was the anglicization of names. This is a perfect example. According to claims filed for the Rebellion Losses Commission, Saint-Denis was the widow of J.-B. Baudrias: RG 19, E5A, vol. 3771, NA. 62 Confession of J.-H.-B. Brien, November 1838, Report of the State Trials, 2: at 552. For the story of Brien and his confession, see Boissery, A Deep Sense of Wrong, 41–2, 59, 102–3, 112–14, 144–5, 166–7. The situation of Cornelier being more literate than her husband may not have been that unusual. According to John Lambert, Travels through Canada and the United States of America ..., 2 vols. (London: Richard Phillips 1810), 2: 169, habitant men were not well educated ‘owing to the paucity of schools in Canada,’ whereas ‘the women are better instructed, or at least better informed, for they are more attended to by the priests.’ See also Allan Greer, ‘The Pattern of Literacy in Quebec, 1745–1899,’ Histoire sociale–social History, 11 (1978), 317. 63 Robert Sellar, The History of the Counties of Huntingdon and of the Seigniories of Chateauguay and Beauharnois (Huntingdon, Que.: Canadian Gleaner 1888), 506. 64 For fuller definitions and analysis see Greenwood, Legacies of Fear, 135–6, and Greenwood and Barry Wright’s Introduction, Canadian State Trials I, 24–7. 65 Report of the State Trials, 8th trial. 66 Report of the State Trials, 2: 525. 67 Claim of Apolline Bourque, widow of Antoine Daigle, RG 4, B 37, vol. 8, 178. 68 Report of the State Trials, 2: 136. For a fuller discussion of the topic, see Boissery, A Deep Sense of Wrong, ch. 7, and F. Murray Greenwood, ‘The General Court Martial of 1838–39 in Lower Canada: An Abuse of Justice,’ in W. Wesley Pue and Barry Wright, eds., Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press 1988). 69 See particularly ch. 1 and notes of No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang 1998). 70 Emphasis is ours. 71 25 Ed.III c.1; as cited in Edward Coke, The Third Part of the Institutes of the Laws of England Concerning High Treason ... [1641] (London: W. Clarke and Sons 1809)], 2, 4. 72 For a fuller history and explanation of spousal coercion, see Boissery and Greenwood, Uncertain Justice, ch. 3. 73 The remainder of this section is based on Kerber, No Constitutional Right, ch. 1. 74 After an exhaustive search in the National Archives, Patricia Kennedy has

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found a few instances where women took an oath of allegiance after their arrival as Loyalists in 1784–6 (RG 4, A 1, vol. 27, NA). They could and did petition for land after the War of 1812 and these forms included ‘a paragraph asserting the loyalty of the woman’s father and/or husband before 1783 and during the War of 1812.’ Kennedy concludes, though, that ‘the empirical evidence clearly and comprehensively indicates that women’s loyalty [in the Canadian colonies] was established through their fathers and husbands’: email to authors, 11 Dec. 2000. Emphasis is ours. This and the following paragraphs are based on the trials as recorded in 11 St. Tr. 298–381 and 382–454 respectively. Her husband became lord president of the High Court in Cromwell’s Commonwealth. Quotation from Hale (1 Hale’s P.C., ch. 22, 238), cited by Howell in ibid., 371. Ibid. See, e.g., Greenwood, ‘The General Court Martial of 1838–39.’ See his article ‘Bearing Witness,’ 64–86 but especially at 66n.11. 26 St. Tr. 1135–64 (Mealmaker); 1179–90 (Paterson and Black). See also Greenwood’s first essay on the Montreal Court Martial for the Irish case of William Orr, hanged in 1797. 2 Vic. c.8. Bartlett, ‘Bearing Witness,’ 65. For further reading, see Benjamin Wait, The Wait Letters (Erin, Ont.): Press Porcépic 1976); Boissery, A Deep Sense of Wrong, transition to ch. 8. See the Introduction and essays by Greenwood, Colin Read, and Cassandra Pybus in this volume for further information. See also RG 5, A 1 (Upper Canada Sundries), vol. 196, 108872–3, 109695, 111125, NA. Ibid., 108491–6 and 108979–81. The letter is reprinted in the Documentary Appendix. Foster, Report of ... Proceedings ... [and] Discourses, 198. See Proceedings against William Gregg (1708), 14 St. Tr. 11371; unsigned document entitled ‘In this vacation vist Decem. 1707,’ in Charles Yorke’s Papers, ‘Legal Precedents 1602– 1752,’ British Library. ‘Ideological Dimensions of Law in Upper Canada Treason Proceedings of 1838,’ Criminal Justice History, 10 (1989), 131. Joseph Dumouchelle swore that the treatment of his relatives in Saint-Benoît was a direct cause of his involvement in the 1838 rebellion, and presumably Cornelier was similarly motivated by outrage. Report of the State Trials, 1: 341, entry for 12 June 1840. The entry details a copy of a character certificate given to Dumouchelle. It stated that one of his relatives had been a member of the

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Lower Canadian House of Assembly for many years – Jean-Baptiste Dumouchel. See also F. Murray Greenwood, trans./ed., Land of a Thousand Sorrows: The Australian Prison Journal, 1840–1842, of the Exiled Canadian Patriote, François-Maurice Lepailleur (Vancouver: University of British Columbia Press 1980), and petition against transportation, RG 4 B 20, vol. 27, 12289–92. Norah Story, ed., ‘Stewart Derbishire’s Report to Lord Durham on Lower Canada, 1838,’ CHR, 18 (1937), 48–62 at 53. ‘Return of Judgment Rendered and Claims Investigated before 1st September 1850,’ RG 4, B 37, vol. 8, no. 543. Such as ‘une bague, un joue & épinglette, une paire de pendants d’oreille’: RG 19, vol. 3774; see also RG 4 B 37, vol. 7, claim A, 623. This paragraph is based primarily on William Ormsby, ed., Crisis in the Canadas 1838–39: The Grey Journals and Letters (Toronto: Macmillan 1964). Mackenzie’s Gazette, 1 Dec. 1838, 23 March 1839. See also Greer, Patriots, 353. Dec. 1838, MG 24, B 14 (La Fontaine Papers), NA (with Charles Mondelet); North American, 3 July 1839. Ibid. Macdonnell to Bishop Alexander Macdonnell (19 Nov. 1838), as quoted in D.M. M’Leod, A Brief Review of the Settlement of Upper Canada [1841] (Belleville, Ont.: Mika Silkscreening 1972), 250–1. Entries for 11, 12 Nov. 1838, Patricia Godsell, ed., The Diary of Jane Ellice (n.p.: Oberon 1975), 143, 144. Some of the rebels’ children ended up hundreds of kilometres from their home in the care of strangers. While the wife of François-Maurice Lepailleur eked out a living as a lowly servant, her children were cared for in the environs of Quebec City: Greenwood, Land of a Thousand Sorrows, 105. Ibid. As indeed she did: RG 4, B 20, vol. 27, 12300–3. See also, ‘Pay List. Lower Canada. Rebellion Losses Claims. Novr. 1852,’ RG 4, B 38, vol. 8, claim 1629. Cornelier eventually received roughly a third, £233.2.0, of her request for £676.18.10. North American, 31 July 1839. Ibid., 23 March 1839. 22 June 1839. M’Leod, A Brief Review, 50.

12 The Punishment of Transportation as Suffered by the Patriotes Sent to New South Wales B E V E R L E Y B O I S SE R Y

Time was extraordinarily precious for fifty-eight men in the Montreal jail on 25 September 1839. The next day they would embark on the HMS Buffalo for transportation to the unknown Antipodes. Emotions ran high as they tried to console loved ones and cloak their despair. Young JeanMarie-Léon Ducharme (known as Léandre) wrote to his mother of his hallucinations; sometimes, he said, he believed that Lower Canada was free and its ‘enemies [had] returned to that dust from which they sprang.’ But the call of sentries always brought him back to the ‘sad reality’ of his fate.1 Ducharme would be joined in New South Wales by fifty-five other Canadiens, Benajmin Mott from Vermont, and Chateauguay physician Samuel Newcomb, father of patriote activist Henri Newcomb. Their being on the Buffalo was no accident. Rather, it resulted from a series of deliberate choices by Sir John Colborne, administrator of Lower Canada. After reassuming control of the province after Lord Durham’s departure on 3 November 1838, Colborne governed autocratically. To a large extent, the ultra-sensitive situation in the province dictated many of his highhanded actions, and while his superiors in Britain might deplore some, he had their tacit approval as long as he prevented a feared, possible third rebellion. As well, the distance between London and Lower Canada, and the time (about four to six weeks) it took for dispatches to reach him, meant that advice and instructions might be redundant by the time they arrived. This became poignantly obvious when the colonial secretary’s dispatch expressing disapproval of executions arrived too late to

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save rebel lives. Although Colborne’s actions were, theoretically, controlled by the executive and special councils, these were, in reality, handpicked bodies willing to rubber stamp his decisions. The Colonial Office, worried by the fiasco of Durham’s Bermuda Ordinance asked the law officers to decide if Colborne’s actions were legal. On 7 December 1838 Attorney General Campbell and Solicitor General Rolfe advised that Colborne had succeeded to the wide-ranging powers granted his predecessor, including the right to appoint members of the Special Council. Eleven days later they sent an additional opinion to the Colonial Office that the Special Council could legislate. This decision, although it would not reach Colborne until several sentences had been put into effect, virtually assured the validity of the enabling ordinance setting up the Montreal General Court Martial.2 Therefore, while the properties of real (and imagined) rebels smouldered and the militia scoured the countryside looking for suspects, Montreal officials began selecting the first group of rebels to face trial before the military tribunal. It more than met the requirements for general courts martial as defined by the Mutiny Act.3 As Murray Greenwood recounts in his essays, when the accused struggled to raise constitutional points of law and challenged the enabling ordinance, particularly at the first trial, the officer judges were unconcerned with such arcane matters. They knew their Articles of War and the Mutiny Act – not Blackstone or the common law. They thus regarded questions of competency with disdain and initially handed down a variety of sentences, as they might have done in a regular court martial.4 Section 17 of the Mutiny Act required that a transcript be forwarded to London within a reasonable time – twelve months for general courts martial outside Europe. The Horse Guards would then send it to the Judge Advocate General’s Office for verification of legality and confirmation of the sentence.5 A note on Colborne’s letter to Glenelg of 22 January 1839 shows that this procedure was followed.6 The Colonial Office also sent copies of the Montreal trials to the law officers and was reassured by them, on 22 January 1839, that ‘the court established under the ordinance in question [2 Vic. c.3 L.C.] ... was competent to try prisoners under the charge of treason.’7 Judge Advocate General Sir George Grey was far more cautious, giving only qualified approval in his letter of 14 March 1839 to Lord Somerset. Ironically, he, more than his civilian counterparts, paid attention to the prisoners’ challenges referred to above: ‘I have to state ... that as these Courts Martial were not held under the Mutiny Act & as the Offences

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with which the Prisoners were charged are not such as are usually cognizable by Courts Martial the Revision of the Proceedings does not appear ... perfectly to fall under the Province of the Judge Advocate General. Opining however that the Courts were legally constituted & had competent jurisdiction & that the written objections raised by the Prisoners in Lower Canada were properly overruled on which I can offer no opinion ...’ He finished by saying that, if those doubts could be satisfied, the ‘cases appear to me to have been in accordance with the Usage of Courts Martial.’8 That this was so would become extremely important later. Grey quite rightly tried to distance himself from the extremely political Montreal General Court Martial. It consisted of fourteen trials involving 106 men and while, of course, punishment for treason was its primary focus, it had other important aims.9 First, since Durham’s policy of leniency had only resulted in a second rebellion, the military intended to use the court martial to show the Canadiens that a third uprising would not be tolerated. Second, the court martial would signal that the outrage felt by the English-speaking settlers and other loyalists was to be appeased by blood. A third loud message was that neutrality, in times of rebellion, amounted in itself to treason. The deputy judge advocates emphasized this point in the eighth trial: let ‘all others who need the instruction, learn that there can be no middle course between loyalty and disaffection.’10 Although Colborne later described the tribunal as one that dispensed ‘impartial justice,’11 the punishments suggest that other considerations, political and social, were at work. Those selected to die on the gallows were not representative of the broad rank and file of participants in the 1838 uprising. Eight of the eleven Canadiens were literate and, with the exception of one, had been patriote activists before 1837, part of the first rebellion, and helped to plan the second. Five farmers had been implicated in incidents resulting in death – either that of informer Armand Chartrand or Aaron Walker. Colborne, writing on 15 February 1839 after the execution of five convicted rebels, described the convicted prisoners as men with ‘noxious influence’ whose ‘virulent activity and general dangerous characters rendered them fit examples’ to their community.12 Thus, by Colborne’s arbitrary criteria, wheelwright Toussaint Rochon, a patriote leader in Beauharnois, escaped death because the administrator considered him to have ‘no influence.’ After 15 February, there were no further hangings no matter how much influence the convicted possessed or how inflammatory or dangerous their activity had been. Writing after

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receipt of the above letter, Glenelg expressed gratification that Colborne had decided to end ‘a mode of punishment which can never be resorted to without reluctance. Mercy,’ he advised, ‘will attach the lower classes of the French Canadians to the government more than deaths.’13 Transportation was considered a form of mercy. As mentioned earlier,14 the presiding board in the first trial initially sentenced six men to transportation for life. Although this was soon altered to the uniform sentence of death, it was obvious that both London and Lower Canada thought of transportation as a merciful alternative to death. In his letter apprizing Colborne of his pleasure on hearing that the executions had ceased, Glenelg referred back to his predecessor’s dispatch of 18 January 1839. This had informed Colborne that Her Majesty’s government intended to take the necessary measures to transport convicted rebels directly from Lower Canada ‘to the place of their destination.’ Specifically, the Colonial Office had issued orders to the lords commissioners of admiralty ‘to send to the St. Lawrence as early as possible, a vessel capable of conveying not less than 200 Convicts from Canada to Australia.’15 This communication had not reached Lower Canada by 19 February, for, in his dispatch of that date (forwarding trial transcripts), Colborne advised that, after the executions, forty-three men remained in jail under sentence of death ‘for which I cannot feel anxious to impress on Her Majesty’s Government the necessity of making immediate and sufficient preparation at the opening of Navigation.’ In a note on the back of this, dated 21 March 1839, Glenelg ordered that ‘if the Governor has not already been informed of what has been done for carrying into effect the sentences of transportation that information should immediately be in communication to him.’16 In a confidential letter dated 27 February, Colborne replied to the 18 January dispatch, which had finally reached him. He would, he advised London, ‘retain the Prisoners in their Province under sentence of transportation’ and that the number to be transported would not exceed one hundred.17 Advised in late March that the HMS Buffalo would carry troops to Quebec and then ‘take on board ... [the convicted men] for Australia,’ Colborne fretted and worried at each delay.18 Told that the Buffalo would not be ready for sea until the first week of June, he became understandably testy when it had not reached Lower Canada by the end of July: ‘The suspense and expectation which the long passage of this vessel occasions, is painful to the connexions and acquaintances of the parties concerned, and disadvantageous to the Government.’19 The selection of ‘parties concerned’ was capricious. The deputy judge

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advocates prepared a list, as did the Executive Council. Activism helps explain the transportation of Hypolite Lanctôt, a commander during the Battle of Odelltown, and Joseph Dumouchelle, leader of the Beauharnois rebels, among other examples. Evidence given during the twelfth trial against farmer Charles Mondat proved that he was one of Aaron Walker’s ‘murderers’ but Colborne discharged him after deciding he was ‘naturally of an imbecilic mind.’20 A leadership role, however, was only one factor in determining who fell under the administrator’s general rubric of ‘dangerous characters’ to be permanently removed from the colony.21 One test was class status: prisoners considered middle-class were deemed particularly dangerous by officialdom. Of the sixteen convicted and spared execution, two were exiled and eleven transported. These latter included Ducharme and notary Charles Huot, both recommended for mercy by the court. Previous political activity was another criterion. Farmer Jacques-David Hébert was transported even though recommended for mercy by a brother of a special councillor. His past record was held against him. In 1836 he had acted as Dr Cyrille Côté’s lieutenant during the agitation in the Richelieu River area against seigneurial tenure and been prominent protesting government coercion a year later.22 Another important factor was guilt by family association, a feudal concept also reflected in the treason punishment of permanent forfeiture of real estate. Although the deputy judge advocates felt that the proof against retired steamboat captain Pierre-Hector Morin was flimsy, he was Côté’s brother-in-law and thus transported.23 Testimony in the first court martial revealed that apolitical bailiff François-Maurice Lepailleur of Chateauguay had averted serious bloodshed during the rebellion and even Colborne contemplated his discharge, but he was the brother-in-law of the executed notary Joseph-Narcisse Cardinal.24 Farmer Théodore Bouchard had been placed in the group singled out as most deserving of mercy in the deputy judge advocates’ report, but, he had the misfortune to have as his brother-in-law Julien Gagnon, a leading rebel in 1837 exempted from Durham’s amnesty, who had used death threats when recruiting rebels in Napierville when the 1838 rebellion began. Samuel Newcomb was undoubtedly a stand-in for his activist son, Henri. Therefore, it can be argued that several men, like Newcomb and Morin, were scapegoats, punished not for conspicuous activity during the rebellion, but, as substitutes for relatives who had escaped the long arm of military law. There was one wild card. The rebellion in Beauharnois, a seigneury owned by prominent English MP/investor Edward Ellice, had been vir-

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tually bloodless until the Glengarry militia’s arrival. While the rebels took provisions from the manor house, they scrupulously signed promissory notes and kept property damage to a minimum – for example, the consumption of the winter’s supply of cherry brandy after the capture of the manor house. Colborne called upon the seigneury’s agent, magistrate and Lieutenant-Colonel Lawrence Brown, for advice. In his reply, Brown considered the seigneury’s thirty-four convicted prisoners, commenting on their profession, general character, ‘standing and conduct, during the rebellion.’25 Constant Buisson had hitherto been a ‘respectable young man’ until Brown identified him as being present when the manor house was stormed and he had subsequently been ‘employed at hooping wooden cannons.’ Yet the magistrate’s conclusions, many prompted by petty considerations, do not totally explain the final selection of men. Saint-Timothée farmer and merchant Joseph Wattier dit Lanoix had, according to Brown, been an ‘active disseminator of revolutionary doctrine for some years back.’ A ‘well doing, industrious, intelligent man, above the ordinary class of Farmer,’ Wattier exercised ‘considerable influence’ and had also taken part in the 1837 rebellion. Nevertheless, he escaped transportation. But there can be no doubt that Colborne used Brown’s list and that a man of influence, education, and affluence could be occasionally spared. Only one item, Brown’s identification of the man as an Ellice employee, made transportation inescapable. Thus, young Desiré Bourbonnais, apprenticed to the seigneury’s blacksmith, was sent to New South Wales although his activity during the rebellion was minimal at best, while Guillaume Lévesque, who had acted as Robert Nelson’s aide-de-camp and was roughly the same age, was not.26 There were only two exceptions and both men had bartered their lives in return for incriminating information: Dr Henri Brien and tavernkeeper and bailiff Charles Rapin. The final say, however, was left to Colborne.27 On 10 April 1839 he had told London that it only remained ‘to me to select those individuals whose guilt and whose dangerous character make it indispensable that they should be removed from the colony.’ Accordingly, he had told eighty-nine prisoners to ready themselves for transportation.28 But, by the end of September, he had whittled the actual number down to fifty-eight. His dispatch advised that they and the Upper Canadian prisoners had left the colony, and then announced that the Lower Canadian contingent would be sent to New South Wales – not Van Diemen’s Land as London and Governor Franklin expected.29

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Colborne gave no reasons for this decision. He may have thought that the governor of New South Wales, Sir George Gipps, would understand the patriotes better since he had been part of the Lower Canadian Gosford Commission of 1835–7. Maybe, having learned of the conditions in Van Diemen’s Land from Lieutenant Governor Sir George Arthur of Upper Canada, a former governor of the convict colony, Colborne made this autocratic decision on compassionate grounds. But no matter the reason, he presented the imperial government with a fait accompli. A note on the back of his dispatch, presumably by Lord John Russell, the new colonial secretary, revealed consternation. Yet Russell would approve Colborne’s decision and order that a copy of his dispatch be sent to Governor Franklin. A few weeks later, on 15 October 1839, Colborne elaborated on his actions but what could London do? The Buffalo was steadily sailing southwards and would reach New South Wales before any consequent Colonial Office dispatch. Undersecretary James Stephen noted rather acerbically on the back of Colborne’s letter that Russell should allow Colborne’s actions ‘unless indeed, his Lordship ... be unwilling, or should think it needless to say anything at all, on a subject so imperfectly explained.’ Russell agreed, seeing ‘no need of saying anything at present.’30 Shortly afterwards, though, he complained to the new governor, Sir Charles Edward Poulett Thomson, that the Colonial Office had not been furnished with copies of the legal records applying to the transported prisoners’ cases, but he presumed that ‘the proper documents are on board the Buffalo, and that they have been prepared with that care and under that legal advice, which will present any difficulty when the convicts arrive at their destination.’31 The transportation has troubled some historians.32 For example, Cassandra Pybus’s essay in this volume on the prisoners transported from Upper Canada raises questions about legality and procedure. However, for the cases examined here at least, the transportation was legal inasmuch as it was a valid exercise of the royal prerogative of mercy. True, the Constitutional Act of 1791 prohibited local legislation having effect outside the boundaries of the colony. It was to be ‘valid and binding’ only ‘within the Province in which the same shall have been so passed.’33 This was the reason Durham’s Bermuda Ordinance was disallowed by the imperial authorities, since it enacted obligations to be performed by the governor of Bermuda, specifically the placing of the exiled prisoners under confinement.34 It probably was also the reason the British law officers thought the transportation of rebels from Upper Canada

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under 1 Vic. c.60 illegal. To legalize it, they advised, ‘there must either be an Act of the Imperial Parliament or an act of the provincial Legislature of Van Diemen’s Land. The latter would be sufficient & much preferable.’ Their proposed legislation should be modelled on the maligned 1 Vic. c.60 and thus ‘authorize the governor to detain all such prisoners there & subject them to the same discipline’ as those offenders sent from the United Kingdom.35 This (and other Upper Canadian legislation) was quite different from commutation through the judicial process. Prior to 1838, the governors of the Canadas could commute any death sentences (for example, those for burglary, shoplifting, and arson) except those imposed for murder and treason. Commutations took several forms, such as banishment and service in the military. London, concerned as ever with costs, discouraged transportation and it was rarely imposed. A major change occurred when Lord Durham was sent to solve the problems of the Canadian colonies. The queen delegated to him, and as it proved to all his successors, the power to commute in cases of murder and treason without reference to London.36 This meant that Durham’s successor, Sir John Colborne, enjoyed for Lower Canada the identical royal prerogative of mercy as the monarch exercised in the mother country. That prerogative, furthermore, had for generations included commuting death penalties to transportation, with the governor of the designated colony obliged to do whatever was required. Such a judicial prerogative was also exercisable in Upper Canada by the lieutenantgovernor whenever Durham or later Colborne was not present in that province.37 Cassandra Pybus offers a different interpretation, placing emphasis on the view that the men were sent to ‘New South Wales with warrants made out by the colonial governors, who did not have the power to order the restraint of prisoners in another place, nor the authority to transport prisoners out of their domain to be restrained in a penal colony elsewhere.’ If Sir John Colborne had imprudently elected to punish the patriotes through the legislative process, her argument would likely be valid. But he chose the venue of a general court martial and ensured that each step conformed, as much as possible, to those required under the Mutiny Act. On 22 January 1839 the law officers informed the Colonial Office that ‘the court established under the ordinance (c.3) is competent to try prisoners under the charge of treason.’ As noted above, they reiterated this opinion on 20 April.38 Glenelg, on 3 February, informed Colborne that trial transcripts had been sent to the Judge Advocate General’s Office for ‘the benefit of his assistance in examining the proceedings’ and determining

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whether they had been ‘consistent with Military Law, and with the usages of the General Court Martial or whether they raise any question on which it would be right that any special information or instruction should be conveyed to the Civil or Military authorities’ in Lower Canada.39 Most important, as documented above, the law officers had been asked to rule on the validity of several Special Council ordinances, specifically 2 Vic. c.3. This extended ‘to persons sentenced to death by courts-martial, and subsequently pardoned conditionally, the provisions of Act 6 Will. IV, which regulates the transportation of ordinary offenders.’ The act in question, of course, was the Mutiny Act. Section 7 of that legislation provided for the mitigation of the death sentence and section 18 enacted that ‘every Person so ordered to be transported shall be subject to every Provision made by Law and in force concerning Persons convicted of any Crime and under Sentence of Transportation.’ Thus, Colborne’s order for transportation was valid because of the prerogative of mercy, the Mutiny Act, or both. However, one important point should be emphasized regarding the legality, or otherwise, of those transported from Lower Canada. If, as Murray Greenwood argues in his second essay on the General Court Martial in Montreal, the ordinance establishing it was ultra vires, then it must follow that any sentences by the court martial would be illegal, too, as would commutations of them to transportation. This qualification, however, applies only to those transported from Lower Canada. It seems fitting that the last word on the debate should belong to Queen Victoria. In a letter dated 26 October 1839, Lord Russell conveyed her gratitude and ‘approval of the exercise of Her prerogative of Mercy in these cases.’40 For the fifty-eight men in the Montreal jail, however, her approval was a moot point. Given less than twenty-four hours’ notice of their departure, they prepared as best they could for life in New South Wales. Families and friends procured letters of reference, provisions, French-English dictionaries, writing paper, ink powder, tobacco, bibles, and small supplies of money.41 The Buffalo would sail directly for the Australian colonies (with stops for reprovisioning in Rio de Janeiro and Capetown). This was a logical route, and it also avoided the enormous cost of shipping the men to London and then to the Australian colonies as well as the political and legal storms generated by the Upper Canadians who had earlier been transported via London. (The latter issue is examined in the essay by Cassandra Pybus, together with related questions about extraterritorial confinement and the bypassing of imperial administrative procedures regarding transportation.)

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If the patriotes were relatively well prepared for their new life, New South Wales was not ready for them. In fact, the very thought of them outraged Sydney’s citizens. How dare the British government export such foreign rebels to its shores. The convict system in New South Wales was winding down – the last convict ship would arrive in November 1840 – and the action seemed a regressive step for a colony seeking to break free of its convict origins. From its inglorious beginning in 1788, Sydney’s population had grown to 29,000 and its citizens entertained grandiose plans for the future. Roads, sewers, pavements, and higher standards of building would improve the town, which ‘until yesterday’ had been ‘a by-word of reproach throughout Europe.’42 But, for all its pride and vision, religion, ethnicity, and class divided the town. A Presbyterian cleric pointed out in 1837 that one-third of the population was Irish Roman Catholic and that 95 per cent of this group had arrived in convict ships. The leading newspaper, the Sydney Herald, complained that for every ship arriving in Port Jackson from England, three others came from Ireland and that, while having English thieves thrust upon the town was bad enough, the infliction of the Irish, with their ‘criminality grafted upon ignorance and superstition,’ was worse.43 It went without saying that the Anglican majority feared and distrusted the Irish Catholic minority. And, as news of the imminent arrival of French-speaking, Catholic rebels spread throughout the colony, a large number believed that these prisoners would unite with their fellow Catholics to overthrow the government. Their fears were grounded in the wide coverage the Canadian rebellions had received in Sydney’s newspapers. How could the ‘Ministry crush one rebellion and transport to another Colony the elements of insubordination and rebellion?’ The Herald reminded readers of ‘the only instance of any united attempt to overturn the Government here, was after the arrival of the [United Irish] Croppies in 1804, and it was many years before the seeds of disorder and riot were crushed.’ It predicted ‘a ready welcome from the [colony’s] many restless spirits’ because of the aura of ‘romance’ attached to the Canadian rebellions. The newspaper concluded that the patriotes should be transported to Westminster rather than to their fair city.44 The Buffalo (after delivering those transported from Upper Canada to Van Diemen’s Land) quietly dropped its anchor in Sydney Harbour on the afternoon of Thursday, 25 February 1840. When Captain Wood presented his papers to Governor Gipps, it would have been the first official notification of the prisoners’ arrival he had had. (London’s dispatch

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advising him to expect the patriotes, dated 29 November 1839, would arrive in April 1840.) Immediately, intense pressure was exerted on Gipps to send the prisoners on to Norfolk Island, a notorious convict settlement for recidivists. But that institution was being reformed to bring it more into line with the latest thinking on penitentiaries and no new convicts had been sent to it after November 1839.45 Gipps eventually decided to keep the patriotes in Sydney, though he took no chances.46 To minimize risk, the fifty-eight men would be kept together in a stockade at Longbottom,47 about eleven kilometres from the city, guarded day and night by soldiers and mounted police. This military superintendence, which would last close to two years, ran counter to the then current policy regarding the convict system in New South Wales and differed from that faced by the Upper Canadians in Van Diemen’s Land.48 While the convict transportation to New South Wales would continue until 1844, the migration of ‘free’ settlers was being actively encouraged. Moreover, the policy of ironed gangs under military control had ended in March 1838 and there was a diminishing need for convict workers on government projects. Nevertheless, the patriote convicts would work under the direction of the colonial engineer, Major George Barny, closely guarded by the military and police. Hard labour began the day following the patriotes’ arrival on 12 March 1840. One group unloaded stone from barges moored at the stockade’s wharf onto bullock carts which were driven to another area where another group pounded the stone into pieces suitable for use in roadbuilding. Except on Sundays, their day began at 6 A.M., when supervisors released them from their huts for breakfast and dispersal to various work areas – the wharf, roads, the forest, the stone-breaking area, and, later, the brickyard. They would break for lunch but had no evening meal and at sundown they returned to their huts to be locked up again. On their Sunday day of rest they attended religious services, at first performed by Father John Brady, secretary to the Catholic bishop of Sydney, John Bede Polding, until Gipps granted permission for them to walk to the nearest Catholic church, in Parramatta, about ten kilometres to the west. This concession was controversial and the men themselves could not bear the disgrace of walking publicly in their convict dress. Gipps, however, after a personal visit to the camp, granted permission for them to wear ‘civilian’ clothes on the weekly trek. Although the Canadiens received concessions, they were the only group in New South Wales to undergo supervision for close to two years.

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In most ways they were treated exactly the same as earlier convicts. Ducharme wrote that ‘we suffered daily’ and ‘it was entirely due to our good behaviour, to our patience, and to our constancy in manfully enduring much ill-treatment’ that punishments were not worse. Nevertheless, some ‘were punished with the dark cells, and daily tormented and illused in the most painful and disgusting way.’49 Conditions eased and indulgences such as church-going were gradually extended as the Canadiens gained the respect of their captors. Within a year they were virtually responsible for their own security, with trusted convicts conducting the night-watch. Many men began businesses, making charcoal, selling oysters for potash, and doing carpentry. Although illegal, such activities helped make up for the corrupted shortfalls in official provisions. In late 1841 the Canadiens began receiving papers assigning them as servants to various influential men throughout the colony. Paid a small wage, most were able to stay in Sydney. By March 1842, they were upgraded to ‘ticket of leave’ – a status similar to probation. Now free to search out work within specified districts and begin official businesses,50 many centred themselves in the Brickfield Hill area of Sydney. When one man found a good employer, he would try to make sure that other jobs with him were filled by his compatriots. For example, Lepailleur secured employment for Basile Roy. Several joined together in a timber business. Edouard-Pascal Rochon became an entrepreneurial poster boy by borrowing money from his fellow Canadiens, buying two lots in the city, and building houses on them.51 When Rochon sold the properties, he had more than doubled his money. Yet, despite the successes, loneliness and separation from families affected the patriote convicts. Lepailleur’s journal vividly paints a picture of a man tormented by the absence of his family and particularly his wife, Domitile. Others sent letters home agonizing about their children’s schooling and marriage prospects. A few, such as Joseph Dumouchelle and Etienne Languedoc, consoled themselves with various women in the colony. Dumouchelle was accused of theft (by the husband of his lover) and Languedoc spent time on the treadmill. To some extent, it is difficult to compare the experiences of the Upper Canadian and American convicts with the experiences of those from Lower Canada. The convict system of Van Diemen’s Land, where the Americans and Upper Canadians were sent, was not being wound down like that of New South Wales when the Buffalo arrived. Both groups, however, saw the Australian colonies in much the same way. As Cassandra Pybus writes, four men transported to Van Diemen’s Land on the Buffalo resolved that death was preferrable to ‘the loathsome curse of slavery.’

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This sentiment echoes that of men who landed in Sydney. Basile Roy was just one who likened convict existence to that of a ‘slave without liberty’ and one that ‘causes a pain which never ends and renews itself every moment of life, still more painful for he who has left a wife and dear children.’52 Like their American counterparts, the men from Lower Canada also examined every avenue of escape, with Louis Bourdon fleeing the colony on an American whaler. Two Canadiens, however, thought that the risks of escape far outweighed the possible benefits, because they, unlike the Americans, would not be allowed back into their homeland and thus still would be separated from everything they cherished.53 Whether from Michigan, Vermont, New York, Upper Canada, or Lower Canada, most men desired to return home. North Americans, in general, did not see Australia as a land of ‘liberty and freedom,’ as convicts from the British Isles sometimes did. The Lower Canadians maintained constant contact with their homeland through letters and newspapers. They knew of the efforts being made to bring them home. The first petitions for their return began circulating in the same week as their departure. By September 1841, the governor, Sir Charles Bagot, had advised London that the ‘pressure [for pardons] is great, and will increase.’54 But the imperial government was extremely reluctant to consider any suggestion of pardon and repatriation although the new governor, Sir Charles Metcalfe, argued in 1843 that ‘the great majority of the people of the United Province’ favoured an amnesty. By this time, many of those who had fled to the United States after the rebellions had returned home and Metcalfe told Lord Stanley, the colonial secretary, that it was impossible to ‘bring them to justice.’ Nevertheless Stanley thought that a general amnesty was out of the question. It was better to turn a blind eye, he replied, and allow the returning patriotes to live in Lower Canada by ‘an act of Grace,’ given that they could do it anyway by ‘an act of boldness.’ His most telling point was that it would be impossible, politically, to ‘extend a general Amnesty to those who have not been tried and found guilty, many of whom were among the leaders of the late Disturbances, & to exclude from it those, the greater portion of whom were followers, who are now suffering the punishment of Transportation.’55 Fearful that he might not be able to maintain a majority in the Legislative Assembly, Metcalfe continued pressing for an amnesty. Ironically, the opponent of responsible government helped accustom people to it in practice. Finally, Stanley bowed to Metcalfe’s opinion, allowing a general amnesty which excepted the transported patriotes. To avoid setting a pre-

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cedent for the Chartists, he would grant individual pardons upon receipt of specific petitions. With this, the machinery to organize the patriote convicts’ return sprang into being. The Association de la Déliverance was organized; petitions for each man were printed and circulated. Various areas held meetings and the newspaper La Minerve began a fund-raising drive. Parishes set up committees and men went door to door begging for donations to pay for the return passages. By June 1844, £2,000 had been collected and was in the hands of the Association’s Montreal treasurer.56 Repatriation began in 1844 and ended four years later. Only one prisoner remained in New South Wales – Joseph Marceau of Saint-Cyprien, who had married a young Englishwoman. For all the initial hysterical talk of cut-throats, malcontents, and the like, the Canadiens forced Sydney’s citizens to change their minds about them. They were the only sizeable group ever transported to New South Wales with no criminal records antedating their political offences. They came from rural areas and from a culture with values different from the Anglo-Saxon norm and they looked upon their experience in New South Wales as an interlude in their lives. Although their official papers said ‘Transported for life,’ they fully expected to return to Lower Canada and their beloved families. Three, at least, kept personal daily journals – the only ones extant in the entire convict history of Australia. Even the illiterate men kept in touch with their families, frequently paying fellow prisoners to write their letters and journals.57 This ensured that their experiences would be shared with loved ones. The patriote prisoners are unique. First, strong bonds united them. Twenty-two of the fifty-eight men were related – brothers, a father and sons, in-laws, cousins, and so on. Several had been neighbours in Lower Canada, some had worked together, and two had a friendship stretching back more than thirty years. Almost all were devout Roman Catholics and only two did not have French as their first language. Their average age was older than that of the British convicts and they were less likely to be literate. They committed no official offences during their period of superintendence at Longbottom, and although they seem to have been punished arbitrarily within the stockade, according to their own accounts, no official punishment report was made. In many ways, they were ideal immigrants – God-fearing, law-abiding, family men. A large proportion had possessed land before their conviction for treason and knew how to farm in pioneering conditions. But most important for their survival in alien New South Wales, they came from a pre-industrial society where the family unit provided the essentials of food, shelter, and

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clothing. Canadien society prized the community and in New South Wales this meant that the Canadiens took care of their older or disabled men, both financially and otherwise, wrote letters for and to each other while on ticket of leave, and helped each other find employment after their release from Longbottom. These strong bonds persisted after their return to Canada. In 1890, for example, Lepailleur, Ducharme, and François-Xavier Prieur lived within a few blocks of each other and regularly socialized. Probably the most striking difference between them and other groups of convicts is the fact that Sydney’s citizens remembered them fondly more than forty years after their departure. The surviving ex-convicts would have been astounded in 1890 if they could have read the Sydney Echo. In a series of articles on the history of the city’s suburbs, the newspaper included anecdotes of the patriotes. Surviving residents in various areas remembered the Canadiens’ ‘excellent character’ and the high quality of their craftsmanship. Their altruism had become legendary.58 By and large, the men sent to New South Wales played relatively minor roles in the rebellions of 1837–8 and yet they were punished more severely than many of the leaders. And, as Murray Greenwood’s essays on the Montreal Court Martial show, the process that sent them to New South Wales was highly suspect. It is ironic that a Sydney newspaper provided the best perspective on who these men sent to New South Wales actually were. ‘Wherever they were at work,’ the Echo said, they earned the respect and gratitude of their neighbours, and when they received their free pardons and were allowed to return to their native country, they were greatly missed by the poor of Sydney and the suburbs.’

NOTES 1 Based on internal evidence in an anonymous letter in the North American, 29 Jan. 1840. 2 Law Officers Reports, June 1837–1859, CO 324/176, PRO; ‘Law Officers Opinions for 1838,’ CO 42/288. Ordinances passed by the Special Council were, of course, subject to approval. 3 See, e.g., 6 Will.IV c.8 s.6, which required that courts martial ‘convened in any Part of the King’s Dominions ... consist of not less than Thirteen Commissioned Officers.’ For a detailed discussion of the General Court Martial, see Murray Greenwood’s second essay on it above. 4 Report of the State Trials before a General Court Martial Held at Montreal in 1838–9,

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6 7 8 9

10 11 12 13 14 15

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2 vols. (Montreal: Armour and Ramsay 1839), 1: 60, 73–4, 108, 111 (hereafter Report of the State Trials). Of the twelve men tried in December 1838, four were initially sentenced to death, six to transportation to life, and two acquitted. (Section 7 of 6 Will.4 c.8 authorized solitary confinement, imprisonment with hard labour, corporal punishment, forfeiture of pay, and so on as well as death.) The transportation sentences seemed to have created havoc in the administrator’s office as the colonial law officers, with the Durham fiasco in mind, advised it was beyond the court martial’s power to pronounce such. By the terms of the Mutiny Act, however, it was well within the court martial’s power to have ordered transportation. Recent research has made me modify the position on this subject that I earlier presented in A Deep Sense of Wrong: The Treason, Trials, and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion (Toronto: Osgoode Society/Dundurn Press 1995). For procedure and transcripts of regular courts martial for 1838–9, see War Office (WO) 71/25–6 (‘Proceedings to be confirmed at Home’), PRO; WO 71/ 306 (‘Rough Minutes of General Court Martial Proceedings Jan.–June 1839’); WO 90/2 (Register of courts martial – place, crime, sentence, etc.). Although all of the above documents contained records of courts martial held in Montreal, none concerned civilians. I made an exhaustive search of these and other volumes in the Home Office, Colonial Office, and War Office holdings and was unable to find the original transcripts of the General Court Martial. For the paper trail, see below. CO 42/293. See also note on the letter to Glenelg, 19 February 1839, ibid. CO42/300/248–51. WO 81/89 (Judge Advocates General Letterbook). See also opinion of 11 April 1839 reiterating the same, ibid. For further reading on this, see F. Murray Greenwood, ‘The General Court Martial of 1838–39 in Lower Canada: An Abuse of Justice,’ in W. Wesley Pue and Barry Wright, ed., Canadian Perspectives in Law and Society: Issues in Legal History (Ottawa: Carleton University Press 1988), 255–67; Boissery, A Deep Sense of Wrong, ch. 7. For a discussion of the ideological functions of early Canadian treason trials, see Barry Wright, ‘Ideological Dimensions of Law in Upper Canada Treason Proceedings of 1838,’ Criminal Justice History, 10 (1989). Report of the State Trials, 2: 274. To Glenelg, 19 Dec. 1838, British Parliamentary Papers, 10: 273–5. To Glenelg, 19 Feb. 1839, CO 42/293, dispatch 29, NA. To Colborne, 27 March, CO 42/294. See n.4 above. CO 42/294/231.

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16 Ibid., note on back of packet from Colborne dated 19 Feb. 1839. 17 Ibid., 248. A note on the back says that this agrees with the information given Admiralty. 18 Glenelg to Colborne, RG 7, G 1, vol. 91, NA; CO 42/294/249–50 (with a copy to Arthur); 10 April, Colborne to Normanby, CO 42/295. 19 Letter dated 27 July 1839, ibid. 20 Colborne to Normanby, 5 May 1839, CO 42/293. 21 Same to Glenelg, 19 Feb. 1839, ibid. 22 Dr Timoléon Quesnel to Colborne, 13 May 1839, RG 4, A 1 (S Series), vol. 582, NA; Vindicator, 19 July 1836, 18 July, 12 Sept., 31 Oct. 1837. See also Greenwood, ‘General Court Martial,’ 265–7, 286–7nn.131–48. 23 Muller and Day to Goldie, 7 May 1839, RG 4, B 20 (pardons), vol. 27, 12557–62. 24 Colborne to Normanby, 27 Sept. 1839, CO 42/296. 25 Encl. Brown to Goldie, 24 May 1839, S Series, vol. 586. 26 Lévesque was banished to the United States. 27 For a general discussion of the various processes, see Boissery, A Deep Sense of Wrong, ch. 7. For the lists, see Muller to Goldie, 19 April 1839, ‘Pardons 1766– 1858,’ RG 4, B 20, vol. 26, 11619–21; 7 May 1839, ibid., 4 June 1839, S Series, RG 4, A 1, vol. 586. As an example of the discrepancies, Chateauguay farmer JeanLouis Thibert ranked in the top ten on one list and in the bottom ten on another! 28 CO 42/295. Benjamin Mott’s lawyer advised his family of this decision in early May: see A Deep Sense of Wrong, 153–4. 29 27 Sept. 1839, CO 42/296. 30 15 Oct. 1839, ibid. 31 26 Oct. 1839, ibid. 32 For examples, see James A. Gibson, ‘Political Prisoners, Transportation for Life, and Responsible Government in Canada,’ OH, 67 (1975), 186; Ernest Scott, ‘Canadian and U.S. Transported Prisoners of 1839,’ Journal Royal Australian Historical Society, 21 (1936), 27; Mary Milne McRae, ‘Yankees from King Arthur’s Court: A Brief Study of North American Political Prisoners Transported from Canada to Van Diemen’s Land, 1839–40,’ Tasmanian Historical Research Association, Papers and Proceedings, 19 (1972), 148. Recently, Brian Petrie has cited the British law officers’ opinion of 1 Nov. 1839 (referring to Upper Canadian rebels), then claiming that ‘the decisions undoubtedly applied to the Lower Canadians as well[!]’: ‘The French Canadian patriote experience, 1840–1848,’ Journal Royal Australian Historical Society, 81 (1995). 33 31 Geo.3 c.31, s.2. 34 See Greenwood, ‘General Court Martial of 1838–39,’ 272.

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35 Campbell and Rolfe to Normanby, June 1839: CO 42/465/246–7. On the back, undersecretary Henry Labouchere wrote that he believed ‘this question as far as relates to the course taken in Van Diemen’s Land is still undecided by the Government. I conceive therefore that this opinion must be put by until their decision as to the policy ... be formed.’ 36 Supplementary Instructions from Glenelg to Durham, 21 April 1838, RPAC, 1923, 28–9. Transportation was specifically mentioned as a substitute punishment. 37 Glenelg to Arthur, 12 July 1839, ibid., 111–12. It also has the problematic effect of making the transportation of those transported through Upper Canadian legislation questionable at best, while the transportation of those sentenced by Upper Canadian courts martial seems unassailable. 38 CO 42/300/248–51, 283–4. 39 CO 42/293. 40 CO 42/296. 41 For details, see A Deep Sense of Wrong, 168–9 and references therein. 42 Sydney Herald, 4 May 1841. 43 15 July 1839. 44 13 Jan. 1840. How the newspaper learned that the patriotes were on their way to Sydney must be a matter of conjecture. Official notification from London would need about six months to arrive and the Colonial Office did not know of Colborne’s decision until October 1839. The Buffalo reached Van Diemen’s Land only on 8 Feb. 1840. Either the paper learned of the patriotes’ imminent arrival from a ship which had docked at the same port as the Buffalo and then hastened to Sydney, or, it may have been a case of rampant fearmongering. As well, Gipps could have received the news in a variety of ways – other than the public dispatches in CO 42. Information was sent through unofficial channels such as wives and correspondence and messages were delivered by well-connected private travellers. 45 Gipps’s dispatches to London, written during February 1840, reveal his total preoccupation with the colony: see CO 201/296. For further reading on the evolution of the convict system, see A.G.L. Shaw’s classic work, Convicts and the Colonies: A Study of Penal Transportation from Great Britain and Ireland to Australia and Other Parts of the British Empire (London: Faber and Faber 1966), ch. 12 particularly. 46 There is nothing written officially by Gipps on the subject in February 1840 – see CO 201/296. However, the patriote journals written during this time as well as the subsequent book by Ducharme all praise Roman Catholic Bishop Polding for this decision. 47 Longbottom is now part of the city of Canada Bay.

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48 This section is based on Shaw, Convicts and the Colonies, 287–94. 49 Ibid., 36. The standardization of ‘cellular isolation’ is discussed in Shaw, Convicts and the Colonies, 266ff. 50 Through an extraordinary series of events, New South Wales did not have the legal concept of ‘civil death.’ Thus, the convicted men were free to open businesses and own property. For the story behind this, see A Deep Sense of Wrong, transition to ch. 9. 51 Those lending money received interest at rates varying between 6 and 15 per cent. After buying the lots in the city’s Kent Street for ‘135.10.0, he employed several Canadiens and built two houses which he rented, for a while, for ‘1.16.0 a week. In April 1843 he sold the houses for ‘295.0.0. Needless to say, his success inspired fellow Canadiens to do the same but only a few prospered as a result. 52 Entry for 27 Sept. 1840, ‘Memoire de Basile Roy, Voyage en exil, Ecrit par Fce Maurice Lepailleur,’ ANQ. 53 François-Xavier Prieur, Notes of a Convict of 1838 [1864 in French], trans./ed. George Mackaness [1949] (Dubbo, New South Wales: Review Publications 1976), 107–9; entries for 23 Sept., 1, 20 Oct. 1842, Lepailleur Journal. 54 Cited by Jacques Monet, The Last Cannon Shot (Toronto: Unversity of Toronto Press 1969), 157. 55 3 July 1843, CO 537/141, NA. 56 The disbursement of this money is a mystery. It appears not to have reached Sydney or London. When the patriotes arrived there on their way home, most were destitute and had to appeal to British MP, J.A. Roebuck for help. For further detail, see Boissery, A Deep Sense of Wrong, ch. 12. 57 Ducharme’s book is clearly written from his journal. The largest and most complete is that of Lepailleur, who also kept a journal for his illiterate friend Basile Roy. 58 See the issues of 7 Aug., 11, 25 Sept. 1890.

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APPENDICES Archival Research and Supporting Documents

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Appendix A In Pursuit of Rebels at the National Archives of Canada: Beyond the Usual Round-up of Suspect Sources PATRICIA KENNEDY

Holdings of the National Archives of Canada (NA) relevant to a study of crimes against the state in general and of the rebellions of 1837–8 in particular defy easy description. What constitutes a relevant source, and for whom? Should the survey go beyond unique, original records1 to include copy formats? How much descriptive detail need be given, and how should entries be sequenced? Given that archives continue to acquire records, and to produce or revise finding aids, any published survey of sources would be obsolete before it saw print. Automation does not significantly alter the situation. One crucial element remains wanting: strategic advice to guide the researcher in locating source materials, verifying its identity and potential utility, and determining its context and relative priority. Seeking inspiration, researchers may turn to the citations in articles and books. Such creative borrowing requires extreme caution.2 The sources reported reflect the author’s focus and abilities, research skills, and resources for travel, as well as the accessibility of records at that time. Time constraints, copyright, or other restrictions may have reduced the selection of maps, plans, sketches, and other graphic works available for use as illustrations. Having previously offered some general guidance for understanding archival source materials,3 I now propose a substantial framework to assist researchers in understanding source materials and in devising a strategic approach to exploiting them. My commentary begins with tradi-

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tional approaches to surveys and the questionable benefits of automation. It then offers some generally applicable insights into archival practices and to record keeping before presenting the framework, with commentary specific to records available at the National Archives. Reflecting concepts at the time of its first creation, the traditional ‘inventory description’ masks as much as it reveals about a collection or ‘fonds.’ Detailed finding aids merely enumerate what the archivist has found – the detail and sequence chosen to address presumed user needs. Material not deemed significant for the majority of users may have been summarily dismissed. Such listings leave researchers dependent on the intervention of experienced archivists to overcome the failings of specific lists and to obtain the guidance that sets records in context. Embodied as Tables (following the notes for this essay), my proposed framework offers a major step towards independence. t r a d i t i o na l a p p roac he s t o d es c r i pti o n a nd ne w t e chno l o gy The Bibliography of sources published as Appendix III to the Report of the Public Archives of Canada for 1939 illustrates the problems inherent in designing and compiling surveys. Copies shelved as Manuscript Division Finding Aid 910 bear marginal annotations of MG/RG call numbers but the unaltered core data and its presentation continue to reflect practices of the 1930s – far from modern standards. FA 910 remains a list or inventory of holdings to 1938, providing no explanation of the links between the records or of the hierarchical structures that generated them, and few hints of relative significance or physical extent. Has automation increased accessibility, provided an alternative means of surveying holdings, and avoided the limitations inherent a static inventory? An exploration of ArchiVIA4 demonstrated the strengths and weaknesses of automated access to primary sources. Archival practice in cataloguing personal papers under the name of the creator/accumulator5 with references to principal correspondents ensures a moderate degree of access by personal names. What about subject access? A keyword search for ‘rebellion[s]’ produced an overwhelming number of references to private papers and to documentary art – but not every relevant fonds. Descriptions for the private papers of L.-J. Papineau and Sir John Colborne lacked the targeted keywords. Adding 1837–8 as a date range reduced the number of ‘hits’ from well over 600 to under 200 – without excluding references to such secondary or tertiary materials as a modern

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lecture or radio broadcast about the rebellions. Searching for such alternate terms as ‘patriote’ and ‘treason’ or switching to French equivalents produced many previously seen references, plus a few new items – more than half of which were irrelevant but could be excluded by adding a date modifier to the search string. Slight differences in the wording and structure of a query – ‘rebellion 1837’ or ‘rebellion of 1837’ – produced similar but not identical results. A painstaking sift through the results, collating call numbers and discarding duplicate references, would rationalize the results but not fill the gaps.6 The test identified exceedingly few official records. Portraits of individuals involved in the rebellions and their suppression may exist but be locatable only by personal name. A keyword might appear in the biographical sketch for a record creator whose fonds included no relevant documents. The sequence of presentation for search results followed computer logic. Searching names and keywords ought to reveal private papers and documentary art acquired acquired since 1939 but presented in no better fashion than in FA 910. Coincidence of keywords does not guarantee relevance or relationship. Eliminating irrelevant ‘hits’ seems no less time-consuming than searching finding aids the traditional way. Assessing the descriptions to determine relative significance and interrelationships of the records is equally time-consuming, whatever the methodology and technology. One core problem inhibits searches: the key terms and concepts may appear only in the detailed finding aids, down several levels in the hierarcy of description from the primary level of fonds inventory – if they are indeed present. The more abstract a concept, the less likely it will be mentioned at any level of description. In many finding aids, the cursory file titles focus on only one aspect of the contents. The General Index compiled in the 1970s and 1980s to complement the Main Entry Catalogue and inventories of Manuscript Division illustrates the emphasis on personal names, with occasional place names but relatively few concrete subjects. Consulting the General Index can repay the search effort, since the indexformat finding aids interfiled in it include a nominal index to Lower Canada pardon records (RG 4, B 20) and the state submissions to the Executive Council for Upper Canada (RG 1, E 3). fi n d i ng t he b e st a p p roac h to s o u rc es To marry traditional practices for surveying sources and compiling bibliographies for particular topics with comprehensive advice on interrela-

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tionships of records and research methodology demands more resources than most institutions have been or may now be prepared to commit. Constantly changing research interests bring new approaches, few of which can be foreseen and provided for in advance. Methodological approaches to the records and selection of optimum sources and of analytical techniques vary widely among researchers, to whom has fallen the task of developing their own ways and means to uncover relevant source materials and to determine the optimum sequence for investigating them. Archivists continue to focus on listing what they have, from a perspective of who created the records rather than of who might want to find and use them. Custom prohibited speculation: unexplored relationships would not be mentioned. This emphasizes enumeration before explanation, specific content over general context. Researchers hoping to find sources previously ignored or unknown, or taking new approaches to familiar sources, should investigate the context of the content, reading between the lines and using historical imagination to develop ideas about what records might have been created and by whom, and where they might be preserved, and a detective’s ingenuity to devise approaches to records lacking adequate finding aids. This includes consideration of why archival holdings have been distributed in such peculiar fashion, and the process of their creation. Context of creation merits a digression. That documents relating to the rebellion are not segregated into special series but scattered among the routine affairs of government offers certain benefits to those who take the time to assess the contextual evidence. Any assessment of how the rebels were treated, the methods of prosecution, and the exercise of clemency should take into consideration what went before and what followed, that is, what was the norm. For example, a close study of clemency for capital cases in Upper Canada demonstrates that, with very few exceptions, notably treason, the governor exercised his vice-regal prerogative unilaterally until 1838. He routinely sought technical advice on legal points from the law officers of the crown and the judiciary, but only occasionally the political advice of the Executive Council. Councillors addressed far more requests for remission of fines and seizures for violations of customs laws than requests for remission of capital punishment. The flurry of extradition cases in the mid-1830s did not precipitate any major change. The significant shift in practice followed passage of the Pardoning Act, 1 Vic. c.10: the voting of special funds for prosecution of the rebels was used in an attempt to circumscribe the governor’s power. Whether persons suspected of treason and sedition practices petitioned

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for clemency or were tried by any court, the governor was obliged to take the advice of the Executive Council when considering their cases. The number and nature of applications for clemency brought before council soon extended well beyond treason and sedition, beyond capital offences. What had been exceptional practice looked to become the new standard. Sir George Arthur’s immediate successors strove to resume full control, but a precedent had been set.7 Paradoxically, prosecution of the rebels facilitated an expansion of the council’s influence and was arguably a step towards responsible government or more autonomy for the colonial state. To return to the central issue, we first consider the past and present mandate of the National Archives of Canada and collecting practices since its establishment in 1872. The NA acquires, preserves, and makes available records created by the federal government, as well as private records deemed of ‘national significance.’ Its clientele, its mandate, and its competitors8 have evolved. The range of research questions broadened and methodologies diversified. Resource levels ebbed and flowed. Microfilming replaced hand transcription in the repatriation of colonial-era records. Archivists responding to varying influences and opportunities brought in a bewildering array of records, in both textual and graphic media. On rare occasions, holdings have gone elsewhere: artifacts to the national museums, imprints to the National Library. Through offices in Paris and London came transcripts, photostats, and microfilm copies of records deemed important to Canada’s history, and some original private records. Copying at the Public Record Office (PRO) began with dispatches exchanged between colonial governors and the secretaries of state responsible for colonial affairs. Greatest attention went to the ‘imperial superstructure’ – communication between the highest level of government in the colonies of British North America and the metropolitan centre. The first major acquisition of original records brought some 3,000 volumes accumulated by the commanders of the forces in British North America, to complement the records of civil administration being transcribed in London. Several hundred volumes from the Governor General’s Office and the Executive Council office arrived some four decades later, following close on 5,763 bound volumes and portfolios of records accumulated by the civil and provincial Secretaries in Quebec, Upper and Lower Canada, and the united Province of Canada – the core central government agencies. Records of agencies at the ‘infrastructure’ level were acquired on occasion, in haphazard fashion, most often with private papers,9 but preserving such records came to be considered the proper responsibility of municipal and provincial archives.

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Concurrently, the NA acquired private papers, documentary art, maps, and other records created by or about individuals whose careers in British North America in colonial administration, the armed forces, politics, and the law gave them a prominent place in our history. These private or personal archives frequently included records that supplemented or duplicated the official records, even filling gaps when the official records had not survived intact. The attention accorded to these records, the resources devoted to arranging and describing them, reflected contemporary attitudes to the volume, complexity, nature, and content of the documents as well as the significance of their creator. Not all came to Ottawa. The classic Canadian question applies to archives: is it a federal or a provincial responsibility? Donors’ preferences and institutional resources influenced the interpretation of national significance in public and private records of the pre-confederation period. Article 143 of the British North America Act (1867) provides an explanation for the division of official records: where responsibilities were transferred from the united Province of Canada to Ontario and Quebec, the personnel and the records generally followed. Responsibility for and records of Indian affairs remained at Ottawa while the provinces took responsibility for crown lands and the courts.10 Certain records defied division, hence the federal government retained the Minute Books and associated files of the Executive Council. The occasional anomaly might be explained by bureaucratic practices: some records pulled for reference were alienated by not being been replaced before the transfer date; others were misidentified or forgotten in storage vaults. Moving the seat of government, as well as the civil service and its records, seven times between 1841 and 1867 created innumerable astrays and gaps among the Province of Canada records. b u i l d i n g a f r a m e w o r k fo r u nd e r sta n d i n g th e r ec o r d s Pursuing traditional and/or automated searches for personal names and keywords should uncover the location of private papers relevant to studies of the rebellions. The size of these archival fonds and the general level of detail in finding aids are such that researchers can readily determine convenient and appropriate points to begin their analysis of content. Modest effort will uncover documents whose identity and significance went unrecognized by the authors of those finding aids.11 Official records are quite another matter. Identifying the potential sources requires a multi-stage approach: to find and explore descriptions of likely fonds or

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series, to determine the nature of and the implicit or explicit interrelationships among records, and then to address the actual records, starting with those most appropriate to the questions under investigation. Which records offer the best starting point for a particular research project will be conditioned as much by a researcher’s knowledge of the persons involved and the chronology of events as by the availability of detailed finding aids or the nature and arrangement of the records. Where no index or contents list exists, it may be possible to exploit the chronological structure of a record series. One series may provide a means of access to interrelated series.12 Age can be critical: calendars produced a century ago to describe the principal series of Colonial Office dispatches reflect concepts of that era, ignoring women, natives, and blacks. Subjects were described in specific, concrete rather than abstract, terms: for example, fugitives from justice rather than extradition requests. Officials mentioned in the records were identified by name and/or title, while ordinary individuals were rarely named. As egregious malefactors, the patriotes merited being named in the calendar when reports on their specific cases went to London – but not when nominal returns were forwarded. Half a century later, the calendar for the Upper Canada Sundries (RG 5, A 1) named every signatory to Loyal Addresses while using imprecise terms to describe most documents and their content. Indexing such lists compounds the flaws. While official records of the colonial era tend to be found in series whose organizational principles are stated or at least evident, some records are badly scattered. This dispersal may reflect actions by the original creators and custodians of the record series, such as bringing an active file forward into a later system or transferring it to another office, or it may stem from subsequent periods of dormant storage. While in theory archivists are responsible for recognizing and preserving, even reestablishing, the original order in the record, financial and practical considerations may inhibit their efforts. Prior to the adoption of archival storage boxes half a century ago, records keepers had loose documents bound up to protect the chronological or other arrangement and to facilitate handling. This practice ‘fixed’ the arrangement of records. Binding of the dispatches now in RG 7, series G 1 precluded the integration of later accretions, hence the supplementary series designated G 2. In other cases, smaller quantities were merely annexed to related volumes by designating the new volumes in the style 27 1/2, 27A or 27–2. The solution chosen depended on the expertise of the archivist as well as his authority and willingness to effect some level of

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integration. While senior staff developed a comprehensive understanding of the core interrelationships among the records and filing systems, descriptive practices allowed few opportunities to record that knowledge where it would be universally and permanently accessible. Consequently, we can only speculate on the links between some records series, and the rationale for the treatment accorded them by previous generations of archivists – and occasionally execrate the memory of those who created the illusion of relationships by assembling artificial series from material of similar appearance or subject but differing origin or function. Much need be said about interrelationships – but how? The Tables and Commentary that follow the notes for this essay bring together some of that previously unwritten, traditional understanding of official records of the rebellions era. They are intended to provide a framework for recognizing and understanding the NA’s holdings, and relationships among them, in terms of both the government structures responsible for their creation and preservation and of the record types. The specific commentary complements and supplements the traditional inventories and finding aids. Extrapolating from and experimenting with the table format may clarify even more relationships, to material located in other archives, or give rise to new lines of investigation. While using this framework, researchers should consider both what is and what is not present in these Tables. They emphasize the principal series of imperial and colonial government records for which the NA holds originals or (microfilm) copies from PRO13 holdings, specifying volumes only where part of a series is relevant. Home Office and Privy Council office records, or the holdings of Bermudan and Australian archives, are absent because the NA has yet to acquire copies of such records in any significant quantity. Private papers (especially those containing duplicate dispatches and entrybooks) can be set in context with the RGs according to the offices held by their creators. Records created at the infrastructure level will be found in NA holdings only insofar as they were delivered to central agencies and copied into reports made to London, at a lower level. It cannot be over emphasized that record series reflect the structures imposed by their creators, closely linked to functions performed. Those functions may take in any number of subjects or events, and may be linked vertically, horizontally, or diagonally. Thus, a governor communicated upward to imperial officials in London, across to his colleagues in other colonies or the British minister at Washington, and downward to subordinate officals and the people within the jurisdiction he was responsible for. Within the governor’s office, tasks delegated to his civil and mil-

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itary secretaries were segregated in discrete series of entrybooks and letters received. The reporting relationships among these officials underpin how their communications were structured, that is, who preserved copies and where. The interplay between public and private communication channels merits attention. While the civil secretary might be privy to the Secret and Confidential dispatches, his minions were not. For the most delicate matters, governors might resort to private correspondence, completely outside the official channels. The Confidential Prints (in CO 880 and FO 414) illustrate what the secretaries of state wished their fellow cabinet members to know, while the printed Parliamentary Papers and their counterparts in colonial Sessional Papers illustrate what information was made accessible to politicians and the general public. Archivists have traditionally designed finding aids to describe what they are looking after, as much for control as for access. To design a research strategy and pursue it, researchers must first define what they are looking for. It is now time for an archivist to turn the tables, to point researchers more effectively towards their objectives. They should consider both the general comments about record keeping and archives and the specific commentary below as they use the Tables to develop that strategic approach to the records. While identifying the records, they should consider whether those records are original or derivative, authentic or defective, complete or fragmentary: close examination should begin with the most reliable evidence, which may not be the most accessible.

NOTES 1 Broadly used, the term ‘record’ includes both textual- and graphic-source materials: verbal and non-verbal forms of preserving information. Narrowly, it implies only documents produced and/or accumulated by government agencies. Broadly, the term ‘correspondence’ may encompass not only letters and dispatches but addresses, messages, petitions and memorials, reports, and nominal or statistical returns. 2 A 1999 study of sources cited in the Dictionary of Canadian Biography (DCB) for several dozen patriotes and their opponents well illustrates this caveat. Certain readily accessible records are conspicuous by their absence. Whether the DCB editors summarized sources or the biographers missed key records, the result is the same: much is not noted. Furthermore, readers must be cautious of antique references and citations to the old Q Series transcripts.

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3 ‘Approaching an Iceberg: Some Guidelines for Understanding Archival Sources Relating to State Trials,’ in Canadian State Trials, vol. 1, 577–85. Hereafter referred to as ‘Icebergs.’ 4 These results were achieved in 1998, before integration of textual and nontextual media into a single automated catalogue, ArchiViaNet (now accessible on-line). Cartographic records were then conspicuously absent. The migration of descriptive data from the traditional paper-format for each media to an automated system involved extensive retrospective data entry without reexamination of the records or verification of details. Errors and omissions multiplied. 5 Archivists consider the person who accumulated the records, the recipient rather than the author of letters, to be the creator. Personal archives evolve as individuals accumulate letters received, diaries, accounts, and other documents recording their lives. The crucial question in finding records is not who had the time and means to create the documents but rather who had the will and the means to preserve them, who received and filed the reports, not who wrote them. 6 Researchers should be wary of requesting printouts of everything found under several keywords. Descriptions containing several of the keywords being investigated will be printed out several times over. Compiling a log of call numbers during the search permits rapid identification of duplicate hits, saving both time and paper to print out the descriptions. 7 This paragraph is based on a close review of some 40 per cent of the files in RG 1, E 3, covering 1792–1840. The post-1841 records await an equally thorough examination to confirm the patterns of clemency. 8 The competition among federal, provincial, university, and other archives, plus libraries and museums, that so particularly marked acquisition activity through the 1970s and 1980s has evolved into modest cooperation. Yet very rarely have holdings been ‘rationalized’ to rectify the dispersal of records among diverse repositories. Most tenaciously retain what they have, reluctantly exchanging microfilm copies to ‘reassemble’ dispersed records in a single location. 9 Records created and accumulated by Allan Macdonell as sheriff of the Gore District (MG 24, I 8, vols. 37–9) and by Alexander Hamilton as sheriff and Alexander McLeod as deputy sheriff of the Niagara District (MG 24, I 26, vols. 46–8) were preserved with personal papers and came to the National Archives with family papers. Reports submitted by sheriffs to the civil and provincial secretaries were preserved with the records of these officials. 10 While records accumulated by the courts should have passed to the provincial archives, certain documents – such as copies of proceedings in capital cases,

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reports from judges recommending clemency, or the accounts of law officers and judges for expenditures in prosecuting traitors – were delivered to and retained by the governors and secretaries whose records came to Ottawa. 11 Public records not only tend to exhibit a limited variety of type within any one series, they come with file jackets or docket titles and annotations which provide self-identification. Private papers challenge the interest and expertise of the archivist by their (seemingly) infinite variety and resistance to rapid identification. The cursory description of a file or volume as ‘legal documents’ is more likely to entice a truly curious researcher than prevent the discovery of neglected treasures. 12 Tables of contents provide access to the civil secretary’s letterbooks. The letters recorded there identify the date of the message being replied to – the means to trace it in the corresponding series of letters received. Dispatch numbers facilitate tracking communications between the governors and the Colonial Office. 13 The NA’s Manuscript Division has retained PRO class numbers and formal titles to to identify its microfilm copies. Looking at the microfilm is akin to looking through a window onto the originals. The century-old Q Series and other transcripts are artificial series, omitting some documents from the principal source while incorporating selected documents from others. The finding aids provide advice on correlating these copies with the original records.

Table 1: Imperial and intercolonial communication (Colonial Office, governors, and the British minister at Washington) Document type

Lower Canada

Upper Canada

Province of Canada

Dispatches received from the Colonial Office

RG 7, G 1 & G 2; & G 5 – entrybooks MG 11, CO 43 – entrybooks RG 7, G 18, vol. 4

RG 7, G 1 & G 2; & G 5 – entrybooks MG 11, CO 43 – entrybooks

RG 7, G 1 & G 2; RG 1, E 4; RG 7, G 5 – entrybooks MG 11, CO 43 – entrybooks

Dispatches sent to the Colonial Office

RG 7, G 9 – drafts & G 12 – entrybooks MG 11, CO 42; MG 40, A 2

RG 7, G 9 – drafts; G 9A & G 12 – entrybooks MG 11, CO 42; CO 537/139; MG 40, A 2

RG 7, G 9 – drafts; & G 12 – entrybooks MG 11, CO 42 & CO 537 MG 40, A 2

**Confidential Prints **papers printed for Parliament

MG 11, CO 880 *Parliamentary Papers

MG 11, CO 880 *Parliamentary Papers

MG 11, CO 880 *Parliamentary Papers

Dispatches received from the British minister at Washington

RG 7, G 6 MG 16, FO 5/313–23 MG 16, FO 97/12–20

RG 7, G 6 MG 16, FO 5/313–23 MG 16, FO 97/12–20

RG 7, G 6 MG 16, FO 3/313–23 MG 16, FO 97/12–20

Dispatches sent to the British minister at Washington

RG 7, G 15 A & B; G 11 – drafts MG 16, FO 5 & FO 97

RG 7, G 16 A & G 11 – drafts MG 16, FO 5 & FO 97

RG 7, G 17 A & B MG 16, FO 5 & FO 97

Dispatches received from fellow governors

RG 7, G 7 & G 8 B MG 11, CO 188

RG 7, G 7

RG 7, G 7 & G 17 B

Dispatches sent to fellow governors

RG 7, G 15 A & G 11 – drafts; G 8 B

RG 7, G 16 A & G 11 – drafts

RG 7, G 17 A

Records of Superintendant of Indian Affairs

RG 10, vols. 93-6

RG 10, vols. 64–8

RG 10

*Instructions

Table 1 – Imperial and intercolonial communication The arrangement of dispatches is chronological within subseries by colony (geo-political jurisdiction), hence the repetition of citations in this table. Colonial Office filing practices emphasized chronology and hierarchy within a volume/year – segregating the governor’s dispatches to the secretary of state from those he addressed to the Treasury, Admiralty, and other public offices, setting letters and reports by lesser mortals in a terminal Miscellaneous sequence. Similarly, the Foreign Office segregated the British minister at Washington’s dispatches from consuls’ correspondence, creating multiple sequences within any one year. Enclosures remained with their covering letters unless physical mass dictated separation (vide the reports by Lord Gosford and Lord Durham constituting separate volumes within CO 42). Periodic shipments of statutes, minutes of the Executive Council, and Journals of Parliament, gazettes, and Blue Books of statistics were routinely segregated (vide CO 44, 45, 46, and 47), but copies of specific statutes or minutes remained with the dispatch making particular comment on them. Interdepartmental correspondence between the Colonial Office and other ministries was placed in the Public Offices sequences for the colony in question. Dispatches received may bear annotations of arrival date, copies referred to colleagues, opinions sought, and plans for responses. The numbering of these dispatches reveals gaps; the entrybooks of dispatches sent may fill those gaps. With the exception of Sir George Arthur’s term in Upper Canada, entrybooks rarely included the texts of enclosures. Practices for listing enclosures in the margin (of both dispatch sent and entrybook) or as a separate Schedule varied over time. Draft dispatches merit examination to assess the manner and extent of revisions made and to identify authorship through handwriting.

Custom dictated duplication of dispatches, as a precaution against loss in transit. The duplicate dispatches to London [MG 40, A 2] form an incomplete series but include some enclosures not found in CO 42. Until 1855, entrybooks of dispatches received in the colony ensured access to information when dispatches were referred to the law officers or other officials. Governors frequently appropriated duplicate dispatches received (vide the Durham MSS, MG 24, A 27) for possible future defence of conduct. Royal instructions to governors were considered confidential and private, to such a degree that few texts were left for reference by successors. Confidential Prints prepared for the Privy Council (CO 880) or the Foreign Office (FO 414) might include Secret and Confidential dispatches, but the printed Parliamentary Papers did not. Their omission would not be apparent since they were excluded from the numbering system. Communications outside the official channels (vide the Elgin-Grey exchanges, MG 24, A 10) also eluded publication. Being markedly less complete and accurate copies than the microfilm of Colonial Office 42 and 43, the Q Series transcripts do not figure in this table.* *Note: Although the Q Series calendar (published in the Reports of the Public Archives of Canada for 1890 et seq.) continues to be the principal finding aid for CO 42, researchers should never rely on the transcripts. The human errors that corrupt them are less serious than the omission of all marginalia and minuted comment, as well as of many enclosures accessible in other locations. The microfilm of CO 42 and 43 offer the most reliable reproduction.

Table 2: Military communications (commanders of the forces, Commissariat, Ordnance Office, etc.) Document type

Lower Canada

Upper Canada

Province of Canada

Dispatches received from the War Office and fellow officers

RG 8, I, vols. C 605–15 MG 13, WO 6/82 MG 13, WO 44/17

RG 8, I, vols. C 605–15

RG 8, I, vols. C 605–15 MG 13, WO 4/283

Entrybooks of despatches and letters sent

RG 8, I, vols. 1272–4 & 1278; RG 7, G 19

RG 8, I, vols. 1272–4 & 1278

RG 7, G 19

General Orders issued

RG 8, I, vols. C 1191–4

RG 8, I, vols. C 1191–4, & 12030P

Financial records

MG 14, AO 3/228 War Office & RG 8, series I

MG 14, AO 3/228 War Office & RG 8, series I

Instructions

Intelligence reports, 1849–50

War Office & RG 8, series I [passim.] RG 8, I, vols. C 616–18

Table 3: Militia records [adjutant general of militia] Correspondence of the Adjutant General

RG 9, I A 1 RG 4, B 29

RG 9, I B 1

RG 9, I C 1

Militia general orders issued

RG 9, I A 3

RG 9, I B 3

RG 9, I C 3

Register of militia officers

RG 9, I A 5

RG 9, I B 5

RG 9, I C 5

Muster rolls & pay lists

RG 8, I, vols. 1039–61D MG 13, WO 12/13295 MG 13, WO 13/3673–717

RG 8, I, vols. 1039–61D MG 13, WO 12/13295 MG 13, WO 13/3673–717

RG 8, I, vols. 1039–61D

Monthly returns

MG 13, WO 17/1541–4 MG 15, T 1/4788 RG 9, I A 2

MG 13, WO 17/1541–4 RG 9, I B 2

RG 9, I C 2

Table 2 – Military communication Until 1854, one secretary of state directed both defence policy and military administration as well as the civil administration for British North America. Within colonies, the civil and military secretaries jealously guarded the lines between their spheres of responsibility. That civil and military districts were not coterminous may give rise to confusion over the relevance of records to specific regions. Entrybooks of correspondence and General Orders of military commanders may be relevant to several colonies. Military commanders followed the same practices – keeping of duplicate entrybooks and retaining one with personal papers – as did civil administrators. Duplication is most evident in the recording of General Orders – by the commanders who issued them and by officers responsible for ensuring their implementation. Similarly, militia officers may have retained copies of correspondence, muster rolls, and pay lists for the units they commanded. While bureaucratic structures and record-keeping practices are evident in the surviving records of the civil sphere, they have been obscured for the military sphere.* An ill-conceived reorganization of the C Series (the British Military and Naval Records now designated RG 8) destroyed much of its original order. Entries in the card index are extensive but not comprehensive. Letterbooks and certain other volumes were omitted, as were certain types of documents. Subject entries fall far below modern standards.

Table 3 – Militia records The role of the adjutant general of militia in the Canadas, and his reporting relationships with the military commanders and civil governors, evolved through the first half of the nineteenth century, with concomittant changes in record keeping. The surviving records are widely dispersed. Monthly returns in WO 17 and RG 9 provide casualty figures

A century ago, correspondence, reports, and other loose documents identified as relevant to the rebellions of 1837–8 in Upper and Lower Canada were reorganized into one chronological sequence (RG 8, Series I, volumes C 605–C 615), while muster rolls and pay lists for the militia and the Provincial Marine were formed into another such sequence (volumes C 1039–C 1061D). Documents of less obvious or immediate relevance, such as the warrants authorizing the commander of the forces to hold courts martial, may be found elsewhere among other subject classifications. Existing finding aids do not address the question of duplication or gaps among the muster rolls surviving in RGs 8 and 9 or the War Office classes. *Note: Even before their absorption into the War Office, its ancestor agencies shared a common philosophy in administering military affairs and the resultant records. Whereas records accumulated by the Colonial Office and the Foreign Office exhibit a primary focus on the geo-political divisions of civil administration, records accumulated by the War Office and the Admiralty exhibit few such spatially based patterns. Rather, the correspondence, muster rolls, and pay lists and other records received by a agency or branch were filed by regiment/battalion/corps or squadron/ ship regardless of where that body of men was stationed.

for all ranks but names only for officers. The muster rolls and pay lists in WO 13 are arranged alphabetically and numerically by regimental/corps name (including the Provincial Marine), regardless of province of origin. For those preserved in RG 8, the sequence is less evident, predominantly but not exclusively chronological. Nominal indexing is conspicuous by its rarity.

Table 4: Deliberations of the Executive Council and its committees Document type

Lower Canada

Upper Canada

Province of Canada

Minutes of proceedings

RG 1, E 1; RG 4, A 1 – drafts & copies

RG 1, E 1 RG 1, E 2 – drafts RG 1, E 3 – drafts & copies

RG 1, E 1 RG 1, E 2 – drafts

Submissions (reports, letters, petitions, etc.)

RG 4, A 1 & B 20

RG 1, E 3 RG 5, B 36 to B 41, B 43

RG 1, E 7 & E 5 – put by; RG 1, E 4 – dispatches

[RG 1, E 3 & E 14]

RG 1, E 8

Orders-in-Council Entrybooks & records of the Clerk of the Council

RG 1, E 14

RG 1, E 14

RG 1, E 14

Submissions to & reports of the Board of Audit on public accounts

RG 1, E 15 A

RG 1, E 15 B

RG 1, E 15 C; RG 19

Table 4 – Deliberations of the Executive Council The clerk of the Executive Council provided secretarial services to that body and its committees: compiling the Minute Books, extracting the orders-in-council, and preserving the supporting documents for future reference. Documents submitted to council were annotated to link them to the relevant Minutes.* The minutes record selected advice and recommendations: reports of committees and subcommittees were routinely read in, but petitions were not. While copies of the Minutes were regularly transmitted to London, only in special circumstances were copies of (selected) submissions annexed. Once the governor gave his assent, the clerk prepared an extract converting the minute into an order-in-council, and sent it to the official responsible for its implementation. However, issuance of authorization for an action is not proof of its execution: certain prisoners had the ill-grace to escape or die before they could be transported or hanged. Information relating to the rebellions is concentrated in the State Minutes and State Submissions. Submissions to and reports by the Board of Audit on the public accounts reveal the financial impact of the rebellions – not only what expenditures were made but also how concern over costs affected government actions. Statements supported by vouchers and receipts offer information not available in the formal correspondence and reports, such as details relating to the prosecution of suspects, the accommodation of prisoners, medical treatment, and transport. The audit process drew forth detailed explanations to justify exceptional expenditures. Note that certain expenditures were not presented to the board for audit, such as the funds expended on construc-

tion and operation of county jails by the sheriffs and other local officials, pursuant to authority from the quarter sessions. The surviving drafts for reports to and minutes of the Executive Council merit close study. Ranging from minor marginal notations to substantial revisions, the alterations on the reports from the law officers regarding persons tried for treason and related crimes, and on the draft minutes of council meetings, reveal much about the process of selecting those to be executed, transported, banished, imprisoned – or released. The exceptional quantity of drafts surviving from this era (particularly for Upper Canada) permits a study of interaction among council members, and the influence exerted by individuals. How significant is the membership of the quorum when councillors were summoned at short notice to address questions about the prosecution of suspected traitors or the meeting site? The drafts permit comparison between meetings at the governor’s residence with a bare quorum, one of them a make-weight, and those when larger numbers attended in the regular council chamber. *Note: The alphanumeric filing system used by the clerk of the Executive Council in Upper Canada has survived largely intact and can be exploited to facilitate research. The original order of the Lower Canada records has been so compromized as to escape recognition by all but the most assiduous researchers. The two series of post-1841 State Submissions (RG 1, E 5 and E 7) exhibit different filing systems, but links between them and the State Minutes are readily recognizable.

Table 5: Communications with the law officers of the crown [attorney general and solicitor general] Document type

Lower Canada

Upper Canada

Province of Canada

Opinions of the Law Officers

RG 4, A 1; Les Evénéments [MG 8, A 25]

RG 5, A 1 & RG 1, E 3 MG 40, TS 11/2160

RG 1, E 7 [RG 4, C 1 & RG 5, C 1]

Instructions & queries to the Law Officers

RG 7, G 15 D

RG 5, B 28

RG 4, B 31

Documents examined and commented upon

RG 4, A 1 & B 20; Les Evénéments [MG 8, A 25]

RG 5, A 1 & RG 1, E 3 RG 5, B 36 to B 41, B 43 RG 13, F 1

RG 1, E 7 & E 5 RG 13, F 1

Fiats & drafts for warrants, letters patent of pardon, &c

RG 4, A 1 & B 20

RG 5, B 29 RG 13, F 1

RG 13, F 1

Table 5 – Communications with the Law Officers In the 1830s, few men serving as attorney general or solicitor general viewed their records as public, to be passed to their successors in office. Entrybooks recording the opinions supplied to the governor and correspondence with the civil secretary may be found with the personal papers of individual law officers. Texts of formal and informal opinions and related correspondence can be found scattered among the files of the civil (or provincial) secretary to whom they were delivered, with some of the documents examined. Drafts of warrants, letters patent, and other documents to be issued over the Great Seal Deputed for the colony (the symbol of its authority), prepared by the attorney general, may have been retained by the provincial secretary and registrar when he engrossed and registered these public instruments, or

may have been included with the petitions that gave rise to them, which were filed by the civil secretary when he laid documents before the governor for signature. The registered texts [in RG 68] offer the best evidence that specific documents were duly issued. We may now only speculate why the records known as Les Evénéments de 1837–1838 [at the Archives nationales du Québec] were separated from similar documents preserved with the filing systems of the civil secretary for Lower Canada [notably in RG 4, A 1 and B 20]. Seemingly haphazard, the division may have resulted from periodic review of documents relative to specific cases or incidents and from the failure of officials involved in such reviews to return files promptly.

Table 6: ‘Internal Correspondence’ – communications managed by the civil and provincial secretaries Document type

Lower Canada/Canada East

Upper Canada/Canada West

Province of Canada

Documents received by the Civil Secretary (to 1841) & the Provincial Secretary (1841–)

RG 4, A 1, & A 3 – registers RG 7, G 14 vol. 6 * RG 4, C 1

RG 5, A 1 & B 3 RG 7, G 14, vol. 5 * RG 5, C 1

RG 7, G 20 & G 14,

Letters sent by the Civil Secretary (to 1841) & the Provincial Secretary (1841–)

RG 4, A 2 – drafts RG 7, G 15 A & C & D RG 4, C 2 & C 3

RG 5, A 2 – drafts RG 7, G 16 C RG 5, C 2 & C 3

RG 7, G 17 C

Reports, returns, and other segregated records

RG 4, B 21 – gaol calendars RG 4, B 3 – proclamations

RG 5, B 27 – gaol returns RG 5, B 36 to B 41 & B 43, B 47 RG 5, B 4 – proclamations

RG 7, G 21 – subject files

Records of the Civil Secretary as commissioner responsible for police & magistrates

RG 4, B 14 & B 24 & B 25

Registry of Instruments over the Great Seal maintained by the Provincial Registrar

RG 4, B 20 – drafts RG 68 – fiats & drafts; registers

RG 7, G 18, vol. 19 (Niagara frontier police)

RG 5, B 28 & B 29 RG 68 – fiats & drafts; registers

Table 6 – Internal Correspondence In both Upper and Lower Canada, the civil secretary was responsible for managing all the governor’s correspondence, whether with the imperial authorities or with officials and individuals within the colony, while the primary duties of the provincial secretary and registrar were to engross public instruments, affix the Great Seal, and register a copy of each for future reference – and thus ensure the safekeeping of records initially delivered to the civil secretary. The allocation of responsibilities between the civil secretary and the provincial secretary shifted substantially in the 1830s, owing in no small part to the rebellions. The power shift in the bureaucratic arena can be viewed as running parallel to the shift in the political arena that culminated in the implementation of responsible government a decade later. This evolution had complex and subtle effects on record keeping. After the union in 1841, the civil secretary’s responsibility was circumscribed, focused on management of the governor’s correspondence with the imperial authorities and matters still within vice-regal prerogative, while the provincial secretary took over the management of the internal correspondence of the colony. Sophisticated numbered filing systems were established for the civil secretary and for the provincial secretary, to accommodate the particular needs of the administrative divisions of Canada East and Canada West, each of them balanced with letterbooks plus indexed registers to provide both control over and access to the records. Correspondence relating to specific cases or events might be pulled together, forward or backward, under a single file number to create a virtual case file. The first several thousand files in these numbered sequences antedate the union, carried forward either for reference or for final resolution. Not unexpectedly, the rebellions and their aftermath figure largely here. Records relating to the establishment and operation of police forces in response to political unrest are scattered and fragmentary. Some records were gathered into RG 4, series B 14, B 24, and

B 25, but others may be found within the principal correspondence series and a few with the audited public accounts. Proclamations, notices, and other communications from government to the general public can most readily be found in the official gazettes. Few drafts or original texts survive. For all but bibliographers, the published texts should suffice. The entrybooks compiled by the provincial registrars of the Canadas (RG 68) to ensure future access to a copy of record for all public instruments merit greater attention. The General Index of Commissions and its nominal Key provide access to Conditional and Unconditional Pardons, Warrants to Transport, and commissions appointing officials. The issuance of the authorization is no guarantee that the actions were implemented,* in whole or in part. The apparent absence of a warrant or pardon from this registry system must not be misconstrued. The vast majority of individuals implicated in the rebellions were pardoned and relieved of the penalties of attainder by the statutes of 1847 and 1849. Governors, with advice from the law officers and other legal experts, selected the appropriate instrument to authorize an action or to amend or to reverse a decision. A warrant (over the governor’s Privy Seal) or letters patent of pardon (under the Great Seal) served well when dealing with individuals or small groups. Statutes served best for large groups: no individual need be named, nor did signed and sealed originals need be delivered to all parties concerned. *Note: Several convicts (including one woman and Livingston Palmer) were sent to the provincial penitentiary at Kingston in 1840 pro tem to await arrangements for their transportation. Since the conditional pardons commuting their sentences specified the place of temporary accommodation, no new pardon needed to be issued to convert temporary incarceration into permanent imprisonment.

Table 7: Records of the legislative process (the Legislative Assembly, Legislative Council, and Special Council) Document type

Lower Canada/Canada East

Upper Canada/Canada West

Province of Canada

Journals of the Legislative Assembly

RG 14, A 2 [CO 45] & print

[CO 45] & print

[CO 45] & print

Journals of the Legislative Council

[CO 45] & print

[CO 45] & print

[CO 45] & print

Journals of the Special Council

[CO 45] & print

Sessional records: Assembly & Council Special Council

– – –

– –

– RG 14, C 1 [after 1854 only]

Acts of Parliament & Ordinances of the Special Council

– print MG 11, CO 44 RG 14, A 6 & print

RG 14, B 3 & print MG 11, CO 44

– print MG 11, CO 44

Table 7 – Records of the legislative process Few records accumulated by the clerks of the Legislative Assembly and Legislative Council of the Canadas survived a disastrous succession of fires. Records of the Special Council suffered similarly. Most of the records in RG 14 series A–C are actually copies prepared for the governor’s office, duplicates of the originals once kept by the clerks of Parliament. The notable exception is the Sessional Records of the Legislative Council, accumulated

after the fire of February 1854, and some account books. The duplicate Journals and Acts sent to London are preserved among the Colonial Office classes at the Public Record Office, but only selections have been microfilmed. The published statutes, as well as the Journals of all legislative bodies and their Appendices of Sessional Papers, are accessible through the National Library of Canada and in other institutions.

Table 8: Reports and records of the commissioners addressing rebellion losses claims Claims, depositions, evidence, & other supporting documents; reports & judgments

RG 19, vols. 3769–99, 4000, & 4002; RG 4, B 37 reports & lists printed in the Sessional Papers

RG 19, vols. 5484–88 RG 5, B 44 [not filmed: WO 9/36–43] reports & lists printed in the Sessional Papers

Correspondence relating to the appointment & operations of the commissioners

RG 4, C 1

RG 5, C 1 RG 5, A 1, pp 137016–59

[RG 7, G 21] MG 13, WO 4/283 RG 8, I, vol. C 1794

Table 8 – Records of the commissioners addressing rebellion losses claims Records relating to claims for damages and losses during the rebellions exist in scattered locations. Those accumulated by the commissioners appointed to investigate losses claims from the events in Lower Canada survive in substantial volume, but much less survives for Upper Canada. Documents relating to the appointment of the commissioners, publication of their reports

(as appendices to the Journals of the legislature), and financial commitments may be found in the provincial secretaries’ correspondence or the Executive Council minutes and submissions. Documents relating to claims against the British army are scattered through several War Office classes, not all of which have been microfilmed.

Appendix B Archival Sources in Quebec Relating to the Legal Suppression of the Rebellions of 1837 and 1838 in Lower Canada J A M E S L A MB E R T

The rebellions of 1837–8 in Lower Canada have been a popular subject in the history of Quebec on a recurring basis, particularly since the 1930s. Indeed, for nationalists they have become a symbol of the oppression of Quebec’s nationalist movement and of its aspirations for the self-determination of the Québécois nation or people. They have, consequently, become a subject of commemoration, most recently, for example, in a film by nationalist director Pierre Falardeau, 15 février 1839, centred on the final twenty-four hours of two patriotes executed that day, Charles Hindenlang and Chevalier de Lorimier. Because of the profound consequences of the failure of the rebellions for the subsequent history of Quebec, and because of the symbolic nature of the rebellions themselves, they have generated a voluminous literature of all sorts, popular and academic, fictional and documentary. In the last decade, as part of a movement to commemorate the rebellions, a veritable explosion has occurred in the publication of collections of original documents on them.1 These collections have considerable value; obviously, they increase accessibility, but they also sometimes preserve contents when the original documents subsequently disappear.2 The publication of collections of documents does not, however, exempt the serious researcher from the necessity of consulting the archival fonds from which they were drawn, for several reasons. First, most collections are a selection of documents reflecting in part the editor’s biases. Secondly, in some cases the published documents have been edited; it is known, for example, that Laurent-Olivier David, who printed several let-

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ters in Les Patriotes de 1837–1838, ‘reworked’ the letters of Lorimier.3 Finally, published collections remove documents from their documentary context, so that those immediately preceding or succeeding them, if judged of insufficient interest, are not published, although they may contain information that clarifies those that were. As yet, no systematic inventory of the original sources on the rebellions has been produced. This chapter constitutes a first effort in that direction, but it is limited in scope, largely to archival sources relating the the legal or judicial suppression of the rebellions and to the social impact resulting from that process. It takes a broad interpretation of its subject, however, describing numerous sources that do not contain legal documents but that reflect the role the legal system was alleged by its opponents to have had in provoking rebellion, the climate that the legal suppression of the rebellions created, the conditions of incarceration or of exile experienced by those subjected to them, and the various reactions of the population to the decisions of the courts martial or the governor and to their consequences for the condemned and their families. Each description seeks to provide at least the minimum of information required by the Rules for Archival Description,4 the Canadian standard in the field. For each fonds or collection described, the following information was sought: the reference number of the fonds, collection, or relevant series within a large fonds or collection; its title; its outside dates; the volume of documents; a minimum of historical context for the documents; a summary description of their scope and contents; the existence, nature, and usefulness of finding aids; and the existence of copies found elsewhere or of published versions of the documents. Finally, this chapter is divided into three parts geographically: Montreal and region, Quebec, and Trois-Rivières. Within the geographical divisions, the text is structured by archival services presented alphabetically, and, within the archival services, numerically by fonds reference number. MONTREAL AND REGION Archives de la Chancellerie de l’Archevêché de Montréal (ACAM) RLL Registre des lettres de Mgr Jean-Jacques Lartigue, vols. 8 and 9. – 1835–41. – 8.5 cm. of textual records. RLB Registre des lettres de Mgr Ignace Bourget, vol. 1. – 1837–9. – 3 cm. of textual records. The Roman Catholic Church in Lower Canada, particularly in the Montreal district, was involved in efforts to stem the movement towards rebel-

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lion and then in condemnation of the rebels’ actions. The correspondence of the bishops, Jean-Jacques Lartigue and his coadjutor, Ignace Bourget, reveals the tenor of the time and unfolding of events; presents the doctrinal position of the church; testifies to its efforts to defend from oppressive retaliation – including judicial repression – a population that it considered had been deluded by unscrupulous leaders; and informs about the behaviour of the clergy and the degree of forced mobilization of men by the patriotes. The bishops’ correspondence reflects the information they received from the parish priests and on which they based their decisions and actions. Although the clergy’s perspectives and reporting of incidents are certainly biased, they are no more so than those of other actors in, and spectators to, the dramas of 1837 and 1838. The parish priests’ first-hand accounts are to be found in their letters to Lartigue and Bourget which are now in the archives of the dioceses to which their parishes belong today. These diocesan archival centres include the Archives de l’Évêché de Saint-Hyacinthe, the Archives de la Chancellerie de l’Évêché de Saint-Jean de Québec, and the Archives de la Chancellerie de l’Évêché de Valleyfield.5 The bishops’ letters contain occasional allusions to the conditions of arrest and incarceration of patriotes. Their correspondence also provides a counterweight to patriote charges against the position of the Church and the behaviour of the clergy.6 901.106 Lartigue-Bourget Fonds. Troubles de 1837–1838. – 1837–19–, predominant 1837–40. – 2 cm. of textual records. This file, although not large, is of considerable interest. It contains originals or, occasionally, photocopies of petitions, governors’ proclamations, and correspondence received by Lartigue and Bourget from government officials or patriotes. The material documents, among other things, efforts by the clergy to limit political retribution being exacted on the population as a whole as a result of the rebellions; efforts to make easier the conditions of incarceration for complicity of the priest Augustin-Magloire Blanchet; the extreme bitterness of the imprisoned patriotes after the publication of a mandement by Lartigue condemning armed rebellion and refusing last rites to those who died in battle; and successful efforts by Bourget, immediately after the rebellion of 1838, to obtain visiting rights for clergy and to celebrate mass with the prisoners. The file also contains correspondence relative to the sentences received by the prisoners as well as letters in 1920–1 from Louis-Philippe Brodeur, former federal cabinet minister and then a justice of the Supreme Court of Canada, invoking injustices in the judicial system of Lower Canada as a vindication of the

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actions of the rebels. Finally, the file contains typed extracts from Bourget’s correspondence in RLB, vol. 1. A summary calendar of the contents is found in the file itself. Archives de la Compagnie de Jésus, province du Canada français, Saint-Jérôme. According to the historian Léon Pouliot, Georges de Boucherville,7 a young lawyer (and later a writer) who was imprisoned in the Montreal jail from 16 November 1837 to 8 July 1838, was the author of a journal which he presented as an historical work to the Société des amis on 26 June 1845. The document appears to be a clean manuscript copy, perhaps made in 1845 for presentation, rather than an original diary; it is, in any case incomplete. The journal, an extensive extract of which was published by Pouliot,8 describes the conditions of the author’s incarceration in the Montreal jail and his state of mind in December 1837 and January 1838. Formerly part of the archives of the Société des Amis in the HuguetLatour fonds, it is now in the series B–21–B of the Jesuit archives. Archives du Séminaire de Saint-Hyacinthe, Saint-Hyacinthe (ASSH) Because Saint-Hyacinthe is close to the Richelieu valley, a centre of the rebellions, interest there in the patriotes is high, and the Archives du Séminaire de Saint-Hyacinthe contain much memorabilia of celebrations of them, including programs of festivities and studies of the rebellions, both published and manuscript. Although these may be found scattered through various archival fonds, a fair number are concentrated in one collection, ‘BFP 15, Patriotes de 1837–38.’ Few documents, however, date from the period of the rebellions, and those that do relate to the involvement of the clergy. The documents in the various fonds held by the ASSH are described summarily in three finding aids.9 Archives nationales du Québec, Centre d’archives de Montréal, de Laval, de Lanaudière, des Laurentides et de la Montérégie (ANQ-M) The Archives nationales du Québec is composed of a number of regional archival centres, only two of which, Montreal and Quebec, hold records related to the legal suppression of the rebellions. An electronic inventory called ‘Pistard,’ which conforms to the standards of the Rules for Archival Description, provides a fonds-level description of the archival fonds held

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by all the regional centres. This section describes relevant archives in the Montreal centre; those in Quebec are described below in the section dealing with the Archives nationales du Québec. The rebels having been tried by court martial in military court, the judicial records held by the Archives nationales du Québec in Montreal contain relatively little information on the proceedings, but they hold much material preparatory and peripheral to the trials. E17, S1, SS1 Registres de la prison de Montréal. – 1826–75. – 14,16 m. of textual records. Part of the fonds of the Ministère de la Justice (E17) and of the series ‘Administration des prisons’ (E17, S1), the register of the New Prison of Montreal for the years 1835–8, contains information on the numerous prisoners admitted subsequent to the rebellion of 1837. For each prisoner the register records the date of admission, a sequential number, the name of the ‘Offender,’ the nature of the charge or ‘Offence’ (either ‘High Treason’ or ‘Treasonable Practices’), the ‘Sentence’ (in principle, but in practice this column indicated the place of residence although not the exact address), ‘By whom [the prisoner was] put in,’ and ‘When and How discharged,’ although this last information is not always provided. The regular admissions to the New Prison are followed in the register by a list which provides the same information for each state prisoner of ‘the Old Gaol.’ Neither this register nor subsequent volumes list persons incarcerated after the rebellion of 1838. TL19.S1.SS1 Cour du Banc du Roi Fonds, Matières criminelles générales, dossiers. – 1809–48. – 5.76 m. of textual records. Created by the Judicature Act of 1794, the Court of King’s Bench in Montreal held two criminal sessions a year. The ‘Dossiers’ that constitute this subseries of the court’s records are composed of documents accumulated between and during the sessions. Between sessions, the officer of the peace received documents preparatory to legal actions including denunciations, complaints, acts of accusation, warrants for arrest, and administrative documents such as juror lists and petitions. Documents created during sessions include motions by lawyers, peace bonds, acts of accusation, reports by the justices of the peace, or jury lists for specific cases. Three boxes of files in this subseries form a collection relating to patriotes compiled from criminal records from the Court of King’s Bench and the General Court of Quarter Sessions. The records cover the period 1834–41 and mostly stem from events prior to the rebellions or not necessarily related to them. They were selected on the basis of a list of patriotes and

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form files organized alphabetically by prisoner name. Although it may be of interest to know what previous problems patriotes had had with the law, it should be noted that there is no guarantee that this compilation is complete. The last file in the series is a list, dated from the early 1840s, of executions made against properties owned by patriotes. In addition to this collection, volumes 21 to 23 of the regular series of files, covering the years 1837–9 and arranged chronologically, contain depositions, warrants for bail, and recognizances relating to numerous persons arrested as a result of the rebellions. Volume 23 also contains the warrants, dated 11 June 1839, for the transportation to New South Wales of prisoners whose sentences had been commuted from death. A finding aid to the collection exists, providing, among other things, an index to the patriotes mentioned, the provenance, outside dates, and number of documents in the file as well as a list, for each file, of any other patriote who figures in it. The finding aid does not, however, describe the contents of the files or the nature of the accusations.10 TL888, S999 Documents judiciaires Collection T1–10, Documents non traités. – 1617–1975. – 7.08 m. of textual records. The origins of this collection, better known as ‘Affaires criminelles et de police,’ are unknown, as are the grounds on which it was formed. Most of the documents originated in other fonds and series. Originally held by the prothonotaries of the Superior Court of the District of Montreal, the collection was transferred to the Archives nationales in 1971 when its Montreal branch was established. Volumes 52–6 contain 625 documents, notably depositions, voluntary examinations, and petitions for the years 1832–40. Since there is no finding aid and the documents are not in chronological order, patience is needed in searching them.11 However, volumes 53 (1838) and 56 (1837–9) at least contain numerous documents relative to the rebellion trials. Several private fonds and collections in the ANQ–M are also of interest to the historian of the rebellions. In most cases they do not contain legal documents, but they often complement the latter, although in anecdotal fashion. P7 Famille Papineau Fonds. – 1813–1930. – 3.45 m of textual records. – circa 1200 photographs. – 2 architectural plans. These papers were acquired in two parts. Only the first, comprising fortyfour centimetres of documents covering the period 1813–71, is of interest for the rebellions. It includes correspondence between Louis-Joseph Papineau and his father, Joseph; his wife, Julie Bruneau-Papineau; and

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his brother Denis-Eméry. A finding aid exists but is so summary that it is of little use.12 The documents in this fond complement those found in the somewhat larger Fonds Famille Joseph Papineau described below under ANQ–Q, P417. The description there of the type of information found in those documents applies here as well.13 P28 Louis-Joseph-Amédée Papineau Fonds. – 1837–49. – 22 cm. of textual records. – 3 maps. This fonds contains, among other documents, a photocopy of the original manuscript and a typed transcript of the ‘Journal d’un fils de la liberté,’14 a typed transcript of the ‘Récit de la mort du Docteur Chénier,’ and copies of three maps relating to the rebellions.15 P224 Rébellion de 1837–1838 Collection. – 1837–8. – 22 cm. of textual records. This collection, of unknown origin, is composed for the most part of original documents, in chronological order. It includes depositions by witnesses of military manoeuvres by the Fils de la liberté in 1837, typed lists of witnesses, poems written by inmates of the Montreal prison in 1838, and correspondence of prisoners, exiles, and their families. Among the persons represented in the collection are Joseph-Narcisse Cardinal, LouisHippolyte La Fontaine, Louis-Joseph Papineau, Denis-Benjamin Viger, Chevalier de Lorimier, Wolfred Nelson, and Siméon Marchessault.16 This collection completes the more voluminous series described below under ANQ–Q E17/5.1 Événements, 1837–1838. P274 Jean-Marie Beauregard Fonds. – 1657–1959. – 6.82 m. of textual records. One box in this fonds contains more than two hundred typed transcripts concerning the rebellions copied for the most part from documents described below under ANQ–Q, E17/5.1. Événements, 1837–1838.17 P345 Société d’archéologie et de numismatique de Montréal Collection. – 1712– 1875. – 14.2 m. of textual records. Documents relative to the patriotes are known to be in this collection,18 but little is known in detail of its contents since it is described only summarily.19 A microfilm copy of about one-third of the collection is in the National Archives of Canada.20 P680 Ludger Duvernay Fonds. – 1805–2. – 0.55 m. of textual documents. A newspaper editor, first in Trois-Rivières and then from 1827 in Montreal, where he founded the nationalist newspaper La Minerve with

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Augustin-Norbert Morin, Ludger Duvernay (1799–1852) fled to Burlington, Vermont, during the rebellion of 1837 and founded Le Patriote canadien (1839–40). Well connected by virtue of his profession, Duvernay maintained a voluminous correspondence, particularly with fellow patriotes in the United States. This correspondence, which largely composes the Ludger Duvernay Fonds, provides information on the internal politics and internecine struggles of the patriote movement. It also informs of news and rumours about the state of mind of the population of Lower Canada, about the administration of justice and the prisoners in Montreal, about preparations and results of military incursions into Lower Canada, and about efforts to finance them. Finally, it reflects speculation about and then reactions to Durham’s amnesty. The documents composing this fonds were in the custody of the Archives nationales du Québec at Quebec, under the reference number P68, until 1999 when they were transferred to the Archives nationales du Québec in Montreal. A detailed finding aid describes each document of the fonds,21 and the letters addressed to Duvernay in 1837 and 1838 have been published in their entirety.22 P1000, D1240 Joseph-Narcisse Cardinal Fonds . – 1838. – 9 textual records. Joseph-Narcisse Cardinal (1808–38), a notary, was a patriote officer at Châteauguay taken captive by the Indians of Caughnawaga on 4 November 1838 along with his former clerk Joseph Duquet, FrançoisMaurice Lepailleur, and the rest of their detachment. Cardinal was among eleven patriotes condemned to death and the first executed, along with Duquet, on 21 December 1838.23 This small fonds contains letters from Cardinal to his wife and others between 24 November and 20 December 1838. Among other subjects, the correspondence refers to Cardinal’s efforts to defend himself in court and to his life in prison. P1000, D1267 Famille Chevalier de Lorimier Fonds. – 1837–1919. – 12 textual records. Chevalier de Lorimier (1803–39), a notary public by profession, was a patriote officer during the rebellion of 1838. Taken prisoner, he was tried by court martial, condemned to death, and, on 15 February 1839, hanged.24 His numerous letters from the Montreal jail, particularly in the weeks preceding his execution, are found in several archival fonds, including this one; a selection of them has been published.25 The documents in this fonds include letters to family and friends, and one to Sir John Colborne.26

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Centre de recherche Lionel-Groulx, Montréal P4 Jean-Joseph Girouard Fonds. – 1799–1974. – 1 m. of textual records. – 10 cm. of photographs. Deputy for the riding of Deux-Montagnes in the House of Assembly from 1831, the notary Jean-Joseph Girouard (1794–1855) was an ardent supporter of Louis-Joseph Papineau and a prominent figure in patriote assemblies. Wanted in the aftermath of the rebellion of 1837, he was incarcerated in the Montreal prison on 26 December. He was released by virtue of Durham’s amnesty on 16 July 1838 but imprisoned again on 4 November during the rebellion of that year and, on 27 December, again released. An amateur artist, he left, at his death, 102 pencil sketches of his contemporaries, including the prisoners in the Montreal jail. The Girouard fonds, given to Lionel Groulx by a grand-daughter of Girouard, contains much material relative to the rebellions of 1837–8 and to Girouard’s role in them.27 The series entitled ‘Documents’ contains Girouard’s journals relating his version of the events of 1837–8, a table of the imprisoned patriotes, notes, documents relative to requests for indemnity, and other documents relating to the rebellions. The correspondence series includes Girouard’s letters from prison describing conditions there and documenting his contemporaries and their perception of the events of 1837–8. Finally, a third series of miscellaneous documents contains the Mémoires de Mme Ellice, 1837–1838. P41 Louis-Joseph Papineau Fonds. – [19–]. – 80 cm. of textual records. This fonds consists of typed transcripts of Papineau’s correspondence and other documents from 1803 to 1926, lent for purposes of copying by Adine Bourassa, a grand-daughter of Louis-Joseph Papineau, to Lionel Groulx. The originals are in the National Archives of Canada or the Archives nationales du Québec. The transcripts are bound in seventeen volumes, of which volumes 6 and 7, containing seventy-one documents, cover the years 1837–9.28 McCord Museum, Conservation and Research Department, Montreal CO19 De Rocheblave, Bouthillier, Routh Collection. – 1696–1962. – 2 m. of textual records, cartographic and photographic material. Pierre Rastel de Rocheblave (1773–1840), a former fur trader, was a businessman and a member of the Special Council, created in 1838.29 The most important series of documents in this collection is the correspondence between Rocheblave, in Montreal, and his brother-in-law Louis-

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Tancrède Bouthillier. In November and December 1837 and January 1838, Rocheblave informs Bouthillier of the news and rumours surrounding the battles and other events related to the rebellions. C179 Rebellions of 1837–1838 Collection. – 1839–1988. – 3 cm. of textual records. This collection includes a letter of 12 January 1839 by Andrew William Cochran (1792–1849), a lawyer and executive councillor, in which he relates the usual news respecting the trials of the political prisoners. McGill University, McGill University Libraries, Rare Books and Special Collections Division, Montreal MS404 Henry S. Chapman Fonds. – [1914?]. – 8 cm. of textual records. The first file of this fonds (MS404/1, Correspondence, 1835–8) contains photostatic copies of letters from December 1837 to November 1838 to Henry S. Chapman (1803–81), a journalist and London member of the Committee of Correspondence, from Edmund Bailey O’Callaghan in New York informing Chapman of the situation in the Canadas and denouncing the administration of justice in Lower Canada as a travesty and a factor legitimizing the recourse to arms. This file also contains letters from Louis-Hippolyte Lafontaine in New York, from February to June 1838, in which he refers to the killing of Lieutenant George Weir and the administration of justice. Société historique de Montréal, Montreal Louis-Hippolyte La Fontaine Fonds. – 1812–64. – 2.5 m. of textual records. Louis-Hippolyte La Fontaine (1807–64), although a moderate, was incarcerated on suspicion after the rebellion of November 1838 but released, without having been charged, on 13 December. This fonds contains an extensive correspondence during the period of the rebellions.30 Transcripts and a microfilm copy of these documents, along with some originals, form the Louis-Hippolyte La Fontaine Fonds in the National Archives of Canada (MG 24, B 14). Université de Montréal, Service des Archives (SAUM), Montreal P58 Louis-François-Georges Baby Collection. – 1601–1960, predominant before 1905. – 16.21 m. of textual records and graphic material. Judge Louis-François-Georges Baby (1832–1906), deputy for the federal

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riding of Ottawa, minister in the cabinet of Sir John A. Macdonald’s Conservative government, and judge in the Superior Court from 1880, was an avid collector of documents relating to the history of Canada and of his family, a founder of the Société historique de Montréal, and a president of the Antiquarian and Numismatic Society of Montreal. The Baby Collection contains some 20,000 documents divided into thematic series. The whole of the collection has been described document by document.31 Papers relative to the legal suppression of the rebellions of 1837–8 are found in at least three series: J, Archives judiciaires; L, Affaires politiques et parlementaires; and U, Correspondance générale. However, the extremely summary nature of the description does not provide certainty that such documents may not be found buried in other series. The U series, consisting of some 13,000 letters, has also been listed thematically.32 Some thirty letters discuss the rebellions of 1837–8, and at least a few of these are from the prisoners in Montreal referring to the conditions of their incarceration. Ville de Montréal, Division de la gestion des documents et des archives BMI Aegidius Fauteux Fonds. – [ca 1830]–1940, predominant 1900–40. – 17.5 m. of textual records and graphic and cartographic material. Aegidius Fauteux (1876–1941) was head librarian of the Sulpician Library from 1912 until 1931 and then of the Bibliothèque municipale de Montréal until his death. He was a member of the Société des Dix and of the Royal Society of Canada. The Aegidius Fauteux Fonds, held until recently by the Bibliothèque municipale de Montréal, contains the voluminous documentation, notes, and texts created by Fauteux in his study of the history of Quebec. A little more than twelve metres of these documents deal with the patriotes; for the most part, they are documentation, notes, and manuscript or typed biographical notices, invariably undated but created over many years and arranged in several series, each series itself arranged alphabetically by names of the patriotes. One series is a photocopy of at least two of the other series. These series are contained in twenty-seven files,33 described summarily in an electronic finding aid called ‘Archi-Log.’ The notes and texts provide as complete a picture as Fauteux was able to compile of each patriote’s participation in the rebellions and the legal consequences of that participation, including the date and circumstances of his arrest, whether or not he was prosecuted, and, where such was the case, the date of his release on bail or of his final release. Clearly the compilations were made, at least in part, from gov-

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ernment and judicial records, but Fauteux rarely indicates his sources. The results of these researches were published in a variety of publications, but most notably in patriotes de 1837–1838 (Montreal : Les Éditions des Dix 1950). QUEBEC Archives nationales du Québec, Centre d’archives de Québec et de Chaudière-Appalaches (ANQ–Q) With one notable exception, original judicial and government administrative records in the Archives nationales du Québec at Quebec contain little information respecting the rebellions. A number of private fonds, however, provide complementary information. E17/5.1 Événements, 1837–1838. – 1837–1849. – 5.65 m. of textual records. The fonds of the ministère de la Justice (E7), Series 5, Affaires criminelles et pénales,34 includes subseries 1, Événements, 1837–1838, which contains documents that have been among the most familiar to historians of the rebellions since at least 1926, when Ivanhoë Caron published an indexed calendar describing them in detail.35 For the most part, this is composed of depositions arranged by Caron according to the major events of the rebellions, in a roughly chronological order, but it also includes affidavits, certificates of loyalty, warrants for arrest, petitions, reports, lists, proclamations, and correspondence.36 Most of the documents are originals, numbered from 1 to 4153, to which are added seventeen printed texts. Typed transcripts of several hundred documents have been placed after the originals. All of the records – originals, printed texts, and typed copies – were microfilmed in 1984, and consultation is now normally restricted to the microfilm copies.37 The documents, particularly depositions against and voluntary examinations by prisoners, provide information about the collective state of mind in the various parishes; the roles of the patriote leaders, primary and secondary; the Fils de la liberté; the assembly of the Confédération des Six Comtés; the major battles; the killings of George Weir, Joseph Armand, dit Chartrand, and Aaron Walker; the Association des Frères Chasseurs; the role of the Montreal prison; and the sentences handed out to the patriote leaders. According to Elinor Kyte Senior, the records in this series are ‘often the only source for details of the insurgent campaign of terror in the countryside.’38 Documents from this subseries have been published in several collections.39 See also above,

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under ANQ–M, P224 Rébellion de 1837–1838 Collection. As well, a number of private fonds provide complementary information. P79 Louis Fiset Fonds. – 1724–1859. – 75 cm. of textual records. Although sympathetic to the rebel cause in 1837–8, Louis Fiset remained on the sidelines. Subsequently, he helped Augustin-Norbert Morin and Étienne Parent during the period of their incarceration. Fiset’s correspondence contains reactions to the events of 1837–8 by Louis Bertrand of Île Verte and F. Tetu of Trois-Pistoles.40 P92 Jean-Joseph Girouard Fonds. – 1785–1888. – 34 cm. of textual records. For a biographical notice of Girouard see above, under Centre de recherche Lionel-Groulx, P4. This fonds, the greater part of which is held by the Centre de recherche Lionel-Groulx, includes some original documents, for the most part of little interest; photostatic copies, which constitute the heart of the fonds numerically and qualitatively; and a microfilm copy which is largely illegible. The photostatic copies include Girouard’s correspondence with several individuals implicated in the rebellions, but the most interesting is with his wife, Marie-Louise Félix, and his friend Augustin-Norbert Morin. Girouard’s letters to his wife from 16 January to 3 December 1838 tell of the events leading to his imprisonment, his petitions to Sir John Colborne respecting the poor conditions in which some prisoners were maintained, his own relative ease, and the physical state of the prison (documents 90–5).41 P148 François-Maurice Lepailleur Fonds. – 1839–45. – 13 cm. of textual records. A bailiff at the outbreak of the rebellion in 1838, François-Maurice Lepailleur participated with Joseph-Narcisse Cardinal in an ill-fated rebel expedition to Caughnawaga to obtain arms. Arrested, he was incarcerated in the Montreal prison on 4 November, tried before a court martial, and condemned to death; however, his sentence was commuted to transportation to Australia. During his exile, from 1839 to 1845, Lepailleur maintained a journal. Composed of five notebooks, this journal was eventually obtained by Victor Morin, a manuscript collector and founder of the Société des Dix, who sold it in 1945 to Pierre-Georges Roy, representing the Archives de la province de Québec. Somehow, the fourth notebook got out of the possession of the Archives nationales and was eventually sold at auction in 1987, but only after the archives obtained a photocopy

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of it. Meanwhile, it had been published in 1972 by Robert-Lionel Séguin. In 1980 F. Murray Greenwood published an English translation of the journal for the years 1840–2, and in 1996 Georges Aubin brought out an edited and abridged French edition. The fonds now contains the originals and a typed transcript of notebooks 1, 2, 3, and 5 and a photocopy of notebook 4 as well as the manuscript of the journal of Basile Roy, a fellow exile of Lepailleur, as dictated to him.42 P279 Jonathan Wurtele Fonds. – 1798–1891. – 6 cm. of textual records. – 8 photographs. Jonathan Wurtele was a justice of the peace living near Yamaska at the time of the rebellions. The letters he received from family members in Montreal tell of developments there from early 1838, the rebellion itself, the trials held in Montreal in November and December, and the political situation following the trials. The fonds has been described.43 P409 Famille Des Rivières Fonds. – 1791–1895. – 12 cm. of textual records. – 4 maps. Rodolphe Des Rivières participated in the meeting of 5 September 1837 that founded the Fils de la liberté and, in November, in the battles of SaintCharles-sur-Richelieu and Saint-Denis. He was exiled to the Bermudas following Durham’s proclamation of 28 June 1838. This fonds contains copies of documents written in June 1838 from the ‘New Jail Montreal,’ as well as letters from Des Rivières, Wolfred Nelson, and Joseph Bouchette among others.44 P417 Famille Joseph Papineau Fonds. – 1681–1939. – 5.32 m. of textual records. – 21 architectural documents. – 54 maps. – 3 images. – 6 photographs. This voluminous fonds includes several series containing correspondence viewing the events of 1837–8 from the perspective of the head of the patriote movement until armed conflict broke out and of other members of his family. It has been described in whole or in part on several occasions. The most recent description45 contains an excellent introduction tracing the tortuous history of the constitution of the fonds and examining the evidence establishing censorship of parts of it by members of the family concerned about the family’s reputation. In general, the correspondence in this fonds, whether it be between family members or with friends, reflects current rumours, what was being written in the newspapers, and the news brought by people from Montreal or the countryside. The correspondence

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of Joseph Papineau, Louis-Joseph’s father (Series 1.1.1), contains news of political developments and Joseph’s advice to his son about what he should do. It has been published.46 Also of interest are the subseries 2.1.2 and 2.1.3, containing, respectively, letters received by Louis-Joseph Papineau and letters from Louis-Joseph Papineau to members of his family. Of particular interest, however, are the letters received by Julie Bruneau Papineau from her husband Louis-Joseph (subseries 2.12.1), which have been published.47 Letters in other subseries, particularly 3.1.1, 3.1.2, 5.3, and 6.1.1, and notably from Louis-Antoine Dessaulles to Papineau’s son Louis-Joseph-Amédée, contain scattered comments on the judicial system and conditions of incarceration in the Montreal jail. P1000, D976 Charles Hindenlang Collection. – [19_]. – 2 textual records. Charles Hindenlang (1810–39), an officer in the French army, fought under Robert Nelson at Odelltown, was captured, and was sent to prison in Montreal. Tried by court martial in January 1839, he was sentenced to death and, on 15 February, hanged.48 This collection contains a copy of Hindenlang’s speech to the military tribunal on 26 January 1839, before sentence of death was passed; it has been published.49 P1000, D1291 Guillaume Lévesque Fonds. – 1838–[1893]. – 3 textual records. Guillaume Lévesque (1819–56), a civil servant, took part in the failed Patriote attack on Odelltown. He was incarcerated in Montreal until September 1839, when he went into exile in France. The fonds contains a letter from Charles Hindenlang, in prison, encouraging Lévesque to keep up his spirits. P1000, D1317 Chevalier de Lorimier Collection. – [19_]. – 3 textual records. This collection contains copies of letters from Chevalier de Lorimier, in the Montreal jail, to a friend, his wife, and the public shortly before his execution. P1000, D1806 Sieur Robitaille Fonds. – [19_]. – 2 pages of textual records. Nothing is known of Robitaille. The sole document composing this fonds is a copy of a letter from Chevalier de Lorimier in the Montreal prison, dated 12 February 1839, in which Lorimier asserts that he regrets nothing and will die with courage as a martyr to the cause.50 P1000, D2732 John George Lambton Durham Fonds. – 1838. – 2 cm. of textual records. This fonds contains addresses from the citizens of Trois-Rivières and of

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Quebec to Durham relative to the consequences of the rebellion of 1837; the Quebec address has been published.51 In addition to public and private fonds containing original documents, the Archives nationales du Québec at Quebec also hold copies of fonds and series of interest, the originals of which are elsewhere. In particular it has a microfilm copy of series from the Civil and Provincial Secretaries Offices in the National Archives of Canada, notably RG 4, A 1 (letters received), RG 4, A 2 (drafts of letters sent), and RG 4, B 37 (documents concerning the events of 1837–8) as well as of private fonds in the NA, in particular the Neilson Family Papers (MG 24, B 1) and the Abbé Paquin papers (MG 24, B 24).52 It also has a microfilm copy of documents in London, notably War Office 44 and 55 and Colonial Office 42 and 43. 53 Archives de l’Archidiocèse de Québec (AAQ) No documents specifically of a judicial nature will be found in these archives. However, Series 26 CP, Diocèse de Montréal, vols. 7, D, and H and 1 CB, Vicaires généraux, vol. 10, together contain some seventy documents relating to the rebellions and the role of the Roman Catholic Church and clergy in supporting the authority of the British government while attempting to reduce to a minimum the consequences for the population as a whole of the suppression of the insurrection. These documents complement those found in the Archives de la Chancellerie de l’Archevêché de Montréal described above. Archives du Séminaire de Québec (ASQ) P32 Viger-Verreau Fonds. – 1612–1901. – 12.12 m. of textual records. – approximately 150 architectural plans. This fonds contains a manuscript copy, dated 12 December 1838, of the accounts of the situation in Lower Canada used by Lord Durham in writing his report. This document of 1450 pages is found under reference number 0–5. TROIS-RIVIÈRES Archives du Séminaire de Trois-Rivières (ASTR) CL-0032 Montarville Boucher de La Bruère Collection. – 1622–1943. – 4.4 m. of textual records. This collection, although centred on the succeeding generations of the

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Boucher family, also embraces, among other subjects, the rebellions of 1837–8. It contains typed copies of depositions, the originals of which are probably in the Archives nationales du Québec, in Quebec or in Montreal, printed documents, and a number of original manuscripts of interest. Thirty or forty documents relate to the rebellions.54 FN-0416 Wolfred Nelson Fonds. – 1811–1933. – 10 cm. of textual records. – 28 photographs. Wolfred Nelson (1792–1863), a medical doctor at Saint-Denis, was a leading figure in the battle of Saint-Denis. Later captured, he was among the eight rebels exiled by Durham to Bermuda in 1838. This fonds was donated to the Archives du Séminaire de Trois-Rivières in 1943 by Montarville Boucher de La Bruère. The documents are organized chronologically; some twenty-five, dating from December 1837 to October 1840, relate to the rebellions, eleven of them being original manuscripts,55 the rest either typed copies or photocopies. The documents are, for the most part, letters exchanged among patriotes, either exiled or still in Lower Canada, and relate to life in exile and political conditions in Lower Canada.56 FN-0418 Siméon Marchessault Collection. – 1837–40. – 51 textual records. Siméon Marchessault, a schoolmaster at Saint-Denis and Saint-Charlessur-Richelieu, took part in the battles at both places in 1837. Arrested and imprisoned in Montreal, he was exiled to Bermuda by Lord Durham in July 1839; released in October, he went to the United States, where he remained until 1840. The archival fonds was donated to the Archives du Séminaire de Trois-Rivières by Montarville Boucher de La Bruère around 1935. He had received it from Dr Emile Ostiguy at the request of Marchessault’s daughter Madame Esdras Bernier. It is composed almost exclusively of letters, the majority being from Marchessault to his wife Judith Morin.57 The subjects discussed in the correspondence include Marchessault’s examination and the number of depositions against him, the conditions of imprisonment in Montreal, and his condemnation into exile as well as his life and that of his fellow exiles in Bermuda in 1838 and then in Vermont from 1838 to 1840 when he returned to Lower Canada.58 CONCLUSION Within the terms of this survey of archival sources in Quebec, two general observations emerge. First, strictly judicial archives for a

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study of the legal suppression of the rebellions are concentrated in relatively few sources and are, for the most part, both well described and well known. These sources are held by the ANQ either at Quebec or at Montreal. Secondly, non-judicial documents that provide evidence of the role and impact of the legal system in the suppression of the rebellions, the lives of individuals affected directly, and collective reactions are more widely scattered, difficult to grasp for want of sufficient description, and consequently less well known. Given the second observation, this survey should be seen not as an exhaustive treatment of its subject but as a preliminary study which can eventually be improved extensively, owing to an electronic archivalinformation network recently started in Quebec and based on descriptions that are standardized to conform to the Rules for Archival Description. These descriptions should provide considerably more information on the scope and content of the documents than do most existing finding aids. This network is a priority project of the Réseau des archives du Québec, but its implementation will be an on going process as archival services with limited resources struggle first to get on-line and then to provide access to finding aids that meet minimum standards of quality.

NOTES 1 Several of these publications are noted below. 2 For example, in the nineteenth century, Laurent-Olivier David, in Les Patriotes de 1837–1838 (Montréal: Librairie Beauchemin 1884), and James Huston, Le répertoire national, vol. 2 (Montreal: Lovell and Gibson 1848), published several letters, the originals of which can no longer be found. 3 Marie-Frédérique Desbiens, ‘Dernières lettres de Chevalier de Lorimier (1839), Édition critique et commentée’ (Quebec City: M.A. thesis, Université Laval 2000), at 92n.2). 4 Bureau of Canadian Archivists, Rules for Archival Description (Ottawa: Bureau of Canadian Archivists 1990), multiple pagination. 5 An indication of the kind of information found in diocesan archives can be gleaned from a perusal of a detailed finding aid for one of them: Monique Signori-Laforest, Inventaire analytique des archives du diocèse de Saint-Jean-deQuébec, 1688–1900 (Quebec City: Ministère des Affaires culturelles, Direction générale du Patrimoine, Archives nationales du Québec 1976), particularly at 16, 93, 166, and 309. The Archives de la Chancellerie de l’Évêché de Valleyfield also contain a letter from Joseph-Narcisse Cardinal to Bishop Ignace Bourget

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7

8 9

10

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written from prison on 26 Nov. 1838. See Michel de Lorimier, ‘Joseph-Narcisse Cardinal,’ DCB 7: 150. For a fairly detailed description of the bishops’ correspondence, see LouisAdélard Desrosiers, ‘Correspondance de Mgr Ignace Bourget, coadjuteur de Montréal,’ Rapport de l’Archiviste de la province de Québec, pour 1945–1946 (n.p.: Redemepti Paradis, Imprimeur de Sa Majesté le Roi 1946), at 137–214; and Louis-Adélard Desrosiers, ‘Correspondance de Mgr Jean-Jacques Lartigue de 1836 à 1838,’ Rapport de l’Archiviste de la province de Québec, pour 1944–1945 and pour 1945–1946 (n.p.: Redempti Paradis, Imprimeur de Sa Majesté le Roi 1945), 173–266; 1946: 39–134. It should be noted that, although these descriptions are largely complete, they are not entirely so since at least one letter was omitted (RLB, 1: 244, Bourget to Jean-Baptiste Labelle, 25 Nov. 1838). See also François Beaudin, ‘Inventaire général des registres des archives de la Chancellerie de l’Archevêché de Montréal, 1643–1876,’ RHAF, 20 (1966–7), at 674. See André Lemelin, ‘Georges de Boucherville,’ DCB 12: 128–9, and Suzanne Lafrenière, ‘La Tour de Trafalgar, conte de Georges Boucher de Boucherville,’ in Maurice Lemire et al., ed., Dictionnaire des œuvres littéraires du Québec, Tome premier, des origines à 1900 (Montréal: Fides 1978), at 703–4. See Léon Pouliot, ed., ‘Documents inédits – Récit d’un prisonnier de 1837: pages inédites de Georges de Boucherville,’ RHAF, 22 (1968–9), at 617–23. Archives du Séminaire de Saint-Hyacinthe, Section A, Documents relatifs au Séminaire de Saint-Hyacinthe et répertoire des 18 sections et des 180 fonds particuliers (Saint-Hyacinthe, Que., 1990), 951 pp.; Société d’histoire régionale de Saint-Hyacinthe, Section B, Documents relatifs à l’histoire de Saint-Hyacinthe, répertoire des 20 séries et 97 fonds ([Saint-Hyacinthe, Que.] 1990), 742 pp.; Archives du Séminaire de Saint-Hyacinthe, Section [sic] C, D, E, Documents relatifs au Séminaire de Saint-Hyacinthe, répertoire des 29 séries (Saint-Hyacinthe, Que., 1990), 266 pp. Documents from the ASSH and six other archival centres have been published in Rosalie Papineau-Dessalles, Correspondence, 1805–1854, Georges Aubin and Renée Blanchet, ed. (Montreal: Éditions Varia 2001), 305 pp. Ninety pages entitled ‘La Patriote,’ cover the period 1836–9. Carole Langelier, ‘Répertoire de documents concernant les Patriotes et provenant des archives criminelles du district de Montréal’ (Montréal: Archives nationales du Québec 1996), 30 pp. (Finding aid 601281). Some use has nevertheless been made of these documents. See Beverley Boissery, A Deep Sense of Wrong: The Treason, Trials, and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion (Toronto: Osgoode Society/Dundurn Press 1995), at 353, and Allan Greer, The Patriotes and the People: The Rebellion of 1837 in Lower Canada (Toronto: University of Toronto Press 1993) at 240, 293, 299, 307, 328, 335–6.

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12 Marc Lamarre, ‘Répertoire du fonds de la famille Papineau’ (Montreal: Archives nationales du Québec 1985), 10 pp. (Finding aid 602031). The finding aid does not describe the papers, even summarily. By providing outside dates for the documents in each series, however, it enables the researcher to focus on series of potential value. 13 See also the Fonds Famille Papineau in the NA, MG 24, B 2. 14 The original is in the NA, MG 24, B 2, vols 31–6. 15 Linda Matte, ‘Répertoire des documents textuels du fonds Louis-JosephAmédée Papineau’ (Montreal: Archives nationales du Québec 1985), 5 pp. (Finding aid 602128), is an extremely summary finding aid. 16 Sylviane Léveillé, dit Thibault, ‘Inventaire analytique de la collection ‘Rébellions de 1837–1838’ (Montreal: Archives nationales du Québec 1985), 46 pp. (Finding aid 602021). Documents from this series concerning Lorimier, Nelson, and Marchessault have been published in Chevalier de Lorimier, 15 février 1839: lettres d’un patriote condamné à mort, edited by Marie-Frédérique Desbiens and Jean-François Nadeau (Montreal: Comeau and Nadeau/Agone 2001), at 66–7; Wolfred Nelson, Écrits d’un patriote, Georges Aubin, ed. (Montreal: Comeau and Nadeau 1998), at 71–6; Siméon Marchessault, Lettres à Judith: correspondance d’un patriote exilé, Georges Aubin, ed. (Sillery, Que.: Septentrion 1996), at 51–68; Marie-Frédérique Desbiens, ‘Dernières lettres de Chevalier de Lorimier (1839), at 86; and Georges Aubin, Au Pied-du-Courant: Lettres des prosonniers politiques de 1837–1839 (Montréal/Marseille: Éditions Comeau and Nadeau/Agone 2000), passim. 17 Yvon-André Lacroix, ‘Inventaire du fonds du chanoine Beauregard’ (Quebec: Archives nationales du Québec 1971), at 18 (Finding aid 603045). 18 For example, Robert Nelson, Déclaration d’indépendance et autres écrits (1832– 1848), edited and annotated by Georges Aubin (Montreal: Comeau and Nadeau 1998), at 58–66 and 69–71, and Wolfred Nelson, Écrits d’un patriote, at 122–5 and 137–8, contain letters from the Nelsons, in exile, to Ludger Duvernay, albeit dated 1839, 1840, and 1841. 19 Patricia Kennedy, ‘Antiquarian and Numismatic Society of Montreal/Société d’archéologie et numismatique de Montréal, MG 23, G III 25’ ([Ottawa 1981]), ii, 9 pp. This finding aid mentions that there is no guide to series 2 in which the correspondence of the Nelsons, mentioned in the previous note, was found. 20 Reference number MG 23, G III 25. Patricia Kennedy’s finding aid is a shelf list of the microfilm holdings. 21 Ivanhoë Caron, ‘Papiers Duvernay conservés aux Archives de la province de Québec,’ Rapport de l’archiviste de la province de Québec pour 1926–1927 ([Quebec City]: L.-Amable Proulx, Imprimeur de Sa Majesté le Roi 1927), at 145–258.

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22 Canadian Antiquarian and Numismatic Journal, 3rd Series, 5 (1908), at 167–98; 6 (1909), at 1–185; 7 (1910), at 17–96. As well, letters from Wolfred Nelson to Duvernay have been published in Wolfred Nelson, Écrits d’un patriote, at 114, 115–16, 120–2. 23 See Michel de Lorimier, ‘Joseph-Narcisse Cardinal,’ DCB 7:149–50. 24 On Lorimier, see Michel de Lorimier, ‘Chevalier de Lorimier,’ DBC 7:512–16. 25 Chevalier de Lorimier, 15 février 1839: lettres d’un patriote condamné à mort, 126 pp. In addition to prefacing the first edition of this collection, published in 1996, Pierre Falardeau directed a film on the fate of certain patriotes, largely centred on Lorimier, 15 février 1839. 26 The only one from the fonds to be published in ibid., at 57–9. 27 Danielle Saint-Hilaire and Juliette Rémillard, État général des fonds d’archives et collections du Centre de recherche Lionel-Groulx (Montreal: Fondation LionelGroulx 1987), at 24–7, provides a summary description. For a detailed description, see Juliette Rémillard, Inventaire analytique du fonds J.-J. Girouard (Montreal: Centre de recherche Lionel-Groulx 1983), 162 pp. (Finding aid no. 4). 28 Danielle Saint-Hilaire and Juliette Rémillard, État général, at 175–81. 29 See Pierre Dufour and Marc Ouellet, ‘Pierre Rastel de Rocheblave,’ DCB 7: 737. 30 Elizabeth Nish, ‘Inventaire de la collection Lafontaine ...’ (Montreal: Société historique de Montréal 1967), indicates the author, date, and place of origin of each document for a large part of the fonds but offers no description of contents. 31 Camille Bertrand, Catalogue de la Collection François-Louis-Georges Baby (Montreal: Bibliothèque de l’Université de Montréal 1972), 2 vols. 32 [Chantal Fillion], ‘Liste thématique des lettres de la Collection Baby’ (Montreal: Université de Montréal, Service des archives 1988), 143 pp. It should be noted that Fillion’s guide provides only the reference numbers from Bertrand’s Catalogue dealing with a given theme, while the Catalogue itself, for each letter, provides only a reference number and, when the information is available on the document, the names of the author and the recipient and the date of the letter. In no case does either the thematic guide or the Catalogue describe the contents of the documents. 33 File numbers BM1, SO, D245, D287–D288, D290–D310, D511–D513, and S2, D22. 34 Until 1979, this series was part of the fonds Procureur Général (QBC–25, vol. 8–45). 35 Ivanhoë Caron, ‘Inventaire des documents relatifs aux événements de 1837 et 1838, conservés aux Archives de la Province de Québec,’ Rapport de l’archiviste de la Province de Québec pour 1925–1926 ([Quebec City]: L.-Amable Proulx, Imprimeur de Sa Majesté le Roi 1926), at 146–329.

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36 Claude Poirier, ‘Répertoire du fonds ministère de la Justice’ ([Québec]: Archives nationales du Québec, 1987), at 1. (Finding aid 301567). 37 When the series was microfilmed, documents numbered 2949, 2971, 3404, and 4145 as well as print no. 2 were missing. Finding aid 301567 is an adaptation of Caron’s calendar made to describe the microfilm copy. For each document the finding aid provides the microfilm reel number and the reference number of the paper record; the beginning of each microfilm reel contains the part of the finding aid that describes the contents of that reel. 38 Elinor Kyte Senior, Redcoats and Patriotes: The Rebellions in Lower Canada, 1837– 38 (Ottawa: Canada’s Wings 1985), at 209. 39 See, for example, Aubin, Au Pied-du-Courant, passim; Desbiens, ‘Dernières lettres de Chevalier de Lorimier,’ at 118; Lorimier, 15 février 1839, at 62, 73. 40 ‘Répertoire du fonds Louis Fiset’ (Finding aid 300940). Being little more than an alphabetical list of correspondents, this finding aid provides no description of the contents of the documents and so is of limited use. 41 Béatrice Chassé, ‘Collection Girouard,’ Archives nationales du Québec, Rapport des Archives nationales du Québec (Quebec City: Ministère des Affaires culturelles 1974), at 17–22. 42 See François-Maurice Lepailleur, Journal d’un patriote exilé en Australie, 1839– 1845 (Sillery, Que.: Septentrion [1996]), 411 pp., and in particular the introduction by Georges Aubin at 11. See also François-Maurice Lepailleur, Journal d’exil: la vie d’un patriote de 1838 déporté en Australie, François-Maurice Lepailleur (Montreal: Éditions du Jour 1972), 198 pp., and Land of a Thousand Sorrows: The Australian Prison Journal, 1840–1842, of the Exiled Canadien Patriote, FrançoisMaurice Lepailleur, trans. and ed. F. Murray Greenwood (Vancouver: University of British Columbia Press 1980), xxxvi, 174 pp., which contains a useful note on the journal as an historical source (xxvi–xxviii). Georges Aubin has edited numerous volumes of patriote journals and correspondence, generally from the original documents found in various repositories in Quebec, in the NA, and, in one case, from the original manuscript in the archives of the Bibliothèque Saint-Sulpice in Paris. See Jean-Philippe Boucher-Belleville, Journal d’un patriote (1837 et 1838) (Montreal: Guérin 1992), 174 pp. 43 Louis Côté, ‘Inventaire du fonds famille Wurtele’ (Quebec City: Archives nationales du Québec 1982), 72 pp. (Finding aid 300121). 44 ‘Inventaire du fonds famille Desrivières [sic]’ (Quebec City: Archives nationales du Québec 1982), 3 pp. (Finding aid 300937). 45 André Beaulieu and Diane Aubry, ‘Répertoire numérique du fonds famille Joseph Papineau (P417)’ (Quebec City: Centre d’archives de Québec et Chaudière-Appalaches 1993), xx, 47p. (Finding aid 301953). See also Béatrice Chassé, ‘Inventaire du fonds famille Papineau,’ (Quebec City: Archives

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nationales du Québec 1977), 94pp. (Finding aid 300252). This finding aid provides, for each document, its date, its author, its recipient, and the type of document (i.e., original or copy); it does not describe the contents of the documents. ‘Correspondance de Joseph Papineau (1793–1840),’ Rapport de l’archiviste de la province de Québec pour 1951–1952 et 1952–1953 ([Quebec City]: Redempti Paradis, Imprimeur de Sa Majesté la Reine s.d.), at 290–8, for the correspondence relative to the period 1837–9. ‘Lettres de L.-J. Papineau à sa femme (1820–1862),’ Rapport de l’archiviste de la province de Québec pour 1953–1954 et 1954–1955 ([Québec City]: Redempti Paradis, Imprimeur de Sa Majesté la Reine n.d.), at 188. This volume publishes the correspondence down to September 1839. Papineau’s letters to Julie Bruneau, including those in the NA, have also been published in Louis-Joseph Papineau, Lettres à Julie, Georges Aubin and Renée Blanchet, ed. (Sillery, Quebec: Septentrion 2000), 812 pp. with an introduction by Yvan Lamonde. The publication was issued in collaboration with the Archives nationales du Québec. Julie Bruneau-Papineau’s letters to her husband and others have been published in Julie B. Papineau, Une femme patriote, correspondance, 1823–1862, ed. and with an introduction by Renée Blanchet (SiIlery, Que.: Septentrion 1997), 518 pp. Finally, Papineau’s correspondence with her children will be published in 2002. See Michel de Lorimier, ‘Charles Hindenlang,’ DCB 7: 411–2. See the Rapport de l’archiviste de la Province de Québec, 1924–5, after 64. The letter has been published in Lorimier, 15 février 1839: lettres d’un Patriote condamné à mort, at 51–2. Nationalist film director Pierre Falardeau proves Lorimier right by treating him as a martyr to the cause of independence in his film 15 février 1839. See Pierre Falardeau, 15 février 1839: scénario (Montreal: A. Stanké ca 1996), 169pp., and Pierre Falardeau and Carl Valiquette, 15 février 1839: photos de tournage (Montreal/Marseille: Comeau and Nadeau/Agone 2001), 143pp. ‘Requête des habitants de Québec à Durham, 1838,’ Rapport de l’archiviste de la province de Québec pour 1955–1956 et 1956–1957 ([Quebec City]: Redempti Paradis, Imprimeur de Sa Majesté la Reine n.d.), at 1–29. Respectively, ANQ-Q, ZC 15, S1; ANQ-Q, ZC 15, S2; ANQ-Q, ZC 15, S4; ANQ-Q, ZC S41; and ANQ-Q, ZC 91. Respectively, ANQ-Q, ZG 1, S2; ANQ-Q, ZG 1, S1; ANQ-Q, ZG 4, S1; and ANQ-Q, ZG 4, S2. Suzanne Girard, Louise Noël, Johane Paquin, and Lyne Durand, ‘Inventaire analytique de la Collection de Montarville Boucher de La Bruère, CL-0032.’ This is a calendar of file cards, providing, for each document, the names of the

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author and recipient, the date of creation, a summary description of contents, and an indication of length in pages. Two of these documents, along with some from other archival sources, have been published in Wolfred Nelson, Écrits d’un patriote, at 84–6 and 103–4. Claude Jutras et al., ‘Inventaire analytique du Fonds Wolfred Nelson FN-0416’ (Trois-Rivières, Que.: Archives du Séminaire de Trois-Rivières 1994), 52 pp. These letters were published, with an introduction and notes by Georges Aubin, in Siméon Marchessault, Lettres à Judith. Suzanne Girard, ‘Inventaire analytique de fonds Siméon Marchessault FN– 0418’ ([Trois-Rivières]: Archives du Séminaire de Trois-Rivières 1987), no pagination.

Appendix C Rebellion Trials Sources in Ontario Archives S U SA N L E W T H W A I T E

The rebellions of 1837–8 and the trials resulting from them remain important events in the political, social, and legal history of Upper Canada. Yet, as the essays in this volume demonstrate, reconstructing the trials of rebels poses challenges for even the most diligent researcher. As Patricia Kennedy notes, records are scattered in several repositories and among several record groups. Although court records are held at the Archives of Ontario (AO), the delineation between judicial records in the provincial holdings and government records at the national archives is far from straightforward.1 Also, as Kennedy further explains in her essay in this collection and elsewhere, in addition to the challenge of accessing scattered records, the researcher will have to consider difficult matters such as reporting relationships.2 Moreover, research strategies will differ depending on the district of interest, as well as on the perspective of interest, whether it be legal process, the fate of individuals arrested, and the views of political and legal officials or those critical of the proceedings.3 There are fewer documentary collections on the Upper Canadian rebellion than on the rebellion in Lower Canada, but the research considerations noted by James Lambert in the previous essay are equally applicable when using such collections.4 j u d i ci a l r e co r d s Researching the rebellions trials requires looking farther afield than the superior court records at the AO. In fact, there is little information in the

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judicial records themselves. The Assizes Minute Books (RG 22, Series 134) contain grand jury reviews of the bills of indictment at the Midland Special Sessions in 1839, but no records of the actual trials. High Treason Records from 1838 (RG 22, Series 145) are infuriatingly sparse, containing documents relating to cases involving only three defendants: Ebenezer Wilcox, John Stewart the Younger, and William Ketchum. Judges’ notes are valuable sources. Not only do they provide information on the outcome of individual trials, but they also summarize the evidence presented at trials. However, few bench books containing accounts of rebellions trials survive. An exception is that of James Buchanan Macaulay at the Law Society of Upper Canada Archives [LSUCA] (MS 032), which contains his notes on the trials that took place at Hamilton. Justice Macaulay’s bench book for the July 1839 assizes at Toronto, during which several individuals including Philip Jackson and Diogenes McKenzie were convicted of inciting rebellion, are at the AO (RG 22–390–1, box 3). Another important source for the Toronto trials is John Beverley Robinson’s Special Commissions bench book (AO, MS 4). Other judges’ notes can be found in government records, which are covered in the next section of this essay. Judicial documents concerning rebellion-related activities are scattered among a number of sources. Among other items, the Rebellion Papers (AO, MU 2380, December 1837) contain seventeen depositions and a list of traitors made at Toronto, as well as documents seized at Colonel Anthony Van Egmond’s home in Goderich. Many depositions and details regarding particular cases, including those against John Rolph, Anthony Van Egmond, and Samuel Lount, can be found in Miscellaneous Records at the AO.5 These records also contain a few prisoners’ letters such as that of W. Stebbins to his brother, informing him that he had been captured and that 162 prisoners were confined in Kingston in ‘the black hole.’6 Judicial records relating to particular cases can be found in other collections. The Toronto City Council Records (AO, MS 385, reel 2) contain a letter the attorney general wrote to John Powell in February 1840, asking that three witnesses be bound over in recognizance to attend trials for treason. A letter in which John Prince listed prisoners in the Western District is housed at the Windsor Community Museum (20–135–(78)), as are records relating to the inquiry into Colonel Prince’s conduct at the Battle of Windsor in 1839 (F35–16 and –17). An indictment for felony against Linus Wilson Miller, and the jurors’ presentment at the trial of Jonathan Abby and others, can be found in the Baldwin Room at the Toronto Reference Library.

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Information about some of the individuals arrested as a result of the rebellions can be obtained from jail records. The Newcastle District jail records (AO, RG 20, Series F-9) of that period survive, but because most of the people arrested and detained there were released, they are of marginal interest. The jail registers for Hamilton (RG 20–72–1–1) are more useful; they list prisoners arrested for high treason by name and also record the date and by whom prisoners were committed; the charge, sentence, and date of discharge; and personal information such as country of origin and sometimes age. Toronto (York) Jail Registers for 1838–43 (RG 20–100–1–1) contain similar information, although generally not in as much detail as those from Hamilton. g ove rnm e nt r e co r d s Certain sets of government records contain important information concerning the rebellions trials not available anywhere else. The originals of most of these records are housed at the NA, but copies of many can also be viewed at the AO. Because they are so important, the primary records are summarized here. The rebellions and the trials that ensued in their aftermath engendered a great flood of correspondence between Canadian officials and their British counterparts, and between Upper Canadian citizens and the colony’s judicial and political officials, for which historical researchers must be grateful. At the AO, researchers can consult a copy of the series generally referred to as CO 42 (PRO, Colonial Office Series 42), a wonderfully rich source for reconstructing individual cases, trial procedures, and official views. Also invaluable is the series Upper Canada Sundries (NA, RG 5, A 1; copy at AO), which consists of correspondence that ordinary Upper Canadians as well as judges, magistrates, and other local leaders sent to the lieutenant governor. Valuable information concerning proceedings in London and Kingston can be found in the Sundries, particularly in series B 36, B 37, and B 41. Researchers should consult the Sundries for the same kinds of subjects for which they would examine CO 42, and also for reconstructing popular views about the proceedings. The Sundries contain a large number of petitions for pardons arising from capital convictions and some information concerning conditions in the overcrowded jails. Additional useful records, copies of which can be consulted at the AO, are the Executive Council Minutes (NA, RG 1, E 1); Upper Canada State Papers (NA, RG 1, E 3); and the ‘G’ series of British colonial papers (NA, RG 7, G 1).

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p r i vat e pa p e r s A number of individual and family papers, including those of a number of officials formally involved in the trials, contain useful material. The Canadian Papers of Sir George Arthur are located at the Baldwin Room at the Toronto Reference Library (L 28). The Papers of John Beverley Robinson at the AO (MS 4) contain a number of interesting items, including the chief justice’s address upon passing the death sentence upon Samuel Lount and Peter Matthews, correspondence regarding the liability of American citizens to be punished for high treason, and exchanges concerning the laws and the ways in which they were enforced during these events. Some of Justice Macaulay’s letters in the Macaulay Family Papers (AO, MS 78, reel 3) refer to the Lount and Matthews cases; in one, Macaulay wrote that he expected that their hangings would have a ‘beneficial effect on the public mind.’ He described executions and commented on the courts martial of sympathizers below Prescott and at Kingston. The militia order for the court martial of ‘alien invaders’ at Toronto can be found in the Fitzgibbon Papers (AO, MU 3274, March 1838). The papers of Henry John Boulton at the Baldwin Room include a reference to an incident that led to a charge. Insights into official thinking can also be found in the Strachan Papers (AO, MS 35, reel 3), which contain a letter from John Colborne to the chief justice dated 3 January 1838 in which he stated that many of the Lower Canadian accused should be transported: ‘It is obvious they cannot be tried by ordinary tribunals, at least if they are, they will not be convicted.’ Official correspondence concerning Bidwell is in the Merritt Papers (AO, MS 74, reel 2), as is a memorial to Sir George Arthur from the Niagara District seeking clemency for the ‘condemned traitors.’ The papers of individuals involved in the rebellions and subsequent insurrections are also worth consulting. The John Rolph Papers (AO, MS 533) contain information on his involvement and that of David Gibson. Draft affidavits in the Andrew Norton Buell Papers (AO, MU 302) concern the conduct of Buell and others at the Battle of the Windmill. A rich and extensive collection is the Mackenzie-Lindsey Papers (AO, MS 516), in which can be found numerous accounts of arrests, trials, executions, and banishments, discussions of the actions of juries, protests against the treatment of prisoners in jails, criticisms of the views of and actions of officials, accounts of escapes, and speculation that English law officers considered the Canadian trials of state prisoners unconstitutional. Most of this takes the form of letters sent to Mackenzie by his supporters. M.A.

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Reynolds wrote from Toronto to Mackenzie in New York in August 1838 that the chief justice had been seriously ill ‘and during that time the words “Lount & Matthews” were written in letters of blood upon his hall door.’ Hamilton lawyer Charles Durand wrote to Mackenzie suggesting that he was not in fact guilty of the offences for which he had been convicted and banished at the Toronto trials. After his escape from the colony, Mackenzie was interested in news relating not only to events in Upper Canada but also to those taking place in Lower Canada. J. Baker wrote to him from Vermont on 20 December 1838 to describe the executions at Montreal: ‘Liberty ... is as completely crushed as in Poland.’ Many useful references can be found in the papers and records of private individuals, but finding them can be time-consuming. Most such records that date from the late 1830s or early 1840s will have some reference to the rebellions and possibly to the resulting trials. A few examples are mentioned here, but this list is by no means exhaustive. Georgina Township magistrate William Johnson, a long-standing Reform supporter, noted in his diary that on Christmas Day 1837 he was ‘unlawfully arrested for high Treason by vile Orangemen with no order but their pistols’ (AO, MS 18). The Reverend William Proudfoot criticized the trial proceedings (University of Western Ontario [UWO], Proudfoot Family Papers, Proudfoot Diary no. 27), and Elijah Woodman considered the juries packed (UWO, Elijah C. Woodman Diary and Letters). A priest’s reaction to one of the London trials is in AO, Roman Catholic Archives, AB 05, 08. Comments on trials can also be found in the Dennis O’Brien Papers (UWO) and the Thomas Ridout Family Papers (AO, MS 537, reel 2). The Lesslie Family Papers (AO, MU 1720) contain James and William Lesslie’s petition to the queen protesting their treatment by authorities in Upper Canada. The Rogers Family Papers (AO, MS 522) include district general orders signed by Colonel C. Foster regarding demobilization, courts martial, and prices for repair of small arms. In the Jeanette M. Snyder Papers (AO, MS 880) is a statement concerning the activities of the disaffected in the London District, dated 10 December 1837, and the Solicitor General’s Office’s request to a Brantford justice of the peace in March 1838 for information regarding several prisoners. Conditions in the Hamilton jail in December 1837 are described in James Peters’s letter to Hannah Peters (AO, MU 4757, no. 7). Finally, the Morrison Family Papers (AO, MS 397) contain copies of documents regarding the trial in the United States of Alexander McLeod, deputy sheriff of Niagara, for his part in the raid on the Caroline.

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Researchers would be well advised to consult contemporary newspapers. Many trials were generously reported in newspapers, and several of those reports contain a great deal of commentary, from both the perspective of government supporters and that of their critics. The details of events in particular areas can be at least partially assembled from information reported in the newspapers. Newspapers often printed the judges’ charges to the grand juries, useful for reconstructing official views. Original newspaper reports tended to be copied in papers in other locales, so it is advisable not to focus newspaper research too narrowly on those published in the town or even the district of study. Several essays in this volume refer to additional sources in Ontario archives. It should also be noted that Patricia Kennedy’s essays in this volume and elsewhere7 are essential reading for anyone attempting to navigate archival sources generally and the NA in particular. Government records, provincial and imperial, are available there, although, as we have seen, research in various Ontario archives is essential for fuller insight into the operation of the courts and local government as well into the views of officials and the broader public in this period. Researchers of the rebellions trials should be aware that they will have to consult a variety of sources at different repositories in order to piece together a comprehensive picture, no matter what aspect of the subject they are looking at.

NOTES 1 The AO now offers on-line access to three databases. Of particular interest is the Archives Descriptive Database, which contains descriptions of government records and private collections: http://www.archives.gov.on.ca/ english/index.html. See also the Archives Association of Ontario database (ARCHEION). 2 See Kennedy’s essay in this volume, which offers excellent advice on research strategies that I will not repeat here. See also her essay, ‘Approaching an Iceberg: Some Guidelines for Understanding Archival Sources relating to State Trials,’ F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Law, Politics, and Security Measures, 1608–1837 (Toronto: Osgoode Society/University of Toronto Press 1996). 3 This paper focuses on manuscript sources available in repositories other than the NA, but it does refer to some NA records, copies of which can be viewed at the AO.

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4 A recent comprehensive collection on the rebellion phase of the 1837–8 crisis in Upper Canada is Colin Read and Ronald Stagg, eds., The Rebellion of 1837 in Upper Canada (Ottawa: Carleton Uiversity Press/Champlain Society 1985). 5 See, for example, MU 2097, no. 125; MU 2107, nos. 4, 8, 9, 13; MU 2108, nos. 3, 4; MU 2144, no. 15; MU 7214, no. 25. This list is not exhaustive. 6 MU 2107, no. 12. See also Erastus Warner’s prison correspondence (MU 2107, no. 15). 7 See n.1.

Appendix D Supporting Documents

Upper Canada 1 2 3 4

5 6 7 8

The Lawless Aggressions Act The Pardoning Act The Loyalist Indemnity Act Extracts from Chief Justice Robinson’s Charge to the Grand Jury, Toronto, 8 March 1838 (with notes on the sentencing and execution of Lount and Matthews) Extracts from Justice Macaulay’s Charge to the Grand Jury, Hamilton, 8 March 1838 Draper to Macaulay, Toronto, 10 August 1838 Confirmation of the Court Martial of Civilians (Arthur to Colborne and Arthur to Dundas, Toronto, 20 November 1838) Sections 29–33 of the Consolidated Militia Act Lower Canada

1 Deliberations on Martial Law a) Executive Council, 22 November 1837 b) Law officers to Council, 30 November 1837 2 Deliberations on the Court Martial of Civilians (Law Officers to Goldie, 24 January 1838)

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3 Security Legislation of the Special Council and Table of Sessions (Steven Watt) 4 The Bermuda Ordinance 5 The Court-Martial Ordinance (with notes on the suspension of habeas corpus and the removal of judges)

UPPER CANADA 1. The Lawless Aggressions Act 1 Vic. c.3 (U.C., passed 12 January 1838) AN ACT to protect the Inhabitants of this Province against Lawless Aggressions from Subjects of Foreign Countries at peace with Her Majesty. WHEREAS a number of persons lately inhabiting the State of New York, or some one of the other United States of America, have within the said State of New York lately enlisted or engaged themselves to serve as soldiers, or have procured others to enlist or engage themselves to serve as soldiers, and have within the said State of New York collected artillery, arms, and ammunition, and made other preparations for a hostile invasion of this province, under the pretext of assisting certain traitors who have fled from this province to the said United States and whereas the said persons, without the authority of their government and in defiance of its express injunctions, have actually invaded this province contrary to the faith and obligations of the treaties subsisting between the United Kingdom of Great Britain and Ireland and the said United States, and during the continuance of the relations of amity and peace between the two countries; and whereas it is necessary for protecting the peace and security of this province to provide for the prompt punishment of persons so offending: be it therefore enacted ... that if any person being a citizen or subject of any foreign state or country at peace with the United Kingdom of Great Britain and Ireland, having joined himself before or after the passing of this Act to any subjects of our Sovereign Lady the Queen, her heirs or successors, shall after the passing of this Act be or continue in arms against Her Majesty, her heirs or successors, within this province, or commit any act of hostility therein, then it shall and may be lawful for the Governor of this province to order the assembling of a militia general court-martial for the trial of such person, agreeably to the militia laws of this province, and upon being found guilty by such court-

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martial of offending against this Act, such person shall be sentenced by such court martial to suffer death or such other punishment as shall be awarded by the court. II. And be it further enacted by the authority aforesaid, that if any subject of Her Majesty, her heirs or successors, shall within this province levy war against Her Majesty, her heirs or successors, in company with any of the citizens or subjects of any foreign state or country then being at peace with the United Kingdom of Great Britain and Ireland, and offending against the provisions of this Act, then such subject of Her Majesty, her heirs or successors, shall be liable to be tried and punished by a militia general court-marital in like manner as any citizen or subject of a foreign state or country at peace with Her Majesty, her heirs or successors, is liable under this Act to be tried and punished. III. And be it further enacted by the authority aforesaid, that the citizen or subject of any foreign state or country offending against the provisions of this Act shall be deemed guilty of felony, and may notwithstanding the provisions herein before contained, be prosecuted and tried before any court of oyer and terminer, and general goal delivery in and for any district of this province, in the same manner as if the offence had been committed in such district, and upon conviction shall suffer death as in cases of felony. note: Disallowance was recommended by British law officers (28 and 31 May 1838 – see NA, RG 7 G 1 vol. 86), and their position was reiterated on 21 August 1838; see W. Forsythe, ed., Cases and Opinions in Constitutional Law (London: Stevens and Haynes 1869). However, the recommendation was not acted on by the British government in face of provincial objections; see Greenwood, ‘The Prince Affair.’ 2. The Pardoning Act 1 Vic. c.10 (U.C., passed 6 March 1838) an act to enable the Government of this Province to extend a Conditional Pardon in certain cases to Persons who have been concerned in the late insurrection whereas there is reason to believe that among the persons concerned in the late treasonable insurrection in this province there were some to whom the lenity of the Government may not improperly be extended, on account of the artifices used by desperate and unprincipled persons to

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seduce them from their allegiance: be it therefore enacted ... that upon the petition of any person charged with high treason committed in this province, preferred to the Lieutenant-governor before the arraignment of such person, and praying to be pardoned for this offence, it shall and may be lawful for the Lieutenant-governor of this province, by and with the advice and consent of the Executive Council thereof, to grant, if it shall seem fit, a pardon to such person, in Her Majesty’s name, upon such term and conditions as may appear proper; which pardon being granted under the great seal of this province, and reciting in substance the prayer of such petition, shall have the same effect as an attainder of the person therein named for the crime of high treason, so far as regards the forfeiture of his estate and property, real and personal; provided always, that in case a pardon shall not be granted upon any such petition, no evidence shall be given of any admission or statement therein contained upon any trial to be afterwards had. II. And be it further enacted by the authority aforesaid, that in case any person shall be pardoned under this Act, upon condition of being transported or of banishing himself from this province, either for life or for any term of years, such person, if he shall afterwards voluntarily return to this province without lawful excuse, contrary to the condition of his pardon, shall be deemed guilty of felony, and shall suffer death as in cases of felony. III. And be it further enacted by the authority aforesaid, that the provisions of this Act shall not extend or be construed to extend to such persons as have fled and are still absent from this province under a charge of high treason, and for whose apprehension a reward has been offered ... 3. The Loyalist Indemnity Act 1 Vic. c.12 (U.C., passed 6 March 1838) an act for indemnifying Persons who since the 2nd of December 1837 have acted in Apprehending, Imprisoning, or Detaining in custody Persons suspected of High Treason, or Treasonable Practices, and in the Suppression of Unlawful Assemblies, and for other Purposes therein mentioned. whereas a late armed insurrection of certain subjects of Her Majesty in this province, with intent to subvert the government, and to plunder and destroy the property of the loyal inhabitants, has been happily subdued, but not until the insurgents had committed acts of murder, robbery, and arson, and had occasioned much alarm for the peace and security of the

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province; and whereas immediately before and during the said insurrection, and in consequence thereof, it became necessary for justices of the peace, officers of the militia, and other persons in authority in this province, and for divers loyal subjects of Her Majesty, to take all possible measures for apprehending, securing, detaining, and bringing to justice persons charged or suspected of joining in the said insurrection, or of aiding and abetting the same, or of other treasonable practices dangerous to the peace of this province and the security of its government, and also for the purpose of defeating and putting down the said insurrection, and for maintaining the peace of this province, and securing the lives and properties of the inhabitants thereof; and whereas some of such acts may not have been strictly legal and formal, but it is nevertheless just and necessary that the persons doing or advising the same should be kept harmless and indemnified against actions at law or other proceedings with which they might otherwise be harassed: be it therefore enacted ... that all personal actions, suits, indictments, and persecutions, heretofore brought, commenced, preferred, or exhibited, or now depending, or to be hereafter brought ..., and all judgments thereupon obtained, if any such there be or shall be, and all proceedings whatsoever against any person or persons for or on account of any act, matter or thing by him or them done or commanded, ordered or directed or advised to be done, since the 2nd day of December, in the year of our Lord 1837, for apprehending, committing, imprisoning, detaining in custody, or discharging any person or persons ... for high treason, or suspicion of high treason, or treasonable practices, or ... imprisoned or detained in custody for having been tumultuously, unlawfully, and traitorously assembled in arms as aforesaid, or for dispersing by force of arms any persons so assembled as aforesaid, or for suppressing the said traitorous insurrection, and discovering and guarding against any other the treasonable proceedings aforesaid, or for the discovering and bringing to justice the persons concerned therein, or for maintaining the public peace and the security of Her Majesty’s subjects in their persons and property, or for supporting the government and constitution of this province against the treasonable practices and proceedings aforesaid, shall be discharged and made void and that every person by whom any such act, matter or thing shall have been done or commended, ordered, directed, or advised to be done, shall be freed, acquitted, discharged, and indemnified, as well against the Queen’s Majesty, her heirs and successors, as against all and every other person and persons. II. And be it further enacted by the authority aforesaid, that if any action or suit shall be brought, commenced, or had in any superior court in this

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province, against any person or persons for and on account of any such act, matter, or thing as aforesaid ... they may plead the general issue, and give this Act and the special matter in evidence ... or if a verdict shall pass ... the defendant or defendants therein shall be entitled to double costs, for which he or they shall have the like remedy as in other cases in which costs by law are given to defendants. III. And be it further enacted by the authority aforesaid, that if any action, suit, indictment, information, protection or proceeding shall be brought, commenced, preferred, exhibited, or had in any court against any person or persons, for and on account of any such act, matter or thing as aforesaid, it shall be lawful for the defendant or defendants in any such action ... to apply by motion, petition, or otherwise, in a summary way, to the court ... if not sitting, then to any one of the judges or justices of such court, to stay all further proceedings ... 4. Charge of Chief Justice Robinson to the Grand Jury at the Opening of the Special Court for the trial of Persons Committed for High Treason, Delivered at Toronto, 8 March 1838 (extracts reproduced from the Christian Guardian, 14 March 1838) Under a Statute lately passed, the Special Commission which you have just heard read, has issued into this District for the trial of all offences of High Treason, misprision of high treason, or treasonable practices committed in any part of this Province ... The humane care of the Legislature [has been] to provide every reasonable safeguard for persons who may be innocently accused of the highest crime known to law ... namely, a copy of the the Indictment found against them, with a list of the Jury, and of the witnesses for the prosecution; all of which they must be furnished with ten days before their trial; and the time between their being indicted and arraigned, occasions a greater delay ... Trials for High Treason are happily not very frequent in any part of the British Empire. A generation has nearly passed since a Court similar to the present was convened in this province ... the prisoners can not be charged with the same description of treasonable acts [as in 1814]; that is, they can not have been adhering to the pubic enemies of the Queen, because Great Britain is engaged in no public war. But the violation of allegiance in time of peace by levying war against the Sovereign, is an act of treason involving the same degree of guilt both in a legal and moral view ... Without referring to any individual part taken by any one of the one

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hundred and forty nine prisoners whose names are on the calendar returned by the Sheriff, I will in few words state what has now become a matter of history, that many hundreds of persons in this District, and in the District of London, arrayed under leaders who have since, with few exceptions, fled from justice, appeared openly in arms against the laws, for the purpose, unreservedly avowed, of subverting by force the Government of their Sovereign, and of destroying the constitution of the Province ... Whether the conduct of each, or any one of the persons whose cases will be brought before you by Her Majesty’s Attorney General, has been such as to implicate him in the design and proceedings to which I have adverted, and to what extent, are questions which you will have to determine according to the best of your judgment, after a patient hearing of the evidence ... Notwithstanding the use of the general term ‘treasonable practices’ ... I take it for granted that only charges which will be brought before you will be for the well defined offences of High Treason, or Misprision of Treason. With regard to Misprision of Treason, it consists in the bare knowledge and concealment of Treason; where no assent is given, or act done which can amount to participation in the crime ... The same conduct which in cases of felony would make a man an accessory before or after the fact will make him in High Treason a principal ... To come now to the crime of High Treason itself. I shall not perplex you with a multitude of directions, not attempt to foresee in how many aspects the cases of these several prisoners may possibly be presented to you; but I shall content myself with endeavouring to state shortly, and intelligibly, a few leading considerations, which I hope may enable you to apply with precision such evidence as may be brought before you ... When our Legislature in 1833 passed an Act declaring what offences shall be capital, they adopted from the Statute of Edward III [Statute of Treasons, 25 Edward III c.2, 1351/2], adhering closely to its language with becoming veneration all that will be material to you on this occasion to attend to. They repeated in words which, from long and frequent application, have now an understood and and established sense, ‘that if a person do compass or imagine the death of our Lord the King’ ‘or if a person do levy war against our Lord the King, in this Province, or be adherent to the King’s enemies in this Province, giving them aid or comfort in this Province or elsewhere, and thereof be provably attainted of open deed by people of his condition, such person so attainted shall be deemed guilty of treason, and shall suffer death.’ With respect to the first offence ... The offence of directly attempting

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the life of the King, or of plotting for that purpose, may seem at first view to be one which can be committed only in the kingdom where the sovereign resides ... It has, however, been determined that the construction [as developed in the cases] does not merely hold with respect to the realm of England. The King, in contemplation of law, is present everywhere in his dominions ... since the designs which we may suppose have given rise to most, if not all of these cases, have resulted in an actual levying of war; and when the evidence establishes a participation in a treasonable plot, which has broken out in action, there is no occasion to consider what would have been the effect of merely contriving the insurrection, as applied to the first branch of the Statute ... I proceed now to the second specification of High Treason, namely, ‘the levying war against the Queen in this Province’ and this you will at once feel to be the most clearly relevant to the subject of your enquiries. To make the levying of war treason, the object in view must be treasonable. It is not merely the using warlike weapons unlawfully ... But if the object be such as makes it a rebellion against the State, an invasion of the Queen’s authority, then it is treasonable levying of war ... ... you will next have to consider in each case by what act and in what manner the individual accused is connected with it by the evidence. When he has been one of a party engaged in the levying of war, the case will be simple and direct. If he were not thus engaged, then you will bear in mind the principle I have already alluded to, that all who are accomplices in the levying of war, all who would be accessories before or after the fact, if the crime were a felony, incur the guilt of the principal traitors ... Any acts of assistance, as by furnishing arms, provisions, money, ammunition, intelligence or advice, assenting to and countenancing the design, persuading others to join in it, corresponding with persons with a view to promote it, even though the letter be intercepted, and have no effect; and generally any act in furtherance of the rebellion, either before or after its existence, so also knowingly affording assistance or protection to any traitor after the fact, all these things make the person so acting a partaker in the treason. With respect to the third specification in the Statute,’the adhering to the enemies of the Queen within this Province,’ I have already explained that public enemies are here referred to, not rebels or traitors – there is still however a possible case, in which this branch of the statute may come to be considered, and that is, where the subjects of another Government which is at peace with us, invade this Province, and carry on war without

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the authority of their Prince or State; there they are looked upon as enemies (for owing no allegiance, they are not traitors) and the subjects of Her Majesty adhering to them, giving to them aid and comfort in this Province or elsewhere, will come under this division of the statute. But the offence of merely inciting foreigners to invade this Province, if those foreigners belong to a country at peace with us, can only be treason as an overt act of compassing the Queen’s death ... ... I must touch, however shortly, on few more points necessary to be considered. British subjects, whether by birth or naturalization, owe an allegiance to the Crown, and therefore incur the guilt of treason by rebelling against the Queen’s authority. So also the subjects of foreign countries residing under the protection of our laws; they owe in return for that protection a local allegiance, and incur the same penalty as natural born subjects, if they violate that allegiance. But the mere subjects or citizens of a foreign county in amity with Great Britain, making war upon us without a commission from their Government, cannot be treated as traitors, because having received no protection, they owe no allegiance. Their hostile acts place them at the mercy of a Government whose rights they have violated ... There is a late statute passed in this Province [the Lawless Aggressions Act] with a view to the prompt and convenient punishment of such offenders acting in conjunction with rebels; but we have no concern with it, sitting under this Special Commission. You will bear in mind that by law the proof of foreign birth lies in all cases upon the prisoner, when he rests his defence upon it. In other words, when charged with any crime committed within the Queen’s dominions, he will be presumed to be a British subject until he shows the contrary ... I have left to the last the statement of some very important and humane provisions of the Statute Law of England because they are such as it is most necessary, on behalf of the prisoner, that you should bear fully in your minds. The Statute of 7 Will.III c.3 [the Treason Act, 1696] enacts that no person shall be indicted of any such crime of high treason as I have referred to, or of misprision of such treason, unless upon the oaths of two lawful witneses, either both of them to the same overt act, or one of them to one, and the other to another overt act of the same treason, unless upon his own confession of his guilt, which confession it has been determined is admissible in evidence, though not made upon his his arraignment in open court; but it will not be sufficient alone, unless it be satisfactorily proved by two witnesses ...

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The same statute also provides that the prisoner shall have certain advantages for conducting his defence, to which I have alreasy alluded, and which the Court will be scrupulous in attending to. There are several other matters which, in any comprehensive view of this branch of the law, should not be omitted; and indeed, those which I have touched upon, call for many explanations and statements of distinctions, which must be left till the several cases come under discussion. I do not feel that I need attempt at present a more minute exposition of the law; and nothing should have led me to trespass so long upon your attention, but a strong sense of the painful responsibilities of your duties, and of their great importance to the future peace and safety of the Province on the one hand, and on the other hand to the lives and fortunes of the parties accused ... note: Other extracts of the chief justice’s charge (of a more soci0–political than legal nature) may be found in C. Read and R.J. Stagg, ed., The Rebellion of 1837 in Upper Canada (Ottawa: Carleton University Press/Champlain Society 1985), 380–1. The collection (381–4) also reproduces extracts from the ‘Address of the Hon. Chief Justice Robinson, on Passing Sentence of Death upon Samuel Lount and Peter Matthews,’ 29 March 1838 (see also CIHM, no. 43197), as well as deliberations in the Executive Council (384– 8) on whether to carry out their sentence, with submissions from the chief justice and attorney general (31 March 1838) and the council’s final recommendation to the lieutenant governor (2 April 1838, 384–8); see also NA, RG 1 E1 vol. 54, Upper Canada Executive Council Minutes). The final minute reads: The Council ... feel bound respectfully to advise His Excellency not to interfere with the course of Justice in favor of Samuel Lount and Peter Matthew ... Severe Public example is actually required in some instances and ... the Crimes of which these Prisoners are shewn to have aided, abetted and countenanced the committal of which in addition to the Crime of High Treason, point them our as particularly fit to be selected for Capital Punishment. They are not the deluded followers of the instigators of Treason, but on the contrary the Leaders and Instigators of others. Lives have been taken by men which they led, and Houses have been burned by those amongst whom they held command, they appear to have been present aiding in the robbing of the Public Mail ... The Council believ[e] that the execution of the Sentence of the Law with

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promptitude will do much to its beneficial operation and they feel they cannot consistently with their duty, recommend a delay which must take place on a reference to Her Majesty ... 5. Judge Macaulay’s charge to the Grand Jury at Hamilton, 8 March 1838 (extracted from the British Colonist, 29 March 1838) ... Treason is a crime hitherto unknown and hardly named among us. ... Thankful and contented minds were satisfied and at ease ... All was tranquil until late lamentable events suddenly changed the scene ... Rebellion is the criminal violation of that natural or local Allegiance which every native born subject, and every foreign resident owes to the supreme authority of the land ... High Treason is the greatest civil offence which ... any one [sic] can commit ... Those who embark in desperate undertakings of this kind, are often actuated by sinister and selfish views ... Those descriptions of the offence likely to engage your notice are the most glaring, and will be found recorded so far back as the Statute 25th Edw. 3d Stat. 5, chap.2. This act constituted our only law on the subject, until its principal provisions were incorporated in the Provincial Act, 3d William 4th, chap. 4, sec. 1st ... Treasonable practices constitute properly overt acts of absolute Treason or misprision thereof. Offences less in degree, but of analgous character, are usually styled sedition ... Treason as declared in the Provincial Statute consists ... 1st – Levying War – ... there must be an actual levying of war, and not barely a consultation to do so; and it must be against the Queen, and in the Province – but it may be express or constructive ... Constructive levying war, is, when the violence is rather directed against the Government than the person of the Sovereign ... 2nd. Compassing the Queen’s death. This includes all acts wherein the Queen’s life is directly assailed ... It is laid down in England in the construction of the Statute 25, Edw. 3, that every insurrection which in judgment of Law is intended against the Monarch, be it to dethrone or imprison him ... or to oblige him to alter his measures of Government, or to remove evil Counsellors; these risings all amount to levying war ... Our Legislature manifestly considered that the crime of compassing

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could be committed here, and doubtless it might, by direct arrangements matured on this side of the atlantic [sic] and to be put in execution on the other; the ulterior consideration is whether it can be equally committed in the eye of the Law by warlike schemes meditated against the Queen’s supremacy in this Province, and intended to be enforced here in order to attain its destruction ... It may be argued that there is an imputed ubiquity whereby she is politically and constructively present every where [sic] throughout her dominions ... It may be urged also, that when the ball of Revolution is set in motion at whatever extremity or distance, it may roll onwards increasing in size, and velocity as it advances till at length it reaches the foot of the Throne, and eventually overturns the seat of Empire, and crushes the exalted occupant under its ponderous and accelerated weight ... 3d. – Adhering to the Queen’s enemies. By enemies is properly understood the subjects of Sovereign powers with which our Government is at open War – but assisting Foreign Pirates or Robbers who may invade our Borders is treason either in the Light of adhering to the Queen’s enemies, or else of levying war ... Another feature of the law of Treason is, that there are no accessaries – all are principals ... Taking a single step towards the accomplishment of High Treason, makes the man’s guilt who takes that step, complete ... [E]ach individual charged before you with participation in the revolt ... is entitled to the humane presumption of innocence ... This is the first occasion within my own experience, on which the subject of Treason has engaged judicial attention, and the novelty and importance of the business before us, must plead my excuse for detaining you so long with these very imperfect remarks ... 6. William H. Draper to John Macaulay, Toronto, 10 August 1838 (from CO 42/449, PRO): ... I have the honour to acknowledge the receipt of your letter of the 9th instant requesting me to state whether in the course of the trials of John and Enoch Moore* there were any circumstances stated with respect either to their characters or otherwise not adverted to in the Judge’s notes which I may conceive to have influence on the decision on each case In reply thereto I beg to remark that I feel great difficulty in giving a satisfactory answer from the circumstance that in so doing I am com-

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pelled to depend entirely on memory with respect to these and other trials in that [London] District – None of the prosecutions had been systematically got up nor any indictments prepared until my arrival in London just before the opening of the Court – I had not been able to examine a single information before, as my whole time previous, was occupied in the conduct of the prosecutions in the District of Gore – and on arriving in London, I found nearly two hundred cases of prisoners, or persons on bail, all charged with participation in the insurrection, to be attended to – Under these circumstances I had no leasure [sic] to prepare formal briefs for trial, but merely made short memoranda of the testimony of witnesses, which as I had but just conferred with them, were sufficient to enable me to conduct the trials – If the practice in England had prevailed here, a Solicitor would have been employed to get up these cases, and the brief for the Crown Officers would have contained every particular – Here however the whole duty is discharged by the Counsel for the Crown – and under the pressure of business I had no alternative but to take the course I pursued – Speaking then from memory I would state with respect to John Moore ... I believe his conviction was in the opinion of every one [sic] who attended the trial fully warranted by the proof. I can only speak in the same general manner with respect to Enoch Moore ... I do not remember that in the trial any particular evidence was given respecting their character – From other sources on which I fully rely, I gathered that both of them were conspicuous among the (so called) reformers – John Moore was represented as a passionate but very weak minded man – Enoch Moore, as a much more intelligent and mischievous person – both crafty and daring – and influencing the conduct of many of those in his neighbourhood – In conclusion, I would take this opportunity of respectfully stating that in the conduct of all the state trials which I have managed I have anxiously endeavoured to suggest to the minds of the Jury every consideration arising out of the evidence which was favourable to the prisoner, as well as those adverse to him – and that I have never pressed for a conviction in a single instance, nor do I believe there has been one, but when the facts proved tended to establish guilt to the satisfaction of a conscientious Jury. note: *John and Enoch were brothers of Middlesex MHA Elias Moore. The two were tried for allegedly helping the rebels raised in the London District.

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Draper’s comments were evidently instrumental in determining the respective fates of the two. John was released a few days after Draper penned this letter. Enoch, whom Draper considered far more dangerous, had to wait several months for his release. 7. Confirmation of the Court Martial of Civilians (from C.R. Sanderson ed., The Arthur Papers, Volume 1 (Toronto: University of Toronto Press 1957, 381–2) Arthur to Colborne, Toronto, 20 November 1838 I congratulate you on your entire success, and most anxiously hope it may be the means of putting an end to any further insurrection in the Lower Province – but, I cannot believe that you will be let alone quite so easily. Papineau has surely concerted his Plans better than to be discouraged by the first defeat, and his American friends will perhaps desire to try their luck once more. You have, of course, long since heard of the affair at Prescott ... I have ordered a Court Martial to assemble at Kingston on Monday next, and there will commence the difficulty of the Government. My Lord Glenelg cannot wish these Brigands to be encouraged to cross over again, and, yet, if they be not severely punished, the Inhabitants of Upper Canada will be continually harrassed [sic] by their wicked and atrocious conduct. I am now every day expecting to hear of an attack upon the Western Coast and also the Southern Coast of Lake Erie, as I have very certain information of the Brigands collecting in considerable numbers from Buffalo upwards ... Arthur to Henry Dundas, Toronto, 20 November 1838 I most sincerely congratulate you on the success of your Expedition and the determination you manifested not to let those vagabonds escape. Nothing could have terminated better except that now comes the awful ordeal of punishing the Brigands, and from this I should most earnest desire to be releived [sic] ... I have directed that a Civil Court Martial shall assemble at Kingston on Monday next for the trial of the Prisoners, and until the trials are over you had better keep a good body of Militia at Kingston. The Leaders had better be the first brought to trial & I shall thank you to order the Sheriff or deputy Sheriff, or some other competent person, to prepare a Memorial return of them with such information or particulars of His History as can be extracted from each, forwarding a

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copy to me with as little delay as possible for transmission to our Minister in Washington ... 8. The Militia Act ‘An Act to Amend, and Reduce to one Act, the Militia Laws of this Province’ 1 Vic. c.8 (passed 5 March 1838) ... 32. And be it further enacted by the authority aforesaid, That when the Militia of this Province shall be called out on actual service, in all cases where a General Court Martial shall be required, the Lieutenant Governor, upon application to him made through the Officer commanding the body of Militia to which the party accused may belong, or in case he be the accuser or the accused, then through the next Senior Officer, shall issue his order to assemble a General Court Martial, which said Court Martial shall consist of a President, who shall be a Field Officer, and not less than eight other Commissioned Officers of the Militia: Provided always, that in all trials by General Courts Martial to be held by virtue of this Act, the Lieutenant Governor shall nominate and appoint the person who shall act as Judge Advocate; and that every member of the said Court Martial, before any proceeding be had before the Court, shall take the following oath before the Judge Advocate who is hereby authorized to administer the same, viz: ‘You, A. B., do swear, that you will administer justice to the best of your understanding, in the matter now before you, according to the evidence and the Militia Laws now in force in this Province, without partiality, favor or affection: and you further swear, that you will not divulge the sentence of the Court, until it shall be approved by the Lieutenant Governor: neither will you upon any account, at any time whatever, disclose or discover the vote or opinion of any particular member of the Court Martial, unless required to give evidence thereof as a witness by a Court of Justice, in due course of law: “So help you God”’: And so soon as the said oath shall have been administered to the respective Members, the President of the Court is hereby authorised and required to administer to the Judge Advocate, or the person officiating as such, an oath in the following words: ‘You, A. B. do swear, that you will not upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular Member of the Court Martial, unless required to give evidence thereof as a witness by a Court of Justice, in due course of law “So help you God”’: And the Judge Advocate shall, and is hereby authorised, to administer to every person

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giving evidence before the said Court, the following oath: ‘The evidence you shall give to this Court Martial, on the trial of A.B. shall be the truth, the whole truth, and nothing but the truth “So help you God’”: Provided always, that the Judgement of every such Court Martial shall pass with the concurrence of two-thirds of the Members, and shall not be put in execution until the Lieutenant Governor has approved thereof. 33. And be it further enacted by the authority aforesaid, That in cases of emergency, by actual invasion, insurrection or otherwise, when it may not be practicable to consult the Lieutenant Governor, it shall and may be lawful for the Senior Officer of Militia of any County or Riding, to call out an embody any number of the Militia he may judge necessary, for actual service, and to report the same forthwith to the Lieutenant Governor.

LOWER CANADA 1. Deliberations on Martial Law a) Report of the Executive Council on the State of the Province, 20 November 1837, Castle of St. Lewis, encl. in Gosford to Glenelg, 22 November 1837 (CO 42/274): His Excellency laid before the Board the Official Report of the Attorney and Solicitor General, dated 18 November 1837, on the disturbed state of certain parts of the district of Montreal, and the measures adopted by them in consequence thereof ... Whereupon it was ordered, with the advice of the Board, that inasmuch as the civil authorities have proved insufficient in certain parts of the District of Montreal to carry the law into effect without the aid of the military force, it will become expedient, should such a state of things continue, to declare those parts of the said district in a state of insurrection and rebellion. b) Report of Charles Ogden, Attorney General, and M. O’Sullivan, Solicitor General, on the Legality of Martial Law, 30 November 1837 (CO 42/ 274): ... As to the first point those against whom Warrants for High Treason have been issued, and whom the Peace Officers cannot succeed in arresting, can be outlawed. But they can only be so by a legal process after Indictments that have found against them on the Court of King’s Bench for the District of Montreal. Without ... such process the executive can of

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itself issue a Proclamation offering a reward for their apprehension and we are of the opinion that it would be advisable to do so. As to the second point. To declare the District of Montreal in a state of Insurrection or Rebellion would no doubt be a necessary preliminary to the Declaration of Martial Law ... In England Martial Law ... extends only to the Government of Mariners and Soldiers and those who join with them and not to the Inhabiants of the Kingdom at large [the law officers move on to exceptions, referring to the royal prerogative in cases of invasion and insurrection and the exercise of martial law after the conquest of Quebec and legislation passed in Ireland in 1798. They note that the Irish Acts were construed not to] ... take away, abridge or diminish the acknowledged prerogative of His Majesty for the Public safety to resort to the exercise of Martial Law against enemies or traitors ... It is evident that Sovereignty is inherent and constitutes Her Majesty’s political capacity and must prevail in every part of the territories subject to the English Crown ... it remains therefore for His Excellency to determine by and with the advice of the Executive Council whether ... the State of the District of Montreal calls for the exercise of Her Majesty’s undoubted prerogative ... [Where the functions of civil authority] ... and the functions of the ordinary legal tribunals may be considered as having virtually ceased ... so much only of the Civil Law (we speak of the Civil Law in contradistinction with the Military Law) as extends to the open enemies or traitors would pass into the hands of those charged with the execution of Martial Law. 2. Deliberations on the Court Martial of Civilians Ogden and O’Sullivan to Captain T. Goldie, Montreal, 24 January 1838 (CO 42/280): ... So soon as the Courts of Justice can sit, and resume their functions, no Court Martial can be legally convened, unless by Legislative authority ... In support of this proposition we beg leave to cite the Irish Statute ... 39 Geo III cap.2 after reciting that Martial Law had been successfully exercised, to the restoration of peace, so far as to permit the courts of Common Law partially to take place, but that the Rebellion continued to rage ... proceeds to enable the Lord Lieutenant ‘to punish Rebels by Courts Martial’ ... [The law officers move on from discussion of this legislative precedent to offer their views on the prospects of regular trials in Montreal]: Composed as this Community is, we do not think that an impartial Trial before the Ordinary Tribunals could be had for offences of a political nature ... they would not be declared guilty by any Jury empanelled in the

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ordinary course of Law, that the great mass of the population of this District having been engaged in aiding and abetting the late treasonable attempts ... To depart on the present occasion from the practice thus pursued by the Sheriffs in the Summoning of Jurors, would afford an occasion for saying that the Stream of Justice was polluted ... it would be advisable for the ends of justice that all the cases of the prisoners now confined should be examined into, that if upon such examination it should be found that any of the Prisoners erred from ignorance or intimidation, they should be released; with respect to those apparently guilty, we humbly conceive that considering the circumstances of the times, the excitement that prevails and cannot for years subside, referring also to the observations which we have just had to the honour of submitting, we are of the opinion that the only impartial tribunal before which they could be tried is that of a Court Martial, but such a Court cannot be now be legally convened, for the reasons stated in our answer to the first question, we think that the unfortunate state of this Province calls for the intervention of the Legislature in this respect. When we say the Legislature we beg leave to state that we mean the intervention of the Imperial Parliament for the local Legislature can be hardly said to exist ... let it suffice to say that it would be preposterous to convene it when it is known that many of the leading memebers of the Assembly, including the Speaker of the Body, are now Fugitives in a Foreign Country under accusation of of High Treason, and others are now under confienement for a similar crime ... 3. Security Legislation of the Special Council (compiled by Steven Watt) First Session – Administrator Colborne 18 April–15 May 1838 (25 Ordinances passed in total): 1 Vic. c.2 23 April 1838

An ordinance to authorize the apprehending and detention of persons charged with high treason, suspicion of high treason, misprision of high treason, and treasonable practices, and to suspend for a limited time, as to such persons, a certain ordinance therein mentioned.

1 Vic. c.10 25 April 1838

An ordinance for indemnifying persons who since the first days of October, one thousand eight hundred and thirty-seven, have acted in apprehending, imprisoning, or detaining in custody, persons suspected of high treason, or treasonable practices, and in the suppression of unlawful assemblies, and for other purposes therein mentioned.

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1 Vic. c.15 4 May 1838

An ordinance to enable the governor, or person administering the government of this province, to extend a conditional pardon, in certain cases, to persons who have been concerned in the late insurrection.

1 Vic. c.19 4 May 1838

An ordinance to provide for the more speedy attainder of persons indicted for high treason, who have fled from the province, or remain concealed therein, to escape from justice.

1 Vic. c.20 4 May 1838

An ordinance for preventing mischiefs arising from the printing and publishing newspapers, pamphlets and papers of like nature, by persons not known, and for other purposes.

Second Session – Governor Durham, 28 June–31 October 1838 (9 Ordinances passed in total): 2 Vic. c.1 28 June 1838

An ordinance to provide for the security of the province of Lower Canada.

2 Vic. c.3 23 Aug. 1838

An ordinance to prevent the discharge of certain persons, until they shall have given security

Third Session – Administrator Colborne, 5 November–21 December 1838 (15 Ordinances passed in total): 2 Vic. c.2 8 Nov. 1838

An ordinance to authorize the seizing and detaining for a limited time of gunpowder, arms, weapons, lead, and munitions of war.

2 Vic. c.3 8 Nov. 1838

An ordinance for the suppression of the rebellion, which unhappily exists within this province of Lower Canada, and for the protection of the persons and properties of Her Majesty’s faithful subjects within the same.

2 Vic. c.4 8 Nov. 1838

An ordinance to authorize the apprehension and detention of persons charged with high treason, suspicion of high treason, misprision of high treason, and treasonable practices, and to suspend, for a limited time, as to such persons, a certain ordinance therein mentioned, and for other purposes.

2 Vic. c.5 16 Nov. 1838

An ordinance to declare and define the period when the rebellion, now unhappily existing in this province, shall be taken and held to cease, and for other purposes.

2 Vic. c.6 16 Nov. 1838

An ordinance to authorize the governor, or person administering the government of this province, to appoint persons as justices of the peace and stipendary magistrates, notwithstanding an Act of the legislature of the province of Lower Canada, passed in the sixth year of the reign of His late Majesty, King William the Fourth, intituled, ‘An act for the qualification of the justices of the peace.’

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2 Vic. c.7 20 Nov. 1838

An ordinance for the attainder of persons against whom sentences or judgements of courts martial shall be given, under and by virtue of an ordinance passed in the second year of Her Majesty’s reign, intituled, ‘An ordinance for the suppression of the rebellion which unhappily exists within this province of Lower Canada, and for the protection of the persons and properties of Her Majesty’s faithful subjects within the same, and of another ordinance passed in the said second year of Her Majesty’s reign, intituled, ‘An Ordinance to declare and define the period when the rebellion, now unhappily existing in this Province,’ shall be taken and held to cease, and for other purposes.

2 Vic. c.8 20 Nov. 1838

An ordinance for more effectually preventing the administering or taking of unlawful oaths, and for better preventing treasonable and seditious practices

2 Vic. c.9 20 Nov. 1838

An ordinance to extend the provisions of certain ordinances therein metioned, to the district of Saint Francis, in the province of Lower Canada.

2 Vic. c.11 24 Nov. 1838

An ordinance to authorize the trial in any district of this province, of persons charged with certain crimes and offences.

2 Vic. c.12 24 Nov. 1838

An ordinance to authorize the governor, or person administering the government of this province, to cause the confinement in any of the gaols the said province [sic], of persons committed, or detained, for certain crimes, and for other purposes.

2 Vic. c.13 12 Dec. 1838

An ordinance to authorize the governor or person administering the government of this province, to appoint one or more assistant judges for the Courts of King’s Bench for the districts of Quebec and Montreal, in this province, and as assistant judge for the district of Three Rivers, in the case of sickness, necessary absence, or suspension from office of any of the justices of the said several Courts of King’s Bench, or the resident judge for the district of Three Rivers, in the said province.

2 Vic. c.14 21 Dec. 1838

An ordinance for indemnifying persons who, since the first day of November, one thousand eight hundred and thirty-eight, have acted in apprehending, imprisoning, or detaining in custody, persons suspected of high treason or treasonable practices, and in the suppression of unlawful assemblies, and for other purposes therein-mentioned.

2 Vic. c.15 21 Dec. 1838

An ordinance to declare that the second chapter of the statutes of the Parliament of England, passed in the thirty-first year of the reign of King Charles the Second, is not, nor has ever been, in force in this province, and for other purposes.

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Fourth Session – Governor Colborne, 14 February–13 April 1839 (67 Ordinances passed in total): 2 Vic. c.3 21 Feb. 1839

An ordinance to extend the provisions of a certain act of the legislature of this province, therein mentioned.

2 Vic. c.27 19 March 1839

An ordinance to provide for the more speedy attainder of persons indicted for high treason, who have fled from the province, or remain concealed therein, to escape from justice.

2 Vic. c.31 23 March 1839

An ordinance to continue, for a limited time, a certain ordinance relative to persons charged with high treason, suspicion of high treason, misprision of high treason, and treasonable practices.

2 Vic. c.51 8 April 1839

An ordinance to repeal a certain ordinance, intituled ‘An ordinance to declare that the second Chapter of the statutes of the Parliament of England, passed in the thirty-first year of the reign of King Charles the Second, is not, nor has ever been, in force in this province, and for other purposes.’

2 Vic. c.66 13 April 1839

An ordinance for indemnifying persons who, since the twenty-first day of December, one thousand eight hundred and thirty-eight have acted in apprehending, imprisoning, or detaining in custody, persons suspected of high treason, or treasonable practices, and in the suppression of unlawful assemblies, and for other purposes therein mentioned.

Fifth Session – Governor Thomson – pt. 1, 11–14 November 1839; pt.2, 20 April–13 May 1840; pt.3, 28 May–26 June 1840 (52 Ordinances passed in total): 3 Vic. c.1 14 Nov. 1839

An ordinance to continue, for a limited time a certain ordinance, relative to the seizing and detaining for a limited time of gunpowder, arms, weapons, lead and munitions of war.

3 Vic. c.2 14 Nov. 1839

An ordinance further to continue, for a limited time, a certain ordinance relative to persons charged with high treason, suspicion of high treason, misprision of high treason, and treasonable practices.

3 Vic. c.10 30 April 1840

An ordinance to render permanent certain ordinances therein mentioned, providing for the indemnification of persons who may have acted in the suppression of unlawful assemblies or Treasonable practices and for the attainder of persons against whom sentences have been given by courts martial.

Sixth Session – Governor Thomson, 5 November 1840–9 February 1841 (no significant security ordinances)

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4. The Bermuda Ordinance (2 Vic. c.1 – 2nd sess., 28 June 1838) an ordinance to provide for the Security of the Province of Lower Canada. whereas divers persons, subjects of Her Majesty in this province, have been charged with high treason and other offences of a treasonable nature, some of which said persons are at present in custody, and others have withdrawn themselves from the pursuit of justice beyond the limits of this province: And whereas of the persons so charged and in custody, those whose names follow, that is to say, Wolfred Nelson, Robert Shore Milnes Bouchette, Bonaventure Viger, Simeon Marchessault, Henri Alphonse Gauvin, Toussaint Goddu, Rodolphe des Rivières, and Luc Hyacinthe Masson, all respectively now in the gaol of Montreal, in custody of the Sheriff of Montreal, have severally acknowledged their participation in such high treason, and have submitted themselves to the will and pleasure of Her Majesty: And whereas Louis Joseph Papineau, a member of the late Assembly of Lower Canada, and Speaker thereof, Cyrile Hector Octave Côte, also a member of the said late Assembly, Julien Gagnon, Robert Nelson, also a member of the said late Assembly, Edmund Burke O’Callaghan, also a member of the said late Assembly, Edouard Etienne Rodier, also a member of the said late Assembly, Thomas Storrow Brown, Ludger Duvernay, Etienne Chartier, a priest, George Et. Cartier, John Ryan the elder, and John Ryan the younger, Louis Perrault, Pierre Paul Demaray, Joseph François Davignon, and Louis Gautier, all respectively subjects of Her said Majesty, and against whom respectively warrants for high treason have been issued, have severally absconded from this province and withdrawn themselves from the limits thereof, and from the pursuit of justice: And whereas it is Her said Majesty’s most gracious will and pleasure that no further proceedings shall be had or taken against any persons whomsoever on account of such high treason or other offences of a treasonable nature, save and except as hereinafter provided; but it is nevertheless expedient to provide for the present security of this province by effectually preventing the several persons whose names are hereinbefore set forth from being at large therein; Be it therefore ordained and enacted by his Excellency the Governor of the Province of Lower Canada, by and with the consent and advice of the Special Council for the affairs of the said Province of Lower Canada constituted and assembled by virtue of an Act of the Parliament of the United Kingdom of Great Britain and Ireland passed in the first year of the reign

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of Her present Majesty, intituled, ‘An Act to make temporary Provision for the Government of Lower Canada,’ and it is hereby ordained and enacted by the authority aforesaid, That it shall and may be lawful for Her Majesty to transport to Her Majesty’s islands of Bermuda, during Her pleasure, the said Wolfred Nelson, Robert Shore Milnes Bouchette, Bonaventure Viger, Simeon Marchessault, Henri Alphonse Gauvin, Toussaint H. Goddu, Rodolphe des Rivières, and Luc Hyacinthe Masson respectively, and to subject them or any of them to such restraints in the said islands as may be needful to prevent their return to this province: And it is further ordained and enacted, by and with the authority aforesaid, That if the said Wolfred Nelson, Robert Shore Milnes Bouchette, Bonaventure Viger, Simeon Marchessault, Henri Alphonse Gauvin, Toussaint H. Goddu, Rodolphe des Rivières, and Luc Hacinthe Masson respectively, or any of them, or if the said Louis Joseph Papineau, Cyrile Hector Octave Côte, Julien Gagnon, Robert Nelson, Edmund Burke O’Callaghan, Edouard Etienne Rodier, Thomas Storrow Brown, Ludger Duvernay, Etienne Chartier, George Et. Cartier, John Ryan the elder, and John Ryan the younger, Louis Perrault, Pierre Paul Demaray, Joseph François Davignon, and Louis Gautier, against whom respectively such warrants for high treason have been issued, and also have so withdrawn themselves from the pursuit of justice as aforesaid, or any of them, shall at any time hereafter, except by permission of the Governor-general of Her Majesty’s Provinces on the Continent of North America and High Commissioner for the adjustment of certain important questions depending in the provinces of Upper and Lower Canada, or if there shall be no such Governor-general and High Commissioner, by the permission of the Governor-in-chief, or Governor or other person administering the government of this province as hereinafter provided, be found at large or come within the said province, they or he shall in such case be deemed and taken to be guilty of high treason, and shall, on conviction of being so found at large or coming within the said province without such permission as aforesaid, suffer death accordingly: Provided always, That it shall and may be lawful for such Governor-general and High Commissioner ... or other person administering the government of the province, acting for and in-behalf of Her said Majesty, so soon as it shall to him appear consistent with the peace and tranquility of this province, by any act or instrument under his hand and seal at arms, to grant permission for the said Wolfred Nelson, Robert Shore Milnes Bouchette, Bonaventure Viger, Simeon Marchessault, Henri Alphonse Gauvin, Toussaint H. Goddu, Rodolphe des Rivières, Luc Hyacinthe Masson, Louis Joseph Papineau,

482

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Cyrile Hector Octave Côte, Julien Gagnon, Robert Nelson, Edmund Burke O’Callaghan, Edouard Etienne Rodier, Thomas Storrow Brown, Ludger Duvernay, Etienne Chartier, George Et. Cartier, John Ryan the elder, and John Ryan the younger, Louis Perrault, Pierre Paul Demaray, Joseph François Davignon, and Louis Gautier, or any of them, upon giving such security for their future good behaviour and loyal conduct as the said Governor-general and High Commissioner ... or other person administering the government of this province shall think fit, to return to this province and reside therein; and the said Wolfred Nelson, Robert Shore Milnes Bouchette, Bonaventure Viger, Simeon Marchessault, Henri Alphonse Gauvin, Toussaint Goddu, Rodolphe des Rivières, Luc Hyacinthe Masson, Louis Joseph Papineau, Cyrile Hector Octave Côte, Julien Gagnon, Robert Nelson, Edmund Burke O’Callaghan, Edouard Etienne Rodier, Thomas Storrow Brown, Ludger Dunernay, Etienne Chartier, George Et. Cartier, John Ryan the elder, and John Ryan the younger, Louis Perrault, Pierre Paul Demaray, Joseph François Davignon and Louis Gautier, or such of them as shall receive such permission as aforesaid, shall not thenceforth be subject to any penalty or prosecution whatever for any treason or treasonable or seditious practices by them or him at any time heretofore committed: Provided also, That in any indictment for being so found or coming within the province without such permission as aforesaid, the burden of proof of having obtained such permission of the said Governor-general and High Commissioner, Governor-in-chief, Governor, or other person administering the government of this province, shall lie upon the party accused or indicted thereof. And it is hereby further ordained and enacted, by and with the authority aforesaid, That nothing in any Proclamation of Her Majesty contained shall extend or be held or construed to extend to the cases of François Jalbert, Jean Baptiste Lussier, Louis Lussier, François Mignault, François Talbot, Amable Daunais, François Nicolas, Etienne Langlois, Gideon Pinsonault, Josheph Pinsonault, or any of them, or to the case of any other person or persons charged with the murder of the late George Weir, a lieutenant in Her Majesty’s 32nd regiment of foot, or with the murder of the late Joseph Chartrand; nor shall François Jalbert, Jean Baptiste Lussier, Louis Lussier, François Miganult, François Talbot, Amable Daunais, François Nicolas, Etienne Langlois, Gideon Pinsonault, Joseph Pinsonault, or any of them, nor shall any other persons suspected of being concerned in the said murders, or either of them, nor any person concerned in the escape from the custody of the Sheriff of Montreal of Louis Lussier, charged with the murder of the said George Weir, or who may have har-

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boured the said Louis Lussier after, or aided him in such escape, derive any benefit or advantage whatsoever from any Proclamation of Her most gracious Majesty, nor shall any amnesty thereby intended to be granted be taken in any way to apply to such person or persons, or any of them. note: This ordinance, as recommended by the British law officers to Lord Glenelg on 6 August 1838, was disallowed (see W. Forsythe, ed., Cases and Opinions in Constitutional Law [London: Stevens and Haynes 1869]) on the basis that aspects of the ordinance to be executed beyond Lower Canada were beyond colonial legislative authority. British parliamentary debate on the measure from 30 July to 14 August 1838 is detailed in Chester W. New, Lord Durham: A Biography of John Lambton, the First Earl of Durham (Oxford, U.K.: Clarendon 1929), 428–36. The ‘Indemnity Act’ 1 and 2 Vic. c.112 (16 August 1838) was proclaimed by the governors in Lower Canada and Bermuda, indemnifying officials who acted or advised under the authority of the ordinance, discharging all existing and future personal actions, prosecutions, and proceedings against them. 5. The Court Martial Ordinance (2 Vic. c.3 – 3rd sess. 8 November 1838) An Ordinance for the suppression of the Rebellion, which unhappily exists within this Province of Lower Canada, and for the protection of the persons and properties of Her Majesty’s faithful subjects within the same. WHEREAS a traitorous Conspiracy, for the subversion of the authority of Her Majesty, and for the destruction of the Established Constitution and Government, hath unfortunately existed within this Province for a considerable time, and hath broken out in acts of the most daring and open rebellion: And whereas His Excellency Sir John Colborne, Administrator of the Government of this Province, did lawfully, and by virtue of the authority in him reposed, by Proclamation under his hand and seal at Arms, bearing date at the Government House, in the City of Montreal, the fourth day of this present month of November, declare Martial Law to be in force in the District of Montreal, in the said Province, and as well before as since the said declaration of Martial Law in the said Province, the said Rebellion did greatly extend, insomuch that large bodies of armed Traitors did openly array themselves, and make the most daring and violent attacks upon Her Majesty’s Forces, and upon other persons in authority, and commit the most horrid excesses and cruelties on the prop-

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erties and persons of Her Majesty’s loyal subjects: And whereas the said Rebellion still continues to rage in the said District of Montreal, and the parties therein concerned continue to desolate and lay waste the country, by the most savage and wanton violence, excess and outrage, and the civil power is set at defiance, and the ordinary course of justice and of the law of the land is stopped in the said District: And whereas it is expedient and necessary to provide a remedy for the speedy trial and punishment of persons offending in that behalf: Be it therefore Ordained and Enacted, by His Excellency the Administrator of the Government of this Province, authorized to execute the Commission of the Governor thereof, by and with the advice and consent of the Special Council for the affairs of the said Province, constituted and assembled by virtue of and under the authority of an Act of the Parliament of the United Kingdom of Great Britain and Ireland, passed in the First Year of the Reign of Her present Majesty, intituled, ‘An Act to make temporary provision for the Government of Lower Canada’; And it is hereby Ordained and Enacted, by the authority aforesaid, that from and after the passing of this Ordinance, it shall and may be lawful for the Governor of the said Province, or the person administering the Government thereof, from time to time during the continuance of the said Rebellion, whether the ordinary Courts of Justice shall or shall not at such time be open, to issue his orders to all officers commanding Her Majesty’s forces and to all others whom he shall think fit to authorize in that behalf, to take the most vigorous and effective measures for suppressing the said Rebellion, in any part of the said District of Montreal, which shall appear to be necessary for the public safety, and for the safety and protection of the persons and properties of Her Majesty’s peaceable and loyal subjects, and to punish all persons, who, before the passing of this Ordinance, that is to say, since the first day of the present month of November, have been, or were, or hereafter may be, acting, aiding, or in any manner assisting in the said Rebellion, or maliciously attacking the persons or properties of Her Majesty’s loyal subjects, in furtherance of the same according to Martial Law, either by death or otherwise, as to him shall seem expedient, for the punishment and suppression of all Rebels in the said District of Montreal, and to arrest and detain in custody all persons heretofore or now engaged in such Rebellion, or suspected thereof, and to cause all persons so arrested and detained in custody, to be brought to trial, in a summary manner, by Courts Martial, to be assembled under such authority, and to be constituted in such manner, and of such description of persons as the said Governor, or person administering the Government of the said Province shall, from time to

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time, direct, for all offences committed since the said first day of November, or hereafter to be committed, in furtherance of the said Rebellion, whether such persons shall have been taken in open arms against Her Majesty, or shall have been otherwise concerned in the said Rebellion, or in aiding, or in any manner assisting the same, and to execute the sentence of all such Courts Martial, whether of death or otherwise, and to do all other acts necessary for such several purposes. II. And be if further Ordained and Enacted by the authority aforesaid, that no act of this Ordinance, or of the powers thereby granted, which shall be done in pursuance of it, shall be questioned in any of Her Majesty’s Courts of Justice in the said Province. III. And be it further Ordained and Enacted by the authority aforesaid, that if any person, who shall be detained in custody under the powers created by this Ordinance, shall sue forth a Writ of Habeas Corpus, it shall be a good and sufficient return to such Writ, that the party suing forth the same, is detained by virtue, and under the authority of this Ordinance, and that in answer to any such Writ of Habeas Corpus, it shall not be necessary to produce the body of the person or persons so detained in custody. IV. Provided always, and be it further Ordained and Enacted by the authority aforesaid, that nothing in this Ordinance contained, shall be construed to take away, abridge, or diminish the acknowledged prerogative of Her Majesty, for the public safety, to resort to the exercise of Martial Law against open enemies or Traitors, or any powers by law vested in the Governor or Person administering the Government of the said Province, or any other person or persons whomsoever, to suppress Treason and Rebellion, and to do any act, warranted by law, for that purpose, in the same manner as if this Ordinance had never been made, or in any manner to call in question any acts heretofore done for the like purposes. V. And be it further Ordained and Enacted by the authority aforesaid, that it shall and may be lawful for the Governor or person administering the Government of this Province, by Proclamation, under his Hand and seal at Arms, from time to time, to extend all and every the provisions of the present Ordinance, to any other Districts, or parts of this Province, for such period or periods of time as to him may seem meet. VI. And be it further Ordained and Enacted by the authority aforesaid, that this Ordinance shall continue and be in force until the first day of June next, and no longer ...

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note: 2 Vic. c.15 (3rd sess. 21 December 1838) was passed following rulings by three judges that held previous suspensions of the writ of habeas corpus unconstitutional, thereby undermining the validity of the court martial ordinance: ‘An Ordinance to declare that the second Chapter of the Statutes of the Parliament of England,’ passed in the thirty-first year of the reign of King Charles the Second, is not, nor has ever been, in force in this Province, and for other purposes ... And it is hereby Ordained, Declared and Enacted by the authority aforesaid, that the said Act of the Parliament of England, passed in the thirty-first year of the Reign of King Charles the Second, is not, nor has ever been in force in this Province, and that the granting and issuing of the said two several Writs of Habeas Corpus [by Philip Panet and Elzear Bedard, justices of the Court of King’s Bench for the District of Quebec to John Teed, charged with high treason] under and by virtue of the said Act, and all and every the proceedings, acts, matters and things had and done, or to be had and done under, for, or by reason of the said two Writs of Habeas Corpus, and the said Writs of Attachment, and each and every one of them were and are wholly irregular, illegal and void ...’ Panet, Bédard, and a third judge, Vallières de Saint-Réal, were removed from the bench (Colborne to Glenelg, 14 December 1838, CO 42/281; 2 Vic. c.13, 3rd sess., 12 December 1838) but were eventually reinstated (see Greenwood, ‘The Montreal Court Martial, 1838–9: Legal and Constitutional Reflections,’ at n.35, in this volume).

Index

Abbey, Dorephus, 138, 142 Act of Union, 215, 262, 330 Aitcheson, James Milnes, 147 Alien Acts, 331 Alien controversy, 71 Alien invaders: British law officers’ view of, 162; pirates, status as, 162–3; rule of law and, 331; status under British law, 161; treason, whether capable of committing, 161–2 Aliens, court martials of, 131. See also Lawless Aggressions Act Allegiance: doctrine of, 130, 131; doctrine of local, 104, 114; doctrine of perpetual, 166; treason requirement, 161 Alves, William, 50 Alway, Robert, 44 Ambrister, Robert, 164 American Hunters’ Lodges, 42, 136 Amnesty Act, 299, 311 Anderson, Charles, 175

Anderson, Duncan, 144 Anderson, Ira, 51 Anderson, John, 50, 69–70 Anderson, Thomas, 70 Arbuthot, Alexander, 164 Archival holdings: Archives of Ontario, 452–4, 455–7; Montreal and region, 429–39; National Archives of Canada, 405–13; Quebec City, 439–43; Trois-Rivières, 443–4 Arthur, Sir George: advice to Executive Council on capital sentences, 104; Battle of Windsor, reaction to, 175; British government instructions to, 48; concerns about courts martial, 63, 131; fear of mass revolt, 160; order regarding Kingston Court Martial, 137; penal transportation, experience with, 26, 188; reaction to Prince executions, 173; Short Hills prisoners and, 110 Articles of War, 209, 279, 384

488 Association des dames patriotiques du comte des Deux-Montagnes, 360 Association de la deliverance patriote, 396 Association loyale canadienne, 231, 260, 265 Australia. See Patriotes, transportation to New South Wales; Van Diemen’s Land Baby, Charles, 175 Baby, François, 175 Bacon, Sir Francis, 336 Bailey, Robert, 112 Baldwin, Robert, 20 Banishment: British army, by, 118; governor’s power regarding, 189; substitution of transportation, 189. See also Transportation Barnum, Henry, 147 Battle of Windsor, 174–5 Beauharnois rebellion, 387–8 Beaupré, Élise, 359 Bedard, Élzear, 226–7, 229, 326 Bedford, Daniel, 147 Bedford, Paul, 118, 119 Beemer/Beamer, Jacob, 116, 199 Bermuda Ordinance, 190, 222–3, 254–7, 327, 329–30, 476 Berry, John, 199 Berthelot, Émilie, 360 Berthelot, Luc, 356 Bidwell, Barnabas, 71 Bill of Rights, 209, 211 Birge, John Ward, 136 Black Hawks, 107 Blackstone, Sir William, 162, 180, 211, 298, 329, 336 Blondeau, George, 143 Bostwick, Colonel John, 145 Boswell, George M., 82

index Bouchard, Théodore, 387 Boulton, James, 111 Bourbonnais, Desiré, 388 Bourdon, Louis, 395 Boyce, Elizabeth, 358 Boyd, Robert, 165 Bradley, John, 143 Bridgeford, David, 72, 74 Brien, Dr Jean-Baptiste-Henri, 362, 388 British government: instructions to Arthur, 48; response to Irish Rebellion, 42; transportation, 1835 directive regarding, 189 British law officers: alien invaders, opinions regarding, 162; Lawless Agressions Act, opinions regarding, 114, 130, 132, 178. See also Bermuda Ordinance British Whig, 135 Brophy, John, 51 Brougham, Lord, 88, 178, 223 Brown, Lawrence, 388 Brown, Thomas, 51 Buckley, Christopher, 144 Buffalo, 194, 195, 383, 386 Buisson, Constant, 388 Buller, Charles, 255 Camden, Lord Lieutenant, 283, 289 Cameron, Donald, 83–4 Cameron, Ewan, 70, 83–4 Campbell, J., 230, 286, 384 Campbell v. Hall, 329 Canton, 195 Cardinal, Joseph-Narcisse, 302, 387, 358 Carroll, William, 168 Cartwright, John S., 135 Caughill, Margaret, 361 Chandler, Samuel, 111, 197

Index Charter of Rights and Freedoms: Lower Canada courts-martial ordinance and, 344–5 Chartrand, Armand, 385 Chartrand murder trials, 226, 281 Chateau Clique, 11 Chase, Walter, 51 Chateauguay trial, 310 Cherrier, Côme-Séraphin, 219 Chipman, Truman and Levi, 144 Chronicle and Gazette, 135, 137 Clark, Albert, 147 Clitherow, Major-General John, 287, 288, 304 Club des femmes patriotes, 359 Cobourg Star, 141 Coercion Act, 285 Colborne, Sir John, 194, 218, 220, 228, 252–3, 299–301, 303, 305, 306, 383, 386, 388, 390 Colonial Laws Validity Act, 329, 330, 344 Colonist, 168 Constitutional Act of 1791, 18, 344, 358, 389 Cook, Robert, 108 Cooley, George, 111, 199 Cooley, Horace, 194, 197 Cornelier, Marguerite-Julie, 362 Cornwallis, Lord, 289, 291, 300, 304–6, 311 Côté, Dr Cyrille, 13, 14, 288, 334, 387 Courrier canadien, 219 Court of Exchequer, 190 Court-martial ordinance. See Montreal Court Martial Courts martial: aliens, of, 131; allegiance, doctrine of and, 131; Arthur’s concerns regarding, 131; civilians, 131; confirmation of, corre-

489 spondence regarding, 472; government’s reluctance to use, 130; legality of, concerns regarding, 137; royal mercy, recommendation of, 132; sentences under, 133; sentencing flexibility and, 132. See also Kingston Court Martial; Montreal Court Martial; Sutherland, Thomas Cramahé, Hector, 355 Crew, William, 74 Cummings, James, 143–4 Cunningham, Cornelius, 147 Cuthbert, James, 264 Daigle, Antoine, 363 Daunais, Amable, 226 David McLane case, 297 Day, Anson, 135 Day, Charles Dewey, 287 Deacon, Margaret, 294–5 Declaration of Independence, 14, 16, 17 Decoigne, Pierre-Théophile, 302 Defield, David, 143 Denman, Lord, 329 Deportation. See Banishment; Transportation Devins, John Chapman, 52 Doan, James Wells, 112 Doan, Joshua, 147 Dolan, Bridget, 294 Dormicourt, Thérèse and Louise, 361 Draper, William, 102, 104–5, 109, 110, 134, 138 Dresser, Aaron, Jr, 197 Drummond, Lewis, 230, 287, 328 Ducharme, Marie-Leon, 383, 397 Duke of Monmouth’s revolt, 210 Dumouchelle, Joseph, 303, 334, 362, 373, 387, 394 Duncombe, Charles, 44, 50

490 Duquette, Madame, 362 Durand, Charles, trial of, 70, 72, 77–9, 297 Durham, Lord: advisers of, 255; analysis of situation by, 224; appointment as governor general, 218; arbitrary power of, 225; criticism of by Lord Brougham, 223; departure from Quebec, 227; ethnic-conflict analysis, 16, 224; exercise of powers by, 221–7; failure of mission, 223–4; general amnesty, proclamation of, 223, 255; habeas corpus, maintenance of suspension by, 222; interventions regarding executions, 56; legal challenges faced by, 226; mistakes made by, 256; power to commute sentences, 390. See also Bermuda Ordinance; Durham Report Durham Report: ideas expressed in, 250; implementation of, 86 Eardley-Wilmot, Sir John, 198 Ellice, Edward, 280, 387–8 Ellice, Jane, 373 Elliot, Charles, 175, 176 Elliott, William, 175, 176 English Revolution, 132, 208 English State Trials (1790s), 83 Escapes, 197 Evidence: London treason trials and, 105, 108–9; Montreal Court Martial and, 29, 290–6; retroactive laws and, 337–8 Eyre, R v., 286 Executions: Battle of Windsor, at, 172–5; demand for, 170–2, 181; Irish courts martial, following, 300–3; Lord Durham, interventions by, 56; Montreal Court Martial, following,

index 299, 300–3, 385; Prince, ordered by, 172; purpose of, 302 Executive Council: Arthur’s advice to regarding capital sentences, 104; deliberations regarding martial law, 217, 474; review of Hamilton trials by, 104 Faille, Margaret, 357 Family Compact, 18 Felix, Marie-Victoire, 360, 372 Fenwick, Sir John, 338; Act of Attainder, 340, 342 Fero, James DeWill, 147–8 Fils de la liberté, 360 Fitzgerald, Lady Pamela, 370 Fitzgibbon, Colonel James, 20, 21, 133, 166 Fletcher, Silas, 53 Franklin, Sir John, 194, 195, 196 Frechette, Josephte, 357 Frères Chasseurs, 227–8, 362 Frost, John, 296, 341 Gagnon, François, 143 Gagnon, Julien, 387 Gates, William, 197–7 Gaunt, Dame Elizabeth, 366 Gemmell, James, 197 George, Daniel, 138, 139–40 Gibson, David, 44 Gipps, Sir George, 196, 389, 392–3 Girouard, Jean-Joseph, 360 Glenelg, Lord, 49, 68, 104, 193–4, 217, 220, 228, 340, 386 Glengarry militia, savagery of, 15, 372–3 Gordon, Lord George, 341 Gore District grand jury: Macaulay’s charge to, 65

Index Gosford, Governor, 216, 217–19 Gould, Joseph, 66 Grand juries, charges to; Macaulay, by, 65, 101, 469; Robinson, by, 63–5, 464 Gregg’s case, 371 Grey, Earl, 285 Grey, Lieutenant-Colonel Charles, 334, 372 Grey, Sir George, 384 Gurnett, George, 83 Guymer, William, 74 Habeas corpus: 1679 statute regarding, 4, 209; Durham’s maintenance of suspension, 222; suspension of in England, 210, 338; suspension of in Ireland, 283; suspension of by Special Council, 258–61; writs issued during suspension, 118, 190, 219, 226, 229, 258, 326 Hagerman, Christopher Alexander, 49, 55, 62, 120, 134, 168 Hamilton treason trials, 101–4; bias, 119; generally, 100–1; grand jury, charge to, 65, 101, 469; indictments, 102; petitions, 103; proceedings, 103; records of, 101; results of, 104 Hart, Aaron, 230, 287, 328 Hart, Stephen, 111, 112, 116 Hawke, Percipher, 51 Head, Sir Francis Bond: flight of, 102; indictment regarding Sutherland court martial, 133, 134, 166; proclamation issued by, 25, 43; response to Rebellion, 41–2 Hébert, Jacques-David, 16, 387 Higgins, R v., 339 Horne, Dr Robert, 20, 50 Houde, Celestin, 230

491 Hume, Joseph, 88, 118, 190 Hunter, James, trial of, 70, 80–1 Hunters’ Lodges. See American Hunters’ Lodges Huot, Charles, 387 Indemnity Act. See Loyalist Indemnity Act Insurrection Act, 283 Ireland, martial law in. See Irish courts martial Irish courts martial: acquittals, 304; comparison with Lower Canada, 280; control exercised over courts, 303–9; conviction of innocents, 295; counsel, involvement of, 291; evidentiary issues, 293–4; executions, 300–3; generally, 212; habeas corpus, suspension of, 283; judicial review of, 307; jurisdictional conflict, 307–8; lord lieutenant’s proclamation regarding, 284; martial law, 212, 220; origins of, 282–4; personnel involved, 289–90; political message of treason charges, 298–90; procedure at, 290–6; proceedings at, 289–90; punishment following conviction, 300–3; rule of law, judge’s attachment to, 309; torture, confessions forced by, 295–6 Irish Rebellion of 1798: British response to, 42; treason trials, 102, 368, 370 Jackson, General Andrew, 164 Jackson, Phillip, 168 Jacobite rising, treason trials and, 337 Jameson, Robert Sympson, 26, 62, 66, 49 Jarvis, George, 133

492 Jeffreys, Judge George, 47, 103, 366–7 Jenner, Sir Herbert, 165 Johnson, Bill, 134, 135, 136 Jones, Justice Jonas, 49, 81; judge’s report, as author of, 53; Short Hills trials, as judge at, 110–11, 113 Jones v. Randall, 339 Judge’s report: issuing of, 49; recommendations of, 53 Jurisdiction: Irish courts martial, issues at, 307–8; Kingston Court Martial, issues at, 138–9; Montreal Court Martial, issues at, 325 Jury: control of, 233; packed, 106, 107; partiality for crown, 74. See also Grand juries, charges to; Toronto treason trials Jury, trial by, 330 Kelly, Catherine, 368 Kemp, Solomon, 112, 117 Ketchum, William, 75, 89 Kingston Court Martial: British subjects, trials of, 142–5; counsel, availability of, 150; court, composition of, 138–9; generally, 131–3; jurisdiction issues, 138–9; Militia Act and, 138; patriot officers, trial of, 139–42; procedure at, 138; punishments at, 148–51 Korematsu v. United States, 334 Ladd, Alvaro, 106–8 Lafontaine, Christopher, 135 La Fontaine, Louis-Hippolyte, 230, 329, 373 Lanctôt, Hypolite, 387 Languedoc, Étienne, 394 Lanoix, Joseph Wattier dit, 388 Latimer, Charles, 108

index Lavoie, Pierre, 290 Lawless Aggressions Act: disallowance recommendation by British law officers, 114, 130, 132, 178; elements of, 140; enforcement of, frustrations regarding, 165–9; generally, 26–8; Kingston Court Martial and, 140, 143, 148; legality of, 113–14; London Court Martial and, 147; Lower Canada ordinance, comparison with, 331; motivation for, 160, 161; passage of, 44; Pelee Island prisoners and, 167–9; repeal of, 169, 181; replacement of, 181; Robinson’s comments on, 45, 65, 130; Short Hills prisoners and, 110; text of, 460; use in Kingston, 139 Lawton, Sylvester, 144 Leader, J.T., 329 Lefferty, John J., 116 Leforte, Joseph, 143 Lepailleur, François-Maurice, 387, 394, 397 Lesage, Peter, 135 Lévesque, Guillaume, 302, 388 Lewis, Asa, 135 Lewis, George Cornewall, 329 Lewis, Lyman, 138, 144 Linfoot, John, 72 Lisle, Lady Alice, 366–7 Lloyd, Jessie, 52 London Court Martial: counsel, availability of, 150; death sentences, 147; foreigners, trials of, 147; generally, 131–3; patriot officers, trials of, 147; pleas, 146–7; proceedings at, control over, 146; punishments at, 148–51 London Gazette, 106, 109 London jail, 105

Index London treason trials: Draper report on evidence, 105; evidentiary insufficiencies, 108–9; generally, 100–1; packed jury, 106, 107; proceedings, 106; records, lack of, 105; results in, 109 Longtin, Michel, 363 Lorimier, Chevalier de, 302 Lount, Samuel, 50, 67–9 Lovell, Cordelia, 361 Lower Canada: rebellions in, survey of, 10–17 Loyalist Indemnity Act, 47, 462 Loyalists, 97 Macaulay, James Buchanan, 49, 65, 101, 168, 469 Macaulay, John Macdonald, Aeneas, 71 Macdonald, John A., 135, 139, 142, 150 Macdonald, Rolland, 82–3 Macdonell, Colonel Angus, 373 McDougal, David, 146 Macdougal, John, 80 Macdougal, Robert, 70 Mace, James, 168 McGill, James, 259 McIntyre, John, 168 Mckenzie, Diogenes, 168 Mackenzie, William Lyon, 17, 19, 50, 62, 107, 160, 181–2 McLean, Archibald, 49, 135 MacNab, Allan, 78, 102, 104, 105, 167 Malcolm, Findlay, 44, 118, 119 Malcolm, Isaac Brock, 103 Malcolm, Peter, 103 Mallory, Norman, 115 Mansfield, Lord, 210, 339 Marceau, Joseph, 396 Marcy, W.L., 104, 117

493 Marks, Colonel John, 138 Marquis of Hastings, 190, 193 Marsh, Robert, 194 Marsh, Samuel, 135 Marston, Jacob, 355 Martial law: colonies and dependencies, in, 210–13; doctrine of outlawry concept, 164–5, 169–72, 179; England, in, 208–9; Ireland, in, 212, 220; prisoner-of-war status, 163–4; royal prerogative and, 213, 286; test for, 287. See also Courts Martial; Irish courts martial; Kingston Court Martial; London Court Martial; Montreal Court Martial; Right to revolt Martial law, and Lower Canadian Rebellions of 1837–8, 215–32; Colborne’s carte blanche, 229; Colbourne’s declaration of, 228; Colborne’s suspension of, 220; Executive Council’s deliberations regarding, 217, 474; habeas corpus, writs of, 219; Gosford’s hesitation regarding, 217–18, 220–1; illegality, law officers’ opinion regarding, 219–20; legal challenges to repressive ordinance, 229–30; proclamation of, 217; repression faced by rebels, 229 Martineau, Victoire, 358 Masson, Hyacinthe, 362 Masson, Madame Damien, 360 Mathieu, Scholastique, 356 Matthews, Peter, 50, 52, 53, 67–9 Mayatt, Alonzo, 144 Melbourne, Lord, 326 Merriam, Justus, 143 Metcalfe, Sir Charles, 395 Meyers, Tobias, 135

494 Military trials. See Courts martial Militia Act, 138, 473 Miller, Linus, 114, 190, 192–3, 195–6, 198 Miller, William, 115 Milligan, Ex parte, 332–3 Moffatt, George, 259 Moira, Earl of, 296 Mondat, Charles, 387 Mondelet, Charles, 13, 230, 281, 329 Mondelet, Dominique, 287 Montgomery, John: described, 51; assembly at tavern of, 20; trial of, 70, 72–6 Montreal Constitutional Association, 260 Montreal Court Martial, 193; acquittals, 304; comparisons: with Irish experience, 280, — with Upper Canada experience, 331–2, — with U.S. experience, 332–4; control exercised over courts, 303–11; counsel, involvement of, 291; defences at, 292; evidentiary issues, 29, 290–6; executions following, 299, 300–3, 385; judicial attitude to prisoners, 279; jurisdiction of, 325; miscarriages of justice, victims of, 293; ordinance regarding, 229, 284, 309, 325, 326–30, 334–5, 344; origins of, 280–2; personnel involved, 287–8; political nature/message of, 296–8, 385; punishment following conviction, 299–303; procedure at, 29, 290–6; proceedings at, 287–8; rule of law, as worst abuse of, 312; terror of middle class as purpose of executions, 302; treason charges at, 280. See also Special Council Montreal Gazette, 329

index Moore, Elias, 44 Moore, Isaac, 106 Morden, Gilbert Fields, 70 Moreau, Firmin, 226 Moreno, Don Gonzales, 165 Morin, Michael, 197 Morin, Pierre-Hector, 387 Morreau, James, 56, 109, 112, 166 Morrisette, John, 143 Morrison, Thomas David, 44; trial of, 70, 80, 81–3 Mott, Benjamin, 292, 363, 383 Munro, Timothy, 52 Mutiny Act, 209, 279, 384, 391 Narbonne, Pierre-Rémi, 302 Naturalization Act, 331 Neilson, John, 264, 266–7, 281 Nelson, Robert, 14–15, 374 Nelson, Wolfred, 13, 288, 334 Nelson and Brand, R v., 286 Newcombe, Henri, 383 Newcombe, Samuel, 383, 387 New South Wales, 196, 383–97 Niagara Reporter, 113 Niagara Treason Trials. See Short Hills trials Nicolas, François, 226 Normanby, Marquis of, 178, 191, 194 Norris, Joseph, 144 Nottage, William, 147 O’Brien, Dennis, 107 O’Brien, Jane, 107 O’Callaghan, E.B., 11, 288 O’Connell, Daniel, 329 Ogden, Charles, 219, 255, 287, 310, 340 Orr, Peter, 135 O’Sullivan, 219 Outlawry concept, 163–5, 169–72, 179

Index Paddock, Jacob, 197 Palmerston, Viscount, 165 Panet, Phillippe, 229, 326 Papineau, Louis-Joseph, 11, 13, 288, 359 Pardoning Act: generally, 26, 63; petitions under, 65–7, 119; purpose of, 46; Robinson’s explanation of, 46; text of, 461 Pardoning, prerogative of: governor’s limited power regarding, 55, 120 Pardons, 100, 103, 119, 197–9, 395 Parker, John Goldsbury, 51, 118 Patriotes: ambitions of, 15–16; armed resistance by, 14; attack on by Colborne, 13; leadership of, 11–12, 14; organization of, 227–8; strategy of, 216; support for by habitant farmers, 12 Patriotes, and transportation to New South Wales, 383–97; arrival of patriotes, 392–3; businesses commenced by patriotes, 394; class status and, 387–8; contact maintained with homeland, 395; legality of, 389–91; memories of patriotes, 397; Montreal Court Martial and, 384–5; pardons, pressure for, 395; preparation of patriotes, 391–2; repatriation of, 396; Sydney, reaction of, 392; ‘ticket of leave’ status of, 394; treatment in New South Wales, 393–4; unique nature of patriote group, 396 Patriot exiles: severe punishment of, 195–9; transportation of, 188–99 Peeler, Joel, 144 Pelee Island raiders: release of, 181; trial of, Toronto, for lawless aggression, 167–9

495 Pelham, Thomas, 283 Peltier, Toussaint, 219 Petition of Right, 209, 211 Petitions for pardon. See Pardons Phelps, Russell, 144 Point Pelee. See Pelee Island raiders Prescott invasion, 134, 136–7 Prieur, François-Xavier, 397 Prince, Colonel John: attack on William Lyon Mackenzie, 181–2; character of, 169; confession regarding Sutherland case, 133; critique of Battle of Windsor actions of, 177; executions ordered by, 172; fêtes for, 176; London press reaction to, 179; Lord Brougham’s attack on, 178; Pelee Island raiders, role regarding, 167– 8; support for, 174. See also Windsor, Battle of Prisoner-of-war status, 163–5 Protestant Ascendancy, 282 Proudfoot, Rev. William, 106 Putnam, John G., 107 Pyke, George, 328 Quebec Act, 265 Queen’s Bench, Court of, 190; Montreal, of, 327, 328, 340 Quesnel, Jules-Maurice, 259, 264 Quotidienne, 219 Rapin, Charles, 388 Raza, Jean Baptiste, 144 Rebellions of 1837–9: consequences of, 22–3; historiography of, 8–10; Lower Canada, in, 10–17; Upper Canada, in, 17–22 Reformers, 18–20, 44, 80 Reform manifesto, 82–3 Retroactive laws: change of tribunal to

496 try indictable offences, 340–3; English law, principle against retroactivity, 335–6; Lower Canada courts–martial ordinance, 334–5; procedural and evidentiary matters, regarding, 337–8; substantial capital crimes, regarding, 338–40; United States, in, 343 Reynolds, Nelson, 135 Reynolds, William (David Deal), 115, 190, 191, 197, 199 Rice, Eber, 117 Richardson, Asa, 143 Rideout, George, 133, 168 Right to revolt: democracy and, rise of, 213–15 Riot Act, 209 Road Act riots, 355 Roaf, Rev. John, 119 Robins, Francis, 52 Robinson, John Beverley: Bidwell trial and, 71; charge to grand jury regarding treason, 63–5, 464; closing address to jury, 87; fear of mass revolt, 160; judge’s report, as author of, 53; Lawless Agressions Act, comments on, 45, 65, 130; Pardoning Act, explanation of by, 46; prejudice of, evidence of, 74–6, 79; sentencing by, 68; transportation, legality of, 191; Upper Canadian Rebellion, view of, 41 Robinson, William B., 67 Rocheblave, Pierre de, 231, 259–60 Rochford, Amos, 76 Rochon, Toussaint, 385, 394 Rodier, Édouard-Étienne, 359 Roebuck, John Arthur, 17, 88, 118, 190 Rogers, Peter, 52 Rolfe, John, 20

index Rolfe, R.W., 230, 286, 384 Rolland, Judge Jean-Roch: transfer of, 327. See also Habeas corpus, writs issued during suspension Rolph, John, 44, 50 Roy, Basile, 394, 395 Royal prerogative: martial law, regarding, 213, 286; mercy, of, 189, 389, 390; pardoning, 55, 120 Rummerfield, John, 52 Russell, Lord John, 12, 191, 194 Russell Resolutions, 12, 215 Saint-Denis, Elizabeth, 362 Saint-Germain, Eugénie, 358 Schafer, John, 77–8 Schoultz, Colonel Nils Von, 136, 138, 141 Scott, Asahel Hawley and Colin, 52 Sedition, Scottish case regarding, 368 Sedition Act, 18 Seward, William H., 117 Seymour, Edward, 112, 116 Shaver, John. See Schafer, John Shephard, Joseph and Thomas, 52 Sherman, Willard, 109 Sherwood, Henry, 104, 106, 134, 145–6, 150, 171 Sherwood, Levius Peters, 105, 107–8 Sherwood, S.P., 49 Ship-Money case, 286 Short Hills raid, 190, 192, 197, 109–10 Short Hills trials (Niagara), 109–17; American prisoners, 111–15; conditional pardons, granting of, 117–18; Court of Special Commission, 110; fates of prisoners, 118; generally, 100–1; Lawless Aggressions Act, legality of, 113–14; procedure at,

Index 119; residents, trials of, for treason 115 Sir Robert Peel, destruction of, 18, 22, 135, 136 ‘Six Acts’ of 1819, 339 Small, James E. Snake, John, 107 Society of United Irishmen, 282 Somerset, Lord, 384 Special Council: anglophone ascendency in, 262; counter-revolution, as exercise in, 261–8; court martial ordinance of, 257, 258, 391, 483; creation of, 220, 251–3; delegate of Parliament, as, 328; dissent in, 259–61; Durham’s recommendations, role in implementing, 265; effect on state and institutional structures, 263–4; emergency ordinances passed by, 28, 228–9, 251, 253–4, 257, 476; ethnic and ideological diversity of, 250; exceptional legislation, role in creating, 249; exceptional legislature, as, 249; habeas corpus, suspension of by, 258–61; legality of emergency ordinances, 230; limited power of, 329–30; nationalism and, 250; opposition to authority of, 258–61; origins of, 248; political agenda of members, 250–1; procedural rules of, 262. See also Burmuda Ordinance; Montreal Court Martial Spragge, John, 49 Stanley, Lord, 395 St Catharines Journal, 110 St Clair raid, 194 Stephen, James, 48, 389 Stewart, Andrew, 287 Stewart, John,115 Stewart, Joseph, 197, 199

497 Stibbert, Robert, 70 Stogdill, Seymour H.W., 52 Stuart, James, 310–11, 327 Summary justice/executions; demands for, 170–2; practical difficulties regarding, 181 Sutherland, Thomas: court martial of, 27, 133–4, 166 Swete, Sylvanus, 144 Sydney Echo, 397 Sydney Herald, 392 Talbot, E.A., 108 Tasmania. See Van Diemen’s Land Teed, John, 229 Theller, Edward, 63, 70, 71, 166 Thomson, Charles Poulett, 262, 389 Thurston, R. v., 336 Tone, Theobald Wolfe, 286, 307 Toronto Patriot, 120, 168, 170, 171 Toronto Palladium, 110, 168 Toronto treason trials: acquittals in, 79–84; conclusion of, 87; convictions in, 70–9; due process, as offence against, 88; generally, 62–3; guilty pleas in, 67–70; Home District Special Assizes, 63–7; judicial failures in, 88; jury’s role in, 84–7; pardoning petitions and, 65–7; preliminary proceedings, 63–7; Robinson’s charge to grand jury, 63–5, 464; Robinson’s closing address, 87. See also Pelee Island raiders Torrijos, Jose Maria, 165 Townsend, Abner, 144 Transportation: British 1835 directive regarding, 189; capital offences, for, 189; civilian, 118; condition on pardon, as, 189; legality of, 191, 389–91; pardon documents, confusion

498

index

regarding, 192; prerogative of mercy and, 189, 389, 390; prohibition on to North American colonies, 189; Van Diemen’s Land, to, 188–99. See also Banishment; Bermuda Ordinance; Patriotes; Patriot exiles Treason, law of: adhering, 65; allegiance requirement, 161; compassing, 64, 101; constructive treason, 119; evidentiary requirements, 65; levying war, 64, 104; local allegiance, doctrine of, 104; neutrality during rebellion, 298; Robinson’s charge regarding, 63–5, 464. See also Alien invaders; Women, role in Lower Canada rebellion Treason Act, 1696: rights under, 47, 64, 78–9, 131, 168, 290 Treason Act, 1800, 337 Treason Commission, 42, 46; classes of prisoners, 26, 50–3 report of, 49 Treason jurists, 162, 180, 298 Treasons, Statute of, 1352, 64, 162, 363 Treason trials. See Hamilton treason trials; Irish Rebellion; Kingston treason trials, London treason trials; Short Hills trials; Toronto treason trials Tufford, John, 103 Turton, Thomas, 255 Tyrell, John Burwell, 147

Upper Canada Herald, 149 Upper Canada statute 1 Vic., c. 1; passage of, 44 Upper Canada Statute 1 Vic., c. 2 (Emergency Act), 43–8, 63 Upper Canada Statute 1 Vic., c. 3. See Lawless Agressions Act Upper Canada Statute 1 Vic., c. 8. See Militia Act Upper Canada Statute, 1 Vic., c. 9, 45 Upper Canada Statute 1 Vic., c. 10. See Pardoning Act Upper Canada Statute 1 Vic., c. 11, 47 Upper Canada Statute 1 Vic., c. 12. See Loyalist Indemnity Act Upper Canada Statute 1 Vic., c. 13, 48 Upper Canadian government: emergency legislation of, 43–8; executive’s legal strategies, 48–58; reports issued regarding Rebellion trials, 49–50; response to Rebellion, 41–2. See also Judge’s report

United States of America: court martials in, 332–4; retroactive laws in, 343. See also Alien invaders Upper Canada: criminal justice system in, 189; prisons in, establishment of, 189; rebellions in, survey of, 17–22. See also Patriot exiles; Upper Canada statute 1 Vic., c. 1

Wait, Benjamin, 111, 115, 197, 370 Wait, Maria, 370–1 Walker, Aaron, 357, 385, 387 Walker, George, 107 Walker, Martha, 355, 366 Walker, Thomas, 355 Walrath, Charles P., 104 War of 1812: American immigrants,

Vallières de Saint-Réal, Joseph-Remi, 230, 327 Van Diemen’s Land: transportation to, 188–99 Vanevery, W.B., 109 Victoria, Queen, 371, 390, 391 Viger, Denis-Benjamin, 13, 219, 230 Vindicator, the, 359

Index anxiety regarding, 18; repression and, 25 Warner, Benjamin, 168 Watson, Joseph Watson, Richard, 53 Western Herald, 167 White, Patrick, 199, 143 Wilcox, Ebenezer, 108 Wilkes Riots, 210 Wilkes, John, 52 Willis, John Walpole, 101 Wilmot. See Eardley-Wilmot Wilson, Charles, 143 Wilson, Duncan Windsor, Battle of: consequences of, 175–6; court of inquiry regarding, 176; criminal acts, opinon regarding, 178; evidence regarding executions, 175, Patriot tensions and, 145; reactions to executions, 172–4. See also Prince, Colonel John Women, role in Lower Canada Rebel-

499 lion: documentation challenges, 353; early activism, 354–6; feme coverture, doctrine of, 364–6; generally, 353–4; patriotism, manifestations of, 359– 61; petitioning, role in, 358; pillaging and burning endured by women, 372–5; public activity of women, 356–9; special treatment of women, 369–71 Women, and treason: Cornelier, possible case against Marguerite-Julie, 364–9; English cases, 366–8; instances of, 361–9; Irish precedents, 368; statutory wording, 364; voting, 358 Wood, Alexander, 49 Wood, William, 175 Woodman, Elijah, 106, 147, 198 Woodruff, Martin, 144 Wright, Stephen, 197, Wrongful imprisonment, 192 Yonge Street, Battle of, 20–1, 52

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David H. Flaherty, ed., Essays in the History of Canadian Law: Volume I Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784–1914 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume II Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact David Williams, Duff: A Life in the Law James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 Martin Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923–1957 Robert Sharpe, The Last Day, the Last Hour: The Currie Libel Trial John D. Arnup, Middleton: The Beloved Judge Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 Patrick Brode, The Odyssey of John Anderson Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law: Volume III – Nova Scotia Carol Wilton, ed., Essays in the History of Canadian Law: Volume IV – Beyond the Law: Lawyers and Business in Canada, 1830–1930 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada Brendan O'Brien, Speedy Justice: The Tragic Last Voyage of His Majesty's Vessel Speedy Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography Greg Marquis, Policing Canada's Century: A History of the Canadian Association of Chiefs of Police F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law: Volume V – Crime and Criminal Justice Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866

1995

1996

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David Williams, Just Lawyers: Seven Portraits Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law: Volume VI – British Columbia and the Yukon W.H. Morrow, ed., Northern Justice: The Memoirs of Mr Justice William G. Morrow Beverley Boissery, A Deep Sense of Wrong: The Treason Trials and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion Carol Wilton, ed., Essays in the History of Canadian Law: Volume VII – Inside the Law: Canadian Law Firms in Historical Perspective William Kaplan, Bad Judgment: The Case of Mr Justice Leo A. Landreville F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Volume I – Law, Politics, and Security Measures, 1608–1837 James W. St.G. Walker, ‘Race,’ Rights, and the Law in the Supreme Court of Canada: Historical Case Studies Lori Chambers, Married Women and Property Law in Victorian Ontario Patrick Brode, Casual Slaughters and Accidental Judgments: Canadian War Crimes and Prosecutions, 1944–1948 Ian Bushnell, A History of the Federal Court of Canada, 1875–1992 Sidney Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence Peter Oliver, ‘Terror to Evil-Doers’: Prisons and Punishments in NineteenthCentury Ontario Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law: Volume VIII – In Honour of R.C.B. Risk Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land David Vanek, Fulfilment: Memoirs of a Criminal Court Judge Barry Cahill, The Thousandth Man: A Biography of James McGregor Stewart A.B. McKillop, The Spinster and the Prophet: Florence Deeks, H.G. Wells, and the Mystery of the Purloined Past Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust Ellen Anderson, Judging Bertha Wilson: Law as Large as Life Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism Patrick Brode, Courted and Abandoned: Seduction in Canadian Law David Murray, Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791–1849 F. Murray Greenwood and Barry Wright, Canadian State Trials, Volume II: Rebellion and Invasion in the Canadas, 1837–1839