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The 1838-1839 courts-martial of patriotes in Lower Canada : were they "constitutional"? Thorburn, Mark Allen 1996-12-31

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THE 1838-1839 COURTS-MARTIAL OF PATRIOTES IN LOWER CANADA: WERE THEY "CONSTITUTIONAL"? by MARK ALLEN THORBURN B.A., C a l i f o r n i a Lutheran University, 1979 J.D., Willamette University College of Law, 1982 M.A., Portland State University, 1993  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in THE FACULTY OF GRADUATE STUDIES (Department of History)  We accept t h i s thesis as conforming -to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA August, 1996  In  presenting  degree at the  this  thesis  in  University of  partial  fulfilment  of  of  department  this thesis for or  by  his  or  requirements  British Columbia, I agree that the  freely available for reference and study. I further copying  the  representatives.  an advanced  Library shall make it  agree that permission for extensive  scholarly purposes may be granted her  for  It  is  by the  understood  that  head of copying  my or  publication of this thesis for financial gain shall not be allowed without my written permission.  Department  of  yV^X^  The University of British Columbia Vancouver, Canada  Date  DE-6 (2/88)  "2.S.  JV^vA  VVSlg  ABSTRACT  T i t l e of Thesis: The 1838-1839 Courts-Martial of Patriotes i n Lower Canada: Were They Constitutional?  The t h e s i s primarily examines the l e g a l i t y of the courtsmartial that followed the 1838-1839 r e b e l l i o n i n Lower Canada against the contemporary p r i n c i p l e s of B r i t i s h jurisprudence and concludes that S i r John Colborne,  the acting governor of  the colony, and others within the governing p o l i t i c a l e l i t e of Lower Canada exceeded t h e i r authority and v i o l a t e d the B r i t i s h Constitution i n order to obtain convictions and executions of Patriotes for the purpose of s a t i s f y i n g t h e i r perception of j u s t i c e and to deter another r e b e l l i o n .  The paper also  concludes that what happened i n Lower Canada i s an example of the "law" being created by one or more of society's segments in favour of the interest of the dominant class or groups over the rest of society.  Furthermore, fundamental l e g a l r i g h t s  are tossed aside when they are deemed an impediment by the dominant c l a s s or groups and the rule of law w i l l only p r e v a i l when those i n authority f e e l secure from serious threats. The work looks at the nature of law, i t s s o c i a l contexts, and i t s r e l a t i o n s h i p to power.  I t also discusses the h i s t o r y  of the p r o h i b i t i o n i n Great B r i t a i n against the court-martial of c i v i l i a n s , the entitlement of B r i t i s h c o l o n i s t s and  the  inhabitants of "conquered colonies" to the l e g a l r i g h t s of B r i t i s h subjects, and the use of courts-martial i n the early nineteenth  century i n Upper Canada, South A f r i c a , and  the  B r i t i s h Caribbean. A l l of the materials used herein were found i n the University of B r i t i s h Columbia's Main Library, Law and Sedgewick Library.  iii  Library,  TABLE OF CONTENTS Abstract Table of Contents Acknowledgement Dedication THE 1838-1839 COURTS-MARTIAL OF PATRIOTES IN LOWER CANADA: WERE THEY "CONSTITUTIONAL"? Endnotes Bibliography  Statutes Court Cases Other Sources  iv  ACKNOWLE DGEMENTS  I would l i k e to thank the examiners of my thesis, Dr. Peter N. Moogk and Dr.. A l l a n C. L. Smith, f o r the time and energy they spent i n reviewing my drafts, f o r the many comments and suggestions they offered, and f o r t h e i r valuable and constant encouragement.  v  DEDICATION  For my parents, Arthur Gary and Beverly Ann Thorburn, who have always supported me and encouraged me to pursue my dreams, and especially f o r my dad, who d i d not l i v e to see the completion of t h i s work.  vi  THE 1838-1839 COURTS-MARTIAL OF PATRIOTES IN LOWER CANADA: WERE THEY "CONSTITUTIONAL"?  On the morning of 21 December 1838, two men were taken to the gallows located i n the courtyard of the new Montreal prison.  The f i r s t to die was Joseph-Narcisse Cardinal, a  leading notary, school trustee, and member of Lower Canada's House of Assembly who served as a brigadier general i n the rebel forces during the Patriote uprising e a r l i e r that year. The second was Cardinal's former a r t i c l i n g student, twentythree year o l d Joseph Duquet, who was active i n both the '37 and '38 r e b e l l i o n s .  Cardinal died quickly, but the  hangman botched the j ob when i t became Duquet's turn and the prisoner was v i o l e n t l y thrown into the framework of the s c a f f o l d when the trap f e l l ; conscious and bleeding profusely, Duguet had t o wait another twenty minutes while the executioner attached a new rope to the gallows.  The two, who  had been convicted on 7 December of high treason, were buried f i r s t i n the o l d Montreal cemetery, but twenty years l a t e r t h e i r remains were removed and placed under a monument to the Patriotes at the graveyard adjacent to the Notre-Dame-desNeiges.  Today, they are regarded as the f i r s t martyrs to the  cause of Quebec independence. / I / Cardinal and Duquet, along with eleven others, were t r i e d and convicted of treason i n December, 1838 by a m i l i t a r y court-martial.  The accused were a l l c i v i l i a n s and the t r i a l s 1  were conducted a f t e r the r e b e l l i o n had ended and while the ordinary c i v i l i a n courts i n the colony were functioning. The defendants' lawyers were not allowed to make any arguments nor to question the witnesses (although they were allowed to submit written statements and to advise t h e i r c l i e n t s ) . The t r i a l s were i n English, which few of the defendants understood, the demand f o r a jury t r i a l was denied, and the motion to transfer the cases to the c i v i l i a n courts was overruled.  /2/  Within the next two months, ten more men  would be hanged f o r treason a f t e r being t r i e d by court-martial and, by 6 May 1839, eighty-six others would also be condemned, although they were eventually exiled or set free.  /3/  Yet,  amazingly enough, these courts-martial have received scant attention i n the h i s t o r i e s of the Patriote Rebellions and only recently have the imposition and administration of martial law i n Lower Canada a f t e r the '38 Rebellion received serious attention from h i s t o r i a n s .  /4/  Todate, the courts-martial have received extensive study only i n F. Murray Greenwood's "The General Court Martial of 1838-39 i n Lower Canada: An Abuse of J u s t i c e " (1988) and, to a lesser extent, i n Greenwood's "L'insurrection apprehendee et 1'administration de l a j u s t i c e au Canada" (1980) and "The Chartrand Murder T r i a l " . (1984) and i n Jean-Marie Fecteau's essay "Mesures d'exception et regie de d r o i t " (1987).  /5/  This study intends to b u i l d upon Greenwood's and  Fecteau's work and examine the c o n s t i t u t i o n a l i t y of the courts-martial by b r i e f l y examining the history and usage of courts-martial across the B r i t i s h Empire up to the time of the 2  Patriote t r i a l s , as well as to study the statutes which permitted the Lower Canadian proceedings to occur and the contemporary interpretation given to the enabling  legislation  by judges and the Crown's law o f f i c e r s . Even though courts-martial have t h e i r o r i g i n s i n England's medieval Court of the Constable and Marshal, the two situations i n which they are u t i l i z e d , m i l i t a r y law and martial law, are based on e n t i r e l y d i f f e r e n t concepts. M i l i t a r y law i s a l e g a l system consisting of the rules that are necessary to maintain good order and d i s c i p l i n e i n the m i l i t a r y ; i t s j u r i s d i c t i o n i s defined by statutory law, i t i s administered  by tribunals known as "courts-martial" that  consist of m i l i t a r y o f f i c e r s , and i t applies primarily to the personnel within the armed services, although those c i v i l i a n s who accompany the m i l i t a r y i n the f i e l d , such as the servants and dependents of s o l d i e r s , have also been brought within i t s gamut.  /6/  In contrast, martial law i s not a d i s t i n c t code  or set of r u l e s ; rather, i t i s the suspension of the ordinary l e g a l system that i s i n place and the temporary governance of the c i v i l i a n population of a country or parts of i t by m i l i t a r y tribunals which are also known as "courts-martial." /!/  I t was the l a t t e r that was used i n Lower Canada between  December, 1838 and May, 1839 to t r y Cardinal and the others. To understand the r o l e that courts-martial played and the c o n s t i t u t i o n a l i t y of t h e i r usage, one must f i r s t examine the nature of law, i t s s o c i a l contexts, and i t s r e l a t i o n s h i p to power.  For thousands of years, most l e g a l  philosophers  subscribed to the natural law theory where the law (both 3  criminal and c i v i l ) i s decreed by d e i t i e s or by the r a t i o n a l and l o g i c a l deliberation of man;  any "law"  that contravenes  the w i l l of the gods or i s inconsistent with human nature i s wrong and i s r e a l l y not a "law."  The problem to t h i s  approach, however, i s the question of whose concept or interpretation of morality w i l l govern when there are differences of opinion about the "natural law."  In the  nineteenth century, the l e g a l scholar John Austin argued that law consists of the commands of a person or authority that i s i n the habit of giving them to people who the habit of obeying them.  are, likewise, i n  This l e g a l positivism was  modified  t h i r t y - f i v e years ago by the B r i t i s h j u r i s t H.L.A. Hart argued that a law was that was  v a l i d i f i t was  who  created by some means  communally recognized as authoritative and  binding.  F i n a l l y , i n the l a t e nineteenth century, a school of thought, known as " l e g a l realism," rejected a l l l e g a l philosophy and held that the law i s merely what the courts w i l l enforce.  /8/  Contemporary l e g a l h i s t o r i a n s have taken a number of approaches to describe the law.  Two  schools of thought, the  " l i b e r a l theory" and the " c o n f l i c t theory," see the law as a response to various s o c i a l demands which are c o l l e c t i v e l y known as the "instrumental "structuralism.  11  theories," "positivism,"  and  /9/  The proponents of the " l i b e r a l , " "consensus," or "valueexpression" theory (e.g., Roscoe Pound) argue that the serves the needs of the entire society.  law  The law s a t i s f i e s the  demands and secures the interests of those who  want something  from the state and, when the claims of individuals or groups 4  collide,  i t r a t i o n a l l y a d j u s t s , through  d e l i m i t a t i o n s and  compromise, the c o n f l i c t i n g demands so t h a t the g r e a t e s t number o f , or the most important,  i n t e r e s t s are served w i t h  the l e a s t detriment t o the "scheme of i n t e r e s t s as a whole." In o r d e r f o r an e f f e c t i v e adjustment t o occur, i t i s necessary t o have a s o c i e t y w i t h the power and w i l l t o e n f o r c e i t s decisions.  Furthermore, the law and i t s accompanying  d e t e r m i n a t i o n of what misconduct deserves o f f i c i a l r e f l e c t s the consciousness  of a community and,  retribution  through i t s  power of punishment, i t r e g u l a t e s s o c i a l behaviour  by  c o m p e l l i n g every person t o do h i s p a r t t o uphold s o c i e t y ' s norms and t o a v o i d a n t i - s o c i a l conduct.  /10/  In c o n t r a s t , the " c o n f l i c t " or " s o c i a l c o n t r o l "  theory  m a i n t a i n s t h a t t h e law i s not c r e a t e d by t h e e n t i r e s o c i e t y , but by one or more of i t s segments and t h a t the law  favours  the i n t e r e s t s of the dominant c l a s s or groups over the  rest.  Furthermore, the law changes as s o c i a l c o n d i t i o n s change,  new  i n t e r e s t s emerge, and as concern over the p r o t e c t i o n of some aspect of l i f e  i n c r e a s e s w i t h i n the e l i t e .  The c r i m i n a l  law,  i n p a r t i c u l a r , d e f i n e s and condemns those a c t s which c o n f l i c t w i t h the i n t e r e s t s o f whatever segment c u r r e n t l y has the power t o impose i t s p o l i c i e s .  D i v e r s i t y , c o n f l i c t , and c o e r c i o n ,  r a t h e r than consensus, shape the law.  /II/  T r a d i t i o n a l M a r x i s t s r e g a r d the law as a mere r e f l e c t i o n of c l a s s r e l a t i o n s , defending the e l i t e ' s c l a i m s upon r e s o u r c e s and l a b o u r by d e f i n i n g p r o p e r t y and crimes mediating  and  c l a s s c o n f l i c t w i t h i t s r u l e s and s a n c t i o n s , a l l f o r  the purpose of c o n f i r m i n g and c o n s o l i d a t i n g the power of the 5  upper c l a s s .  /12/ Orthodox Marxism, however, cannot explain  those developments i n the law i n which c a p i t a l i s t interests are seemingly subordinated, such as the a b o l i t i o n of slavery and the grant of the r i g h t f o r labour to organize and c o l l e c t i v e l y bargain.  Some argue that, i n the long run, these  changes serve the interests of the r u l i n g class while others see them as part of a strategy of "corporate l i b e r a l i s m " i n which the e l i t e promotes government social-welfare programmes and business regulations to prevent the p o l i t i c a l and economic unrest (such as slave revolts, union protests, and chaotic competition) that could d e s t a b i l i z e the s o c i a l order.  /13/  However, other Marxist historians, such as Eugene Genovese, have argued that the law i s not only an expression of c a p i t a l i s t class interest or the imposition of the e l i t e ' s viewpoint upon others, but that i t also constrains the upper classes; i n order to compel s o c i a l conformity, the law must manifest a s u f f i c i e n t "degree of evenhandedness" to "validate i t s e l f e t h i c a l l y i n the eyes of the several classes."  /14/  B r i t i s h s o c i a l historians go even further and argue that the criminal law i s where class struggles are fought. Douglas Hay held, f o r instance, that while the law's rules and practices favour one class's domination over the others, the e l i t e cannot have everything i t s own way and i t must maintain the i n t e g r i t y of the l e g a l system i n the eyes of the people i n order to sustain that system's e f f e c t i v e use as an instrument of power.  /15/  Accordingly, the e l i t e manipulates the three  6  aspects of the criminal law (majesty, j u s t i c e , and mercy) i n such a way as to i n s p i r e awe, gratitude, and fear among the lower classes and, i n doing so, the r u l i n g class uses i t s power with r e s t r a i n t i n order to maintain i t .  For example,  procedural and evidentiary rules must be c l o s e l y followed and be extremely considerate of the r i g h t s of the accused, even to the point of dismissing a case on a t e c h n i c a l i t y , i n order to favourably impress the masses and convince them of the merit of the e x i s t i n g order.  /16/ Expanding on that point,  E.P. Thompson argued that: The e s s e n t i a l precondition f o r the effectiveness of law, i n i t s function as ideology, i s that i t s h a l l display an independence from gross manipulation and s h a l l seem to be j u s t . I t cannot seem to be so without upholding i t s own l o g i c and c r i t e r i a of equity; indeed, on occasion, by a c t u a l l y being j u s t . /17/ (Emphasis i n original.) Therefore, according t o Thompson, the enforcement of the law exemplifies not only a method to s e t t l e class c o n f l i c t to the advantage of the r u l e r s , but also a self-imposed constraint on the r u l i n g class against the exercise of unrestrained force (such as torture and a r b i t r a r y imprisonment).  Furthermore, the e l i t e believes i n i t s own  rules enough to allow, i n c e r t a i n cases, f o r the law to be an actual forum f o r p a r t i c u l a r kinds of class struggle and f o r i n d i v i d u a l members of the r u l i n g classes, on occasion, to be defeated i n those struggles.  This has two e f f e c t s .  F i r s t , as  Hay also noted, allowing the lower classes to struggle within the l e g a l system and occasionally win a c t u a l l y lessens dissent, consolidates the r u l i n g c l a s s ' power, and enhances  7  the e l i t e ' s legitimacy.  Second, by binding i t s e l f to i t s  rules against unmediated power, the r u l i n g class l i m i t s i t s own power and those l i m i t a t i o n s w i l l eventually be as c o n s t i t u t i o n a l r e s t r a i n t s .  considered  /18/  Because the p o s i t i v i s t s reason that the law l e g i t i m i z e s the status quo i n response to the needs of society or some segment of i t , the central question for them i s how occurs.  this  But for another group of l e g a l h i s t o r i a n s , c l a s s or  s o c i e t a l i n t e r e s t s are not the d r i v i n g forces behind the legal system; instead, they argue that why  the law acts the way i t  does i s because of the assumptions about p o l i t i c s , economics, and the s o c i a l hierarchy that are commonly shared by the community.  Antonio Gramsci, f o r instance, defined h i s notion  of "hegemony" as a state when both the r u l i n g c l a s s and the other portions of society accept the contemporary s i t u a t i o n , with possibly some minor adjustments, as s a t i s f a c t o r y or as the best that can be because v i r t u a l l y everyone shares the assumption that things as they exist now necessary.  are natural and  /19/  These commonly-shared assumptions, or "systems of b e l i e f , " are the centre of study for other a n t i - p o s i t i v i s t , or p o s t - s t r u c t u r a l i s t , l e g a l h i s t o r i a n s . To them, i t i s meaningless to t r y to understand how  the law o b j e c t i v e l y  legitimates the e x i s t i n g order because the " r e a l i t y " of what the law i s and does i s a construct of our society, our culture, or ourselves.  Furthermore, t h i s construction i s  connected with other constructions about similar, but nonlegal, c l u s t e r s of b e l i e f .  These assumptions are 8  communicated and shared through language, but the words do not simply describe things; they are laden with values from which people make judgments about the world and which influence how they w i l l subsequently act.  /20/  For example, i n the  United States, "esquire" and "lawyer" both connote a member of the l e g a l profession. The former suggests formality and dignity and possibly the worst connections are with snobbery and a preference f o r the archaic; i t i s also used to describe members of the English gentry and candidates f o r knighthood. The l a t t e r , however, denotes, at best, only membership i n the l e g a l profession and i t often conjures images of t r i c k e r y and dishonesty.  Likewise, to say "I am going to court" has l i t t l e  meaning outside a culture with a legal system where disputes are determined  i n a formal setting by a neutral party  appointed by the state to perform that task. According t o the p o s t - s t r u c t u r a l i s t s , the exchange of b e l i e f s or understanding amounts to a "discourse" that i s b u i l t and maintained i n order to make i t possible f o r people to  interpret each other's words and actions.  Furthermore, the  law i s only one amongst many clusters of understanding that have been created (or "constructed") to allow us to deal with people whose cooperation i s essential but who, without the regulation and sanctions of the law, may harm us.  The law  (both c i v i l and criminal) sorts out the d i f f e r e n t interactions between individuals (e.g., crimes, t o r t s , contracts), defines the issues i n dispute and what facts are relevant to t h e i r resolution, establishes peoples' d i f f e r e n t rights and obligations and sets out the penalties f o r the v i o l a t i o n 9  thereof, and, a f t e r applying the "relevant" facts to statutory and other formulae, a r r i v e s at the l e g a l "truth" and imposes a sanction or a remedy. /21/ Some a n t i - p o s i t i v i s t legal h i s t o r i a n s (e.g., Robert Gordon) argue that the systems of b e l i e f that frame the law were i n t e n t i o n a l l y b u i l t by the e l i t e s , who "think" they have a stake i n " r a t i o n a l i z i n g " through discourse with other classes i n society, i n order to reinforce the e x i s t i n g hierarchies and to maintain t h e i r dominate p o s i t i o n .  Others  ( l i k e Tina Loo) hold that while the discourse of the law i s i d e o l o g i c a l , i t i s not necessarily so by intent.  Also, they  argue that discourse i s not the only factor that determines people's expectations  of the law and authority and that other  factors, such as geographical play a r o l e as well.  obstacles and h i s t o r i c a l memory,  For example, before the North West  Mounted Police were dispatched to the Yukon i n the 1890s, there was no government-sanctioned p o l i c e force or court i n the t e r r i t o r y ; instead, law enforcement and the prosecution of criminal actions were primarily the duty of the i n d i v i d u a l , j u d i c i a l decisions were made by a "miners' meeting" that was an assembly of a l l those l o c a l residents who chose to attend, and judgments were reached by consensus and were based more on the offender's personal character and what that i n d i v i d u a l was expected to do i n the future, with the goal of preventing future trouble, than on what the person a c t u a l l y did i n a p a r t i c u l a r instance.  This arrangement, according to the  p o s t - s t r u c t u r a l i s t s , r e f l e c t e d the discourse amongst the residents of the Yukon, who were mostly American miners, and 10  t h e i r experience i n the United States with informal f r o n t i e r justice.  However, once the Mounties a r r i v e d and imposed t h e i r  authority, the miners' meetings were displaced. the NWMP represented what the law was  Furthermore,  a distant state authority that determined  and defined the remedies for i t s v i o l a t i o n  and the presence of t h i s p o l i c e force brought the symbols and r h e t o r i c of impersonal B r i t i s h j u s t i c e to the t e r r i t o r y .  /22/  Next, to help determine whether the 1838-39 courtsmartial were c o n s t i t u t i o n a l , i t i s important to remember that, at the time of the r e b e l l i o n , B r i t i s h law did not  recognize  "states of siege" or "states of emergency" during which the powers of the c i v i l i a n and m i l i t a r y a u t h o r i t i e s were unlimited and not constrained by the law.  Instead, when insurgents  could not be e f f e c t i v e l y halted by the ordinary processes of the c i v i l i a n law courts, i t was  agreed by the judges and  the  l e g a l commentators of the period that the government had  the  r i g h t to suppress the r e b e l l i o n by force, but only i n the amount needed to terminate the danger.  Obviously,  normal  l e g a l procedures, such as due process and the rule of evidence, could not handle the e f f e c t s of sudden and v i o l e n t uprisings, but the courts and l e g a l commentators also agreed that only the force s u f f i c i e n t to restore order, and not b i t more or l e s s , was o f f i c i a l who  one  permissible and any c i v i l i a n or m i l i t a r y  used i n s u f f i c i e n t or excessive force was  liable  in the ordinary c i v i l courts for t h e i r actions once order  was  restored, and those courts resumed t h e i r duties (assuming p o l i t i c s did not i n t e r f e r e and that the Crown could convince a jury of the defendant's g u i l t ) . 11  For instance, the above  doctrine was c l e a r l y stated by the judge when the Mayor of B r i s t o l was t r i e d , a f t e r the 1831 B r i s t o l Riots, f o r using i n s u f f i c i e n t measures against the protestors; while the mayor was acquitted, the colonel who refused to order h i s men to shoot into the crowd committed suicide and h i s captain was cashiered.  /23/  In B r i t a i n , emergency l e g i s l a t i o n was passed i n the early 1800s to counter internal emergencies,, but no disturbances occurred that were beyond the control of c i v i l a u t h o r i t i e s when supported by a small m i l i t a r y contingent; 1837,  indeed, by  martial law had not been used i n England i t s e l f for over  a century.  Likewise,  i n Ireland between 1803 and 1916, there  were no disturbances s u f f i c i e n t l y serious for martial law to be declared because a well-established p o l i c e force existed which could handle most any s i t u a t i o n .  /24/  Across the empire, however, the a b i l i t y t o contain p u b l i c discontent was d i f f e r e n t .  In the 183 0s, the Union Jack flew  over a wide d i v e r s i t y of colonies, ranging from the penal colony i n Van Diemen's Land to Upper and Lower Canada, where p a r t i a l p o l i t i c a l autonomy was exercised.  In most of these  j u r i s d i c t i o n s , there were only small m i l i t a r y garrisons to support the government i n time of c i v i l c r i s i s and, as a r e s u l t , there was a tendency amongst c o l o n i a l o f f i c i a l s to use exemplary force to counter any threats.  /25/  Between 1800  and 1837, martial law was declared eight times i n the colonies. war:  Twice, i t was declared due to the exigencies of  i n Barbados on 19 May 1805, when the c o l o n i a l governor  was advised that a formidable enemy French f l e e t was within 12  sight of the island, and i n the eastern d i s t r i c t s of the Cape of Good Hope on 3 January 1835, one week a f t e r the news reached Cape Town of attacks by native K a f f i r warriors against European missionaries and s e t t l e r s i n those regions. /26/ M a r t i a l law was also declared i n Barbados on 15 A p r i l 1816, i n Demerara (now part of Guyana) on 19 August 1823, and i n Jamaica on 3 0 December 1831 as the r e s u l t of uprisings by a portion of each colony's majority slave population and the fear that the r e b e l l i o n s would spread and overwhelm the colonists.  (In Barbados i n 1817, there were 77,273 slaves, of  whom 71,432 were "Barbadians," 5446 were African-born, and the rest were Creoles from other islands, while there were only 16,015 white c o l o n i s t s and 3002 free "coloureds."  In Demerara  and Essequibo, the two settlements that made up the colony of Demerara, there were i n 1824 roughly 77,000 slaves, approximately 55% of whom were African-born, to 3,500 white colonists and 2,500 free "people of colour." 1832,  In Jamaica i n  there were approximately 25,000 white c o l o n i s t s and  35,000 free "coloureds" and free blacks to 323,000 slaves and presumably most, i f not a l l , of the slaves were e i t h e r black or "coloured.")  /27/ F i n a l l y , martial law was declared f o r a  short time i n St. Lucia, St. Vincent, and Demerara i n August, 1816 as soon as each received word of the slave insurrection i n Jamaica. /28/ Although the government's a b i l i t y to maintain order and i t s use of martial law to that end was d i f f e r e n t i n the empire's overseas possessions than i t was i n B r i t a i n i t s e l f , i t i s safe to assume that, at the time of the 1838 Rebellion, 13  Lower Canada's c i v i l and m i l i t a r y authorities could l a t e r be held l i a b l e for any actions beyond what was needed to q u e l l the r e v o l t .  This would be consistent with what happened i n  the other colonies when they declared martial law. In Jamaica i n 1831, a m i l i t i a lieutenant was charged with, and acquitted of, murder when he executed, while martial law was i n e f f e c t , a rebel slave who had surrendered but had not yet gone to t r i a l .  /29/  In 1865, due to a r e v o l t by i t s  black population, martial law was declared again over a portion of Jamaica.  During t h i s c r i s i s , a c i v i l i a n government  c r i t i c was arrested, taken to an area under martial law, t r i e d by a court martial, and executed.  Two years l a t e r , both the  m i l i t a r y commander of the colony and the lieutenant who presided over the court-martial were accused of murder and the c o l o n i a l governor was arraigned as an accessory before the f a c t ; they d i d not go to t r i a l because the grand jury refused to issue the "true b i l l " needed for an indictment officers.  against the  /30/  It should be noted that, i n 1824, a f t e r the Demerara slave uprising, a public outcry broke out across England when a white missionary  died i n prison (of consumption) while h i s  sentence of death, by a court-martial, was under review i n London.  The slave r e v o l t i n Demerara began on 18 August 1823  and martial law was declared on August 19th.  Although the  r e v o l t was crushed within days, martial law remained i n e f f e c t u n t i l 15 January 1824. During that time, the Reverend John Smith was t r i e d by court-martial for creating d i s s a t i s f a c t i o n amongst the slaves and having concealed t h e i r intention to 14  r e v o l t (both of which allegedly occurred before the rebellion) as well as for corresponding with a rebel leader (who was also his chief deacon) during the insurrection. 1823,  On 24 November  Smith was convicted and sentenced to death.  from the London Missionary  A petition  Society to the governor of Demerara  pled for Smith's l i f e and asked that he be e x i l e d from the island instead.  The governor refused the request, but he did  order Smith to prison (where he died three months later) and sent copies of the t r i a l proceedings to London f o r i t s consideration and ultimate decision.  /31/ After Smith's  death, a p e t i t i o n to King George IV was debated i n the House of Commons asking him to: . . . adopt such measures . . . f o r securing such a j u s t and humane administration of the law i n that colony [ i . e . , Demerara] as may protect the voluntary instructors of Negroes, as well as the Negroes themselves, and the rest of h i s majesty's subjects, from oppression. /32/ Arguments focused on the c o n s t i t u t i o n a l i t y of Smith's court-martial, but i n the end, the members of Parliament who were shocked by the r e b e l l i o n of slaves i n what was regarded as a benevolently-ruled by a vote of 146 to 193.  colony were able to defeat the motion /33/ However, t h i s defeat  provided  no c o n s t i t u t i o n a l precedent f o r the Lower Canadian courtsmartial because, unlike Lower Canada i n 1837,  Demerara i n 1824  f i t t e d the l e g a l d e f i n i t i o n of a "conquered" colony i n which English law (both statutory and common) did not yet  apply.  The r i g h t s of English colonists i n "conquered" colonies were determined i n a 1774 tax case known as "Campbell v. Hall."  In that proceeding, a B r i t i s h plantation owner i n  15  Grenada sued for a refund of a customs and import duty on the ground that there was no lawful authority to impose the tax. The i s l a n d was conquered during the Seven Years War and was formally ceded by France i n February, 1763. On 7 October 1763,  a royal proclamation was issued d i r e c t i n g the governors  of various colonies, including Grenada, to e s t a b l i s h l o c a l l e g i s l a t u r e s and, on 9 A p r i l 1764, General Robert M e l v i l l e was appointed governor of Grenada and instructed to summon an assembly as soon as possible.  In July, 1764, King George I I I ,  by v i r t u e of h i s prerogative, imposed the customs and import duty without the consent of Parliament or of the colony's local authorities.  In h i s s u i t , the plantation owner denied  that the King could use h i s prerogative to l e g i s l a t e f o r a colony ceded i n war.  He also advanced the a l t e r n a t i v e  argument that, even i f the Monarch had the r i g h t to make laws for Grenada, he divested himself of such power once he conferred a representative l e g i s l a t u r e upon the i s l a n d . England's Court of King's Bench rejected the f i r s t point, but agreed with the second.  In explaining i t s decision, the Court  addressed the power of the King to l e g i s l a t e f o r colonies that had been conquered by force or ceded by c a p i t u l a t i o n and the rights of Englishmen i n those possessions.  /34/  In p a r t i c u l a r , the Lord Chief Justice, William Murray, the Baron Mansfield of Mansfield, held that: A country conquered by the B r i t i s h arms becomes a dominion of the king i n r i g h t of h i s crown, and therefore necessarily subject to the l e g i s l a t i v e power of the parliament of Great B r i t a i n .  16  Laws of a conquered country continue u n t i l they are,altered by the conqueror . . . [subject to the] exception as to pagans. . . . The law and l e g i s l a t i o n of every dominion equally a f f e c t s a l l persons and property within the l i m i t s thereof, and i s the true rule f o r the decision of a l l questions which arise there: whoever purchases, sues or l i v e s there, puts himself under the laws of the place, and i n the s i t u a t i o n of i t s inhabitants. An Englishman i n Minorca or the i s l e of Man, or the plantations, has no d i s t i n c t r i g h t from the natives while he continues there. If the king has power (and, when I say the king, I mean i n t h i s case to be understood "without the concurrence of parliament") t o make new laws f o r a conquered country, t h i s being a power subordinated to h i s own authority, as a part of the supreme l e g i s l a t u r e i n parliament, he can make none which are contrary t o fundamental p r i n c i p l e s [of the English Common Law]; none excepting from the laws of trade or authority of parliament, or p r i v i l e g e s exclusive of h i s other subjects. /35/ Nearly one hundred years l a t e r , another Lord Chief Justice,  S i r Alexander Cockburn, restated the above  p r i n c i p l e s at the 1867 grand jury proceeding against the'two o f f i c e r s accused of murdering a c i v i l i a n under the guise of martial law during the 1865 Jamaica r e b e l l i o n .  Specifically,  Cockburn held that: With regard to such colonies as are acquired by conquest, except so f a r as [whatever] rights may have been secured by any terms of c a p i t u l a t i o n , the power of the Sovereign i s absolute. The conquered are at the mercy of the conqueror. Such possessions keep, i t i s true, t h e i r own laws f o r the time, because i t would be productive of the greatest inconvenience and confusion i f a body of people who had been governed by one law, should have that law, with which they are acquainted, suddenly changed f o r another of which they are t o t a l l y ignorant, . . . They therefore preserve t h e i r laws and i n s t i t u t i o n s f o r the time, but subject to t h i s , that they are under the absolute power of the Sovereign of these realms to a l t e r those laws i n 17  any way that to the Sovereign i n Council may proper: i n short, they may be dealt with, l e g i s l a t i v e l y and a u t h o r i t a t i v e l y , as the Sovereign may please. /3 6/ In the case of Demerara, i t was that was  seem  o r i g i n a l l y a Dutch colony  occupied by the B r i t i s h during the Napoleonic Wars  and ceded to the United Kingdom i n 1815. slave r e v o l t , i t s l o c a l assembly was  At the time of the  s t i l l the one which  established under the States General.  Furthermore, English  law had not been expressly introduced by 1824 subject to King George I V s  was  and Dutch law,  prerogative power to l e g i s l a t e for  the colony, s t i l l prevailed.  /37/  Therefore,  i t s inhabitants  (English and Dutch alike) were not e n t i t l e d to any of the rights and c o n s t i t u t i o n a l l i b e r t i e s of B r i t i s h subjects except the guarantee that the Crown's r i g h t , by v i r t u e of i t s prerogative, to a l t e r old laws and to introduce new  ones was  subject to both the overriding authority of Parliament and  the  condition that no changes could be made that v i o l a t e d c e r t a i n i l l - d e f i n e d fundamental p r i n c i p l e s of the English Common /38/  Law.  However, t r y i n g c i v i l i a n s by courts-martial e i t h e r d i d  not v i o l a t e those fundamental p r i n c i p l e s or did not constitute an a l t e r a t i o n i n Demerara's laws.  According  to Chief J u s t i c e  Cockburn, Jamaica i n 1865  (just l i k e , as we s h a l l l a t e r see,  Lower Canada i n 1837)  a colony whose inhabitants were  was  e n t i t l e d to a l l the r i g h t s and l i b e r t i e s of B r i t i s h subjects, including those established by Parliament against the royal prerogative, /39/ i t was  and the courts-martial i n Demerara, because  a "conquered" colony, were not a precedent f o r the  l e g a l i t y of establishing martial law i n Jamaica since "the  18  power of the Crown . . . [was] absolute"  i n Demerara. /40/  In any case, the strong support i n Parliament i n 1824 f o r the above-quoted p e t i t i o n to King George IV and the arguments that Smith's court-martial was unconstitutional, despite Demerara's p o l i t i c a l status, i s i n d i c a t i v e of the close scrutiny i n the early nineteenth century on the use of martial law i n the colonies. Even when London was not concerned about the c o n s t i t u t i o n a l use of martial law across the empire, B r i t i s h c o l o n i s t s were distressed by i t .  In Barbados i n 1805, martial  law was declared for two days on 19 August, but the information  about the a r r i v a l of a French f l e e t upon which  that action was based l a t e r proved f a l s e .  S t i l l , on 21 May,  the island's governor, Lord Seaforth, extended martial law u n t i l 25 May.  A statute enacted by the colony's l e g i s l a t u r e  allowed the governor to declare martial law only when an enemy force was within sight of the i s l a n d .  I t also decreed that  martial law must terminate as soon as the enemy had l e f t and was out of sight.  When Barbados' General Assembly met on  29 May, the governor's speech gave no explanation  f o r the  o r i g i n a l proclamation of martial law nor f o r i t s extension. /41/  Members of the Assembly believed that t h e i r law had been  disregarded  and unanimously passed a resolution s t a t i n g :  1st. Resolved, That the inhabitants of t h i s island are e n t i t l e d to the same p r i v i l e g e s , and enjoy the same rights as other the [sic] l o y a l subjects of his Britannic Majesty. 2nd. Resolved, That the common law of the United Kingdom of Great B r i t a i n and Ireland i s i n  19  force i n t h i s colony, unless altered by B r i t i s h Acts of Parliament, or the l e g i s l a t i v e Acts of t h i s island.  4th. Resolved, That any attempt to proclaim martial law otherwise than during the existence of the circumstances i n the above-recited clause stated [ i . e . , the 26th clause of Barbados' M i l i t i a Act which i s summarized above and was quoted i n the t h i r d resolution], and with the forms thereby prescribed, i s highly unconstitutional, contrary to law, and subversive of the dearest rights of the people. 5th. Resolved, That a committee be immediately appointed to prepare a remonstrance to his Excellency the Governor, and the Honourable the Members of h i s Privy Council, requesting that a communication may be made t o t h i s House, s t a t i n g the grounds of the l a t e proclamation of martial law from the 19th to the 21st instant, and the continuance thereof from the 21st to the 25th instant, and information given why the said proclamations were not prepared and made with the proper l e g a l f o r m a l i t i e s . /42/ Realizing the criminal implications involved, Seaworth answered when the Assembly met on 18 June that he: . . . cannot but deeply regret that the Honourable House of Assembly should have thought f i t . . . to vote him g u i l t y of acting unconstitutionally, and then to c a l l upon him for an explanation. Called upon f o r an explanation of his conduct i n a proper manner, he should have been very happy to have given such explanation, and i s f u l l y conscious he could give one s a t i s f a c t o r y to every impartial mind,; but situated as he i s , he must r e f e r the whole t o the Sovereign, i n whom alone he acknowledges any j u r i s d i c t i o n competent to find him g u i l t y , and representing whom, he finds himself incapacitated from answering a charge of c r i m i n a l i t y before any other body. /43/ (Emphasis added.) Accompanying Seaforth's response were minutes from h i s Privy Council indicating that while the i n i t i a l declaration of martial law was due to erroneous information provided by the m i l i t i a , the extension of martial law was based on the mere 20  supposition that the threat of an imminent m i l i t a r y attack s t i l l existed. what i t was  /44/  The General Assembly was  not pleased  by  t o l d and, when i t assembled again on 16 July, i t  resolved, by a vote of 14 to 1, that: . . . the answer of his Excellency the Governor to our resolutions and [his] address of the 18th day of June i s unsatisfactory, and highly d i s r e s p e c t f u l to t h i s Honourable House. /45/ and  that: . . . the ground for continuing martial law from the 21st to the 25th of A p r i l . . . were not s u f f i c i e n t to j u s t i f y the same, no such circumstances e x i s t i n g at the time, by t h e i r own showing, as the law requires to sanction such a measure. /46/ When answering these l a t e s t resolutions,  Seaforth  observed that he would not be more forthcoming because he the prerogatives,  had  rights and d i g n i t i e s of the King to protect.  Possibly because no arrests, courts-martial, or executions occurred  as a r e s u l t of martial law, nothing further happened  for over a year. the new  F i n a l l y , on 1 July 1806,  Seaforth  advised  General Assembly that the Imperial Government had  approved of h i s actions.  /47/  As i n Barbados, Demerara, and Jamaica, martial law  was  declared i n Lower Canada as a r e s u l t of an u p r i s i n g by a portion of a disaffected majority which the a u t h o r i t i e s feared would spread and overwhelm the governing minority. the Patriotes, who  In  1837,  were making t h i n l y - v e i l e d threats of  p o l i t i c a l independence i f the B r i t i s h government d i d not reduce i t s e l f to a figurehead  r o l e i n the colony, held an  overwhelming majority i n the elected branch of the c o l o n i a l l e g i s l a t u r e ("the House of Assembly"), but were nearly shut 21  out of the appointed branch of the l e g i s l a t u r e  ("the  L e g i s l a t i v e Council") as well as out of the Executive Council that advised the colony's governor.  /48/  Unable to obtain  any appropriations from the Assembly, Lower Canada's governor, Lord Gosford, dismissed i t on 26 August 1837.  In response,  the Patriotes became determined to overthrow B r i t i s h rule through c i v i l disobedience, armed r e b e l l i o n .  economic boycotts, and eventually  That November, the F i r s t Patriote Rebellion  broke out and i t was not quelled for a month.  /49/  Martial  law was declared i n the d i s t r i c t of Montreal on 5 December and was  i n e f f e c t u n t i l 27 A p r i l 1838,  but no courts-martial were  held and a general amnesty, subject to a few exceptions, proclaimed.  /50/  was  Shortly a f t e r peace was restored, the  B r i t i s h government decided to suspend the Lower Canadian Assembly and L e g i s l a t i v e Council u n t i l November, 1840  and to  create, i n t h e i r stead, a temporary Special Council that assumed t h e i r l e g i s l a t i v e duties.  The Council was  prevented,  however, from a f f e c t i n g or i n v a l i d a t i n g any current law i n the colony.  /51/  In the meantime, Lord Gosford resigned and  replaced with Lord Durham who, 1 November 1838,  was  i n turn, l e f t Canada on  leaving Lieutenant-General  S i r John Colborne  as the temporary administrator of the colony.  /52/  The second r e b e l l i o n erupted on the night of 3-4 November 1838,  but the Patriote forces were dispersed by 11 November.  /53/  On 4 November, General Colborne issued a proclamation  for the arrest and punishment of a l l persons i n the d i s t r i c t of Montreal:  22  . . . who have hitherto, and who now are or hereafter may be anywise acting, aiding or a s s i s t i n g i n . . . conspiracy and r e b e l l i o n within the said d i s t r i c t of Montreal, according to Martial Law, either by death or otherwise, as to me s h a l l seem r i g h t and expedient for the punishment of a l l rebels i n the said d i s t r i c t . /54/ Martial law i n the d i s t r i c t of Montreal would not l i f t e d u n t i l the following August.  be  /55/  On 8 November, the Special Council approved an ordinance authorizing Colborne to punish a l l suspected rebels by martial.  Although the ordinance was  courts-  expressly l i m i t e d to the  d i s t r i c t of Montreal, i t also authorized Colborne to extend i t s application to other parts of the colony.  /56/  Colborne placed the d i s t r i c t of Saint Francois was  Indeed, placed  under martial law on 16 November, f i v e days a f t e r the second r e b e l l i o n had been suppressed. martial began. The  On 28 November, the  courts-  /57/  f i r s t question  i n determining the c o n s t i t u t i o n a l i t y  of the courts-martial i s whether Colborne had the authority to proclaim martial law.  In 1867,  i n the f i r s t l e g a l opinion  that e x p l i c i t l y addressed the issue of a c o l o n i a l governor's authority to declare martial law, B r i t a i n ' s Lord Chief Justice S i r Alexander Cockburn stated: Now, one thing i s quite clear - namely, that the power of a Governor to declare martial law can proceed only from one of two sources. I t must either be derived from the commission which he has received from the Crown, or from some statute, either of imperial or of l o c a l l e g i s l a t i o n . I t can be derived from no other source. /58/ To determine i f General Colborne had any power to declare martial law,  i t must be remembered that he was  23  the temporary  administrator of Lower Canada, not by v i r t u e of any commission from Queen V i c t o r i a , but because, as the senior B r i t i s h o f f i c e r i n the colony, he was i n charge u n t i l Lord Durham's replacement  as Governor of Lower Canada was appointed and, as  such, had whatever authority the Queen had o r i g i n a l l y entrusted i n Durham.  As stated by Colborne's  proclamation  declaring h i s assumption of the administration of the colony's c i v i l government: WHEREAS by certain l e t t e r s patent, bearing date at Westminster, the 3 0th day of March, i n the f i r s t year of the reign of our Sovereign Lady the Queen [ i . e . , 1838], our said Sovereign Lady V i c t o r i a did constitute and appoint the Right Hon. John George E a r l of Durham to be Captain-general and Governor-in-chief i n and over our said province of Lower Canada. And whereas i n and by the said l e t t e r s patent, i t i s provided, that . . . i f , upon the death or absence of the said John George E a r l of Durham . . . no person s h a l l be upon the place commissioned and appointed to administer the government of the said province, u n t i l the return of the said John George E a r l of Durham, from any such absence, or u n t i l the royal pleasure could be further made known, the senior m i l i t a r y o f f i c e r , for the time being, i n command of the forces within the said province of Lower Canada, should take upon him the administration of the government thereof, and should execute i n the said province the said commission [ i . e . , the l e t t e r s patent] and the . . . several powers and authorities therein contained, i n the same manner and to a l l intents and purposed as other the Captain-general or Governor-in-chief should or ought to do . . . . . . under and by v i r t u e of the above provision . . . the administration of the c i v i l government of Her Majesty's province of Lower Canada hath devolved upon me . . . with a l l and every the powers and authorities by the said l e t t e r s patent vested i n the said Right Honourable John George E a r l of Durham . . . /59/ No matter how broadly worded Durham's commission may have been, h i s prerogative to declare martial law was 24  not  unlimited.  As Chief J u s t i c e Cockburn explained i n 1867, a  c o l o n i a l governor: . . . assuming . . . that h i s commission confers on him a l l the executive power of the Crown i n the government of . . [the colony], can have no further power t o declare martial law, as derived from h i s commission, than that which the Sovereign would have. /60/ And over the centuries, r e s t r i c t i o n s had been placed upon the Crown's power to impose martial law.  For example, i n the  Magna Carta (1215), i t was recognized that a c i v i l i a n could be t r i e d and punished only by an ordinary court and only f o r an offence found i n the law: Nullus l i b e r homo capiatur, v e l imprisonetur, aut d i s s a i s i a t u r , aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, n i s i per legale judicium parium suorum v e l per legem terrae. /61/ Later, i n 1327,  the English Parliament r e t r o a c t i v e l y set  aside the death sentence that had been imposed upon Thomas, the E a r l of Lancaster, who had been found g u i l t y of treason i n 1322  by a court-martial for r e b e l l i n g against King Edward I I .  Parliament so acted because, on the date of Lancaster's and execution, the ordinary c i v i l courts were s t i l l and, thus, i t was a "time of peace."  /62/  operating  Specifically:  . . . idem Thomas erronice, & contra legem terrae tempore pacis morti e x t i t i t adjudicatus, unde cum notorium f i t & manifestum, quod totum tempus, quo impositum s u i t eidem comiti praedicta mala & facinora i n p r a e d i c t i s recordo & processu contenta fecisse, & etiam tempus, quo captus f u i t , & quo dictus dominus rex pater recordabatur ipsum esse culpabilem, &c. & quo morti e x t i t i t adjudicatus, f u i t tempus pacis, maxime cum per totum tempus praedictum c a n c e l l a r i a & a l i a e placeae curiae domini regis apertae fuerunt, & i n quibus lex cuicunque fiebat, prout f e i r i consuevit, nec idem dominus rex unquam i n tempore i l l o cum v e x i l l i s e x p l i c a t i s equitabat, praedictus 25  trial  dominus rex pater, &c. i n hujusmodi tempore pacis contra ipsum comitem s i c recordari non debuit, nec ipsum sine arrenamento & responsione morti ajdudicasse. /63/ This p r i n c i p l e was reaffirmed by the Court of King's Bench i n 1798 i n the proceeding commonly known as "Wolfe Tone's case" i n which Tone, a B r i t i s h subject from Ireland, had accepted an o f f i c e r ' s commission  from France, was captured  while taking part i n an attempted French invasion of Ireland, and was subsequently condemned to death by a B r i t i s h m i l i t a r y court.  An application f o r a writ of habeas corpus /64/  was  made to the Court of King's Bench on the ground that since the ordinary c i v i l courts were s t i l l operating, Tone, not being a member of the B r i t i s h armed forces, was not subject to t r i a l or punishment by a B r i t i s h m i l i t a r y court. immediately granted.  The writ was  /65/  The above p r i n c i p l e s were frequently ignored by the Monarch u n t i l Parliament decided to h a l t the unlawful practice of bringing English c i v i l i a n s under martial law.  /66/  After  e x p l i c i t l y stating that "no man ought to be adjudged to death but by the laws established . . . either by the customs of . . . [this] realm, or by acts of parliament," /67/ the P e t i t i o n of Rights (1627) outlawed the King's use of royal commissions f o r h i s agents: . . . to proceed within the land, according to the j u s t i c e of martial law . . . and by such summary course and order as i s agreeable to martial law, and as i s used i n armies i n time of war, to proceed to the t r i a l and condemnation of such offenders, and them to cause to be executed and put to death according t o the law m a r t i a l . /68/  26  The P e t i t i o n also decreed that "no freeman i n any such manner as i s before-mentioned [ i . e . , by a court-martial under a royal commission] [can] be imprisoned or detained." Sixty years l a t e r , the B i l l of Rights  /69/  (1689) further  declared that "the pretended Power of suspending Laws, or the Execution of Laws, by regal Authority, without consent of Parliament, i s i l l e g a l . "  /70/  As already noted, by the time of the 1838 Rebellion, martial law had not been applied i n B r i t a i n i n over a century. However, the above c o n s t i t u t i o n a l r e s t r i c t i o n s were s t i l l i n force and were applied across the empire. 1824,  For example, i n  the leading advocate for the p o s i t i o n that Smith's  court-martial i n Demerara was unconstitutional, law professor and former judge S i r James Mackintosh, unequivocably declared in the House of Commons that martial law could be lawful only when the c i v i l courts could no longer perform t h e i r duties: When foreign invasion or c i v i l war renders i t impossible for courts of law to s i t , or to enforce the execution of t h e i r judgments, i t becomes necessary to f i n d some rude substitute for them, and to employ, for that purpose, the m i l i t a r y , which i s the only remaining force i n the community.  . . . by the law of England i t [ i . e . , martial law] cannot be exercised except where the j u r i s d i c t i o n of courts of j u s t i c e i s interrupted by violence. Did t h i s necessity e x i s t at Demerara [when Smith was t r i e d and convicted] . . . ? /71/ This p r i n c i p l e was restated fourteen years l a t e r by the Crown's law o f f i c e r s i n London i n January, 1838 (ten months before the 1838 Patriote Rebellion) when they wrote,  27  concerning  the Jamaican Rebellion of seven years e a r l i e r ,  that: Martial law i s stated by Lord Hale [preeminent seventeenth century B r i t i s h judge and l e g a l commentator] to be i n truth no law, but something rather indulged than allowed as a law, and i t can only be tolerated because, by reason of open r e b e l l i o n , the enforcing of any other law has become impossible. I t cannot be said i n s t r i c t n e s s to supersede the ordinary t r i b u n a l s , inasmuch as i t only exists by reason of those tribunals having been already p r a c t i c a l l y superseded. /72/ (Emphasis i n o r i g i n a l . ) This p r i n c i p l e was  applied i n Barbados i n 1816.  slave insurrection began on 14 A p r i l and martial law declared the next day.  The r e v o l t was  within four days and was  The was  e f f e c t i v e l y crushed  declared by the government to be at  an end on 3 0 A p r i l , but mopping operations against rebels  who  had not yet surrendered continued u n t i l June.  was  M a r t i a l law  f i n a l l y l i f t e d on 12 July and, whether or not they could have resumed t h e i r duties beforehand, the colony's  ordinary  c i v i l i a n courts did not s i t again u n t i l that date.  /73/  A better example of adherence to the s p i r i t of t h i s p r i n c i p l e was  the 1831-32 Jamaica Rebellion.  uprising broke out on 28 December 1831  1832.  In January, 1832,  i n c i t i n g the slaves.  M a r t i a l law  was  and existed u n t i l 5 February  four missionaries were arrested f o r  One was  acquitted on 16 January.  slave  and i t took u n t i l the  following February to suppress the movement. declared on 3 0 December 1831  The  t r i e d by a court-martial  and  The other three had to wait u n t i l  March before t h e i r cases were heard, but when they were, i t was before an ordinary c i v i l i a n court. and the t h i r d was  (Two were acquitted  released because the grand jury refused to 28  issue the "true b i l l " needed to proceed to t r i a l . ) In addition, captured slaves who were not yet t r i e d before martial law ended were also brought before c i v i l i a n courts. /74/ Also according to S i r James Mackintosh during the 1824 Demerara debate: The only p r i n c i p l e on which the law of England tolerates what i s c a l l e d martial, i s necessity: i t s introduction can be j u s t i f i e d only by necessity; i t s continuance requires p r e c i s e l y the same j u s t i f i c a t i o n of necessity; and i f i t survives the necessity on which alone i t rests f o r a single minute, i t becomes instantly a mere exercise of lawless violence.  While the laws are silenced by the noise of arms, the r u l e r s of the armed force must punish, as equitably as they can, those crimes which threaten t h e i r own safety and that of society: but no longer; every moment beyond i s usurpation: as soon as the laws can act, every other mode of punishing supposed crimes i s i t s e l f an enormous crime. /75/ These p r i n c i p l e s were applied i n the Cape of Good Hope i n 1835 and were restated i n the 1867 grand jury proceeding against the two o f f i c e r s accused of murdering a c i v i l i a n i n Jamaica.  In 1835, the war against South A f r i c a ' s K a f f i r s had  ended long before August, but martial law continued i n the eastern d i s t r i c t s of the Cape of Good Hope.  The matter was  brought before the colony's Supreme Court which declared the maintenance of martial law during peacetime to be i l l e g a l , forcing the c o l o n i a l governor to revoke martial law on 18 August.  /76/  During the 1867 arraignment of two o f f i c e r s  accused of murdering a c i v i l i a n while Jamaica was under  29  martial law, Chief J u s t i c e S i r Alexander Cockburn instructed the grand jury that: I f i t be true that you can apply martial law for the purpose of suppressing r e b e l l i o n , i t i s equally c e r t a i n that you cannot bring men to t r i a l for treason under martial law, a f t e r a r e b e l l i o n has been suppressed. . . . i t never has been said or thought, except perhaps by King Henry VII, that martial law could be resorted to when a l l the e v i l of r e b e l l i o n has passed away, and order and t r a n q u i l l i t y had been restored, for the mere purpose of t r y i n g and punishing persons [for] whom there was no longer any s u f f i c i e n t cause f o r withdrawing from the ordinary t r i b u n a l s and the ordinary laws. There are, no doubt, some remarkable instances of the application of what i s c a l l e d martial law, but they are instances, not of martial law applied for the purpose of suppressing r e b e l l i o n , but for the purpose of punishing p a r t i c u l a r offences or acts which the Government was desirous of preventing; and i n every one of them the exercise of martial law was c l e a r l y i l l e g a l . /77/ The fact that the Lower Canadian courts-martial were held in a colony that had been acquired by m i l i t a r y conquest and which was  s t i l l predominately populated by Francophones did  not enhance General Colborne's power to declare martial  law.  As already noted, England's Court of King's Bench established i n 1774,  i n a case known as "Campbell v. H a l l , " that the  inhabitants of a "conquered" colony are not e n t i t l e d to the r i g h t s and c o n s t i t u t i o n a l l i b e r t i e s of B r i t i s h subjects except i n so f a r that the Crown's r i g h t , by v i r t u e of i t s prerogative, to a l t e r the colony's old laws and introduce ones was  new  subject to both the overriding authority of  Parliament and the condition that no change could be made that v i o l a t e d c e r t a i n i l l - d e f i n e d fundamental p r i n c i p l e s . 30  /78/  However, i n that same decision, the court also determined that once the Monarch had created l o c a l assemblies that had  the  power to enact l e g i s l a t i o n (subject to the approval of the c o l o n i a l governor), the inhabitants of the colony  "immediately  and irrevocably" became B r i t i s h subjects and acquired a l l of the accompanying r i g h t s and l i b e r t i e s , including those l i m i t i n g the prerogative r i g h t of the King.  Furthermore,  those r i g h t s and l i b e r t i e s could only be denied with the consent of Parliament. a royal proclamation was  F i n a l l y , the court also held that once issued d i r e c t i n g the establishment  a l o c a l l e g i s l a t u r e and the c o l o n i a l governor was  of  instructed  to c a l l an assembly, then the Crown's power to l e g i s l a t e f o r that colony, by way  of i t s prerogative power, was  at an  end  unless that r i g h t had been expressly reserved.  /79/  l a s t p r i n c i p l e , however, was  that i s not  q u a l i f i e d i n a way  relevant to t h i s discussion i n the 1938 v. Strickland.")  (This  case known as "Sammut  /80/  In Lower Canada, such a l o c a l assembly had been established.  While Campbell v. H a l l arose out of a dispute  from Grenada, one of the instruments c i t e d by the court as evidence of the King's granting an elected assembly to the i s l a n d was  the same document that granted an elected assembly  to Canada; i . e . , the Royal Proclamation of 7 October /81/  1763.  In fact, the very provision quoted by the court i n i t s  decision applied equally to what would l a t e r become Lower Canada: . . . [and] We have . . . given express Power and Direction to our Governors of our Said Colonies [in Grenada, East F l o r i d a , West F l o r i d a , 31  and Quebec] respectively, that so soon as the state and circumstances of the said Colonies w i l l admit thereof, they s h a l l . . . summon and c a l l General Assemblies . . . and We have also given Power to the said Governors, with the consent of . . . the Representatives of the People so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England. . . . /82/ Also c i t e d by the court i n "Campbell v. H a l l " were the instructions contained i n the 1764 Royal Commission t o Grenada's Governor Robert M e l v i l l e t o c a l l an assembly as soon as the circumstances  i n the colony permitted.  /83/ Similar  instructions were given on 21 November 1763 t o Quebec's Governor James Murray: And we, do hereby give and grant unto you the said James Murray f u l l power and authority . . . so soon as the Situation and circumstances of our said Province under Government w i l l admit thereof, and when & as often as need s h a l l require, t o summon and c a l l General Assemblies of the Freeholders and Planters. . . And we do hereby declare that the persons so Elected & Q u a l i f i e d s h a l l be c a l l e d the Assembly . . . and that you the said James Murray, by & with the advice and Consent of our said Council [ i . e . , the colony's L e g i s l a t i v e Council] and Assembly . . . s h a l l have f u l l power & authority, to make, Constitute or Ordain, Laws Statutes & ordinances for the publick [sic] peace, Welfare, & good Government of our said province, and of the people and Inhabitants thereof . . . which said Laws Statutes and Ordinances are not t o be repugnant, but as near as may be agreeable, to the laws & Statutes of t h i s our Kingdom of Great B r i t a i n . /84/ Therefore, since Lower Canada had acquired a l o c a l assembly i n 1763,  i t s inhabitants were e n t i t l e d to a l l the  rights of B r i t i s h subjects, including those l i m i t i n g the prerogative of the Crown to resort t o martial law. 32  /85/  Thus, General Colborne could not, by v i r t u e of Lord Durham's commission as c o l o n i a l governor, bring a c i v i l i a n before a court-martial while the ordinary c i v i l courts were s t i l l sitting.  Furthermore, he could not bring a c i v i l i a n to t r i a l  under martial law a f t e r the '38 Rebellion had been suppressed nor could he t r y a c i v i l i a n i n a summary court-martial. F i n a l l y , Colborne could not suspend any of these customary r e s t r i c t i o n s without the consent of either the B r i t i s h Parliament  or Lower Canada's l e g i s l a t u r e .  However, according  to Chief J u s t i c e S i r Alexander Cockburn: . . . i f , by v i r t u e of any imperial or l o c a l l e g i s l a t i o n , authority to declare and exercise martial law has been conferred upon . . . [a c o l o n i a l governor], he would be e n t i t l e d , on the necessity a r i s i n g , to act upon that authority. /86/ When Colborne declared martial law i n the d i s t r i c t of Montreal on 4 November 1838,  there was  no such l e g i s l a t i o n .  On 8 November, however, the Special Council of Lower Canada enacted an ordinance providing for the t r i a l by court-martial of insurgents captured during the suppression of the r e b e l l i o n i n that d i s t r i c t .  /87/  The l e g i s l a t i o n was  r e t r o a c t i v e to  1 November and i t provided f o r the arrest and detention of a l l persons who  "have been, or were, or hereafter may  be . . .  engaged i n such r e b e l l i o n or suspected thereof" regardless of "whether such persons s h a l l have been taken i n open arms against Her Majesty, or s h a l l have been otherwise concerned i n the said r e b e l l i o n . "  /88/  The ordinance also sanctioned  the  death sentence or whatever other punishment Colborne deemed "expedient for the punishment and suppression of a l l rebels i n  33  the said d i s t r i c t of Montreal."  /89/  Furthermore, i t  s p e c i f i c a l l y stated that i f anyone detained under martial law applied for a writ of habeas corpus, then " i t s h a l l not be necessary to produce [to the c i v i l courts] the body of the person for  ...  so detained," thereby making that l e g a l safeguard  the accused t o t a l l y i n e f f e c t i v e .  /90/  In addition, the  Special Council blocked c o n s t i t u t i o n a l challenges to the l e g i s l a t i o n i n the l o c a l courts by decreeing that: . . . no act of t h i s Ordinance, or of the powers thereby granted, which s h a l l be done i n pursuance of i t , s h a l l be questioned i n any of Her Majesty's courts of j u s t i c e i n the said province. /91/ The statute also provided for a l l persons arrested and detained under i t s provisions "to be brought to t r i a l i n a summary manner by courts m a r t i a l " that would be organized assembled as Colborne  " s h a l l from time to time d i r e c t . "  and /92/  This l a s t provision e f f e c t i v e l y dispensed with a number of safeguards f o r defendants i n treason t r i a l s then i n place i n the B r i t i s h l e g a l system.  Most of these guarantees were  adopted by the English Parliament i n 1695 to avoid r e p e t i t i o n of the miscarriages of j u s t i c e that had taken place before the Glorious Revolution.  Among these protections were:  1) A defendant could not be convicted or acquitted of treason unless by the unanimous v e r d i c t of a jury of twelve. 2) The defendant was to be provided a copy of the indictment i n the presence of two witnesses ten days before t h e i r t r i a l . 3) A copy of the jury panel and of a l i s t of the prosecution's witnesses, including t h e i r names, professions, and places of abode, were to be delivered to the defendant at the same time as the copy of the indictment. 34  4) The defendant would be able to compel the attendance of t h e i r own witnesses. 5) The defendant would be e n t i t l e d to have two lawyers appointed to present h i s defence on his behalf. 6) The defendant would be e n t i t l e d to up to 35 peremptory challenges /93/ instead of the 20 allowed i n a normal felony t r i a l . 7) No evidence of any overt act that was not expressly l a i d out i n the indictment would be admitted or given. 8) No one, unless they confess, refuse to plead, or challenge preemptorily more than 35 members of the jury panel, could be indicted, t r i e d , or convicted except upon the testimony of two witnesses who either t e s t i f y to the same overt act or to separate acts to the same treason (e.g., one t e s t i f i e s to the stealing of m i l i t a r y secrets and the other to the s e l l i n g of those secrets). /94/ F i n a l l y , the 1838 ordinance also permitted Colborne to extend the provisions of the l e g i s l a t i o n to other parts of the colony by pronouncing  them to be under martial law.  /95/  Indeed, on 16 November, Colborne declared martial law i n the d i s t r i c t of Saint Francois.  /96/  But shortly a f t e r the  passage of t h i s ordinance, Andrew Stuart, the S o l i c i t o r General of the colony, expressed doubts about i t s l e g a l i t y . Those concerns were expressed to the Colonial Secretary i n London, Lord Glenelg, who,  i n turn, asked B r i t a i n ' s Attorney  General John Campbell and S o l i c i t o r General Robert M. Rolfe to look into the matter.  In January,  1839, they reported that:  . . . i n Our opinion the Court Established under the Ordinance i n question i s competent to t r y Prisoners under the charge of Treason. We adhere to the opinion we have repeatedly expressed that the Special Council Established i n Lower Canada by 1 V i c . c. 9. i s not restrained from passing Ordinances which may a l t e r the 35  Criminal Law i n Canada and make i t d i f f e r e n t from the Criminal Law of England . . . We conceive that the power of the Special Council to Legislate respecting criminal law and the administration of i t i n Lower Canada i s supreme . . . /97/ Unfortunately,  the ordinance was never subject to  j u d i c i a l review and, therefore, i t i s impossible to say that the courts would have found i t unconstitutional.  However,  another statute adopted by the Special Council was declared unconstitutional by three Lower Canadian judges and, by looking at the circumstances surrounding that s i t u a t i o n , i t i s reasonable to conclude that Campbell and Rolfe were incorrect and that the Council was acting beyond i t s authority when i t authorized the imposition of martial law. As already noted, the Crown's prerogative to invoke martial law i n England had been eliminated by Parliament i n 1689.  /98/  Imperial l e g i s l a t i o n was also supreme i n any  B r i t i s h colony that had obtained some measure of s e l f government whenever the statute s p e c i f i e d that i t would be e f f e c t i v e i n the dependency or i n the colonies i n general or i f i t was c l e a r from the l e g i s l a t i o n i t s e l f that i t applied to the dependency.  Likewise,  c o l o n i a l statutes were ipso facto  void i f they c o n f l i c t e d with the "fundamental p r i n c i p l e s " of the English Common Law, although confusion as to a c t u a l l y what those p r i n c i p l e s were often existed.  /99/  The Act of Parliament which created Lower Canada's Special Council stated that the Council could not take any action "to a f f e c t or invalidate any Law [,] Statute, or Ordinance now i n force [ i . e . , as of 10 February 1838]" within 36  the colony.  /100/  As.provided by the Quebec Act of 1774,  the  criminal law of- England, as i t then existed, would be applied in Canada subject to any a l t e r a t i o n s made by the c o l o n i a l government subject to. being transmitted within s i x months for royal approbation or disallowance.  This included not only  B r i t a i n ' s offenses and penalties, but also the criminal law's "Method of Prosecution and T r i a l . "  /101/  The above-mentioned  protections for the accused i n a treason t r i a l were among the provisions that applied to Canada.  /102/  What also applied  was the Habeas Corpus Act of 1679 which established the procedure f o r the granting of writs of habeas corpus by the courts.  /103/  In 1838,  both the above protections i n a  treason t r i a l and the Habeas Corpus Act were s t i l l i n e f f e c t in Lower Canada.. On 8 November 1838,  the same day that the Special Council  authorized martial law, i t also enacted l e g i s l a t i o n suspending the r i g h t to b a i l f o r anyone i n custody for high treason, the suspicion of high treason, misprision of high treason, or other "treasonable p r a c t i c e s . " /104/  On 21 November, two  judges of the Court of King's Bench i n Quebec City, Philippe Panet and Elzear Bedard, granted a writ of habeas corpus to John Teed, who was  i n custody on suspicion of high treason.  In doing so, they took a l i t e r a l interpretation of the r e s t r i c t i o n upon the Special Council's power to " a f f e c t or invalidate'' any of the laws already e x i s t i n g i n Lower Canada and found the ordinance denying b a i l to be i n v i o l a t i o n of the Habeas Corpus Act.  /105/  On 6 December, another King's Bench  judge, Joseph-Remi V a l l i e r e s de Saint-Real i n Trois-Rivieres, 37  reached the same conclusion and granted a writ of habeas corpus i n favour of Celestin Houde.  /106/  These court decisions led to great consternation amongst the c o l o n i a l government and,  for a b r i e f while, i t was  rumoured that the courts-martial, which were already under way,  would be stopped.  /107/  Instead of c a p i t u l a t i n g ,  however, Colborne counterattacked  by f i r i n g Panet and Bedard  on 10 December and V a l l i e r e s on the 27th.  /108/  Furthermore,  on 21 December, the Special Council adopted an ordinance declaring that the Habeas Corpus Act " i s not nor has ever been i n force i n t h i s province."  /109/  This statute of 21 December was  disallowed by the B r i t i s h  government as beyond the competence of the Special Council. According  to Attorney General Campbell and S o l i c i t o r General  Rolfe: I t purports to enact and declare that the English Statute 31 Car 2 C:2, commonly c a l l e d the Habeas Corpus Act, i s not, nor ever was, i n force i n the Province of Lower Canada. Now, many of the most important provisions of that Act were undoubtedly introduced into the Province of Quebec by the f i r s t Quebec Act 14th Geo 3 C. 83; and at a l l events i t i s c l e a r l y beyond the power of the Governor and Special Council to put a L e g i s l a t i v e construction on the e f f e c t of the B r i t i s h Statute. /110/ However, according the B r i t a i n ' s Attorney General John Campbell and S o l i c i t o r General Robert Rolfe, i t was permissible to declare Panet's and Bedard's actions i l l e g a l because the ordinance denying b a i l merely suspended the r i g h t to such a writ: There could have been no objection i n point of law to an ordinance declaring the issuing of  38  the writs i n the case of Teed to have been i l l e g a l . . . But the ground for such an enactment ought to have been, not that the Stat, of Charles the Second never formed part of the Law of the province, but that the r i g h t s of the subjects to the writ had been duly suspended by the ordinance recently passed, to which the Judges improperly refused to attend. / I l l / This was consistent with an e a r l i e r opinion by Campbell and Rolfe when, i n response to an inquiry from the Colonial Secretary, Lord Glenelg, about the propriety of the judges' decision, they stated that the Habeas Corpus Act had been lawfully suspended by the Special Council: The two judges have picked out and r e l i e d upon a p a r t i c u l a r expression to be found i n t h i s Statute [ i . e . , the Special Council's enabling statute], instead of looking to the general frame and scope of the Statute and the other enactments which i t contains wholly at variance with the Construction they put upon the p a r t i c u l a r expression. The proviso respecting Acts of the Parliament of Great B r i t a i n i s evidently to be confined to Acts of the same Nature as those expressly mentioned [ i . e . , suffrage, the composition of the suspended Assembly, and the appropriation of monies that were i n the hands of the colony's Receiver General]; and cannot be supposed intended to prevent the Special Council from passing any Ordinance at a l l to vary the Criminal Law of Canada from what was the Criminal law of England i n the 14th year of King Geo. 3 [ i . e . , 1774]. I f the intended sense were given to the proviso, the Special Council would be wholly inadequate for the purpose for which i t i s declared to have been created . . . /112/ This conclusion was reached despite the fact that, i n the Special Council's enabling statute, the sections governing suffrage and the other matters "expressly mentioned" contained t h e i r own prohibitions against tampering by the Council, while the provision i n that l e g i s l a t i o n , upon which Panet, Bedard, and V a l l i e r e s r e l i e d , constituted an entire a r t i c l e of i t s own  39  and contained no l i m i t a t i o n as to what other sections i t applied to. /113/ While the v a l i d i t y of the ordinance denying b a i l was never brought again before a court, the public debate i n Canada and the United Kingdom over i t s c o n s t i t u t i o n a l i t y was not over.  On 13 June 1839, Lord (Baronet) John Russell c a l l e d  the issue a "topic of i r r i t a t i o n " that should not e x i s t when Upper and Lower Canada were eventually united.  /114/ Later,  on 11 July, he c a l l e d Panet's, Bedard's, and V a l l i e r e s  1  decisions " f a t a l to the security of the province" and the constraint i n the Special Council's enabling statute on the Council•s power to a l t e r e x i s t i n g laws -a "defect by which great doubts were suggested i n both t h i s country and i n Canada."  /115/ Therefore, to s e t t l e the controversy over the  Special Council's ordinance, Russell introduced l e g i s l a t i o n i n the B r i t i s h House of Commons to repeal the l i m i t a t i o n i n the Council's enabling act against the a l t e r a t i o n of e x i s t i n g laws.  On 17 August, Russell's b i l l became law.  /11.6/  Therefore, before Lord Russell's l e g i s l a t i o n , General Colborne had no power to bring c i v i l i a n s before a m i l i t a r y tribunal.  So why did the Lower Canadian authorities revert to  such measures?  I t must be r e c a l l e d that one of the exceptions  to the general amnesty granted a f t e r the '37 Rebellion were for f i v e individuals who were suspected of murdering Armand and B r i t i s h Lieutenant George Weir.  Joseph  These men were  t r i e d on 6-8 September 1838 but, despite overwhelming evidence, were acquitted by an all-Francophone jury. news of the v e r d i c t reached the public, Patriote 40  When  sympathizers  across the colony erupted i n applause, but c o l o n i a l o f f i c i a l s and t h e i r supporters b i t t e r l y condemned the a c q u i t t a l as partisan and saw  future jury t r i a l s as f u t i l e ; to them, only a  m i l i t a r y t r i b u n a l could administer  impartial j u s t i c e and many  c a l l e d for the outright abandonment of t r i a l by jury. In addition, a f t e r the  '38 Rebellion, several amongst  Lower Canada's e l i t e believed that t h i s l a t e s t insurgency had been caused by the leniency of the l o c a l and  imperial  governments shown a f t e r the '37 Rebellion and that, i n order to prevent a t h i r d r e v o l t , summary m i l i t a r y t r i a l s and swift executions must occur.  Indeed, many Patriotes were encouraged  to r e v o l t again by the leniency shown a f t e r the '37 Rebellion and by the prospect of another amnesty; even a f t e r the courtsmartial began and the gallows were b u i l t , a number of them believed a f t e r the '38 Rebellion that no one would a c t u a l l y be hanged or severely punished.  /117/  The B r i t i s h government also shared the view that jury t r i a l s were no longer e f f i c i e n t t o o l s of j u s t i c e ; on 26 October 1838,  one week before the  '38 Rebellion began, the  Colonial Secretary, Lord Glenelg, unaware of the October 9th resignation of Lower Canada's governor, Lord Durham,  /118/  wrote to Durham that: Your Lordship asserts i n your dispatch that, in the present state of the Province, " t r i a l by Jury e x i s t s only to defeat the ends of j u s t i c e and to provoke the righteous scorn and indignation of the community." - This i s a p i c t u r e of a most lamentable state of things, of which the t r u t h I fear must be admitted, and the e v i l cannot be over-rated. . . . This state of insecurity imperatively requires a remedy. I t i s , therefore, the desire 41  of Her Majesty's Government that an Ordinance should be passed by the Special Council of Lower Canada, constituting a t r i b u n a l f o r the t r i a l of Treason & Murder. . . . I t would not be safe to postpone the formation of such tribunals u n t i l a new insurrection may happen to break out . . . /119/ S t i l l , London did not intend f o r the Lower Canadian government to i n s t i t u t e courts-martial; instead, the l o c a l authorities were to consider special courts s i t t i n g without a jury that would be comprised e n t i r e l y of judges or of a mixture of m i l i t a r y o f f i c e r s and trained lawyers.  While i t i s  possible that these instructions did not reach Montreal before the courts-martial began, they c e r t a i n l y arrived before the f i r s t executions.  General Colborne also ignored suggestions  that the defendants be accorded jury t r i a l s i n the Eastern Townships, or i n an adjacent colony, or i n England i t s e l f . Like the English-speaking e l i t e i n Lower Canada, Colborne wanted a p a r t i c u l a r kind of " j u s t i c e " and was determined that nothing should go wrong.  /120/  The presiding o f f i c e r at the  courts-martial was Major General John Clitherow, the senior m i l i t a r y o f f i c e r of the Montreal d i s t r i c t and former member of the Special Council.  The fourteen other judges were an  assortment of B r i t i s h captains, majors, and lieutenant colonels, a l l of whom were sworn to keep secret the court's deliberations as well as the reasons f o r t h e i r decisions. The m i l i t a r y prosecutor was Captain Edward Muller, but he played a small role i n the proceedings and the r e a l prosecutors were Charles Dewey Day, who would l a t e r become a judge, and the former Patriote Dominique Mondelet, both of  42  whom were supposed to act as impartial l e g a l advisors to the court.  Furthermore, any l e g a l questions a r i s i n g during the  t r i a l s were referred to the colony's law o f f i c e r s , Attorney General Charles Ogden and S o l i c i t o r General Andrew Stuart. In at least one instance, the m i l i t a r y judges were influenced, to the detriment of the Patriote defendants, by the court's c i v i l i a n personnel; on 8 December 1838, when the f.irst courtmartial convicted and sentenced to death Joseph-Narcisse Cardinal and Joseph Duquet, s i x others were sentenced to be transported to Van Diemen's Land f o r l i f e .  On 14 December,  however, due to a communication from Ogden and Stuart that execution was the only penalty allowed by the law, General Colborne required the court to revise i t s sentence and condemn the s i x to death.  The t r i b u n a l obeyed the command, but i n  doing so i t also recommended that the sentence f o r the s i x be commuted to a less severe punishment.  /121/  Such a draconian e f f e c t upon j u s t i c e by government impatience and by the perceptions shared by the supporters of the c o l o n i a l government can also be seen i n the courts-martial that were held i n 1838-39 i n Upper Canada.  Like i t s  neighbour, Upper Canada went through a series of internal r e b e l l i o n s i n 1837 and '38.  These uprisings were i n i t i a t e d by  r a d i c a l democratic reformers long opposed the o l i g a r c h i c form of government that had been created by the Constitutional Act of 1791, and maintained by the network of o f f i c i a l s known as the Family Compact.  Unlike the Lower Canadian rebels,  however, the insurgents i n Upper Canada were supported by a large number of American sympathizers who crossed the border 43  and p a r t i c i p a t e d i n the r e v o l t s .  Two r e b e l l i o n s broke out i n  early December, 1837, but were crushed by the middle of the month and many of the rebels f l e d to the United States, where they a c t i v e l y recruited supporters.  Beginning on 14 December,  a group of Canadians and Americans occupied Navy Island i n the Niagara River f o r one month; the next month, another group b r i e f l y occupied Bois Blanc Island i n the Detroit River (across the r i v e r from the present-day Fort Maiden National H i s t o r i c Site) before attacking Amherstburg.  Three more  invasion attempts by the rebels and t h e i r Yankee a l l i e s were made i n January and February, 1838, including a major r a i d on Pelee Island i n Lake E r i e by a force of Americans that held i t u n t i l March.  Constant rumours of more rebel action kept the  c o l o n i a l government and i t s supporters on edge throughout early 1838.  In June, another band of Americans crossed the  border and attacked a calvary u n i t at St. John's (between present-day Allanburg and Effingham, Ontario) before they were defeated at Short H i l l s .  Rumours of more incursions  heightened fears again that f a l l and, indeed, units consisting almost e n t i r e l y of Americans attacked that season, and were defeated, i n the two l a s t , and bloodiest, encounters of the r e b e l l i o n s ; near Prescott i n mid-November, and at Windsor i n early December. /122/ Despite these attacks, martial law was never declared i n Upper Canada.  However, while Navy Island was occupied, i t was  feared that a landing party might reach the Lake E r i e shoreline at any time and, i f i t did, then large numbers of d i s s a t i s f i e d Canadians were expected t o r i s e up to j o i n i t . 44  Furthermore, the Americans involved were i n a state of l e g a l limbo: because they were foreigners and not B r i t i s h subjects, they could not be charged with treason; p i r a c y applied only to acts committed on the high seas; and since B r i t a i n was at peace with the United States, they were not prisoners of war. To c l e a r up t h i s ambiguity, as well as to deter further American p a r t i c i p a t i o n and to prevent Canadians from j o i n i n g them, l e g i s l a t i o n was adopted creating the new offence of "lawless aggression."  /123/  Under the act, any a l i e n whose  country was at peace with the United Kingdom, who B r i t i s h subject who was  joined any  " t r a i t o r o u s l y i n Arms" against the  c o l o n i a l government, and who,  a f t e r 12 January 1838,  continued  to commit h o s t i l e acts against that government could be t r i e d under: . . . the M i l i t i a Laws of t h i s Province, and upon being found g u i l t y by such Court M a r t i a l of offending against t h i s Act [outlawing "lawless aggression"], such person s h a l l s h a l l be sentenced by such Court Martial to suffer death, or such other punishment as s h a l l be awarded by the Court. /124/ Furthermore, any Canadians found to have l e v i e d war within the colony i n the company of such a person were likewise subject to court-martial. F i n a l l y , the Crown reserved the r i g h t to prosecute any defendants, Canadian or otherwise, f o r "lawless aggression" i n the regular c i v i l i a n courts.  /125/  Before November, 1838,  only one person, Thomas Jefferson  Sutherland, the American commander of the occupation force on Bois Blanc Island, was t r i e d by court-martial under the  45  new  legislation. aggression"  Five other Americans were t r i e d for "lawless i n the c i v i l i a n courts, but only  one,  James Morreau, the leader of the American force at Short H i l l s , was  hanged; another was  acquitted for reason of  insanity and the r e s t were sentenced to transportation. In contrast, at l e a s t 800 Canadians were arrested before November, 1838 c i t i z e n who  and they, as well as at l e a s t one American  was  born a B r i t i s h subject and, therefore, deemed  to have a "perpetual allegiance" to the Crown under B r i t i s h law, were charged with various forms of treason and t r i e d i n the ordinary criminal courts. Convicted for  i n A p r i l , 1838,  /12 6/ and sentenced to transportation  l i f e to A u s t r a l i a , Thomas Sutherland  raised so many  technical objections to h i s t r i a l that the colony's  lieutenant  governor, S i r George Arthur, decided to r e f e r the case to London f o r i n s t r u c t i o n . The Colonial O f f i c e , i n turn, sought a review of the l e g a l i t y of the "lawless aggression" because i t was  concerned whether, under i n t e r n a t i o n a l law,  a l i e n whose country was for  statute  at peace with B r i t a i n could be t r i e d  crimes that were committed only i n the furtherance  p o l i t i c a l objectives. issued on 28 May  an  /127/  In response, an opinion  of was  by the law o f f i c e r s of England that:  We f e e l i t our duty i n t h i s case to observe that the P r o v i n c i a l authorities seem to have f a l l e n into an important error with reference to the case of foreigners who have been taken i n the Province while p a r t i c i p a t i n g i n the r e b e l l i o n . They were a l l c l e a r l y g u i l t y of High Treason, j u s t as much as the natural-born subjects of the Queen. From the moment when they came into the Province, they owed to her Majesty a temporary allegiance the v i o l a t i o n of which subjects them to the penalties of High Treason. /128/ 46  One month l a t e r , the Colonial Secretary, Lord Glenelg, advised Arthur that the home government intended to advise Queen V i c t o r i a to disallow the statute, not because i t v i o l a t e d international law, but because i t made a f a l s e d i s t i n c t i o n between B r i t i s h subjects and foreigners who owed only a temporary allegiance to the Crown.  When Arthur  received t h i s dispatch, he knew that the Upper Canadian judges had already rejected the idea that United States' c i t i z e n s owed a temporary allegiance and, therefore, a t r i a l of the Americans for high treason would probably lead to t h e i r acquittal.  The c o l o n i a l government decided to regard the  statute as operative u n t i l the law had been a c t u a l l y disallowed.  In fact, on 1 September, the B r i t i s h law o f f i c e r s  revised t h e i r opinions and the act was never revoked by London.  /129/  By October, 1838,  one American (Morreau) had been hanged  and four others (including Sutherland)  had been sentenced to  transportation f o r l i f e f o r "lawless aggression."  In contrast,  two Canadians were hanged and over one hundred sent to Kingston Prison or to Van Diemen's Land f o r treason.  I t was  hoped by the Upper Canadian government that t h i s would be s u f f i c i e n t to deter further rebel insurrections and,  indeed,  that apparently was the case because, when two groups of Americans (along with a handful of Canadians) crossed the border i n November and December, 1838  to r a i d Prescott and  Windsor, there was no domestic support for the r a i d e r s . S t i l l , a f t e r the attacks at Prescott and Windsor, the public was t i r e d and angry a f t e r a year of invasions and rumours of 47  invasion and took a hard l i n e towards the l a t e s t catch of prisoners.  The Upper Canadian authorities f e l t the same and  Lieutenant-Governor S i r George Arthur directed that the Prescott and Windsor raiders, Americans and Canadians a l i k e , be court-martialled under the "lawless aggression" statute. Of the 157 men captured near Prescott, 135 were t r i e d , convicted, and sentenced to death by court-martial and eleven, a l l Americans (including one recent immigrant from Poland), were executed between 8 December 1838 and 11 February 1839. Of the 44 taken at Windsor, one (an American thought to be insane) was acquitted while the others were likewise convicted and sentenced to death, of whom s i x (three Americans and three Canadians) were hanged between 7 January and 8 February, 1839. By mid-February, most Upper Canadians were repelled by the numerous executions and government o f f i c i a l s were i n c l i n e d to show mercy.  Therefore, the 22 Prescott raiders who had not  yet gone to t r i a l  (nine Americans, s i x Canadians, f i v e  Europeans, and one "cosmopolitan") were released and, of the 124 awaiting the gallows, 60 (57 Americans and three Canadians) were transported to A u s t r a l i a and the rest ( a l l Americans, mostly between 16 and 21 years of age) were deported to the United States.  Of the 37 remaining Windsor  prisoners, 18 (14 Americans and four Canadians) were sent to Van Diemen's Land, 16 ( a l l Americans, mostly between 15 and 20 years of age) were deported to the United States, two (both Canadians who turned Queen's evidence) were released, and one (a Canadian) escaped.  The disproportionate number of  Americans who were executed or transported a f t e r the b a t t l e s 48  at Prescott and Windsor was nature of the two captured  due to the e s s e n t i a l l y American  invasion forces; only nine of the  157  at Prescott and only ten of the 44 taken at Windsor  were Canadian.  /13 0/  Just as the Upper Canadian t r i a l s , what happened i n Lower Canada i n 1838-39 supports the " s o c i a l c o n t r o l " theory c  whereby the law i s not only created by one or more of society's segments, but i t also favours the i n t e r e s t of the dominant class or groups over the rest of society and i t changes as s o c i a l conditions change.  The courts-martial were  a weapon which the governing class used to s a t i s f y i t anxiety and fears.  As already indicated, the p o l i t i c a l e l i t e i n Lower  Canada became convinced j u s t before the outbreak of the  '38  Rebellion that Francophone j u r i e s would never convict Patriote rebels.  Furthermore, once the '38 Insurrection was  crushed,  the e l i t e believed that the second r e v o l t had been encouraged by the leniency shown a f t e r the '37 Rebellion and that, to prevent a t h i r d r e v o l t , summary m i l i t a r y t r i a l s were needed. The courts-martial deprived defendants of the customary safeguards for the accused i n treason t r i a l s that had been adopted over one hundred years before by the English Parliament.  The governing group further manipulated the l e g a l  system by removing c i v i l i a n judges who  dared to challenge  unconstitutional acts of the Special Council and  the  by  r e s t r i c t i n g the d i s c r e t i o n of the m i l i t a r y court i n the sentences that i t could hand down. not popular consensus, shaped the  49  C o n f l i c t and coercion, law.  and  There i s no evidence i n the courts-martial for the p o s t - s t r u c t u r a l i s t theory that what the law i s and does i s connected with other c l u s t e r s of b e l i e f or assumptions of r e a l i t y that are shared through language. Cardinal's and Duquet's death, there was  Right up u n t i l no exchange of  b e l i e f s or understanding between the colony's governing class and the Patriotes and t h e i r sympathizers; the e l i t e demanded blood and the rebels were convinced that none would be shed. If there was  any "discourse," i t was  s t r i c t l y amongst the  c o l o n i a l o f f i c i a l s and between them and the imperial government i n an attempt to j u s t i f y the courts-martial and to maintain the facade of l e g a l i t y that would prevent the members of the c o l o n i a l government from l a t e r being held l i a b l e f o r t h e i r repressive actions.  The courts-martial were also a  message from the e l i t e to potential rebels that armed r e b e l l i o n would no longer be treated with leniency. We may  hope that Canada w i l l never again see c i v i l i a n s  t r i e d i n a m i l i t a r y court while the ordinary c i v i l courts are s t i l l operating. example of how  The courts-martial of 1838-39 provide  an  a c o n s t i t u t i o n that i s based upon custom and  t r a d i t i o n i s open to abuse, but r i g h t s that are embedded i n a written c o n s t i t u t i o n can be ignored as well.  The Charter of  Rights guarantees t r i a l by jury for serious offences, but i t also gives Parliament and p r o v i n c i a l l e g i s l a t u r e s the power to ignore that guarantee i n the case of a national emergency "as can be demonstrably j u s t i f i e d i n a free and democratic society."  /131/  Therefore,  i f the federal, or a p r o v i n c i a l ,  government should ever determine that the need has arisen, i t 50  can ignore one of our fundamental legal r i g h t s while maintaining  the a i r of c o n s t i t u t i o n a l i t y around i t s actions.  This q u a l i f i c a t i o n gives the government the power, which did not e x i s t under B r i t i s h law, to recognize  "states of siege" or  "states of emergency" during which the powers of the c i v i l i a n and m i l i t a r y authorites are unlimited and unrestrained. Furthermore, a written c o n s t i t u t i o n that does not grant the power to override fundamental l e g a l r i g h t s when i t i s deemed necessary to do so by the government provides no stronger guarantee of those r i g h t s ; as demonstrated by h i s t o r i a n F. Murray Greenwood, American courts have done a better job of respecting the guarantees enshrined  i n the United  States  Constitution and i t s B i l l of Rights a f t e r a c r i s i s i s over rather than while i t i s occurring.  /132/ The courts-martial  of 1838-39 i n Lower Canada merely provide another example of fundamental l e g a l p r i n c i p l e s being tossed aside when they are deemed an impediment.  Thus, i t appears, that the r u l e of law  w i l l only p r e v a i l when those i n authority f e e l secure from serious threats and that the sacred p r i n c i p l e that c i v i l i a n s may be t r i e d only by c i v i l i a n courts when those courts are functioning i s a f r a g i l e i d e a l .  51  ENDNOTES  1  Michel de Lorimier, "Joseph-Narcisse Cardinal," i n Dictionary of Canadian Biography, Vol 7 (Toronto: University of Toronto Press, 1988) 147-150; Gerard F i l t e a u , "Joseph Duquet," i n DCB, V o l . 7, 264-265.  2  Report of the State T r i a l s Before a General Court Martial Held at Montreal i n 1838-39: Exhibiting a Complete History of the Late Rebellion i n Lower Canada, Vol. 1 (Montreal: Armour and Ramsay, 1839), 20, 72-72, 76-78, 85-88. The complete t r a n s c r i p t of the testimony and pleadings of Cardinal's and Duquet's t r i a l i s contained on pages 3-88 of said Report.  3  de Lorimier, "Joseph-Narcisse Cardinal," DCB,. Vol. 7, supra, note 1, 149-50; E l i n o r Kyte Senior, "John Clitherow," i n Dictionary of Canadian Biography, Vol. 8 (Toronto: University of Toronto Press, 1985) 164; Joseph Schull, Rebellion: The Rising i n French Canada 1837 (Toronto: Macmillan of Canada, 1971) 181189; F. Murray Greenwood, "The Chartrand Murder T r i a l : Rebellion and Repression i n Lower Canada, 1837-1839," i n Criminal J u s t i c e History and International Annual, Vol. 5 (Westport, CT: Meckler Publishing, 1984), 151152.  4  Vince Masciotra, "Quebec Legal Historiography, 1760-1900," McGill Law Journal 32:3 (July, 1987): 723, 723n38; Jean-Marie Fecteau, "Mesures d'exception et regie de d r o i t : Les conditions d•application de l a l o i martiale au Quebec l o r s des r e b e l l i o n s de 1837-1838," McGill Law Journal 32:3 (July, 1987): 466-467, 467n3.  5  F. Murray Greenwood, "The General Court Martial of 1838-39 i n Lower Canada: An Abuse of J u s t i c e , " i n Canadian Perspectives on Law and Society: Issues i n Legal History eds: W. Wesley Pue and Barry Wright, Carleton Library Series, no. 152. (Ottawa: Carleton University Press, 1988), 249-290; Masciotra, supra, note 4, 723n38; Fecteau. supra, note 4, 466-467, 467n3. See, also, F. Murray Greenwood, "L'insurrection apprehendee et 1 administration de l a j u s t i c e au Canada: Le point de vue d'un h i s t o r i e n , " Revue d ' h i s t o i r e de l'Amerique francaise 34:1 (juin [June], 1980): 57-91; Greenwood, "The Chartrand Murder T r i a l , " supra, note 3, 129-159. 1  52  6  F.B. Wiener, C i v i l i a n s under M i l i t a r y J u s t i c e : The B r i t i s h Practice since 1689. E s p e c i a l l y i n North America (Chicago: University of Chicago Press, 1967), 6-7; W.S. Holdsworth, "Martial Law H i s t o r i c a l l y Considered," The Law Quarterly Review 18 (1902): 117, 119-122.  7  Richard O'Sullivan, "Introduction, i n M i l i t a r y Law and the Supremacy of the C i v i l Courts^ being the Judgment of The Hon. Mr. J u s t i c e McCardie i n Heddon v. Evans (London: Stevens and Sons, 1921), 22; Holdsworth, supra, note 6, 128.  8  Richard A. Yates and Ruth Whidden Yates, Canada s Legal Environment: I t s History, I n s t i t u t i o n s and P r i n c i p l e s (Scarborough, Ontario: Prentice H a l l Canada, Inc., 1993), 2-7.  9  Robert W. Gordon, "New Developments i n Legal Theory," i n David Kairys (ed.) The P o l i t i c s of Law: A Progressive Critigue. ed: David Kairys (New York: Pantheon Books, 1982), 284-287; Pennie Reedie, "The Crimes of Treason and Sedition i n Canada," Laurentian University Review 11:1 (November, 1978): 17- 20.  10  11  11  1  Gordon, supra. note 9, 284; Reddie, supra, note 9, 18- 19; Roscoe Pound, "A Survey of S o c i a l Interests," Harvard Law Review 57 (1943): 39. Reddie, supra, note 9, 19-20. F. Murray Greenwood c l e a r l y sees the courtsmartial of 1838-39 i n Lower Canada as a t o o l of the colony's English-speaking e l i t e to maintain i t s dominant p o s i t i o n . Greenwood, "The General Court M a r t i a l of 1838-39," supra, note 5. I t should be noted, however, that unlike the s i t u a t i o n i n Lower Canada, Greenwood finds a pattern amongst the courts during the 1837-38 r e b e l l i o n s i n Upper Canada of f i r s t reacting to the c r i s e s with firm r i g o r and then, once the c r i s e s are over, with leniency. This i s s i m i l a r to Hay's and Thompson's argument that the e l i t e uses the law to i n s p i r e both fear and gratitude i n the lower classes i n order to maintain i t s own power. Compare the discussion accompanying notes 15 through 18 with Greenwood, "L'insurrection apprehendee et 1•administration de l a j u s t i c e au Canada," supra, note 5. Another Canadian l e g a l h i s t o r i a n who sees the criminal law as an instrument created by the dominant groups i n society to protect t h e i r way of l i f e i s John Weaver who has found a connection between the 53  increase i n crime and the modifications i n punishment i n Upper Canada during the early V i c t o r i a n Age, the s o c i a l upheaval i n the colony caused by the Industrial Revolution i n Great B r i t a i n and the famine i n Ireland, and the upper classes' attitudes about crime and punishment during that period. John Weaver, "Crime, Public Order, and Repression: The Gore D i s t r i c t i n Upheaval, 1832-1851," i n Lawful Authority: Readings on the History of Criminal J u s t i c e i n Canada, ed: R.C. Macleod (Toronto: Copp Clark Pitman, Ltd., 1988), 22-48. 12  13  Martin Horwitz, Human Good?," 86 The E.P. Thompson, Whigs Black Act (New York:  "The Rule of Law: An Unqualified Yale Law Journal (1977) 563; and Hunters: The Origin of the Pantheon Books, 1975), 259.  Gordon, supra, note 9, 285. For a neo-Marxist view of the 1838-39 courtsmartial i n Lower Canada, see Fecteau, "Mesures d'exception et regie de d r o i t : Les conditions d*application de l a l o i martiale au Quebec l o r s des r e b e l l i o n s de 1837-1838," supra. note 4. A v a r i a t i o n of the Marxist view of the r o l e of the criminal law i n history can be found i n N e i l Boyd's "The Origins of Canadian Narcotics L e g i s l a t i o n : The Process of Criminalization i n H i s t o r i c a l Context," i n Lawful Authority: Readings on the History of Criminal Justice i n Canada, ed: R.C. Macleod (Toronto: Copp Clark Pitman, Ltd., 1988), 192-218.  14  Eugene D. Genovese, The World the Slaveholders Made: Two Essays i n Interpretation (New York: Pantheon Books, 1969), 27.  15  Douglas Hay, "Property, Authority and the Criminal Law," i n Douglas Hay, et. a l . , Albion's Fatal Tree: Crime and Society i n Eighteenth-Century England (New York: Pantheon Books, 1975), 33.  16  i b i d . , 27-31, 32-34, 40-47, 49-51. Canadian l e g a l h i s t o r i a n Paul Craven has found Hay's analysis of the function of the criminal law to be s i m i l a r to many of the conclusions i n h i s own study of the Toronto Police Court of the mid-nineteenth century. Paul Craven, "Law and Ideology: The Toronto Police Court, 1850-1880," i n Essays i n the History of Canadian Law V o l . 2, ed: David H. Flaherty (Toronto: University of Toronto Press, 1983), 248-307. f  (continued)  54  See, also, discussion regarding F. Murray Greenwood's "L'insurrection apprehendee et 1'administration de l a j u s t i c e au Canada" i n note 11. 17  Thompson, supra, note 12, 263.  18  i b i d . , 264-265. In a study whose conclusions are reminiscent of Thompson's analysis about the nature of law, Canadian l e g a l h i s t o r i a n William N.T. Wylie has argued that the leading merchants, and l a t e r the administrators, of early Upper Canada t r i e d , f o r the purpose of maintaining the compliance of the lower classes, to create a j u d i c i a l system that was seemingly independent from manipulation, but f a i l e d to achieve the perception of objective j u s t i c e and equal access to the courts. William N.T. Wylie, "Instruments of Commerce and Authority: The C i v i l Courts i n Upper Canada, 17891812," i n Essays i n the History of Canadian Law, Vol. 2, ed: David H. Flaherty (Toronto: University of Toronto Press, 1983), 3-48. See, also, discussion regarding F. Murray Greenwood's "L'insurrection apprehendee et 1'administration de l a j u s t i c e au Canada" i n note 11.  19 20  21 22  Gordon, supra, note 9, 286-287. i b i d . , 287-288; Tina Loo, Making Law, Order, and Authority i n B r i t i s h Columbia, 1821-1871 (Toronto: University of Toronto Press, 1994), 6-12 7-8,  Gordon, supra, note 9, 288; Loo, supra. note 20, 11.  Gordon, supra. note 9, 288; Loo, supra, note 20, 7-8, 11; Thomas Stone, "The Mounties as V i g i l a n t e s : Perceptions of Community and the Transformation of Law i n the Yukon, 1885-1897," i n H i s t o r i c a l Perspectives on Law and Society i n Canada, eds: Tina Loo and Lorna R. McLean (Toronto: Copp Clark Longman Ltd., 1994), 111115, 120-127. So f a r , no one has applied the p o s t - s t r u c t u r a l i s t approach to the 1838-39 courts-martial i n Lower Canada. For the application of t h i s approach to the 1838-39 courts-martial i n Upper Canada, see Barry Wright, "The Ideological Dimensions of Law i n Upper Canada: The Treason Proceedings of 1838," chap, i n Criminal J u s t i c e History: An International Annual Vol. 10 (Westport, CT: Meckler Publishing, 1989), 149-167. Another Canadian l e g a l h i s t o r i a n who i s a p o s t - s t r u c t u r a l i s t i s Rainer Baehre who considered 55  crime and insanity as specialized forms of popular resistance to the s o c i a l order i n h i s "Imperial Authority and Colonial Officialdom of Upper Canada i n the 1830s: The State, Crime, Lunacy, and Everyday L i f e , " chap, i n Law, Society, and the State: Essays i n Modern Legal History, ed.s: Louis A. Knafla and Susan W.S. Binnie (Toronto: University of Toronto Press, 1995), 181-207. Lawrence M. Friedman, who i s perhaps the eminent American l e g a l h i s t o r i a n of today, subscribes to the " p o s t - s t r u c t u r a l i s t " theory about the criminal law and i t s role i n society. He does argue, however, that while the r i c h and powerful generally make the decisions about what constitutes "crime," the poor and the week do have a say (albeit, a small one) i n defining the criminal law. Lawrence M. Friedman, Crime and Punishment i n American History (New York: BasicBooks, 1993), 2-9. For a b r i e f survey of post-structuralism's influence on Canadian l e g a l historiography between 1979 and 1985, see Louis A. Knafla's "Recent Historiography i n the History of Crime and Criminal J u s t i c e i n England and Canada," i n Crime and Criminal J u s t i c e i n Europe and Canada, ed: Louis A. Knafla, revised e d i t i o n (Waterloo: W i l f r i d Laurier University Press, 1985), vii-xxix. 23  Charles Townshend, "Martial Law: Legal and Administrative Problems of C i v i l Emergency i n B r i t a i n and the Empire, 1800-1940," The H i s t o r i c a l Journal 25 (1982): 171.  24 25 26  i b i d . , 167-168. i b i d . , 168; Fecteau, supra, note 4, 474. Robert H. Schomburgk, The History of Barbados; Comprising a Geographical and S t a t i s t i c a l Description of the Island; a Sketch of the H i s t o r i c a l Events since the Settlement; and an Account of i t s Geology and Natural Productions (London: Longmans, Brown, Green, and Longmans, 1848; reprint ed., London: Frank Cass and Company, Ltd., 1971), 361-362. G.E. Cory, The Rise of South A f r i c a : A History of the Origin of South African Colonisation and i t s Development Towards the East from the E a r l i e s t Times to 1857, V o l . 3 (London: Longmans, Green and Company, 1919; reprint ed., Cape Town: Struik, 1965), 60-80, 92-93.  56  27  H i l a r y Beckles, Black Rebellion i n Barbados: The Struggle Aorainst Slavery. 1627-1838 (Bridgetown, Barbados: A n t i l l e s Publications, 1984), 87-89; Great B r i t a i n , Parliament, Hansard's Parliamentary Debates (Commons), New [2nd] series, V o l . 11 (1824): 964-968; W.J. Gardner, A History of Jamaica From I t s Discovery by Christopher Columbus to the Year 1872 3rd e d i t i o n (London: Frank Cass and Company, Ltd., 1971), 273-282; Michael Craton, "Proto-Peasant Revolts? The Late Slave Rebellions i n the B r i t i s h West Indies, 1816-1832" Past and Present 85 (November, 1979) 101n8, 105n23, 109n30; Helen Taft Manning, B r i t i s h Colonial Government A f t e r the American Revolution. 1782-1820. Yale H i s t o r i c a l Publications, Miscellany, V o l . 15 (New Haven: Yale University Press, 1933), 369.  28  Beckles, supra. note 27, 89; Times 5 June 1816.  (London),  29  Gardner, supra, note 27, 273-282.  30  Townshend, supra, note 23, 169-170, 172.  31  Hansard's Parliamentary Debates (Commons), New [2nd] series, Vol. 11 (1824), supra, note 27, 406-408, 964-968, 990, 1208, 1231; Craton, supra. note 27, 106, 108-109.  32 New  Hansard's Parliamentary Debates (Commons), [2nd], series, Vol. 11 (1824), supra. note 27,  1206.  33  i b i d . , 1314; Craton, supra, note 27, 108-109.  34  "The Case of the Island of Grenada; i n r e l a t i o n to the Payment of Four and one-half i n the Hundred of Goods exported thereform; between ALEXANDER CAMPBELL, esq. P l a i n t i f f , and WM. HALL, esq. Defendant, i n the Court of King's-Bench, before Lord Chief-Justice Mansfield: 15 GEORGE I I I . A.D. 1774," quoted i n i t s entirety i n Vol. 20, A Complete C o l l e c t i o n of State T r i a l s and Proceedings f o r High Treason and other Crimes and Misdemeanors from the E a r l i e s t Period to the Year 1783, with Notes and Other I l l u s t r a t i o n s : Complied by T.B. Howell, Esg. F.R.S. F.S.A. including, i n Addition to the Whole of the Matter Contained i n the F o l i o E d i t i o n of Hargrave, Upwards of Two Hundred Cases Never Before Collected, complied by T.B. Howell (London: T.C. Hansard, 1816), 239-240, 320-322. The court's decision i n "Campbell v. H a l l , " with s l i g h t variations i n the text, can also be found i n Adam Shortt and Arthur G. Doughty, editors, Documents Relating to the Constitutional History of Canada 1759 1791, Second and Revised Edition, Part 1 (Ottawa:  57  J . de L. Tache, Printer to the King's Most Excellent Majesty, 1918), at 522-531. However, unlike the Complete C o l l e c t i o n of State T r i a l s , Shortt and Doughty do not include the text of the o r i g i n a l complaint i n the case, the arguments of the attorneys that were made before the Court of King's Bench, or the text of the discussion regarding the case found i n Volume 2 of Baron Maseres' "Canadian Freeholder." 35  "Campbell v. H a l l , " Complete C o l l e c t i o n of State T r i a l s , supra. note 34, 322-323.  36  S i r Alexander Cockburn, Charge of the Lord Chief J u s t i c e of England to the Grand Jury at the Central Criminal Court, i n the Case of The Queen Against Nelson and Brand [hereinafter R. v. Nelson and Brandl, Frederick Cockburn (ed.) (London: William Ridgway, 1867), 10-11.  37 38  Manning. supra. note 27, 367-375. D.B. Swinfen, Imperial Control of Colonial L e g i s l a t i o n 1813-1865 (Oxford: Oxford University Press, 1970), 53.  39  Cockburn, supra, note 36, 13-19.  40  i b i d . , 19nl.  41  Schomburgk, supra, note 26, 362-363.  42  Resolutions of the Barbados' General Assembly, adopted 29 May 1805, quoted i n i b i d . , 363nl.  43  Address of Lord Seaforth to the Barbados' General Assembly, 18 June 1805, quoted i n Schomburgk, supra note 26, 364. f  44  Schomburgk, supra,, note 26, 364.  45  Resolutions of the Barbados' General Assembly, adopted 16 July 1805, quoted i n i b i d . , 365.  46  Resolutions of the Barbados' General Assembly, adopted 16 J u l y 1805, quoted i n Schomburgk, supra, note 26, 365.  47 48  Schomburgk, supra. note 26, 365. Two Patriotes were appointed to the L e g i s l a t i v e and Executive Councils. The f i r s t , Denis-Benjamin Viger, served i n the L e g i s l a t i v e Council f o r only one month i n 1831. The second, Dominique Mondelet, was appointed to the Executive Council i n November, 1832. His appointment was attacked by the r a d i c a l wing of the 58  Patriotes with whom Mondelet had s p l i t e a r l i e r that year. The r a d i c a l s were a n t i c l e r i c a l and n a t i o n a l i s t i c and favoured the implementation of American republican ideals while the moderates concentrated on r i g h t i n g abuses and defending t r a d i t i o n a l Quebec i n s t i t u t i o n s . By the end of 1834, the r a d i c a l s had taken over the Patriote movement and Mondelet's break with t h e i r cause was complete. Mondelet was l a t e r one of the prosecuting attorneys i n the 1838-39 courts-martial i n Lower Canada. Michel de Lorimier, "Denis-Benjamin Viger," i n Dictionary of Canadian Biography. V o l . 9 (Toronto: University of Toronto Press, 1976) 810-811; Elizabeth Gibbs, "Dominique Mondelet," DCB. Vol 9, 559-560; Sonra Chasse, Rita Girard-Wallot, and Jean-Pierre Wallot, "John Neilson," DCB. Vol. 7, supra, note 1, 647-648. 49  Fecteau, supra, note 4, 477-478; Margaret Conrad, A l v i n Finkel, and Cornelius Jaenen, History of the Canadian Peoples: Beginnings to 1867. V o l . 1 (Toronto: Copp Clark Pittman Ltd., 1993) 412-416.  50  Fecteau, supra. note 4, 481-482; Greenwood, "The Chartrand Murder T r i a l , " supra. note 3, 129-130.  51  An Act to make Temporary Provision f o r the Government of Lower Canada (U.K.), 1838, 1 V i c t . , c.9, art.s 1-3 and 6, i n Vol. 78, The Statutes of the United Kingdom of Great B r i t a i n and Ireland (aka Statutes at Large) (London: Her Majesty's Printers, 1838), 36-39.  52  Colborne to Glenleg, 27 February 1838, quoted i n i t s e n t i r e t y i n B r i t i s h Parliamentary Papers: Colonies Canada, Vol.. 9 (Shannon, Ireland: I r i s h University Press, 1969), 199; Colborne to Glenleg, 2 November 1838, quoted i n i t s entirety i n B r i t i s h Parliamentary Papers: Colonies Canada, Vol. 10 (Shannon, Ireland: I r i s h University Press, 1969), 245; Proclamation of S i r John Colborne, on the 1st day of November 1838, declaring His Assumption of the Administration of the C i v i l Government i n Lower Canada, quoted i n i t s e n t i r e t y i n B r i t i s h Parliamentary Papers: Colonies Canada. Vol. 10, 245.  53  de Lorimier, "Joseph-Narcisse Cardinal," DCB. Vol. 7, supra, note 1, 149-50; Michel de Lorimier, "Chevalier de Lorimier" i n DCB, Vol. 7, supra, note 1, 513-514; Senior, "John Clitherow," DCB, V o l . 8, supra. note 3, 164.  54  Proclamation of S i r John Colborne, on the 4th day of November 1838, declaring Martial Law i n the D i s t r i c t of Montreal, Lower Canada, quoted i n i t s entirety i n  59  B r i t i s h Parliamentary Papers: Colonies Canada, Vol. 10, supra, note 52, 252. 55  G.W. Wicksteed, Tables of the P r o v i n c i a l Statutes and Ordinances i n Force or Which Have Been i n Force i n Lower Canada, i n Their Chronological Order (Toronto, Stewart Derbishire and George Desbarats, 1857) 77.  56  An Ordinance f o r the suppression of the Rebellion which unhappily exists within t h i s Province of Lower Canada, and f o r the protection of the persons and properties of Her Majesty's f a i t h f u l subjects within the same (Lower Canada), 1838 (3rd session, Special Council), 2 V i c t . , c. 3, art.s 1 and 5, i n Vol. 10, B r i t i s h Parliamentary Papers: Colonies Canada (Shannon, Ireland: I r i s h University Press, 1969), 256-257.  57  Fecteau, supra, note 4, 477; Greenwood, "The Chartrand Murder T r i a l , " supra, note 5, Wicksteed, supra. note 55, 77.  58 59  151;  Cockburn, supra, note 36, 9. Proclamation of S i r John Colborne, on the 1st day of November 1838, declaring His Assumption of the Administration of the C i v i l Government i n Lower Canada, quoted i n i t s entirety i n B r i t i s h Parliamentary Papers: Colonies Canada, Vol. 10, supra, note 52, 245.  60  Cockburn, supra, note 36,  20.  61  Magna Carta (England), 1215, a r t . 39. Translation: No free man s h a l l be taken or imprisoned or disseised or outlawed or exiled or i n any way ruined, nor w i l l we go or send against him, except by the lawful judgement of h i s peers or by the law of the land. O r i g i n a l Latin text and English t r a n s l a t i o n are printed, side-by-side, i n J.C. Holt, Magna Carta (Cambridge: Cambridge University Press, 1965), 326-327. The text quoted i s from the surviving o r i g i n a l copy of the Magna Carta known as " C i i . " Ci and C i i contain minor differences from the other two o r i g i n a l copies, none of which are relevant to t h i s study. Holt, Magna Carta, 313-315.  62  S i r Matthew Hale, H i s t o r i a Placitorum Coronae: The History of the Pleas of the Crown, Now f i r s t published from h i s Lordship's O r i g i n a l Manuscript, and the several References to the Records examined by the 60  Originals, with large Notes. Sollom Emlyn (ed.) Vol. 1 ("In the Savoy:" E. and R. Nutt, R. Gosling, T. Woodward, and C. David, 1736), 344-347, 499-500. 63  Claus. 1 Edw. 3 part. 1. M. 21. (England), 1327, [also found at P a r i . I I . E. 3. p. 1. M. 17. Stat. 1. Edw. I I I . ] , quoted i n i t s entirety, except f o r Parliament's r e c i t a t i o n of the record of the E a r l of Lancaster's court-martial i n 1322, i n i b i d . , 345-346. Translation: . . . the said Thomas erroneously and against the law of the land, i n time of peace, was sentenced to death; by reason whereof, because i t i s notorious and manifest that the whole time i n which i t was charged against the said E a r l , that he committed the aforesaid offences and crimes i n the aforesaid record and proceeding contained, and also the time when he was taken, and when the said l o r d the king's father, &c. caused i t to be recorded that he was g u i l t y , and when he was sentenced to death, was time of peace; i n p a r t i c u l a r because, throughout the whole time aforesaid, the chancery and other places of the courts of the l o r d the king were open, and i n them law was done to every one as i t used to be done. Translation found i n "Proceedings against Thomas, E a r l of Lancaster, f o r Treason," V o l . 1, A Complete C o l l e c t i o n of State T r i a l s and Proceedings f o r High Treason and other Crimes and Misdemeanors from the E a r l i e s t Period to the Year 1783. with Notes and Other I l l u s t r a t i o n s : Complied by T.B. Howell, Esq. F.R.S. F.S.A. including, i n Addition to the Whole of the Matter Contained i n the F o l i o E d i t i o n of Hargrave, Upwards of Two Hundred Cases Never Before Collected, complied by T.B. Howell (London: T.C. Hansard, 1816), 46.  64  A writ of habeas corpus i s a l e g a l device primarily used to release a prisoner from unlawful confinement. The issuance of such a writ does not determine the person's g u i l t y or innocence, but only that he i s being i l l e g a l held. Henry Campbell Black, Joseph R. Nolan, and M.J. Connolly, Black's Law Dictionary: Definitions of the> Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 5th ed. (St. Paul: West Publishing Company, 1979), 638.  65  " T r i a l of THEOBALD WOLFE TONE f o r High Treason, before a Court Martial holden at Dublin on Saturday, November 10th, together with the Proceedings i n the Court of King's Bench on Monday, November 12th: 39 GEORGE I I I . A.D. 1798," quoted i n i t s e n t i r e t y i n Vol. 27, A Complete C o l l e c t i o n of State T r i a l s and 61  Proceedings f o r High Treason and other Crimes and Misdemeanors from the E a r l i e s t Period to the Year 1783, with Notes and Other I l l u s t r a t i o n s : complied bv T.B. Howell, Esq. F.R.S. F.S.A. and continued from the Year 1783 to the Present Time, complied by T.B. Howell (London: T.C. Hansard, 1820), 624-626. 66 67  Cockburn, supra, note 36, 25-45. The p e t i t i o n exhibited to h i s Majesty by the lords s p i r i t u a l and temporal, and commons, i n t h i s present parliament assembled, concerning divers rights and l i b e r t i e s of the subjects, with the King's majesty's royal answer thereunto i n f u l l parliament (England), 1627, 3 Car. 1, a r t . 7, i n Vol. 2, The Statutes at Large of England and of Great-Britain: From Magna Carta to the Union of the Kingdoms of Great B r i t a i n and Ireland, edited by John Raithby (London: George Eyre and Andrew Strahan, Printers to the King's Most Excellent Majesty, 1811), 727-728.  68  i b i d . , art.s 7 & 10(5).  69  i b i d . , a r t . 10(3).  70  An Act declaring the Rights and L i b e r t i e s of the Subject, and s e t t l i n g the Succession of the Crown (England), 1689, 1 W. & M., Sess. 2, c.2, i n V o l . 3, The Statutes at Large of England and of Great-Britain: From Magna Carta to the Union of the Kingdoms of Great B r i t a i n and Ireland, edited by John Raithby (London: George Eyre and Andrew Strahan, P r i n t e r s to the King's Most Excellent Majesty, 1811), 275-278.  71  Hansard's Pariiamentary Debates (Commons), New [2nd] series, Vol. 11 (1824), supra, note 27, 1049.  72  Opinion of attorney-general and s o l i c i t o r - g e n e r a l , 16 January 1838, Jamaica Rebellion f i l e , P.R.O. W.O. 32-6235, quoted i n Townshend, supra, note 23, 171-72.  73  Beckles, supra, note 27, 87-89; Schomburgk, supra, note 26, 39.  74  Mary Reckord, "The Jamaica Slave Rebellion of 1831," Past and Present 40 (July, 1968): 120-123; Gardner, supra, note 27, 273-282.  75  Hansard's Parliamentary Debates (Commons), New [2nd] series, Vol. 11 (1824), supra, note 27, 1046-1048.  76  Cory, supra, note 26,  62  330.  1046,  77  Cockburn, supra. note 36, 29.  78  See text accompanying notes 34 through  40.  79  "Campbell v. H a l l , " Complete C o l l e c t i o n of State T r i a l s , supra, note 34, 325-326, 327-330.  80  An abridged version of "Sammut v. Strickland," [1938] A.C. 678, J u d i c i a l Committee of the Privy Council, can be found i n 0. Hood P h i l l i p s , Leading Cases i n Constitutional and Administrative Law, Third E d i t i o n (London: Sweet and Maxwell, 1967) at 419-423.  81  "Campbell v. H a l l , " Complete C o l l e c t i o n of State T r i a l s , supra, note 34, 328.  82  Royal Proclamation of 7 October 1763, quoted i n i t s e n t i r e t y i n Shortt and Doughty, Documents Relating to the Constitutional History of Canada 1759 - 1791. supra, note 34, 165.  83  "Campbell v. H a l l , " Complete C o l l e c t i o n of State T r i a l s , supra, note 34, 329.  84  Commission of Captain-General & Governor i n Chief of the Province of Quebec, 21 November 1763, quoted i n i t s entirety i n Shortt and Doughty, Documents Relating to the Constitutional History of Canada 1759 - 1791. supra, note 34, 175-176.  85  Swinfen, supra, note 38,  86  Cockburn, supra, note 36, 9.  87  An Ordinance f o r the suppression of the Rebellion which unhappily exists within t h i s Province of Lower Canada, and f o r the protection of the persons and properties of Her Majesty's f a i t h f u l subjects within the same, supra, note 17, a r t . 1.  88  ibid.  89  ibid.  90  i b i d . , a r t . 3.  91  i b i d . , a r t . 2.  92  i b i d . , a r t . 1.  93  54.  A party may c a l l into question, or "challenge," the c a p a b i l i t y of a person to serve on a jury. A peremptory challenge i s a challenge f o r which no reason has to be given to the court to keep a person 63  from serving on the jury. In contrast, a challenge for cause requires the party to provide the court with a s a t i s f a c t o r y reason (such as.bias) as to why the prospective juror should not be seated and, before i t acts, the court must be convinced that the reason i s compelling. Black, Black's Law Dictionary, supra, note 64, 209, 769. 94  An Act f o r regulating of T r i a l s i n Cases of Treason and Misprison of Treason (England), 1695, 7-8 W., c. 3, art.s 1-2, 7-8, and 10, i n v o l . 3, The Statutes at Large of England and of Great-Britain: From Magna Carta to the Union of the Kingdoms of Great B r i t a i n and Ireland, edited by John Raithby (London: George Eyre and Andrew Strahan, Printers to the King's Most Excellent Majesty, 1811), 384-386. See, also, An Act f o r improving the Union of the Two Kingdoms (Great B r i t a i n ) , 1708, 7 Anne, c. 21, a r t . 11, i n v o l . 4, The Statutes at Large of England and of Great-Britain: From Magna Carta to the Union of the Kingdoms of Great B r i t a i n and Ireland, edited by John Raithby (London: George Eyre and Andrew Strahan, Printers to the King's Most Excellent Majesty, 1811), 27.  95  An Ordinance f o r the suppression of the Rebellion which unhappily e x i s t s within t h i s Province of Lower Canada, and f o r the protection of the persons and properties of Her Majesty's f a i t h f u l subjects within the same, supra, note 56, a r t . 10.  96  Fecteau, supra. note 4, 477; Wicksteed, supra. note 55, 77.  97  Campbell and Rolfe to i n Arthur G. Doughty, ed., Archives f o r the Year.1932 P r i n t e r to the King's Most Appendix A, 509.  98 99  Glenelg, c. 26 January 1839, Report of the Public (Ottawa: F.A. Acland, Excellent Majesty, 1933),  See text accompanying notes 60 through 69. Arthur B. Keith, The Constitution of England from Queen V i c t o r i a to George VI, V o l . 1 (London: Macmillan and Company, 1940), 3, 8; Swinfen, supra, note 38, 54-56.  100  An Act to make Temporary Provision f o r the Government of Lower Canada (U.K.), supra, note 51, art. 6.  101  An Act f o r making more e f f e c t u a l Provision f o r the Government of the Province of Quebec i n North America (Great B r i t a i n ) , 1774, 14 Geo. I I I . , c. 83, art.s 12 64  and 15, i n Documents Relating to the Constitutional History of Canada 1759 - 1791. supra. note 34, 574-575. 102  Entry regarding Crown v. Jean-Bapiste Bizette and Etienne and Joseph Girard d i t Provencale, Attorney General Sewell's Calendar, March, 1797, Canadian Archives. Series Q, Vol. 79-1, 30, i n Douglas Brymner, "French Republican Designs on Canada," chap, i n Report on Canadian Archives 1891 Being an Appendix to Report of the Minister of Agriculture (aka Public Archives of Canada 1891) (Ottawa: S.E. Dawson, Printer to the Queen's Most Excellent Majesty, 1892), Note D, 76-78.  103  An Act f o r the better securing the Liberty of the Subject, and f o r Prevention of Imprisonments beyond the Seas (England), 1679, 31 Car. I I . , c. 2, art.s 2-21, i n Vol. 3, The Statutes at Large of England and of Great-Britain: From Magna Carta to the Union of the Kingdoms of Great B r i t a i n and Ireland, edited by John Raithby (London: George Eyre and Andrew Strahan, Printers to the King's Most Excellent Majesty, 1811), 233-236.  104  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, f o r a l i m i t e d time, as to such Persons, a c e r t a i n Ordinance therein mentioned, and f o r other purposes (Lower Canada), 1838 (3rd session, Special Council), 2 V i c t . , c. 4, a r t . 1, i n V o l . 10, B r i t i s h Parliamentary Papers: Colonies Canada (Shannon, Ireland: I r i s h University Press, 1969), 257-258.  105  The separate decisions of Judges Panet and Bedard were printed, i n t h e i r entirety, i n Le Canadien (2.3 novembre [November] 1838.  106  Judge V a l l i e r e s ' decision i s printed, i n i t s entirety, i n Le Canadien (10 decembre [December] 1838).  107  C. Grey to Lord Grey, 12 December 1838, i n William Ormsby, ed., C r i s i s i n the Canadas: 1838-1839 The Grey Journals and Letter (Toronto: Macmillan of Canada, 1964), 168-169.  108  Claude Vachon, "Philippe Panet," DCB, V o l . 7, supra, note 1, 678; Claude Vachon, " E l i z e a r Bedard," DCB, V o l . 8, supra, note 3, 62; James H. Lambert and Jacques Monet, "Joseph-Remi V a l l i e r e s , " DCB, V o l . 8, supra, note 3, 880.  109  An Ordinance to declare that the Second Chapter of the Statute of the Parliament of England, passed i n the t h i r t y - f i r s t year of the reign of King Charles the 65  Second, i s not nor has ever been i n force i n the Province, and f o r other purposes (Lower Canada), 1838 (3rd session, Special Council), 2 V i c t . , c. 15, a r t . 1, i n Vol. 12, B r i t i s h Parliamentary Papers: Colonies Canada (Shannon, Ireland: I r i s h University Press, 1969), 4-5. 110 111 112  Campbell and Rolfe to Glenelg, 6 February 1839, i n Doughty, supra, note 97, Appendix A, 513-514. i b i d . , 514. Campbell and Rolfe to Glenelg, c. 25 January 1839, i n Doughty, supra, note 97, Appendix A, 507-508. See, also, An Act to make Temporary Provision f o r the Government of Lower Canada (U.K.), supra. note 51, art.s 3-4.  113  An Act to make Temporary Provision f o r the Government of Lower Canada (U.K.), supra, note 51, art.s 3-4 and 6.  114  Great B r i t a i n , Parliament, Hansard s Pariiamentary Debates (Commons), 3rd series, v o l . 48 (1839): 208.  115  Great B r i t a i n , Parliament, Hansard s Pariiamentary Debates (Commons), 3rd series, v o l . 49 (1839): 178.  116  See. An Act to amend an Act of the l a s t Session of Parliament f o r making temporary Provision.for the Government of Lower Canada (U.K.), 1839, 2-3 V i c t . , c. 53, a r t . 4, i n Vol. 79, The Statutes of the United Kingdom of Great B r i t a i n and Ireland (aka Statutes at Large) (London: Her Majesty's Printers, 1839), 342-343.  117  Greenwood, "The Chartrand Murder T r i a l , " supra. note 3, 129-130, 145-151; Greenwood, "The General Court M a r t i a l of 1838-39," supra, note 5, 249-251.  1  1  Examples of Patriotes and t h e i r sympathizers being encouraged to revolt again by the leniency shown a f t e r the 1837 Rebellion and by the prospect of another amnesty can be found i n Greenwood, "The Chartrand Murder T r i a l , " supra, note 3, 149-150. 118  Fernand Ouellet, "John George Lambton, 1st E a r l of Durham," i n DCB, Vol. 7, supra. note 1, 479.  119  Glenelg to Durham, Doughty, ed., Report of Year 1931 (Ottawa: F.A. Most Excellent Majesty,  66  26 October 1838, i n Arthur G. the Public Archives f o r the Acland, P r i n t e r t o the King's 1932), Appendix A, 492.  120  Greenwood, "The Chartrand Murder T r i a l , : supra. note 3, 150; Greenwood, "The General Court M a r t i a l of 1838-39," supra, note 5, 252-253, 281n38.  121  Report of the State T r i a l s , supra. note 2, 17,-18, 73-76, 111; Greenwood, "The General Court M a r t i a l of 1838-39," supra. note 5, 252-254; Filteau,."Joseph Duquet, i n DCB, Vol. 7, supra, note 1, 264; Senior, ... "John Clitherow," i n DCB, Vol. 8, supra, note 3, 163-164; Gibbs, "Dominique Mondelet," i n DCB, V o l . 9, supra. note 9, 560. 11  122  Barry Wright, "The Ideological Dimensions of Law i n Upper Canada: The Treason Proceedings of 1838," supra, note 22, 132-138; Edwin C. G u i l l e t , The Lives and Times of the P a t r i o t s : An Account of the Rebellion i n Upper Canada, 1837-1838, and The P a t r i o t Agitation i n the United States, 1837-1842 (Toronto: Thomas Nelson and Sons, Ltd., 1938), 71; Colin Read and Ronald J . Stagg, eds., The Rebellion of 1837 i n Upper Canada: A C o l l e c t i o n of Documents Ontario Series i n the Publications of the Champlain Society, no. 12 (Toronto: The Champlain Society, 1985), x x i - l x x x v i , x c v - x c v i i .  12 3  R.C. Watt, "The P o l i t i c a l Prisoners i n Upper Canada, 1837-8," The English H i s t o r i c a l Review 41:163 (July, 1926): 531; Wright, supra, note 22, 146, 174n76.  124  An Act to protect the Inhabitants of t h i s Province against lawless aggressions from Subjects of Foreign Countries, at Peace with Her Majesty (Upper Canada), 1838, 1 V i c t . , c. 3, a r t . 1, reprinted i n the Upper Canada Gazette, 18 January 1838.  125  i b i d . , art.s 2 and 3.  126  Wright, supra, note 22, 136-138, 170n29; Watt, supra, note 123, 536; Read and Stagg, supra, note 122, l x x x v i i i ; L i l l i a n F. Gates, "Thomas Jefferson Sutherland," DC, V o l . 8, supra, note 3, 851-853.  127  Wright, supra, note 22, 136, 169nl9-20, 174n76; Gates, supra, note 126, 853; Watt, supra, note 123, 536-537.  128  Report of the Law O f f i c e r s , 28 May 1838, quoted i n Watt, supra, note 123, 537.  129  Watt, supra, note 123, 537, 543-545; Colin Read, "The Short H i l l s Raid of June, 1838, and i t s Aftermath." Ontario History 68 (June, 1976): 103-104.  67  130  G u i l l e t , supra, note 122, 139-141, 150, 186, 276-279, 285-286; Read, supra, note 129, 108; George F.G. Stanley, "Invasion: 1838," Ontario History 54 (June, 1962): 247-248, 251; Wright, supra, note 22, 138-139, 171n35; Greenwood, "The Chartrand Murder T r i a l , " supra, note 3, 150. Age seems to have been a major factor i n determining the fate of the prisoners taken at Prescott and Windsor. Of the eleven captured at Prescott who were executed, four were i n t h e i r f o r t i e s , three were i n t h e i r t h i r t i e s , two were 28 years of age, and the l a s t was 21. Of the four captured at Windsor who were executed and whose ages are known, they were 21, 26, 27, and 32 years old. Amongst those Prescott and Windsor prisoners who were transported to A u s t r a l i a , the majority were i n t h e i r early or mid-twenties, and of those who were deported to the United States, the majority were i n t h e i r teens. G u i l l e t , supra, note 122, 140-141, 150, 186, 276-279, 285-286.  131  Canada Act 1982 (U.K.), 1982, 30-31 E l i z . 2, c. 11, Schedule B, Part One, sect.s 1, 11(f), and 33(1), i n pt. 1, v o l . 1, Public General Acts and General Synod Measures, 1982 (London: Council of Law Reporting, n.d. [1983 or 1984]), pp. 84-96.  132  Greenwood, "The General Court M a r t i a l of 1838-39," supra, note 5, 274, 290n210.  68  BIBLIOGRAPHY  a. 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