Canadian Perspectives on Law and Society: Issues in Legal History



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BRITISH JUSTICE AND ITS POSSIBILITIES
I. Political Culture
It would be unwise to dispute the assertions of social, working-class and criminal justice historians that the Canadian legal system perpetuated class inequalities or that the working class suspected or resented the legal ideology of the dominant classes and the personnel of the justice system. Yet popular faith in, or appeals to, the rule of law, manifested in language, slogans and symbols, such as “British justice” and Magna Carta, was an important component of nineteenth-century Canadian political culture. Political culture, a concept broader and murkier than ideology, refers to “citizen orientations toward the fundamental political institutions and processes” of a political system.49 Was “British justice” merely part of the dominant class’s ideology, its “system of illusory beliefs” designed to mislead the population?50 The term defies analytical precision, but British justice was more than elite or state-sponsored rhetoric seeking to tie the masses to the status quo; it was, in the words of Suzanne Skebo, “an umbrella term for the expression of class attitudes towards authority.”51 In other words, its use was not monopolized by a single class. As the remainder of this article suggests, the study of British justice rhetoric can benefit historians in a number of fields.
The political culture of nineteenth-century British North Americans was inextricably bound to, and confused with, English and American views on constitutionalism, law and authority. In 1817 Goldwin Smith attributed the prominence of British ideals in Canada to the “influence of English immigrants, especially in the upper ranks of the professions, in high places of commerce, and in the press.”52 Despite the opinions of such “experts” on Canadian culture as Louis Hartz, S.M. Lipset and Gad Horowitz, nineteenth-century British North Americans, or at least those of British descent, did possess a revolutionary tradition, that of seventeenth-century England.53 Myth, in this case the myth of the superiority of British law and parliamentary institutions, was implicit in most Canadian political discourse. Politicians, journalists and publicists, it is true, mythologized American institutions and appealed to American history, but where would the United States be without the founding race and its customs and laws?54 Works such as Blackstone’s Commentaries on the Laws of England and Macaulay’s History of England impressed upon the educated mind the special character of English or British freedom. These ideas in turn filtered down into colonial popular culture. “British justice” was an important expression of nationalism that extended beyond the parochial concerns of British North American provincial society. At the same time ritualistic legal references abounded in local political struggles. Reform spokesmen in 1820s and l830s Upper and Lower Canada, as Paul Romney reminds us, saw the administration of justice as part of the hegemony of the ruling cliques.55 Radicals such as William Lyon Mackenzie and the leaders of the post-1830 Patriote movement are remembered for their anti-British [52] and republican utterances, yet in these movements common law rhetoric was standard fare. Robert Gourlay, expelled from Upper Canada by the authoritarian ruling class in 1819, described Canada’s heritage of British jurisprudence and institutions as “the glory of the nation and the admiration of the world.”56 On the turbulent political hustings of colonial society, candidates delivered vulgarized versions of common law literature to the “free and independent” electors. In 1877, Louis J. Papineau, leader of the Patriote Party and the ill-fated 1837 Rebellion in Lower Canada, claimed that French-Canadian reformers were acting out of “true honest English feelings” in opposition to the ruling English clique which was subverting the British constitution.57 In 1839 Joseph Howe’s famous letters to Lord John Russell, arguing for responsible government, reflected Nova Scotians’ emotional attachment to past British struggles for liberty:
Can an Englishman, an Irishman or a Scotchman, be made to believe, by passing a month upon the sea, that the most stirring periods of his history are but a cheat and a delusion; that the scenes which he has been accustomed to tread with deep emotion are but momentoes of the folly and not, as he once fondly believed, of the wisdom and courage of his ancestors; that the principles of civil liberty, which from childbirth he has been taught to cherish and protect by forms of strongest responsibility, must, with the new light breaking in upon him on this side of the Atlantic, be cast aside as a useless incumbrance?58
Yet this same rhetoric also was used by the colonial oligarchies to resist reform and by special interests such as merchants to further economic goals.59 Conservatives, for example, intertwined constitutional rhetoric with the Loyalist myth, one of our most important “invented traditions.”60 Both proponents and opponents of Confederation in the 1860s appealed in their speeches and writing to British traditions.61
The right, indeed the duty, of British North American subjects to demand their legal and political rights was prominent in the language of local political struggles. This was particularly so in the case of indignation meetings protesting specific injustices wrought by the imperial or local authorities. The aggrieved tenant farmers of Prince Edward Island who faced “all the terrors of the law” as well as threatened coercion by British troops, were well versed in such rhetoric. In 1864 George Adams, a Tenant League Spokesmen, drew on the history of the “glorious British constitution” to defend the tenants’ agitation for land reform, freedom of assembly and freedom of the press:
[Agitation] shows we have some of the same blood flowing through our veins as flowed in our forefathers – men who showed to the world that they knew how to stand up for their rights, and knew how to use those privileges when they got them; a race that excited the admiration of the world, and at this time takes an insult from no [53] power on earth. And what gentleman, has brought us to this position? It was the unflinching determination to look for our rights, to resist oppression, to crush tyranny; and after we got our demands, to use the power we gained with justice and moderation.62
Although Tenant Union spokesmen advocated passive resistance or even short-term defiance of the local legal machinery, all professed loyalty to the constitution and the Crown. To further legitimize their cause, Tenant League meetings, which produced some of the most animated language of protest in British North America, concluded with the singing of the national anthem and three cheers for the Queen.63
Another important mode of political expression, particularly in the eighteenth and early nineteenth centuries, was the petition. French Canadians quickly adopted this tradition from their new rulers. Despite their often lofty sentiments and baroque wording, many colonial petitions pertained to petty matters of patronage or commercial policy. These documents often stressed not only the morality of the cause but also the petitioners’ loyalty and right to agitate.64 Letters to the press, although not always an accurate gauge of local opinion, offer further examples of legal symbolism. Many anonymous writers adopted classical pen names; others drew on the English past and employed signatures such as “Briton,” “Freeman,” “Justice” and “Yeoman.” In 1833, a correspondent to the Fredericton New Brunswick Courier, protesting the British government’s attempt to revive colonial quitrents, traced their origins to “a rapacious foreign conquerer,” the Normans. Three decades later a letter to the editor of the Saint John Morning Freeman protested alleged local legal abuses by drawing on history: “By the strong arm of the people then, as well as the Sovereign, has the Great Charter been kept, British liberty preserved to us, and become the boast of all the nations of the earth.”65
Religious literature and sermons, particularly of the Protestant denominations, comprise another potentially rich source for legal symbolism. Writing in 1965 on colonial sermon literature, S.F. Wise stressed the Tory context of the genre as represented by John Strachan of Upper Canada and Bishop Charles Inglis of Nova Scotia.66 Ministers labouring over weekly addresses to the faithful must have been tempted to place their spiritual messages in a worldly context. More than one minister no doubt followed the example of John Barclay of Toronto who in 1863 used the prestige of the monarchy and the emotive appeal of British law to advance the cause of religion. In Barclay’s theology it was the sacred and temporal duty of artisans, businessmen and Statesmen to safeguard “the altar of liberty” and the impartial administration of justice.67 As Robert Colls has written of the seventeenth-century constitutional tradition, “The true English were not only free, they were Protestant and free.”68 In the virulent sectarian political climate of the l850s, religious opponents often were portrayed as conspiring against civil liberty. A telling association was made in 1859 by the anonymous New Brunswick newspaper correspondent “Pascal.” Drawing on English anti-Catholic traditions and contemporary fears of Papal aggression, Pascal adopted a patriotic and civil libertarian tone to defend an evangelical judge accused of anti-Catholic attitudes:
Before Popery could gain such an ascendancy in this province as to unseat a judge for his fearlessness and truthfu1 defence of the Bible, the civil and religious liberties of our nation must be destroyed, our institutions a name only, our Bible locked up, our sovereign a tool in the pay of France, and our Charter of Rights flung beyond the age when the Magna Carta was signed.69
In light of the law’s protection of the liquor traffic and its ambivalent response to prostitution and other forms of vice, special attention should be devoted to evangelical conceptions of law. Demands for the rule of law, however, extended beyond Protestant circles. Although the association of British law with anti-Catholicism appealed to elements of the Protestant working class, Catholics resorted to British justice rhetoric in demanding their own rights and Irish Catholic leaders conceded that in British North America, as opposed to Ireland, British laws and institutions were a relatively benign force.70
II. The Loyal Orange Association
The nineteenth-century Loyal Orange Association, whose lodges enrolled tens of thousands of Protestant Irish and other British immigrants and native Canadians, is crucial for examining the dimensions of British justice ideology. A secret society which placed great emphasis on the British connection, the Orange Order was one of the most significant Canadian social movements of the nineteenth century. The “Lodge” – once it achieved respectability – probably was the single greatest keeper of the seventeenth-century flame of liberty in British North America. According to its constitution, drafted in 1830, the association stood “upon the glorious principles of the Revolution of 1688.” Dogmatic Orangemen filtered their view of British institutions, including Parliament, through an Ulster lens. The 1830 constitution explained that the movement aimed to
maintain the Laws and Constitution of the Country, afford assistance to Distressed Members of the Order, and otherwise promote such laudable and benevolent purposes as may tend to the due ordering of Religion, Christian Charity, and the Supremacy of Law, Order and Constitutional Freedom.71
On the bicentennial of the Glorious Revolution, the Globe of Toronto, the “Belfast of America,” agreed with Orange ideology that the importance of 1688, the establishment of the rule of Parliament and a Protestant monarchy, was understood by “all lovers of well-regulated freedom.”72 According to Orange songs and poems, Providence linked the Order to the expansion and defence of the British Empire.73 Yet Orangeism in Canada had a less-than-respectable past. Canadian political historiography has viewed the movement [55] as a disruptive force, an embarrassment to liberal Protestantism or a resource to be exploited by wise Conservative politicians.74 Orangeism involved more than the cynical manipulation of sectarian feeling by politicians; it was a mass, albeit Protestant, organization whose leaders came from all walks of life. Some historians, having uncovered the Order’s close ties with organized labour, are now interpreting Orangeism as an important instrument of plebeian expression. The virtues of the British connection, parliamentary monarchy and civil and religious freedom or “equal rights”, fuelled by anti-Catholicism, were no less important to Orangemen than were the virtues of republicanism to American workingmen. One way of guaranteeing traditional rights in the Order’s early years was through direct action: meetings, parades with banners, music and sometimes guns and, under certain circumstances, rioting. Thus the law was broken, or bent, on the grounds that Orange vigilance guaranteed the special character of the mixed British constitution. Orangemen professed to be safeguarding the traditions of the British constitution, established by their hero William of Orange, yet their opponents, Roman Catholics, and in the early decades of the century members of the colonial elite, opposed Orange processions on these very grounds.75

III. Labour Rhetoric and Working-Class Culture
A third area worth investigating is the role of legal symbolism in working-class culture. What, for example, are we to make of the manipulation of patriotic slogans and symbols by the working class? The Orange Order, which often claimed significant numbers of the local working class as members, excelled in this area, but certainly held no monopoly. Trades processions, militia days, the rituals of plebeian organizations such as volunteer fire companies and celebrations of feats of British arms, Victoria Day and other patriotic events may yield some clues as to popular sentiments towards law and authority. Did, for example, workers celebrate the Queen’s birthday by playing sports and carousing or did they participate in holiday militia displays and other public ceremonies? The whole question of popular attitudes toward the monarchy, a potential symbol of national consensus, remains unexplored. Was John A. Macdonald’s ritualistic endorsement of “the monarchial principle” in his 1861 address to the electors of Kingston directed only at the elite?76 Although French Canadians and those of Irish Catholic ancestry harboured mixed or hostile feelings towards the Crown, it is likely that the Queen and the Prince of Wales, Bagehot’s “retired widow” and “unemployed youth,” had a certain sentimental appeal in the plebeian sphere. Conceptions of monarchy, either positive or negative, must have influenced orientations to the state and its institutions.77
Another fertile field is the area of industrial disputes, where workers saw at first hand the law operating in the interests of capital. We know little of nineteenth-century workers’ attitudes towards the legal order or the response of police, magistrates, judges and juries to labour questions. Labour historiography, based on a few key strikes, paints a bleak picture of the use of criminal and civil law, as well as the police, against organized and unorganized [55] workers.78 Labour actions often involved appeals to British traditions and nationalism. Was nationalism a homogenizing force rendering workers submissive to the state, or was it, as the republican literature suggests, a symbol for mobilizing class opinion?79 The infant trade union movement of post-Confederation Ontario, eventually drawn to the high tariff policy of the Conservative Party, clothed itself in nationalism. In 1872 the Ontario Workman published the patriotic poem “Canada” linking the workingman’s struggle against capital with material progress, national territorial expansion, liberty and the British connection:
Canadian hearts, let us be loyal,

And remain `neath England’s wing

Till she can no longer guard us –

Then to Canada e’er cling.

Patriot’s love and zeal inspire us

To maintain our country’s rights

Yield-no, never, to our foemen,

Though we come to bloody fights.


May that time be ages distant –

Ever here may peace remain!

Never may Canadian freeman

Feel the haughty tyrant’s chain.

Heaven smile upon our country –

Guard it with thy righteous wand

Make it great as nations have been

Mighty as the Mother land.80


One of the most analyzed labour disputes in Canadian history, the struggle of the Toronto printers for the nine-hour day in 1872, was rife with “British justice” rhetoric. Printers were traditionally the most independent and learned members of the working class. At an indignation meeting following the arrest of union members, provincial assemblyman and lawyer A.W. Lauder urged workers to honour the memories of their forefathers by standing up for their rights:
Some of them [employers] call themselves Reformers – they must belong to the class that lived before the Habeas Corpus Act. They would wish us back under the old common law of England, before the Magna Charter and the hundreds of grand and humane acts which wrung from tyrants for the protection of the liberties of the people and the granting of equal rights for all, rich and poor, capitalist and labourer (Great cheering).81
For the printers, whose struggle prompted the federal government to remove legal restrictions against trade unions, the law must have constituted something [57] more than the guardian of the interests of capital. It was, when righteously administered, the birthright of the British workingman. Similarly, in 1939, fishery workers locked-out by employers in Lockeport, Nova Scotia, waved the Union Jack, not the red flag, and sang “God Save the King” and other patriotic songs, not “The Internationale.” Their patriotism was watched closely by another national symbol, officers of the Royal Canadian Mounted Police.82 The 1939 incident is a perfect analogy for the ambiguous place of legal symbolism in working-class circles. It is perplexing that a historiography that recognizes labour’s sense of historic struggle for rights and purports to understand the culture of the working class chooses to ignore or minimize popular legal symbolism. A major study of the Ontario Knights of Labour, for instance, refers to Marx, Lenin, William Morris, Antonio Gramsci and other intellectuals alien to the average Ontario worker, yet does not acknowledge the tradition of appealing to British history.83 One sign that working-class historians are more accepting of these traditions is Craig Heron’s 1984 article “Labourism and the Canadian Working Class,” an attempt at “reclaiming” parliamentary socialism and the less radical working class. Noting the attraction of many workers to the natural rights traditions of British liberalism and American republicanism, Heron admits that defining the ideological character of labourism is a “frustrating task.”84 There were clearly many shades of British justice. Despite the prominence in state ideology of the right to petition, the right to assembly, the right of free speech and the right to a fair trial, Canadian labour, as F.R. Scott noted in 1933, was all too aware that these rights could be severely limited in practice.85 The repression of socialists mentioned at the beginning of this paper genuinely disturbed liberal opinion and trade union leaders. Labour, however, was more afraid of the precedent established by such legal harassment than the actual fate of the radicals. Furthermore, labour opinion was divided and many tended to identify Communism with alien or non-British influences. In interwar Toronto, the average Canadian or British-born workingman, a devout reader of the populist Conservative Telegram, was intolerant of those who would criticize the Empire or denounce British institutions. Yet radical organizers, as the Canadian Labour Defence League complained in 1933, often seemed oblivious to these “moods, traditions and sentiments.” In Toronto the right wing of labour saw the arrest of Communist party leaders in 1931 not as an usurpation of British justice but as a safeguard to British traditions.86 The varied uses of this rhetoric suggest that British justice was not a unified, consensus forming ideology so much as a symbolic tradition. It should not be dismissed as an instrument of hegemony.
IV. Legal Culture
A final area involves legal culture in the broad sense, including not only the writings and statements of judges, lawyers and legislators but also evidence of popular opinion. If, for example, farmers and urban workers distrusted lawyers, did this influence legal culture?87 How were the courts perceived by lay participants such as witnesses, jurors, plaintiffs and defendants? Did their [58] opinions matter? The most important tribunals in this context are magistrates’ courts, where because of local custom, overworked magistrates and popular expectations, the goal was “justice,” not law. Justice, if lenient, was praised by defendants; if severe, the verdict was less flattering. For instance, in 1867 a violent Toronto husband, ordered to post sureties to keep the peace towards his wife, remarked: “Well, if that’s British justice, I’m blowed.”88 The discretionary nature of lower court justice gave rise to press depictions of justices of the peace and stipendiary magistrates as “cadis,” the judges who ordered Muslim societies. Most press accounts of police court proceedings are either too brief or so creative as to render them useless or of uncertain authenticity. A few of the more creative reporters described proceedings through the medium of poetry. Press accounts were also loaded, as Paul Craven suggests, with middle-class biases.89 In the opinion of the respectable working class and the bourgeoisie, not all who found themselves in court, either as plaintiff or defendant, were worthy of British justice. “Foreigners” who did not understand British traditions fell into this category. Newspaper reports stressed the humourous or pathological traits of police court clientele, including the gallery. Yet there were exceptions to the moralistic and “hard-boiled” style of reporting. Pioneer socialist Phillips Thompson, the author of The Politics of Labour, was one such exception. His 1867 police court reports for the Toronto Daily Telegraph were indeed humorous, but the humour was not always directed at the accused. Magistrates and especially police officers could be held up to ridicule. That the accused was seldom an object of press sympathy had less to do with “middle class” values than with community mores.90
To argue for a distinct, inwardly focussing legal culture is to ignore the interplay of law and politics. The speeches of judges, for example, offer insights into not only the judicial mind but also into social history.91 Before the advent of professional academics, judges and lawyers, together with clergymen and certain businessmen, functioned as community intellectuals. Addresses to grand juries involved much more than points of law; they touched upon such topics as political economy, education, nationalism, social welfare and the relations of labour and capital.92 Take for example a Nova Scotia judge’s pro-Confederation charge to the Cumberland county grand jury in 1867. This “independent” official appealed to British traditions to legitimize the new Canadian state, which was less than popular in Nova Scotia:
I cannot imagine, suppose it to be successful, a nobler spectacle than that of several communities of free men entering into an association laying the foundation of a Dominion, resting on British institutions, appropriating British memories and British glories, and animated by all those principles we delight to recognize in our inheritance and birthright expanding and growing until it reaches from the Atlantic to the Pacific, until untold thousands and millions people a country in which our Parent State may be if it were reproduced, under circumstances, it is true, of a changed character, but still retaining and continuing the old flag, the old memories, and the old principles.93
The public perception of judges and magistrates warrants exploration. The correspondence of nineteenth and early twentieth century politicians suggest that judgeships generally were awarded to the party faithful. The average voter, therefore, probably shared the view of modern historians that judges were beneficiaries of political nepotism. If such is the case, the “great man” biases of writing on nineteenth-century judges, such as the recently reprinted The Judges of New Brunswick and Their Times (l907) will have to be revised.94 The office of sheriff, which in nineteenth-century British North America was a prestigious and potentially lucrative patronage appointment, is also worth investigating. There are suggestions that sheriffs remained politically active, chairing public meetings and speaking out on current issues.95 Criminal justice historians, who have concentrated on urban areas, must not

neglect the countryside. Was there a distinct legal culture in agrarian society? Small town and rural magistrates performed a complex and relatively unknown role. Did justices of the peace, most of whom were not lawyers, contribute to legal culture? The social composition and political partisanship of the magistracy should be explored. Few justices of the peace actively pursued their duties; the office, however, was the cornerstone of the patronage system. The Charlottetown Islander described one such appointment in 1854:


John Doirant is a decent enough Acadian in his walk of life, but who cannot write perhaps to sign his name, and we question if he can read, was firstly made a Justice of the Peace, and secondly a Commissioner of Roads, because he possessed some influence over the French votes in the First District.96
How was the magistracy affected by the transformation of local government by quarter sessions to municipal councils? Whig journalists and historians portrayed the rural magistracy as a reactionary institution resisting political and legal reform.97 Did it, nonetheless, enjoy popular support?
As with Magna Carta, the jury as symbol and institution has played an important role in Anglo-American political culture.98 Louis Knafla has described the special appeal of trial by jury in England:
It was associated by the seventeenth century with judgement by lay peers, anti-Catholicism, the avoidance of taxes and police and the supremacy of the laity over abstract political authority. Thus one must also appreciate how most judges were willing to tolerate trial by jury even though they preferred judge-made law.99
The study of attitudes towards the institution of the jury may indicate the discrepancies between professional and popular opinions. By the middle of the nineteenth century, elements of the Ontario legal community equated law reform [60] with minimizing the involvement of ordinary people as jurors and constables.100 Although juries were often packed for political, racial and sectarian reasons and judges, lawyers and legislators came to view grand and petit juries with mixed feelings, Blackstone’s conception of the jury as a palladium of English liberties retained a certain popular appeal. Judges, however, asserted that because many Canadians trusted the judiciary the jury was no longer essential.101 Was there popular awareness of or response to the decline of the jury and the expansion of summary trials? Canada’s few early twentieth-century civil libertarians, such as Manitoba’s Lewis St. George Stubbs, who was removed as a judge by the federal government opposed tampering with the jury system. Stubb’s, a Liberal-turned-socialist who appears to have based his legal philosophy on Sir Edward Abbott Parry’s The Law and the Poor, saw the jury as an important safeguard against arbitrary state action. On this point he anticipated E.P. Thompson by decades.102 Historians will have to examine in detail the makeup and workings of grand juries. Did the presentments of grand juries reflect elite ideology? Although because of property qualifications the grand jury was not the most representative of institutions, to many it remained a necessary check to the magistracy and a vital link between the

layman and the law. Many legal reformers thought otherwise.103


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