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For the more easy recovery of debts in His Majesty’s plantations : credit and conflict in Upper Canada,… Pearlston, Karen 1999

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"FOR THE MORE EASY RECOVERY OF DEBTS IN HIS MAJESTY'S PLANTATIONS": CREDIT AND CONFLICT IN UPPER CANADA, 1788-1809 by KAREN PEARLSTON LL.B., York University, 1996 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA April 1999 © Karen Pearlston, 1999  In  presenting  this  thesis  in  degree at the University of  partial  fulfilment  British Columbia,  of  the  requirements  for  of  department  this or  thesis by  his  for scholarly or  her  purposes  advanced  I agree that the Library shall make it  freely available for reference and study. I further agree that permission copying  an  may be  representatives.  It  is  granted  for extensive  by the head of  understood  that  copying  my or  publication of this thesis for financial gain shall not be allowed without my written permission.  Department of The University of British Columbia Vancouver, Canada  DE-6 (2/88)  11  ABSTRACT This thesis is concerned with the relationship between creditor/debtor law and broader political, economic, and social relations in Upper Canada before 1812. The research reviews the history of credit relations in early Upper Canada through a critical reassessment of both the historiographic debates and available primary legal and archival sources. Recent historical writing, in seeking out the community based nature of creditor/debtor relations has often tended to overlook the extent to which social, political, and economic conflicts were also played out in the arena of credit and debt. In early Upper Canada, matters relating to credit and debt were not infrequently the focus of conflicts about constitutionalism and the rights of colonial subjects. The thesis argues for a re-framing of the study of creditor/debtor relations to take account of the overall context of economic inequality. Feminist historical and theoretical work is drawn upon to expand conventional understandings of the economic, and to argue that local or communal based relations are not always consensual. The thesis draws a connection between social inequality, political repression, constitutional politics and the private law of property, credit, and debt. It asserts that early Upper Canadian creditor/ debtor relations were expressive of the struggle over the kinds of institutions that would represent the new polity, and of a sensibility among at least some portion of the population that the rule of law should apply to a wider range of people than those who made up the elite. It is found that the role of certain financial instruments and the contents of certain court records has been misunderstood. These findings change our understanding of the 1794 court reforms in Upper Canada, which established an English-style Court of King's Bench. It is also found that debtor/creditor law, in particular the seizure of land for debt in Upper Canada (a remedy that was not available in England) impacted upon the constitutional politics of the time.  Ill  T A B L E OF CONTENTS Abstract  ii  Table of Contents  iii  Acknowledgments  v  Chapter One  INTRODUCTION  1  Writing Canadian Business Law History Credit, Informality, and Private Law Respectability, Kinship, and Patronage Credit and Conflict in Community Credit and 'Moral Economy' Economic Man, and the Family  1 7 10 14 22 26  Chapter Two  UPPER CANADA LAW AND SOCIETY 1788-1809 Early Settlement Who Were the Loyalists? Loyalist Ideology Upper Canada and the Quebec Act Upper Canada's Early Constitution District Officers: Power, Privilege, and Patronage Loyalists, Late Loyalists, and Land Policy Elite Fears and the Repression of Dissent  33 33 36 40 42 45 48 51 54  Chapter Three  ALL BAD OR ALL GOOD?: MERCHANTS AND THE CREDIT SYSTEM IN EARLY UPPER CANADA The Staples Thesis, and its Critics Local Merchants in Upper Canada: Two Views Upper Canada Merchants: Large and Small Merchant Debt and Long Credit Development or Dependency?  61 61 64 70 74 76  Chapter Four  LAW AND FINANCE IN EARLY UPPER CANADA Commercial Finance Legally Recognized Commercial Paper: Bills of Exchange and Promissory Notes Accounting and Exchange Merchants, Banking Functions, and the Bon The Judicature Bill of 1794  80 81 84 87 89 94  iv Evidence For Use of The Bon: At the Court of Common Pleas At the Courts of Request Other Evidence for the Bon? The Provisioning Contract, and Simcoe's Feud with Hamilton and Cartwright Wider Anti-Merchant Sentiment Credit, Dependency, and Legal Doctrine  99 99 100 104  Chapter Five  LAND SEIZURE AND LEGAL IDEOLOGY Legal Basis and Political Background to Land Seizure The Importance of 'English Law' in Early Upper Canada King's Bench Litigation Henry Allcock: English Judges and Constitutional Politics Upper Canada's Early Opposition Opposition to Land Policy The Link to Creditor/Debtor Relations  117 117 120 124 129 136 141 143  Chapter Six  FRAMEWORKS FOR THE STUDY OF CREDIT Problematizing the Terms of the Debate Gendering the History of Law and the Economy New Questions for Legal Theory and Legal History  147 149 153 158  Bibliography  105 110 113  162  V  ACKNOWLEDGMENTS Great thanks are due to my thesis supervisors, Professors Susan B. Boyd and W. Wesley Pue, for shepherding this thesis through its several drafts and for their academic and personal support and unfailing good humour, and to Lillian Ong at the Graduate Program in Law at the University of British Columbia for her much valued administrative support. Thanks are also due to Professor Douglas Hay of York University for providing timely research tips and a listening ear, and to Professors Angela Redish of the University of British Columbia and Douglas McCalla of Trent University for their generosity in taking time to discuss the Bon with me. Responsibility for any errors or omissions in this thesis rests with me. My year at the University of British Columbia was a difficult one, and I would not have made it through without the support of Wes, Susan, and Lillian, as well as Professor Dianne Newell in the Department of History and my colleagues in the Graduate Program in Law and at Green College. Special thanks to Jacqueline Jago, Mehera San Roque, Michael Thorns and Margaret Blenkhorn. Finally, none of this would have been possible without Joan Headley. My father, Harvey Irwin Pearlston, died in October of 1997, soon after I traveled from Toronto to Vancouver and began the course work for my LL.M. Dad wanted to study history, but there were few academic or teaching jobs for Jews in Canada in the nineteenfifties. He became a pharmacist instead. This work is for him.  1 Chapter One INTRODUCTION This thesis is about credit and conflict during the earliest years of European settlement in Upper Canada. By focusing on conflict, it deliberately tries to undermine recent work on early modern credit relations that emphasizes credit as consensual, because it was pervasive and facilitative. I argue that because credit relations took place in a context of economic and social inequality, they were of necessity conflict ridden, even though there were also consensual elements to the system. The contrary view can be sustained only if credit relations are artificially hived off from the social, economic, and legal context and the associated power relations in which they operated. Although often extra-judicial in the sense that credit arrangements were private agreements in which disputes could often be settled without recourse to the courts, credit relations were also "subject to certain conditions, structures of rights and duties within the coercive framework of the law."  1  Moreover, power relations associated with credit cannot  be defined only with reference to the courts. In early Upper Canada, social and economic inequality and perceived lack of legal fairness between debtor and creditor provided a site for struggle over constitutional politics, posing the question of whether British justice would be sacrificed to the interest of elite groups. Upper Canada before 1812 therefore provides a useful microcosm for examining the role of conflict in the history of credit relations. At the same time, the focus on conflict in early Upper Canada challenges conventional ideas about consensus in Canadian history. Writing Canadian Business Law History Until relatively recently, much of Canadian history was written from a perspective that intrinsically assumed a Canadian past consisting mainly of a consensus-building  'David Sugarman and G.R. Rubin, "Towards A New History of Law and Material Society in England 1750-1914," in Law. Economy and Society. 1750-1914: Essays in the History of English Law, ed. David Sugarman and G.R. Rubin (Abingdon, England: Professional Books, 1984), 10.  2 exercise regarding the values and priorities of the kinds of people by and about whom most of the histories were written. This tendency has been particularly strong in historical 2  writing about Upper Canada which, along with Lower Canada, constituted the centralCanadian cradle of what was "commonly designated the two founding nations until such Eurocentrism was challenged by aboriginal claims to 'First Nations' status in the 1980s."  3  Conventional histories of Upper Canada have minimized dissent, focusing instead on the loyalty, love of order, and deference to authority that is a real part - but only part - of the story. As Paul Romney wrote in regard to historical writing on post-1812 Upper Canada, 4  "the underlying pattern of social inequity and political repression...has vanished from historical consciousness." This phenomena is at least as marked for histories of the earliest 5  years of the colony, when the institutions and ideologies that became and sustained the Family Compact were being created. As discussed in chapter five of this thesis, the vocal dissenters of the pre-1812 period have usually been dismissed as opportunists or worse. Romney's article, published in 1987, argued that the types riot of 1826 and the rebellion of 1837 were linked by factors that were more than "merely personal." Romney 6  argued that both events were linked to twenty years of anti-reform political violence, and 7  that "the ideology of the Upper Canadian elite incorporated contradictory moods and  See Veronica Strong-Boag, "Presidential Address. Contested Space: The Politics of Canadian Memory," Journal of the Canadian Historical Association (1994): 3-17, especially the overview of the contents of Association publications since its founding in 1897, ibid., 8-11. 2  Veronica Strong-Boag and Anita Clair Fellman, "Introduction," in Rethinking Canada: the Promise of Women's History. 3d. ed., ed. Veronica Strong-Boag and Anita Clair Fellman (Toronto: Oxford University Press, 1997), 2. 3  See Gerald M . Craig, Upper Canada: The Formative Years. 1784-1841 (Toronto: McClelland and Stewart, 1963), which is still the standard history. For critical histories of loyalism, see Janice Potter-MacKinnon, While the Women Only Wept: Loyalist Refugee Women (Montreal: M c G i l l Queen's University Press, 1993) and David Mills, The Idea of Loyalty in Upper Canada. 17841850 (Montreal: McGill-Queen's University Press, 1988). 4  Paul Romney, "From the Types Riot to the Rebellion: Elite Ideology, Anti-Legal Sentiment, Political Violence, and the Rule of Law in Upper Canada," Ontario History 79 (1987): 114. 5  6  Ibid., 140.  7  Ibid.  3 values, some of them incompatible with the rule of law." This was a new and controversial 8  interpretation at the time. The controversy redounded into the field of Canadian legal 9  history, partly because Upper Canadian legal and political culture were closely tied together, and partly because of Romney's insistence that the idea of the rule of law was an important political factor in the early nineteenth-century.  10  Five years later, the idea that the  early Upper Canadian elite abrogated the rule of law remained sufficiently controversial for Robert L. Fraser to comment that "the charge of partiality levelled against the administration of justice...is a touchy subject still - there are those who think that raising the subject is somehow subversive."  11  This thesis will extend Romney's arguments to look  at elite abrogations of the rule of law in the context of private law and in the earliest period of Upper Canadian settlement. By doing so, it makes a connection between social inequality, political repression, constitutional politics and the private law of property, credit, and debt. Historical studies of business and of business law in early Upper Canada are few, and most are written from a perspective that has much in common with the conventional, consensus-based approach to Upper Canadian history. Business history and business law history has focused on valorizing merchants by highlighting the role of mercantilism and the entrepreneur in the development of the Upper Canadian economy. The few legal  8  Ibid., 115.  The editors of the journal in which Romney's article appeared appended a note to its first page in which they call it a "hew and, we believe, important interpretation of the political culture of Upper Canada" which had even before publication "been the subject of heated debate and controversy." Ontario History 79 (19871: 113. 9  See Romney, "Types Riot," and Paul Romney, "Very Late Loyalist Fantasies: Nostalgic Tory History and the Rule of Law in Upper Canada,"in Canadian Perspectives on Law & Society: Issues in Legal History, ed. W. Wesley Pue and Barry Wright, 119-147 (Ottawa: Carleton University Press, 1988). For the contrary view, see G. Blaine Baker, '"So Elegant a Web': Providential Order and the Rule of Secular Law in Early Nineteenth Century Upper Canada," University of Toronto Law Journal 38 (1988) 184-205. 10  "Robert L . Fraser, ' " A l l the Privileges which Englishmen Possess": Order, Rights, and Constitutionalism in Upper Canada," in Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography, ed. Robert L . Fraser (Toronto: University of Toronto Press, 1992), xvi.  4 histories covering this early period have contributed to this perspective by downplaying conflict in favour of either valourizing perceived development toward capitalism or 12  casting debtor/creditor relations in a context of a generalized Upper Canadian 'communalism.' This approach bypasses any coercive aspect of legal relations. It also 13  cuts off any consideration of the relationship between creditor/debtor law and criminal law, belying the lengthy history and ideological importance of imprisonment for debt (which was certainly practised in early Upper Canada). Yet early Upper Canadian creditor/debtor 14  relations were rife with conflict; expressive of the struggle over the kinds of institutions that would represent the new polity, and of a sensibility among at least some portion of the population that the rule of law should apply to a wider range of people than those who made up the elite.  This thesis, then, is an exercise in historiography. It attempts to illuminate "the underlying pattern of social inequity and political repression" in which creditor/debtor relations were constituted by focusing on two particular aspects of those relations in Upper Canada. The first is Upper Canada's relationship to the international long credit economy as viewed through the law of commercial paper and, in particular, the under-historicized "Bon"or merchant's note, which has been perceived by historians as being a cause of the 1794 court reform. The second is the seizure of land for debt, a remedy that was not available in England. Both of these issues were surrounded by considerable political controversy, much of it focused on the role and practice of merchants and on the association between large merchants and the administrative elite. That controversy has been minimized, distorted, and even ignored by some historians. Recovering knowledge of those controversies has involved an attempt to tease out the ways that merchants have been  W.N.T. Wylie, "Arbiters of Commerce, Instruments of Power: A Study of the Civil Courts in the Midland District, Upper Canada, 1789-1812." Ph.D. diss., Queen's University, 1980. 12  Howard Baker, "Small Claims, Communal Justice and the Rule of Law in Kingston, Upper Canada, c. 1785-1819," L L . M . thesis, York University, 1992. 13  14  Wylie, 201-16.  5  depicted in contemporary sources and historical writing, and in particular to differentiate between large and small merchants. My goal is to use the field of creditor/debtor relations to recast the business and business law histories of the period in relation to critical social, economic, and legal histories. In addition to taking advantage of pre-existing critical histories and paying attention to material conditions and power relations, a primary strategy has been to integrate a gender analysis into the thesis. Gender "is a term feminist theorists developed to explain how being male or female is not simply the result of biology but is socially constructed and reconstituted." This simple model was soon and justifiably critiqued for its binarism, 15  which, by excluding the existing and ever-changing variety of gender expression, tends to reinforce the rigidity of the masculinity and femininity that it seeks to overcome. In an 16  influential article, the historian Joan Scott defined gender in terms of "an integral connection between two propositions: gender is a constitutive element of social relationships based on perceived differences between the sexes, and gender is a primary way of signifying relationships of power." My own analysis of gender relations is 17  materialist rather than post-structuralist. It therefore tends toward the first of Scott's two 18  propositions, seeking to situate gender as constitutive of social relations, structures, and institutions such as the state, legal relations, work, the market, the family, and the public  Joy Parr and Mark Rosenthal, "Introduction," in Gender and History in Canada, ed. Joy Parr and Mark Rosenthal (Mississauga: Copp Clark, 1996), 1. 15  • For a critique of gender binarism, see Judith P. Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1989). 16  Joan W. Scott, "Gender: A Useful Category of Historical Analysis," in Gender and the Politics of History, ed. Joan W. Scott (New York: Columbia University Press, 1988), 42. 17  I agree with the poststructuralist insight that we understand the world around us only through systems of signification, but I am not satisfied with analyses that confine themselves to those systems. As one feminist theorist has remarked, "the fact that reality is mediated through language does not in any rigorous sense mean that reality is, therefore, made of language." See Teresa L . Ebert, Ludic Feminism and After: Postmodernism. Desire, and Labor in Late Capitalism (Ann Arbor: University of Michigan Press, 1996), 172. 18  6 space of liberalism's civil society.  19  It should be noted that this is not a one-way process,  that those spheres of activity are themselves also constitutive of gender, and that, in my view, gender is a product of both discourse and material practice. Analysis of gender as constitutive appears mainly in this first chapter, where I discuss some of the ways in which the above-mentioned institutions are gendered, and how that gendering relates to creditor/debtor relations. The body of the thesis then deals with creditor/debtor relations as they relate to other structures and institutions. There are some direct connections made to gender and to women throughout the thesis, but they are few. This is a consequence of the choice I made to study a period and place where (for reasons that will be briefly explored in subsequent chapters) women's public participation in the polity was peculiarly muted.  20  There is another way in which gender analysis runs through this thesis and, because it will not be obvious, it makes sense to explain it here. One aspect of poststructuralist theory with which I have come to agree is with "a tolerance of ambiguity" which Joy Panexplicitly connects with gender history. This has to do with what Parr explains as "an 21  inherent instability in identities - that being simultaneously a worker, a Baptist, and a father, one is never solely or systematically any of these." But it also has to do with a 22  distrust for the rigid categories and teleological claims of much marxist and feminist social  Examples of this type of gender analysis would include Joy Parr, The Gender of Breadwinners: Women. Men, and Change in Two Industrial Towns. 1880-1950 (Toronto: University of Toronto Press, 1990); Carole Pateman, The Sexual Contract (Cambridge: Polity, 1988); Leonore Davidoff and Catherine Hall, Family Fortunes: Men and Women of the English Middle Class. 1780-1850 (London: Hutchinson, 1987); Lykke De La Cour, Cecilia Morgan and Mariana Valverde, "Gender Regulation and State Formation in Nineteenth-Century Canada," in Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada, ed. Allan Greer and Ian Radforth, 163-191 (Toronto: University of Toronto Press, 1992). 19  See Cecilia Morgan, Public Men and Virtuous Women: The Gendered Languages of Religion and Politics in Upper Canada. 1791-1850 (Toronto: University of Toronto Press, 1996), and PotterMacKinnon. 20  Joy Parr, "Gender History and Historical Practice," in Gender and History in Canada, ed. Joy Parr and Mark Rosenthal. (Mississauga: Copp Clark, 1996), 13. 21  22  lbid.  7 theory. This distrust has grown directly through my practice of feminist theory and gender history, fed by a persistent conviction that orthodox theories and categories cannot account for the complexity of ways in which women labour, and that the closure imposed by a belief in the historical inevitability of anything militates against understanding its current dynamics. This resistance to closure should not be foreign to the practice of historians, for whom "our craft, no matter how refined, will never allow us entirely to reclaim the past worlds that are the focus of our historical imaginings." My tolerance for ambiguity and 23  resistance of closure is, I hope, balanced by a materialist perspective which holds that the discourses (such as gender) in and through which we understand ourselves and the world are themselves the result of struggles over power and resources, and not only over how we understand those things.  24  Incorporating a gender analysis can make it possible to  destabilize the given conclusions of both neoclassical and marxist theory, often just by noticing what has been excluded from the discourse. Understanding discourses as the product of struggle can help to move forward from critique to a more explicit understanding of the practices that produce inequality.  Credit, Informality, and Private Law Like Canadian history, the history of credit relations is sometimes written in a manner that implies a greater degree of consensus than that which existed. This is partly due to the pervasiveness of credit in different places and times, and to the ways that credit relations can be conducted non-legally and informally. Credit is everywhere: everywhere in the private law system, everywhere in economic relations (even in the family, where it is hidden), everywhere in society. Credit is more fluid than property, especially the older forms of chattel and landed property; and it is perhaps more fluid than (although often the subject of) contract. The social and legal  23  Ibid., 8.  See Rosemary Hennessy, Materialist Feminism and the Politics of Discourse (New York: Routledge, 1993). 24  8 relations that constitute and regulate property were developed in relation to tangibles: land and its uses, buildings, beds and bedding, clothing, household implements and tools. One could have a future interest in land, but the land itself could be looked at and walked upon, the clothing worn, the bed slept in. An infant or a married woman could not legally own or control those things, and intangible property forms, for example the share, came to be recognized only gradually.  25  The argument is a bit more difficult to make for contract law, since contracts are not, in themselves, tangible. However, the paper on which they are written sometimes is, and this was once an essential part of the law. Contract in the modern sense of "an agreement giving rise to obligations which are enforced or recognised by law," grew in part out of the 26  medieval action of covenant. Covenant: required the production of a sealed instrument. The agreement was enforced not because the parties had exchanged mutual promises, but because it had been made in a particular form to which the law attached a peculiar force. 27  People regularly exchange mutual promises that are not legally enforceable. It was the legal enforceability of covenants (and the later forms of contract) that made them attractive and important. The role of contract in developing a civil society separate from the (then decentralized) state began very early. As Goebel put it in the 1950s, "covenant furnished the only means of placing a few barriers against the antic exercise of royal pleasure."  28  See Paddy Ireland, Ian Grigg-Spall and Dave Kelly, "The Conceptual Foundations of Modern Company Law," in Critical Legal Studies, ed. Peter Fitzpatrick and Alan Hunt (Oxford: Basil Blackwell, 1987), 154-4; Paddy Ireland, "Capitalism Without the Capitalist: The Joint Stock Company Share and the Emergence of the Modern Doctrine of Separate Corporate Personality," Legal History 17 (1996V 48-62. 25  26  G . H . Treitel, The Law of Contract. 9th ed. (London: Sweet & Maxwell, 1995), 1.  A . G . Guest, Anson's Principles of the English Law of Contract and of Agency in its Relation to Contract. 21st ed. COxford: Clarendon, 1959), 13. 2 7  Julius Goebel, Jr., "The Matrix of Empire,' introduction to Appeals to the Privy Council from the American Plantations, by Joseph Henry Smith (New York: Columbia University Press, 1950), X . See also Tigar and Levy on the contract as 'privatised legislation," Michael E. Tigar and Madeleine R. Levy, Law and the Rise of Capitalism (New York: Monthly Review Press, 1977), 154, and Ian Duncanson, "Finding a History for the Law." Australian Journal of Legal History 2 (1996): 163-91. 28  9  Credit may be more informal than property and contract. By more informal, I mean less often subject to legal regulation. This does not mean that credit would not have been regulated by other means. But technical legal regulation brings a certain kind of formality that is derived from recognition by the state in some public sphere. There is evidence for the informality (non-legality) in the character of credit relations in the large number of women money lenders in medieval and early modern Europe. Deborah A. Rosen, author 29  of a study of women, credit, and the law in late eighteenth and early nineteenth-century New York, found that women were increasingly shut out from economic activity (e.g., they could not get credit) as the legal system became more formalized. It was formal law, the 30  law of coverture (established in England by the early thirteenth century), that stopped 31  married women from being economically active. Under coverture, married women could not own property or make contracts, yet medieval and early modern wives were active as borrowers and lenders. Woman moneylenders usually made domestic loans to other women. Domestic loans were small and local, and usually repaid in weeks or months.  32  Woman to woman credit transactions did not attract the scrutiny of formal legal regulation: This informality undermined all legalistic attempts to prevent adult women, married or otherwise under the juridical 'cover' of a male, from making contractual obligations without their husbands' or other appropriate men's consent. 33  See William Chester Jordan, Women and Credit in Pre-industrial and Developing Societies University of Pennsylvania Press, 1993). 29  Deborah A . Rosen, Courts and Commerce: Gender. Law, and the Market Economy in Colonial New York (Columbus: Ohio State University Press, 1997). 30  J.H. Baker, An Introduction to English Legal History. 3d. ed. (London: Butterworths, 1990), 551-2. 31  32  Jordan, 24.  10  But, Jordan cautions that even informal credit relations (and even among women) were not "a love feast." Credit networks were "always unbalanced, skewed in their reciprocity, 34  biased toward one group or another."  35  Despite these indications that credit, even when informal, could still be coercive, much of the literature on credit favours a consensual analysis that focuses on the positive aspects of the credit relationship, using either a moral economy or a straightforward prodevelopment approach. The first argues that credit relations were consensual, and that debtors and creditors had mutual obligations; the second that availability of credit facilitates development. Both of these assertions have some truth - there were some positive aspects in credit systems. But there were also - and remain - many negatives, and these are too often hidden among the assumptions underlying analyses that take neither economic inequality nor formal legal inequality into account when analysing credit systems. Both the development school and the moral economy school obscure some of the components and structures underlying the history of Anglo-Canadian credit relations.  Respectability, Kinship, and Patronage There is no denying that eighteenth and early nineteenth-century credit networks were community-based, and dependent on personal connection and knowledge. Credit, "in the widest sense," means "trustworthiness."  36  Credit was a communal system, with a  heavy moral element derived from the importance of personal reputation. Reputation in its turn is affected by factors not directly related to business behaviour. In the late eighteenth and early-nineteenth century: The behaviour of the entrepreneur, his family and household as well as their material setting, were tangible indications of financial as well as moral probity. The couplet coined for the late eighteenth-century gentleman farmer could have equally applied to any family enterprise:  'Ibid., 30. 'Ibid., 27. Ibid., 25.  11  Keep up appearances, there lies the test The World will give thee Credit for the Rest  37  This kind of scrutiny placed demands for specific kinds of behaviour - often gender-based in order to prove credit-worthiness. Those demands helped to re-form familial relations by valorizing new and separate spheres of activity for women and for men. Women were to become the angel in the house, crucibles of virtue and religion. Men were to be active, creative, entrepreneurial, in charge of enterprises and making money. "Such expertise was an essential part of the middle-class challenge to the aristocratic male whose skills lay with gambling, duelling, sporting and sexual prowess." These middle class men and their 38  families, with their new claims to gentility, were an important part of the early Upper Canadian business class. Their challenge to, and subsequent cohesion with, the 39  aristocratic values of the colony's administrators are important to the story told in this thesis. Kinship and other personal ties were one of the means used by traders to surmount the problem of "trusting" over lengthy periods and long distances in what is known as the "long credit" system.  40  With the exception of a few chartered trading companies, the  partnership was the key enterprise form in the period. In contrast to companies  37  Davidoffand Hall, 208.  38  Ibid,,205.  See Robert Wilson, The Enterprises of Robert Hamilton: A Study of Wealth and Influence in Early Upper Canada. 1776-1812 (Ottawa: Carleton University Press, 1983), chapt. 1; David S. MacMillan, "The 'New Men' in Action: Scottish Mercantile and Shipping Operations in the North American Colonies, 1760-1825," in Canadian Business History: Selected Sketches. 1497-1971. ed. David S. MacMillan, 44-103 (Toronto: McClelland and Stewart, 1972); Donald C. MacDonald, "Honourable Richard Cartwright, 1759-1815," in Ontario Department of Public Records and Archives, Three History Theses. (Toronto: Ontario Department of Public Records and Archives, 1961). 39  " L o n g credit" refers to credit extended for a long period, usually a year or more, and often over a long distance as well. Long credit arrangements were usual between merchants in the home country and their customers in the colonies. The working of the long credit system is explained in detail in Jacob M . Price, Capital and Credit in British Overseas Trade: the View From the Chesapeake. 1700-1776 ("Cambridge: Harvard University Press, 1980). See also Chapter 3, below. 40  12 (corporations), in which the central element is "not specific people but a capital fund," the 41  central element of a partnership is its partners. Davidoff and Hall describe how the middleclass business partnership developed from the household in which family members and servants together performed all productive and subsistence labour. "If expansion was required this unit was reproduced by taking a partner.... Much like a family member, every partner could act as an agent for the other but was also liable for all debts." Quoting Holdsworth, they add that '"partnerships were in some sense brothers who represented each other."'  42  This pattern of kinship or quasi-kinship ties appears to have held for dealings between the old world and the new, as well as between Quebec and Upper Canada.  43  Merchant firms were often represented in frontier areas by their employees or junior partners. Robert Hamilton provides one example. Hamilton, who became one of the two 44  richest men in early Upper Canada, was born in Scotland, the son of a Presbyterian minister. He may have "followed in the family footsteps and at least began a degree at the University of Glasgow." Hamilton travelled to Upper Canada in 1775 as an employee of 45  the Ellice Brothers, who "had long been major figures in the fur trade and army supply"and had their head office in London, with a branch in Montreal. Richard Cartwright, 46  Hamilton's business partner and the other richest man in early Upper Canada, was a United Empire Loyalist from Albany, New York, where his father had been "a pillar of the  Paddy Ireland, "The Triumph of the Company Legal Form, 1856-1914," Essays for Clive Schmitthoff. ed. John Adams (Abingdon, England: Professional Books, 1983), 29. 41  42  Davidoff and Hall, 201.  "Quasi-kinship" is a shorthand way of saying that people would-develop family-like ties with business partners to whom they were not related. For example, Quebec firms probably oversaw the education of their up-country merchants' children. See the discussion of the Cummings family in chapter 3. 43  Jacob M . Price, "What Did Merchants Do? Reflections on British Overseas Trade, 16601790." Journal of Economic History 49 (1989): 279. 44  • Wilson. Enterprises. 18. 45  Ellice Brothers were tied to Phyn, Ellice and Company, a fur trade concern which was founded in the American colonies in the 1760s. See Wilson, ibid., 59; J.K. Johnson, "Richard Duncan," Dictionary of Canadian Biography V : 281 -2. 46  13 community" before the Revolutionary War. The younger Cartwright left New York for 47  Quebec (by this time a British colony) in 1777 after his pro-British activities attracted attention from local Patriot organizations. He spent two years in a loyalist regiment before entering into partnership with Hamilton in 1780. Hamilton and Cartwright both hailed from the well-educated upper echelons of the middle class, a group that from the late eighteenth century was able to draw on its demonstrated merit to press its claims to gentility. Hamilton and Cartwright operated on the Niagara peninsula, where the Indian Department and the supply system for the garrisons were rife with corruption. A major scandal broke about a year after they founded their firm. In its aftermath: ...the military were particularly sensitive to the respectability and patriotism of their suppliers. Hamilton and Cartwright possessed both in ample quantities. Relative to their competitors, they came from genteel backgrounds.... Both shared the language and the assumptions of the educated officer elite of the regular army and the officers felt comfortable in dealing with them. 48  Patronage was as important as respectability. Cartwright was particularly well connected. Back in Albany, his father had been the personal supplier to the powerful loyalist Johnson family, who dominated the British Army's Indian Department before and during the Revolutionary War. The elder Cartwright "was a client of the family patronage system. The Johnsons regarded the younger Cartwright as a protegee" and recommended him to Haldimand, the Governor and commander-in-chief of the British forces in Quebec.  49  Hamilton also had connections - with the Montreal fur trade, developed by him since his 1775 arrival in Quebec. Although the importance of respectability and patronage is superficially similar to the requirements for business success in England, the Upper Canadian context was very  George Rawlyk and Janice Potter, "Richard Cartwright," Dictionary of Canadian Biography. V : 167. 47  48  Wilson, ibid., 20.  49  Ibid., 17-8.  14 different. Prior to the Revolutionary War, with the exception of fur trade posts, there was no white settlement in Upper Canada. The war led to an expanded military presence and an influx of refugees, many of whom were aboriginal people;  50  important allies for the  provisioning of whom the Indian Department was responsible. In contrast, the government was at first unwilling to assist the wives and families of white loyalist men, most of whom were in the military. Refugees arrived from 1778, but white settlement was discouraged 51  until 1780, when the Governor became "convinced that it would be useful to allow a few families to settle around the posts in the upper country to raise food for the garrisons."  52  This market was tiny; a small population of disempowered refugees. The big money came from provisioning the Indian Department and the garrisons, not from trade with the settlers. In the chaos of wartime, the kind of respectability that translates into available credit was not always available to the refugees, the more so because most of them were women and children, often far away from their male relatives.  53  Government spending continued to  dominate the economy even after the war. The patronage of the government and the military was of primary importance to mercantile activities.  C r e d i t a n d Conflict in C o m m u n i t y  According to Howard Baker, author of one of the existing studies on creditor/debtor relations in early Upper Canada, "for most historians, community implies, first, the existence of a 'common space...'" Community also requires a network of social relations, 54  characterized by mutuality, a common purpose, and shared values.  55  Craig Muldrew's 1993  Robert J. Surtees, "Land Cessions, 1763-1830," in Aboriginal Ontario: Historical Perspectives on the First Nations, ed. Edward S. Rogers and Donald B. Smith (Toronto: Dundurn Press, 1994), 92,97. 50  5l  Ibid.  L i l l i a n F. Gates, Land Policies of Upper Canada (Toronto: University of Toronto Press, 1968), 11. 52  53  O n refugee conditions and gender differences among loyalists, see chapter 2.  5 4  H . Baker, 90.  55  Ibid, 91.  15 study, "Credit and the Courts: Debt Litigation in a Seventeenth-Century Urban Community" provides a portrait of creditor/debtor relations in one such setting.  56  Muldrew's work on local court records in the English town of King's Lynn from 1683-1686 initially appears to be a strange choice as a comparator for Baker's study of Upper Canada between 1785 and 1815. I have two reasons for this choice. First, Muldrew provides a dense portrait of creditor/debtor relations in a communal setting. This is a useful background for the discussion of Upper Canada. Second, both Baker and Muldrew appeal to the explanatory power of the concept of "moral economy" in order to carry out their analyses and justify their conclusions, whereas I will argue that relying too much on the moral economy notion tends to skew interpretations of credit relations too far toward the consensual, erasing the conflict that was also always present. Muldrew's data on King's Lynn is interesting for what it reveals about who was engaging in litigation and how often: almost every household in town — even the poorest was involved, and often repeatedly. Because of the prevalence of litigation, the large 57  number of poor people among the litigants, and the fact that most of it went no farther than the initial registration of a complaint, Muldrew interprets the credit system as more consensual, communal and benign than I think his data can support. In King's Lynn, poor people often sued richer people, and they made up a large proportion of plaintiffs. 58  59  However, poor people were the largest group in the town, so, while it is interesting that they litigated at all, once they did so it is not surprising that they made up the largest group of participants. The prevalence of litigation is interesting in itself, but it is difficult to tell how interesting because the majority of the records studied are of cases that did not move  , Economic History Review 46 (1993): 23-38. See also Craig Muldrew, "Interpreting the Market: The Ethics of Credit and Community Relations in Early Modern England," Social History 18 (1993): 163-183. 56  "Muldrew, "Credit and the Courts", ibid., 30-1. 58  Ibid., 34.  59  Ibid.,33.  16  beyond the complaint stage. This can tell us something about the credit system. Most of the disputed debts were for unpaid sales credit or unpaid wages. Buying, selling, and employing on the basis of ongoing credit was prevalent because cash was in short supply.  60  In addition, the community was relatively stable (in comparison to early Upper Canada), with trust extended not only to respectable traders, but daily and in small amounts that were both indicative of and helped to foster the bonds that held people together.  61  However, the  prevalence of litigation does not necessarily tell us anything about credit as a specifically legal relation in King's Lynn. There is simply not enough data provided to enable a qualitative assessment of how and why the law was used. For example, registering a complaint against a debtor may have been used as a way to register the debt, as the promissory note was used by Upper Canadian storekeepers to consolidate and provide evidence of the debts of delinquent customers. Insisting that a customer sign a promissory 62  note was a way for the creditor to up the ante, but this was a long way from an actual lawsuit. A similar pattern may be indicated by Muldrew's findings for King's Lynn. Muldrew does portray a social and economic situation in which credit - trusting thrived in a small community where "most people lived in close proximity," "there would have been a great deal of personal familiarity in market dealing," and accessible courts helped members of the community to maintain their trust in one another. But proximity 63  and familiarity tells us nothing about the unequal power relations in that proximate and familiar setting, and the existence of an accessible court system provides only quantitative  '  60  Ibid., 25.  61  See Muldrew, "Interpreting the Market,"169.  Douglas McCalla, "Rural Credit and Rural Development in Upper Canada, 1790-1850," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary Ommer (Fredericton: Acadiensis, 1990), 260. 62  "Muldrew, "Credit and the Courts," 36.  17 evidence that people of diverse economic levels were able to take advantage of the same legal form and procedures.  64  In fact, Muldrew's data can be understood as revealing considerable inequality. He divided the people involved in litigation into eight wealth categories. The largest category, 64 percent, is of course the poorest group. In this case, the poorest group of litigants may have been quite poor. Muldrew used tax records to develop his wealth categories, and the people in the lowest wealth category did not appear on any of the tax lists. This would have included an unknown number of people who did not live in the town, but it would also have included most of the town's poor (since virtually all households were involved in litigation). The next category had 12 percent of the litigants. This group did appear on the tax lists, and they would have had housing worth £5 or less a year or £25 or less worth of goods.  The wealthiest category comprised only 1 percent of the litigants. People in that  65  category had housing worth more than £40 and more than £500 worth of goods.  66  For Muldrew, "what is noticeable about these figures is how similar the distribution of defendants by wealth category is to the wealth distribution for the population as a whole." That is, people got sued in proportion to their representation in the population of 67  litigants. However, distribution of plaintiffs is skewed. Although the plaintiffs from the larger and poorer wealth categories initiated the largest total number of law suits, individual plaintiffs in the smallest, wealthiest categories were far more likely to initiate litigation than were individuals in the poorer categories. According to one of Muldrew's tables, in the three years he studied, there were 571 plaintiffs from the poorest category, and they initiated a total of 922 law suits, for an average of 1.6 per person. In the same period, there  640n the form/content relationship in law, see David Sugarman and G.R. Rubin,"Towards A New History of Law and Material Society in England 1750-1914," in Law. Economy and Society. 17501914: Essays in the History of English Law, ed. David Sugarman and G.R. Rubin (Abingdon, England: Professional Books, 1984), 49. 65  Muldrew, "Credit and the Courts," 31.  66  Ibid.,32-3.  67  Ibid., 34, my emphasis.  18 were 14 plaintiffs from the wealthiest category, and they initiated a total of 206 law suits, for an average of 14.8 per person.  68  Muldrew acknowledges that rich people initiated litigation more frequently than poor people, yet he emphasizes the even distribution of defendants far more than the 69  uneven distribution of plaintiffs, concluding that his calculations "demonstrate that the wealthy did not prey upon poor defendants."  70  "Prey upon" is a loaded term, but I disagree  with Muldrew's emphasis. It is difficult to understand why he presented different calculations for plaintiffs and defendants. I think part of the explanation might be a failure to problematize the communal kind of credit system that he depicts, or to criticize the easy assumption that because a system is small and local, there is little conflict. Muldrew argues that: in social and economic terms, credit was a levelling force within the community. Rich and poor alike were bound by reciprocal bonds of indebtedness, and needed to trust one another. True, the poor were more indebted to the wealthy, and credit did not ultimately alter the power of wealth, but the wealthy were still indebted to the poor to a considerable degree. 71  This is probably accurate, at least in part. In fact, it provides useful insight into the formation of legal and market equality, so long as we keep in mind that this equality was available only to those who had equal access to those formal spheres. But does this mean, as Muldrew asserts, that "in many ways members of the community had equal potential as both economic and moral agents"?  72  I think, on the contrary, that economic and moral agency should be distinguished. Certainly the trust involved in this kind of communal credit system may have levelled the playing field of moral agency in the sense that persons of very different economic positions  68  Ibid., 34.  69  Ibid.,33.  70  Ibid., 34.  71  Ibid., 34-6  72  Ibid., 36.  19 appear to have considered each other worthy of trust. This probably accounts for some of what Muldrew considers to be the socially levelling effect of credit. He is less convincing regarding its economic effect. In particular, he does not bring a critical analysis to the fact that large numbers of relatively affluent people were indebted to members of the poorest group, that is, they were not paying what they owed for the goods and services provided by the poorest people in town; presumably those who could least afford to have their assets tied up in the hands of others. The reciprocal bonds of indebtedness highlighted by Muldrew operated in a context of economic inequality. The fact of economic inequality should not be easily rationalized away. Equality of opportunity - in this case, presumed equal ability to get credit and to access the courts - does not mean economic equality. Missing from Muldrew's assertions regarding how the rich did or did not use their economic power is the understanding that bonding, communalism, or shared moral values do not preclude unequal power relations. On the contrary, those factors often co-exist with coercive social and economic relations; the patriarchal family being a prime example of the phenomenon.  In contrast to Muldrew's assertion about the necessity of neutral and accessible courts to the maintenance of the community trust that enabled a balanced credit system, Howard Baker argues in his thesis, "Small Claims, Communal Justice and the Rule of Law in Kingston, Upper Canada, c.1785-1819" "that 'rule of law ideology'...grew in influence 73  as the hold of communalism in Upper Canada began to weaken around the turn of the nineteenth century in the face of demographic change and the increasing importance of market forces in the Provincial economy." In other words, for Muldrew, neutral and 74  accessible courts - a central component of 'rule of law ideology' - are an important condition for the maintenance of a communal credit system. For Baker, however, the existence of that kind of legal ideology is an indication that a communal credit system is no  L L . M . thesis, York University, 1992. Ibid., 10-11.  20  longer in place. Baker in fact pays considerable attention to establishing that "the law" was not an important factor in early Upper Canadian creditor/debtor relations; that "insofar as it affected small claims" the law "did not occupy a crucial niche within the social and economic order," and, as "one instrument among many for the processing of disputes," 75  76  was, finally, irrelevant.  77  Baker and Muldrew both take approaches that minimize unequal power relations by attempting to demonstrate that the formal representation of creditor/debtor relations in litigation indicates a tendency toward balanced power relations. Both scholars argue that because a large proportion of adult men were involved in litigation and not all of them 78  were from economically privileged sectors (from which it follows that, although plaintiffs usually won, the rich did not always win because not all of the plaintiffs were rich), the courts were not dominated by any particular class or group. We have already seen this in Muldrew's assertions regarding the even distribution of defendants throughout the population. Baker echoes Muldrew when he notes that "plaintiffs...were more likely than their rivals to walk away with a judgment in hand." He asks the question, "did this somehow reflect an imbalance in power relations in local society," then answers it by 79  counting the number of known merchants among the litigants, along with people from other groups. He concludes that "small claims litigation in Kingston was an activity initiated by people from many walks of life, not a process dominated by the privileged."  80  75  Ibid., 105.  76  Ibid., 106.  77  Ibid., 107.  . Baker's statistics show that in 1791 and 1792, 8.4 per cent and 5.8 per cent, respectively, of adult males in the district appeared in the records of the weekly Court of Common Pleas. H . Baker, 58-9. That court had jurisdiction for up to £8. There was only one Court of Common Pleas for each of the four districts that comprised Upper Canada prior to 1794. In that year, the courts were re-organized and the weekly Court of Common Pleas was replaced by Courts of Request, several in each district, and with a jurisdiction of up to £2. In 1817, 1818, and 1819, approximately 24 per cent, 24.8 per cent, and 30.5 per cent, respectively, of the adult male population appeared in the records of the Court of Request serving the town of Kingston and its environs. Ibid, 59. 78  79  Ibid., 62,  80  Ibid., 65.  21 A s with Muldrew, Baker depends on a theoretically formalist analysis. Both o f them separate creditor/debtor from other economic relations, removing them from the overall context o f economic inequality. Counting how many rich people or how many merchants appeared among plaintiffs and defendants relative to members o f other groups or how successful they were when they appeared tells us only that economically and socially dominant groups were not - at that time and place - using the legal system as a weapon with which to out-and-out rob the poor,  81  and that the legal system had legitimacy for at  least some o f the non-rich. It misses the point that the credit system is a system, and it is part o f an unequal economic system that chugs along without being much affected by the 82  action or inaction, the advantage or disadvantage, or particular individuals. Creditor/debtor relations can be thought o f as egalitarian only i f viewed formally - that is, i n their form o f negotiation, agreement, and equal access to the courts, and outside o f their context i n economic inequality. A n exclusive focus on law suits puts too narrow a parameter around the conflicts inherent i n creditor/debtor relations in an unequal economic system. When the content o f that form is included in an evaluation o f the system, the case for its egalitarianism becomes more difficult to make out. Baker and Muldrew have established that small claims litigation was both widespread and initiated by a heterogeneous population. Having done so, the question should not be, as Baker puts it, whether small claims litigation was "the monopoly o f a mercantile elite determined to bludgeon a suffering debtor class into submission" or "an activity which attracted plaintiffs from varied walks o f life."  83  Either conclusion would be simplistic. There is, instead, a  myriad o f other questions to be asked. For example, why were plaintiffs from a variety o f  This may have changed in Upper Canada a few decades later. See Paul Romney on the Bridgewater Works and Chaudiere Falls scandals in Romney. M r Attorney: The Attorney General for Ontario in Court. Cabinet, and Legislature 1791-1899 (Toronto: The Osgoode Society, 1986), passim. 81  The economic system in early Upper Canada was clearly unequal in that some people were developing great concentrations of wealth, while others were losing. Whether this system was specifically capitalist is a vexed question. The difficulties of defining the economic relations of the past in terms of capitalism are addressed in chapter six. 82  8 3  H . Baker, 10.  •  22  classes and groups (in King's Lynn, even the very poorest) "attracted" to small claims litigation? If poorer people routinely sued richer people, why were the richer people not . paying their debts? What was the impact on poorer people of being forced to litigate? What did it cost them in terms of time and inconvenience? How did the credit system, in its formal and its informal aspects, contribute to other social and political processes, for example, gender differentiation or state formation? The kind of historical data discovered and presented by Muldrew and Baker should be only the beginning of the inquiry.  Credit And 'Moral Economy' To my mind, there has been too easy an elision between a situation of communal/ moral regulation and an assumption of lack of conflict, as well as between legal regulation and an assumption of conflict. Conflict can be a central element of communal or moral regulation; whether a simple conflict between two parties or groups, or conflict between one group among whom there is a customary consensus and one or a few individuals or another group. Similarly, the existence of communal, morally regulated creditor/debtor relations does not mean that there was no inequality or conflict in the system. The notion of "moral economy" was developed by E.P. Thompson as an aid to understanding specific behaviours of eighteenth-century English crowds who were engaged in food riots. Thompson's usage of moral economy is different from Muldrew's, and especially Baker's. Thompson rejected the notion that food riots were simple, spasmodic responses to "elementary economic stimuli" in favour of an approach that attempted to identify the objectives of the crowd. 84  During food riots, the crowd was acting "upon a consistent traditional view of social norms and obligations, of the proper economic functions of several parties within the community, which, taken together, can be said to constitute the moral economy of the poor." On the 85  E . P . Thompson, "The Moral Economy of the English Crowd in the Eighteenth Century," in Customs in Common (London: The Merlin Press, 1991), 187. 84  85  Ibid., 188.  .  23  basis o f this consensus, the crowd, in times o f dearth, was sometimes able to enforce a kind o f direct action bargaining in which crowds o f poor people seized local grain. This was not outright thievery. Instead, the crowd set a fair price for the grain and then individuals i n the crowd would buy it. This was moral economy as a complex dynamic o f rights and obligations within a specific set of material conditions. Thompson wanted to get away from the "abbreviated view o f economic man," which presents a rational economic actor, 86  removed from any context, and acting in simple and direct response to economic stimulus. Thompson did not present a conflict-free situation. Instead, he depicted a crowd that shared a moral consensus about an economic issue. That crowd was i n conflict on that issue with other individuals or groups, and it acted to resolve the conflict in its favour. N o r did Thompson present the moral economy as disconnected from or superseding the material economy; that is the means o f production and distribution. A s Thompson said elsewhere, he warned "against precisely this confusion" in his essay on the moral economy o f the 87  crowd, arguing that although people do respond to economic stimuli, the question should be about how they respond, "how is their behaviour modified by custom, culture, and reason?"  88  Baker, however, associates conflict with legal regulation, and lack o f conflict with moral regulation. This can be seen i n his argument that legal regulation grew as communal ties weakened, but also when he poses the question o f why, when debts were difficult to collect, credit was granted very freely.  89  The answer according to Baker, lies in  recognizing: that the colony's economy was, i n essence, a "moral economy" in which custom and ritual, notions o f trust, loyalty and reciprocal obligation, and considerations o f private and public reputation tempered self-interest and  86  Ibid., 187.  E . P . Thompson, "The Moral Economy Reviewed," in Customs in Common (London: The Merlin Press, 1991), 262. 87  88  Thompson, "English Crowd," 187.  8 9  H . Baker, 85.  24  moderated the exercise of bargaining power on both sides of the debtorcreditor equation. 90  Yet Baker's conception of a moral economy - which nowhere references Thompson's - is disconnected from any material economy. For Baker, instability and tension were injected into the system because the terms of the "moral criteria" were negotiated between the participants, so that "misunderstandings and disagreements might easily arise to disturb the finely-balanced equilibrium between debtors and creditors." Baker provides little 91  evidence for these assertions, relying only on a listing of debt-collection methods other than law suits, for example, collection agents, dunning letters, the consolidation of book debt into promissory notes, or the threat of a lawsuit. Moreover, in his concluding remarks, he 92  notes that major merchants - including Richard Cartwright - rarely sued in small claims venues, but they prospered nevertheless. This he attributes entirely to "the workings of the Province's moral economy," rejecting another scholar's "materialist understanding of 93  economic relations" because his evidence "demonstrates that monetary obligations were not...devoid of moral content in the eyes of Upper Canadians." In other words, the mere 94  fact that money and credit are never completely disassociated from morality for Baker renders economic relations entirely non-material. Although I cannot agree with him regarding some of the specific dynamics of creditor/debtor relations, Muldrew is persuasive when he brings a moral economy analysis to bear on the history of market relations more generally. In an article that draws on but does not centre on his King's Lynn research, Muldrew argues that economic historians have teleologically imposed Smithian ideas of utilitarianism and self-interest back onto earlier market behaviours, and then suggests some of the processes by which occurred what  90  Ibid., 86.  9,  Ibid., 87.  92  Ibid., 88.  93  lbid., 103.  94  lbid.  25 he characterizes as "changes in the way economic agency was structured within society."  95  H i s main argument is similar to that already reviewed, that credit relations acted as a kind of levelling force within the community. Here, however, he expands his analysis to include market relations as a whole, disagreeing with what he believes to be a historiographic consensus, depending on neo-classical economic theory, that the development o f market relations in itself led to the decline o f community bonds. Muldrew argues that, on the contrary, buying and selling i n the early modern period, "far from breaking up communities, actually created numerous bonds which held them together."  96  Whether Muldrew is right, and early modern marketing behaviours did enhance community, is not important to this thesis. However, his description o f those marketing relationships, and the way he traces the effect o f the developing long credit system on the communally bonded market societies that he claims prevailed in the early modern period, can be helpful to understanding what credit relationships may have looked like i n early Upper Canada. A s we have already seen, credit was extended through personal networks that involved a good deal o f trust. The criteria for that trust helped to change other important social structures, such as the family. Less personal systems o f credit developed gradually, most likely i n larger concerns trading over longer distances. This long distance (and long term) credit continued to be extended informally, and on trust. This point is relevant to Upper Canadian creditor/debtor relations in two ways. First, Muldrew's argument implies that the communal nature o f early modern local markets, because o f their emphasis on trust, provided the cultural conditions for the development o f long distance credit since, as a beginning, someone had to trust someone else from far away: Even though trust could most easily be generated within local communities... because knowledge o f trustworthiness could be passed on from person to person, people were still willing to extend it to others over considerable  Craig Muldrew, "Interpreting the Market,"181. 'Ibid., 169.  26  distances, and in the late seventeenth century it certainly was not absent from national, or even international markets. 97  Second, and more important, is the process whereby long credit relations gradually changed local relations: Eventually, contracts made on a national scale become more important for large-scale merchants. Given the much more fragile state of trust which existed in obligations contracted over long distances, it is probable that the more distant obligations of some larger middlemen might have become as important, or more important, for the maintenance of their credit and wealth, as obligations to others within their own communities, especially those towards the poorer members. If this was so, then it is possible that a division in the nature of the social structure of obligations might have eventually helped in the erosion of older customary charitable obligations.... 98  Muldrew's more nuanced approach to moral economy may provide a clue to help us understand the relationship between moral and material economy in early Upper Canada, and especially to help us answer Baker's question as to why major merchants did not bother to press for small debts and how, even so, they managed to prosper. Part of the answer is that they did, sometimes, press their small debtors. Another part is that the really large merchants, like Richard Cartwright and Robert Hamilton, operated diverse enterprises that were not dependent on the timely repayment of small consumer debt. Both of these factors will be explored in the following chapters. But Muldrew's insights into the cultural changes that may have accompanied the long credit system are also helpful, for they provide a way to conceptualize interactions between the moral and the material economy.  Economic M a n , A n d The Family Not all of the scant literature relating to creditor/debtor relations in early Upper Canada relies on notions of communalism and moral economy. Another important strand in the literature is neo-classical economic theory. How this approach plays out in the work of Douglas McCalla, currently the leading economic historian of pre-1850 Ontario, is  'Ibid., 180. 'Ibid., 181.  27 discussed at length below, especially in chapter three. I will here confine my discussion to more general remarks on the theme. In Canadian economic and business history, reliance on neo-classical economics has led to the valorization of development in general, and of merchant capital in particular, and in particularly rigid way. I argue in chapter three that, at least in McCalla's work, this rigidity is the effect of a reaction against the political economy school, a leftist scholarly trend that is critical of merchant capital because, they argue, it made Canada vulnerable to foreign investment. But the connections do not have to be explicit in order to betray a reliance on the models and assumptions of neo-classical economics. That reliance can also be seen in the work of W.N.T. Wylie. Wylie's 1980 Ph.D. thesis is the most substantial existing work on creditor/debtor relations in early Upper Canada. As discussed in chapter five, it has influenced the perceptions of later scholars. But Wylie's analysis is problematic because his approach to the development of creditor/debtor relations in the province's early years focuses only on prominent people, and allows each of those people to play only one of two roles. For Wylie, those people favoured either commercial development or an aristocratic order, with no room for negotiation or accommodation between the two positions. He does perceive conflict, but only between those two poles, minimizing the protests and the discontent among Upper Canadians who were not powerful, but were most affected by the developing creditor/debtor regime. Wylie sees the non-powerful as under the sway of opportunists, who manipulated them into condemning the courts rather than reforming them." This, in his view, hindered economic development, in contrast to the United States, where "an ongoing process of legal change was underway to facilitate the development of commercial capitalism." Further, Wylie sees the merchant and the 100  administrative classes in Upper Canada as in conflict throughout the pre-1812 period. As I argue in chapter four, however, while the two groups were initially in competition, there was a rapprochement between them by about 1795. After that, the main conflict was  'Wylie, 273-82. l0  Ibid., 370.  28 between those who were at the centre o f power, and those who were not. W y l i e ' s focus on commercial capitalist development keeps him from seeing the importance o f government i n economic development, and the ways in which the administrative class and the merchants worked together, expressed common interests, and, to a certain extent, merged through intermarriage and social activities. The influence o f neo-classical economics in W y l i e ' s thinking is betrayed first i n his assumption that commercial capitalism is the best direction for development, and more subtly in the way he organizes his analysis in terms o f the binary opposition between those in favour o f capitalist development verses those who oppose it because they wish to maintain their aristocratic privileges. What slips out o f the picture when this model is used, once again, is the context o f economic inequality and, to be more specific, the people who created the wealth that is at issue in creditor/debtor conflicts. To use language developed by the theorists Stephen A . Resnick and Richard D . Wolff, W y l i e ' s approach to the social and political context o f creditor/debtor law is situated in the nonclass rather than the class tradition o f economic analysis.  101  That is, it ignores "the complex social process o f  exploitation: the production, appropriation, and distribution o f surplus labor in different forms,"  102  implicitly relying instead on neo-classical paradigms o f individual choice and  the invisible hand o f the market.  This describes W y l i e ' s focus on the cultural characteristics o f the administrative and the mercantile groups in early Upper Canada, as well as M c C a l l a ' s focus on the contributions o f merchants to economic development. Less obvious is the way that Craig M u l d r e w ' s work also fits into this neo-classical paradigm. Notwithstanding M u l d r e w ' s insight into the tendencies o f historians to read Smithian individualism back into their interpretations o f pre-modern markets, his conclusions regarding the levelling effect o f  Stephen A . Resnick and Richard D. Wolff, "The 1983 Nobel Prize in Economics: Neoclassical Economics and Marxism," Monthly Review 36(7) (1984): 29. 101  102  Ibid.,41.  29 creditor/debtor relations play right into just such an individualistic world view. Let us take another look at Muldrew's assertions regarding the socially and economically levelling effect of credit. As already stated, I agree with Muldrew on this point so long as it is acknowledged that the levelling effects of credit are confined to the sphere of those who possessed formal legal and market equality. By formal legal equality I mean those persons who possessed legal personhood; that is, an increasingly wide range of adult white males, as symbolized in England by abolition of the property qualification for members of parliament in 1858, and universal manhood suffrage in 1867; unavailable to women in England until 1918. By formal market equality, I mean the right to sell one's labour power; unavailable to married women until the married women's property acts of the late nineteenth century, prior to which wives could not own their wages. The levelling effect of credit, then, would not have included women, or at least not in the same way as it may have included men. Many women would have been involved in the buying, selling, lending and borrowing which make up a large sphere of the market activities in which Muldrew locates the levelling process, but they would not have controlled their work or its proceeds. Nor would they have been part of the practice of litigation, where Muldrew locates some important parts of the levelling process. Muldrew claims that his data reveals: The courts as institutions which played an important role in economic life. They were perhaps the most important formal secular institutions outside the family, for there were still few banks, manufactories, or incorporated companies. 103  It was not just the existence of courts, but the actual practice of litigation that had a levelling effect: On many court days the poor would have been present in the hall with their betters, and would also have spent much time talking to lawyers, or entering complaints with the court clerk. 104  Muldrew, "Credit and the Courts," 24. 'Ibid., 33.  30 Married women would not have owned the property which was the subject o f the litigation, nor would they have had standing to bring a complaint. Muldrew acknowledges the problem o f standing,  105  but not that o f ownership, nor does he analyse the implications o f  women's legal disabilities on the equality which he claims was being constituted by credit relations. Muldrew's insights regarding the levelling effect o f credit fall back into the economic man paradigm because he is talking only about those who possess formal equality, and he neglects the exclusion o f women and the family (as well as members o f other groups who did not attain full citizenship i n liberal society) from the very institutions which he says increased equality. This kind o f naturalization o f the family/household which was a founding component o f liberal society  106  has persisted despite the gradual  elimination o f almost all o f women's formal legal disabilities, and it has had a detrimental effect on historical writing about credit, about law, and about Canada's past. The family has been doubly privatized in liberalism, for it is the private domain within the private sphere o f civil society; "the domain into which the King's writ does not seek to r u n . "  107  C i v i l society, however, is conceived o f as private primarily because it is  not the state. This dichotomy is a false one, since important institutions o f c i v i l society such as the market, law, and the family could not exist in their ostensibly private forms without the co-operation o f the state in the policing o f the boundaries o f the private.  108  Moreover, "the family and the market do not constitute autonomous spheres with discrete  10  Tbid., 28-9.  See Pateman; see also Mary Shanley, "Marriage Contract and Social Contract in Seventeenth Century English Political Thought," Western Political Quarterly 32 (1979): 79-91. For an account of the gendered impact of European restructuring following the French Revolution, see Ursula Vogel, "Whose Property? The Double Standard of Adultery in Nineteenth-Century Law," in Regulating Womanhood, ed. Carol Smart, 147-165 (London: Routledge, 1992). 106  ""Balfour v. Balfour [1918-19] A l l E. Rep. 860 at 865, per Atkin L.J. See Frances E. Olsen, "The Family and the Market: A Study of Ideology and Legal Reform," Harvard Law Review 96 (1983): 1506. 108  31 forms of regulation, but rather production and reproduction are interrelated." In contrast 109  to the family, however, legal venues and the market are 'public' - too public until recently for women to appear in them safely and with gentility. By neglecting these factors, Muldrew has replicated the naturalization of women and the family. That naturalization is central to how the family has been viewed by both classical liberalism and neoclassical economics. Naturalization of the family is also implicit in analyses that equate proximity and familiarity with equality or consensus. In many ways, the family "is the most essentially private institution, the heart and centre of everything we associate with what is not the state."  110  It is also the quintessentially communal unit, the "black box" of assumed inner  altruism, out of which economic man appears to take his place in the rough and tumble of the market.  111  The violence that exists in many families, and the inequality that exists in  almost all, has only begun to become known and acknowledged by scholars in recent years. A consensual, communal model of credit relations works too smoothly with conventional, consensus views of Canadian history. Ideas about consensus and community are appealing, but they are perhaps no more accurate than the notion that families are conflict-free and internally altruistic. The growing understanding of family history and of the internal dynamics of families should caution us to avoid any assumption that communal, local, morally regulated relationships are conflict-free.  The remainder of the thesis is organized into five chapters. Chapter two introduces the Upper Canadian context, arguing that early Upper Canada was a more diverse society  Judy Fudge, "The Public/Private Distinction: The Possibilities of and the Limits to the Use of Charter Litigation to Further Feminist Struggles."Osgoode Hall Law Journal 25 (1987): 488. 109  M a r y Mcintosh, "The Family, Regulation, and the Public Sphere," in State and Society in Contemporary Britain, ed. Gregor McLennan, David Held and Stuart Hall (Cambridge: Polity, 1984), 205. 110  'Nancy Folbre, Who Pays for the Kids? Gender and the Structures of Constraint (New York: Routledge, 1994), chapt. 1. 11  32  than has been assumed. Upper Canada was stratified from the beginning. Various elite groups jockeyed for power, while other groups were shunted aside. Those groups were defined by ethnic and cultural background and by religion as well as by class and gender. The chapter also provides a brief sketch of early Upper Canada's legal and administrative structures as background for the detailed arguments regarding credit relations and power in the rest of the thesis. Chapter three takes up the debate between neo-classical and political economy views of Canadian economic history. The chapter extends the critique of neoclassical economics that has been presented above, while at the same time arguing that both sides in the debate have held too simplistic a view of merchants, credit, and debt in early Upper Canada. The arguments are supported by evidence about different kinds of merchants in early Upper Canada and their relationship to the long credit system. Chapters four and five move from the theoretical to the presentation of substantive findings. Chapter four reviews the kinds of commercial paper used during the period and tries to place the privately-issued merchant's note or "Bon" within that framework. That chapter also reviews the relationship between the Bon and other aspects of the merchant system, grievances directed against that system, and the court reforms of 1794 which set up a judicial system that was English in form. It provides an account of the power struggle between government and large merchants in the earliest years of the colony, and of how the two groups quickly reached a rapprochement and cooperated to rule Upper Canada. Finally, the chapter finds that the use of the Bon may have been exaggerated as a reason for anti-merchant sentiment in much of the historiography and, in that context, reviews some other possible reasons for hostility toward merchants. Chapter five looks at the important issue of the seizure of land for debt in Upper Canada, a remedy that was not available in England. Because of high expectations for British justice in Upper Canada, the issue of land seizure remained alive for many years and was, I argue, connected to the constitutional crisis of 1805-7. Finally, chapter six attempts to draw some tentative conclusions regarding how to develop an adequate framework for looking at credit.  33  Chapter Two UPPER CANADA L A W AND SOCIETY 1788-1809 This chapter provides a general background for the specific arguments of the thesis: that credit relations in Upper Canada were from the beginning imbued with unequal power relations and that this inequality impacted upon early constitutional politics in the province. It sets out to show that early Upper Canada was a more diverse society than has generally been assumed. Even the United Empire Loyalists were a diverse group, united perhaps more than anything else by their fear of the Americans and the disorder and threat of assimilation of the revolution, and by their looking to Britain for protection. This point is important in reference to arguments about the ideological importance of notions of British justice in the period. The chapter also provides a brief sketch of legal and administrative structures as background for detailed accounts of credit relations in the body of the thesis. The legal regime set up for the Loyalists is compared to the previous French Canadian regime in Quebec. The comparison is placed in the context of contemporary feelings among British merchants at Montreal regarding the ostensible superiority of British over French law.  Early Settlement The French regime in Quebec had permitted European settlement only in the St. Lawrence and Richelieu river valleys. With the exception of some trading posts on the Great Lakes, aboriginal peoples retained control of the land north of lakes Ontario and Erie.' This changed with the British conquest of Quebec in 1760. In the years that 2  followed, boundary definitions and military excursions led to some British encroachment on the Indian Territory. Civilian settlement, however, did not begin until after the outbreak  'Robert J. Surtees, "Land Cessions, 1763-1830," in Aboriginal Ontario: Historical Perspectives on the First Nations, ed. Edward S. Rogers and Donald B. Smith (Toronto: Dundurn Press, 1994), 92. 2  Ibid., 93.  34 o f the American Revolution.  3  Many thousands of white Loyalists left the United States  during and after the Revolutionary War. Most o f them went to England, the West Indies, N o v a Scotia, or Quebec. Only about five thousand settled i n the territory that would become Upper Canada. That first five thousand were the basis for a new colony. It grew 4  rapidly, so that "by 1812 the Native peoples found themselves pushed away from large sections o f their waterfront lands on the upper St. Lawrence River, Lake Ontario, the Niagara River, Lake Erie, and the Detroit River."  5  U n t i l 1791, when it was divided into Upper and Lower Canada, the entire territory was known as Quebec. During the American Revolutionary War, Quebec was under military rule. The earliest Loyalist refugees to Quebec were men. They joined regiments and became involved i n the fighting. The women and children who were left behind were sooner or later forced to flee as well, undertaking harrowing journeys to Quebec. Most were destitute. The basic needs o f male Loyalists were taken care o f by their regiments, but the military government viewed the women and children as unwanted burdens. Initially, the government attempted to require their families to support them, but the wartime conditions made this unrealistic, and the government assumed responsibility for their support by 1778. M a n y Loyalist women and their children in Quebec lived i n camps, some for as long as eight years. Provision o f food and housing was organized on principles similar to those in the English poor law; people requiring relief were categorized as deserving or undeserving, only a subsistence level o f support was provided, and the needy were forced to work for their subsistence. Officially, each woman was to receive one-half the rations o f a 6  man, but the officials in charge o f provisioning were often corrupt. In addition, provisions were distributed according to class. People from the privileged classes were favoured  3  Ibid., 96-7.  4  Ibid., 98.  5  Ibid., 92.  Jan ice Potter-MacKinnon, While the Women Only Wept: Loyalist Refugee Women (Montreal: McGill-Queen's University Press, 1993), 95, 97, 99, 100, 111-12. 6  35 because they were unused to dealing with adversity and were therefore considered less able to do so. Rations were used to force people to follow orders and, as the war continued, provisions grew short and rations were cut. Slaves and servants were not provisioned at all. Save those who could establish their upper-class origins, women and girls over twelve were forced to work for their rations, and some were cut off when they were unable to find employment.  7  In M a y o f 1784, white Loyalists living in camps were ordered to muster for transport to new settlements near Cataraqui (later Kingston).  8  Others had already settled  around Detroit and Niagara, and on Carleton Island near Cataraqui. Settlement i n those areas began in 1780, and there were 126 farms at Niagara by 1784. Although assisted with 9  tools and provisions, the settlers were subject to many restrictions, including the requirement to sell their surplus to the garrisons at a fixed price.'  0  Loyalists i n the new settlements continued to be assisted by the British government and subjected to its hierarchical and paternalistic order. Food, tools, equipment and clothing were not distributed equally." Land was distributed according to military hierarchy, with grants ranging from 100 acres (plus an additional 50 for every family member) for discharged private soldiers to 5,000 acres for field officers.  12  Some o f the  officers insisted on being assigned the front lots instead o f drawing for them with their men. This was an early source o f grievance.'  7  Ibid., 117-19.  8  Ibid., 128.  3  Robert Wilson, The Enterprises of Robert Hamilton: A Study of Wealth and Influence in Early Upper Canada. 1776-1812 (Ottawa: Carleton University Press, 1983), 24. 9  Lillian F. Gates, Land Policies of Upper Canada (Toronto: University of Toronto Press, 1968), 11. 10  "Potter-MacKinnon, 128. Gerald M . Craig, Upper Canada: The Formative Years. 1784-1841 (Toronto: McClelland and Stewart, 1963), 12. 12  ' Gates, 17. 3  36  Who Were The Loyalists? The conventional image of the United Empire Loyalist is a person of English descent whose loyalty to the English crown and government made it impossible to remain in the disloyal turmoil created by the Patriot movement in the thirteen colonies. These hardy souls, we are told, made tremendous sacrifices for the unity of the Empire and the privilege of living under English law. The reality was somewhat different. Although the Loyalists did make sacrifices, not all of them were of British or even European descent, and the reasons for their Loyalism are as varied as their background. There is room here only to briefly sketch some of the kinds of people who were Loyalists, and some of the meanings of their Loyalism. There were many Loyalists among the Iroquois Confederacy. Prior to the American Revolution, the Six Nations of the Confederacy lived south of the Great Lakes in New York State and part of Pennsylvania. The American Revolution split the Confederacy, with 14  some fighting on the British side, some on the American, and others remaining neutral. The Mohawk were most closely allied with the British. Part of the reason for the close alliance 15  between the Mohawk and the British was the connection between a Mohawk family, the Brants, and a British family, the Johnsons. Sir William Johnson, the British Superintendent of Indian Affairs, was one of the most prominent white citizens in the Mohawk Valley of upstate New York. Joseph Brant (Thayendanegea) was a protege of Johnson's. Johnson educated Brant, and the two worked closely together until Johnson's death in 1774. Molly Brant was William Johnson's second wife. They began living together in the late 1750s. They had eight children, including five daughters, all of whom married into the Upper Canadian elite.  16  14  George Beaver, "Early Iroquoian History in Ontario," Ontario History 85 (1993): 223.  15  Surtees, 97; Beaver, 228.  Gretchen Green, "Molly Brant, Catherine Brant, and Their Daughters: A Study in Colonial Acculturation," Ontario History 81 (1989): 239, 242. 16  37 Molly and Joseph Brant were influential among both Iroquois and British. They 17  believed that the interests of the Iroquois would be best served by fighting on the side of the British. The American colonists had made many encroachments on Six Nations lands. On a trip to England, Joseph Brant told the Secretary of State for the American colonies that: It is very hard when we have let the Kings subjects have so much of our lands for so little value, they would want to cheat us...of the small spots we have left for our women and children to live on. 18  The Secretary agreed, but added that redress would not be possible until the rebels had been dealt with. If the Six Nations remained loyal, he said, they would receive every possible support from the British.  19  That promise was not kept. During peace negotiations Britain gave the United States sovereignty over huge territories that aboriginal people believed they had never relinquished to the British. With the coming of peace, the British became less interested in appeasing their First Nations allies, settling them on limited parcels of land with uncertain title. Joseph Brant devoted much of his effort to organising an Indian confederacy to stop American expansion. He was unsuccessful, partly because of lack of backing from the British. As British policy changed, Brant's efforts became an annoyance to a government that now preferred to keep the First Nations "divided, dependent, and subservient." Brant 20  spent many years attempting to resolve the nature of the Six Nations title to the Grand River grant, and he intervened on at least one occasion to aid the Mississauga Ojibwa in their attempt to negotiate fair treatmentfromthe Upper Canadian government.  21  Also contrary to the image of English inheritance, Loyalists of European origin were culturally heterogeneous. Some of the prominent Loyalist spokesmen, such as the powerful  17  Ibid.,241.  18  Barbara Graymont, "Thayendanegea," Dictionary of Canadian Biography V : 805.  19  Ibid. '  20  Ibid., 808.  Graymont, 809; Leo A. Johnson, "The Mississauga-Lake Ontario Land Surrender of 1805," Ontario History 83 (1990): 233-5; Gates, 49-50. 21  38  merchant Richard Cartwright, were American born and of British descent, but others were members of ethnic or religious minority groups; immigrants or the children of immigrants to the thirteen colonies who lived in close-knit communities and retained their own language culture. Many had left Europe because of religious persecution. Prominent 22  23  among these were the German Palatinates, Protestants who fled religious persecution in other European countries and settled in the Palatinate in the early eighteenth-century. They soon had to leave. One group of several families who were neighbours or relatives in Germany migrated as a group, first to England, then Ireland, then to America after the Seven years War, where they settled together in New York, migrating to Quebec as a group during the Revolutionary War. There were also many Dutch speakers among the 24  Loyalists, especially those who were committed to the traditions of the Dutch Reformed Church. The largest group of recent immigrants among the Loyalists were Scottish. Scots 25  were Loyalists in disproportionate numbers, and both highland Catholic and lowland Protestant Scots travelled and settled in groups.  26  For members of these groups, Loyalism was a group decision, one that was associated with the group having maintained its own language and culture. For example, although Dutch people were found on both sides during the Revolutionary War, Dutch who had maintained their language and culture supported the English, while most Dutch who supported the Patriot side had already become anglicized. Minority groups who had 27  maintained their cultural cohesion "feared the assimilative threat posed by American  22  Potter-MacKinnon, 12, 14.  23  Ibid., 13.  24  Ibid., 14.  25  Ibid., 15-6.  Immigrants from Great Britain to North America between 1760-1775 were 44 per cent Irish, 32 per cent Scottish, and 24 per cent English. But Eastern Ontario Loyalists from Great Britain were 23 per cent Irish, 65 per cent Scottish, and 12 percent English. Ibid., 16-7. 26  27  Ibid., 15.  39  society." Many of them, especially the groups who had been persecuted for their 28  Protestantism, already looked on England as their protector.  29  In some cases, tenants followed the leadership of their Loyalist landlords. The Johnson family provide a case in point. Sir William Johnson had a 200,000 acre estate in the Mohawk Valley of northern New York, peopled with tenant farmers who had been attracted by Johnson's generous terms. "His patronage was immense," and when a county government was created in 1772, Johnson named most of its officials.  30  About 20 percent  of the county's population were tenants of the Johnsons, and Sir William was paternalistically kind to them, cancelling debts and advising on personal matters. This 31  created bonds of deferential loyalty. When Sir William Johnson died in 1774, his son John took over. In May of 1776, Sir John and a group of 170 made up of his tenants and other Loyalist men fled together to British territory.  32  There were also many Black people among the Loyalists. Most of them were enslaved. The British offered emancipation to all slaves who served with the Loyalist forces during the war, but few of those Blacks who crossed over into Loyalist territory were allowed to serve in the military. Some were taken prisoner and either kept as slaves by their captors or sold, and some were returned to their Loyalist masters.  33  "The line between  slaves who surrendered to British officers, and slaves who were captured and thus taken to be the legitimate spoils of war, was one too thin to draw at times," and many were sold by British and Loyalists officers.  34  Some Black people who were kept as slaves by Loyalists,  David Mills, The Tdea of Lovaltv in Tinner Canada. 1784-1850 (Kingston: McGill-Queen's  28  University Press, 1988), 14. 29  Potter-MacKinnon, 20.  30  Ibid., 27.  31  Ibid., 27-8.  32  Ibid., 4-5. Their families were left behind, ibid., 54, 61.  33  Ibid., 102.  Robin W. Winks, The Blacks in Canada.: A History (Montreal: McGill-Queen's University Press, 1971), 29. 34  40 including one with Richard Cartwright, complained that they were being held illegally.  35  Slaves and servants in Loyalist refugee camps did not receive provisions since "those who can afford to keep Servants cannot be considered...proper Objects of that bounty." When 36  the Loyalists were settled, Black people "although in theory entitled to land grants for their military service, were treated like property and were provisioned only because they were need to help the Loyalists clear their land." There were slaves at almost all of the Loyalist 37  settlements, with some families (including Cartwright's) having ten or more, and others with one or two. One estimate put the slave population at Niagara at almost 300 in 1791.  38  Slavery was curtailed in 1793 when the legislature passed an act banning the importation of slaves.  39  Loyalist Ideology  Settlements were supported and land was distributed to white Loyalists because the British government felt itself obliged to assist the Loyalists in return for their service and their sacrifices, including the abandonment of their property in the thirteen colonies. Loyalists were financially compensated for their losses during the war according to their rank and their former property holdings. They had to petition for compensation, and "in 40  the petitions the meaning of their experiences had to be articulated." The petitions in 41  which the Loyalists made their claims: [t]ell us...the extent to which Loyalists had by the 1780s defined in clear and consistent terms the meaning of their refugee experience. They were not like  3  Tbid., 29-30.  Potter-MacKinnon, 119. There was at least one exception: "Molly Brant's slaves were being provisioned at Carleton Island, which may merely show Molly Brant's influential connections." Ibid. 36  37  Ibid., 139.  38  Winks, 33-4.  A n Act to Prevent the Further Introduction of Slaves, and to Limit the Term of Contracts of Servitude Within this Province. 33 Geo. Ill, c. 7 (U.C.). 3 9  40  Potter-MacKinnon, 138.  41  Ibid., 125.  41 other settlers. They were Loyalists, motivated by principle, who had been attached to the British crown, empire, and constitution. They had proven their loyalty through military service, which had led to property losses and suffering. It was the duty of the British government to reward these people for their noble contributions to the British empire. 42  Petitioners often exaggerated their former affluence. This is one source of the myth that most Loyalists were of upper class origin. In fact, about 50 per cent had held less than 200 hundred acres of land, and 35 per cent less than one hundred. Although even 100 acres was a substantial holding, 40 per cent of the petitioners stated that they had cleared only 10 acres or less. In addition, a good many Loyalists had been tenant farmers. For every 43  44  lord of the manor turned Loyalist refugee like Sir John Johnson, there were hundreds of small holders and tenants. Loyalists did not exaggerate their claims only for pecuniary motives. They also needed to convince themselves that they had done the right thing, that their struggles and sacrifices were worthwhile. This extended to lauding the achievements of the new settlements. Key to this was the differentiation of Upper Canada from the United States. 45  As S.F. Wise explained: Loyalty did not simply mean adherence to the Crown and the Empire, although it started there. It means as well adherence to those beliefs and institutions the conservative considered essential in the preservation of a form of life different from, and superior to, the manners, political and social arrangements of the United States. 46  As an ideology, Loyalism would have developed in contrast to the negative "other," in this case the United States, but the United. States as a discursive construction, as ideas about the States, and not necessarily what conditions there really were. As with all ideologies, Loyalist ideology held grains of truth, but it was mainly an admixture of notions and beliefs  42  Ibid., 148-9.  43  Ibid., 22.  44  Ibid., 24-5.  45  Ibid., 155-6.  S . F . Wise, "Upper Canada and the Conservative Tradition," in Profiles of a Province, ed. Edith Firth (Toronto: Ontario Historical Society, 1967) 31. 46  • '  42  constructed around the necessity to, in the earliest days, explain and justify the sufferings of the Loyalists during and after the American Revolutionary War. The British constitution and its correlate, a British system of justice, were important components of what Loyalists were supposed to believe that they had fought and suffered for.  47  Upper Canada and the Quebec Act At the time of the first Loyalist settlements in the upper province, the entire territory was still considered to be in Quebec. It was governed according to the provisions of the Quebec Act of 1774, which retained English criminal law, set up a non-representative 48  government by Governor and appointed Legislative Council, and reserved for the Crown the power to constitute courts. The Act also stipulated, with some exceptions, that "in all Matters of Controversy, relative to Property and Civil Rights, Resort shall be had to the Laws of [French] Canada, as the Rule of the Decision of the same" unless altered or varied by ordinances passed by the Governor and Council.  49  From the first, that provision of the Quebec Act was opposed by the small group of English merchants who had established themselves among the French majority since 1763. They complained that the laws of Canada were not adequate to a commercial colony. Although the law of Canada was not identical to the law of France, it included "all edicts and ordinances applying to the whole kingdom of France and issued before 1759." The laws of Canada would therefore have included the modernized French 50  commercial code, known as the code marchand. which embodied ordinances passed in 1673 and 1702. After the English takeover of Quebec, however, there was confusion about whether the code marchand applied, as it may have never been formally registered in the  4 7  On loyalty as an ideological concept in Upper Canada, see Mills, especially 2-33.  A n Act for Making More Effectual Provision for the Government of the Province of Quebec, in North America. 14 Geo. I l l , c. 83 (Imp.) 4 8  49  Ibid., s. 8.  Hilda M . Neatby, The Administration of Justice Under the Quebec Act (Minneapolis, University of Minnesota Press, 1937), 5. 50  43 colony. Merchants, lawyers and judges generally believed that the nonregistration o f the code marchand made its enforcement illegal under the Quebec A c t . ' 5  It is easy to assume that English merchants questioned the validity o f the code marchand because o f a chauvinistic preference for English law. Neatby challenges such assumptions on the basis that the "unwillingness o f the judges, two o f them French Canadians, and all opposed to the merchant party, to commit themselves on the subject, indicates that they were not at all sure of their ground."  52  In addition, a French critic,  writing i n 1758, complained that the code marchand was inadequate because it did not provide enough protection for creditors or for the European partners o f firms i n the colonies. For Neatby, this was "startling confirmation o f the bitter complaints o f English merchants and their lawyers during the years following the Quebec A c t . "  53  This is not the place to examine whether the French commercial law o f the 1700s was in fact inadequate, to explore the interests and alliances of Neatby's contemporary critic, or to try and tease out where prejudice may have affected either her interpretation or those on which she relied. More important here is the fact that the English merchants either genuinely believed the law of Canada to be inadequate for their purposes, or were willing to use and manipulate that belief for their own ends. Either way, the belief meshed well with the developing Loyalist ideology that Loyalists, having fought and suffered for it, were especially deserving o f the ostensible benefits o f English law and liberty. With the Loyalist influx, the English merchants o f Quebec "now smelled success, as they viewed the growing strength o f the Loyalists in the light o f added weight to be used i n waging the old struggle."  54  Change was incremental until 1792. After the Quebec Act, the colony had been divided into two districts, Quebec and Montreal. The district o f Montreal encompassed the  51  Ibid., 15-16.  52  Ibid., 16.  53  Ibid., 17.  54  Craig, 9.  44 entire territory that was to become Upper Canada, and the courts were located at the city o f Montreal.  55  A n A p r i l 30, 1785 ordinance provided for the appointment of justices o f the  peace in the new settlements. The new justices were authorized to determine actions o f debt o f less than £5 and greater than two shillings and sixpence.  56  Another 1785 ordinance  stipulated that actions o f over £10 would be tried at Montreal or Quebec. It also introduced two features o f the English legal system into Quebec by establishing the option o f trial by jury i n commercial cases (trader against trader) at the request o f either party, and adopting English rules o f evidence in commercial cases.  57  A 1787 ordinance empowered the  Governor to form new districts and to commission district officers.  58  Finally, i n July o f  1788, the Governor, L o r d Dorchester, proclaimed the creation o f four new districts in the upper country.  59  With the creation o f the new districts, the justices o f the peace who had been appointed in 1785 were replaced by a new set o f local officials. A Court o f C o m m o n Pleas was created for each district. In addition, each district was to have a sheriff, at least one coroner, a number o f new justices o f the peace, and a Court o f C o m m o n Pleas.  60  A few  months after the first group o f officials was appointed, the government added another body, a Land Board for each district.  Riddell, William Renwick, The Bar and the Courts of the Province of Upper Canada or Ontario. Part II: The Courts (Toronto: Macmillan, 1928), 27-8. A n Ordinance. For Granting A Limited Civil Power and Jurisdiction to His Majesty's Justices of the Peace in the Remote Parts of this Province. 25 Geo. Ill, c. 5 (Que.). 5 6  A n Ordinance. To Regulate the Proceedings of the Courts of Civil Judicature, and to Establish Trials by Juries in Actions of A Commercial Nature and Personal Wrongs to Be Compensated in Damages. 25 Geo. Ill, c. 2, Articles I, IX, and X (Que.). 5 7  A n Ordinance to Continue in Force for a Limited Time, an Ordinance Made in the TwentyFifth Year of His Majesty's Reign. Intituled. "An Ordinance to Regulate the Proceedings of the Courts of Civil Judicature, and to Establish Trials by Juries in Actions of A Commercial Nature and Personal Wrongs to Be Compensated in Damages." With Such Additional Regulations as are Expedient and Necessary. 27 Geo. Ill, c. 4 (Que.). 5 8  59  Craig, 12.  60  Neatby, 288.  45  The new justices of the peace were commissioned as the Court of General Quarter Sessions of the Peace. Magistrates meeting at Quarter Sessions were empowered as inferior courts of criminal jurisdiction. More serious matters were tried at King's Bench in Montreal. The magistrates also had charge of many facets of local administration. Courts of Common Pleas began sitting in 1789. Common Pleas was mandated to sit weekly for actions of less than £10, and in quarterly terms for the hearing of larger claims. They heard cases of tort and contract, but the majority of cases were for debt of various kinds. The Courts of Common Pleas were uneven in practice and substance, and they were abolished in 1794 si -p^g L  a n c  j Boards had the authority to grant land, select town sites, and lay out or  improve roads, making the Boards "the single most significant administrative institution in the eyes of the pioneer community it regulated." The Land Boards were also abolished in 62  1794. As an institution, Quarter Sessions were of longer duration than the Land Boards or the Court of Common Pleas. Until 1842, "local government in Upper Canada was almost entirely in the hands of appointed justices of the peace."  63  But all three bodies were active  during Upper Canada's first years.  Upper Canada's Early Constitution Early 1791, in a statute known as the "Constitution Act, 1791" or the "Canada Act," the English Parliament divided British North America into the two provinces of Upper and Lower Canada and constituted the forms of government. The Governor was to reside in 64  Lower Canada and each province would have a lieutenant-governor, an elected House of Assembly, an appointed Legislative Council, and an appointed Executive Council. The Legislative Counsel was equivalent to the House of Lords. Appointment was for life, with  61  Chapter four details what were thought to be some of the problems with Common Pleas.  62  Wilson, Enterprises. 53.  63  J . H . Aitchison, "The Court of Requests in Upper Canada," Ontario History 41(1949): 125.  The statute was formally styled A n Act to Repeal Certain Parts of An Act. Passed in the Fourteenth Year of His Majesty's Reign Intituled. " A n Act for Making More Effectual Provision for the Government of the Province of Quebec, in North America." and to Make Further Provision for the Government of the Said Province. 31 Geo. Ill, c. 31 (Imp.). 64  46 some restrictions. Members were appointed to the Executive Council at the pleasure o f the government, but i n practice this usually meant for life. A s with the English Cabinet, the Executive Council was not responsible to the House o f Assembly.  65  There was provision to  create hereditary titles and annex them to membership in the Legislative Council, but this was not done. A m o n g other things, the A c t also stipulated that lands i n Upper Canada would be granted in free and common socage. It also reserved one-seventh o f the land i n each township for the support o f the protestant clergy, and another one-seventh for the Crown. The governance structures constituted by the statute were quite deliberate: It was believed that the American Revolution had occurred, in large measure, because the democratic arms o f the colonial legislatures had grown too powerful. There would be no repetition o f that error in Upper Canada. 66  The statute's framers hoped that the structures it mandated would facilitate the "so-called mixed or balanced constitution composed o f the three classical forms o f polity: monarchy, aristocracy, and democracy."  67  In Upper Canada, the equivalent bodies would be the  lieutenant-governor, the appointed legislative council, and the elected assembly: These elements brought together within a system o f checks and balances would, it was believed, prevent the natural tendency o f political regimes to degenerate into their unconstitutional forms: tyranny, oligarchy, and anarchy. A proper aristocratic emphasis would allow the newly erected colonies to hold the democratic element i n check as had not been the case i n colonies such as N e w Y o r k prior to [the American revolution]. 68  The first session o f the Legislative Assembly was held i n 1792. The first statute passed by the assembly repealed the part o f the Quebec A c t that stipulated recourse to the  Frederick H . Armstrong, Handbook of Upper Canadian Chronology, rev'd ed. (Toronto: Dundurn Press, 1985), 38, 53, 55. 65  George Sheppard, Plunder. Profit, and Paroles: A Social History of the War of 1812 in Upper Canada (Montreal: McGill-Queen's University Press, 1994), 16. 66  Robert L . Fraser, ' " A l l the Privileges Which Englishmen Possess': Order, Rights, and Constitutionalism in Upper Canada," in Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography, ed. Robert L. Fraser (Toronto: University of Toronto Press, 1992), xxviii. 67  68  Ibid., xxix.  47 laws of Canada in respect of property and civil rights, replacing it with English law, excepting the bankruptcy law and the poor law.  69  The first session also introduced trial by  jury, and it reformed the Court of Common Pleas by abolishing its summary proceedings in actions under £10 and directing jury trials in all causes of more than forty shillings, or £2. The legal regime governing debt was completed, for the time being, by a statute that empowered the justices of the Quarter Sessions to set up divisions in their districts, each division to have a Court of Request sitting twice a month to hear actions of debt for forty shillings or less.  70  John Graves Simcoe was commissioned as the first lieutenant-governor of Upper Canada. Simcoe already had North American experience, having served with the British forces during the Revolutionary War. When Simcoe prorogued the first session of the legislature in October of 1792, he congratulated the members and urged them to explain to their constituents that "this province is singularly blessed, not with a mutilated Constitution, but with a Constitution which had stood the long test of experience, and is the very image and transcript of that of Great Britain, by which she had long established and secured to her subjects as much freedom and happiness as it is possible to be enjoyed under the subordination necessary to civilized Society."  71  For many in Upper Canada, the province's  political and legal forms and practices were to fall far short of this promise.  An Act to Repeal Certain Parts of An Act Passed in the Fourteenth Year of His Majesty's Reign. Entitled.""An Act Making More Effectual Provision for the Government of the Province of Quebec, in North America." and to Introduce the English Law As the Rule of Decision in A l l Matters of Controversy. Relative to Property and Civil Rights. 32 Geo. Ill, c. 1 (U.C.). 6 9  A n Act to Establish Trials by Jury. 32 Geo. Ill, c. 2; An Act to Abolish the Summary Proceedings of the Courts of Common Pleas in Actions Under Ten Pounds Sterling. 32 Geo. I l l , c. 4; An Act for the More Easy and Speedy Recovery of Small Debts. 32 Geo. Ill, c. 6. 7 0  Alexander Fraser, ed. Sixth Report o f the Bureau o f Archives for the Province o f Ontario. 1909: Journals and Proceedings o f the Legislative Assembly o f the Province o f Upper Canada (Toronto: Legislative Assembly of Ontario, 1911), 18. 71  48  District Officers: Power, Privilege, And Patronage The new district office holders held positions o f considerable power. In many cases, the same people were appointed to two or even three o f these bodies. There were sixteen people commissioned as C o m m o n Pleas judges in the Eastern, M i d l a n d and Home districts between 1788 and 1794. O f the twelve about whom I was able to find biographical information, nine were justices of the peace, and ten sat on their district Land Board. These people were under the patronage of or held in esteem by some powerful person i n the government. However, this does not mean that all o f the appointees were equally powerful. Some attended at their duties sporadically or not at all, and one, who was an active farmer, petitioned lieutenant-governor Simcoe to be "relieved from the weight o f his public occupations."  72  This may have been a frequent experience for farmers.  In contrast, service on the Land Board or the Courts was o f direct benefit to merchants. For example, Robert Hamilton never missed a sitting o f the Court o f C o m m o n Pleas:  73  Hamilton...as an important merchant, found regular attendance compensated him in an immediate fashion. The jurisdiction o f the court...was wide. Through it, Hamilton was able to establish community policy on such vital economic matters as the sale o f liquor, the exchange o f land, and the verification o f w i l l s . 74  Using the Dictionary o f Canadian Biography. I have been able to identify probable occupations for eleven o f the Common Pleas judges. O f these, six were merchants o f some kind. Three o f them, Richard Cartwright in Midland district, John Munro in Eastern, and Robert Hamilton in Home, attended all or almost all o f the sessions o f the Court.  72  J . K . Johnson, "Benjamin Pawling." Dictionary of Canadian Biography V : 660-1.  73  Wilson, Enterprises. 53.  Ibid., 54. Some of these matters were most likely settled at Quarter Sessions rather than at Common Pleas. The records for the Court of Common Pleas in the Home district, where Hamilton was on both courts, are often intermixed with those of the Quarter Sessions, indicating that the magistrates held both courts on the same day. Metropolitan Toronto Public Library, Upper Canada Court of Common Pleas, Nassau District Minutes, 14 Oct. 1788- 10 April 1794. 74  49 The situation in the Western district was quite different. There, an Indian agent and two merchants were commissioned as judges. The Detroit business community objected. In a memorial to h i m from thirty-three English merchants, including one o f the appointees, the Governor was reminded that Detroit's business community had already suffered for many years from the necessity o f litigating its commercial disputes far away i n Montreal. Moreover, the two merchants were too busy with their own interests to become conversant with the law. In addition: Their business interests made them wholly unsuitable for judicial office in a confined and almost exclusively commercial community where they were likely to be personally interested i n many o f the cases that came before them. Indeed "it would not be at all impossible that under the idea o f conciliating the good w i l l o f the judges the trade o f the district should gradually and at last wholly centre i n the B e n c h . " 75  The petitioners asked that a professional lawyer be appointed as judge. This was granted, and W i l l i a m Drummer Powell, one of the two practising lawyers in the Canadas, was appointed as sole judge. The courts, and especially Common Pleas, developed a reputation o f bias i n favour of merchants. Recent commentators have affirmed this perception.  76  It is not my intention  to disagree, but I do want to complicate the assertion in two ways. First, as a general statement, courts in common law countries in the period were i n general increasingly favourable to commerce and commercial interests even though i n some ways and places (including Upper Canada, as w i l l be discussed in Chapter five) they were not. Therefore, the issue is not whether Upper Canadian courts were biased towards merchants but how this bias manifested i n the particular place and time. Second - and this argument w i l l be made in detail in the next chapter - not all merchants were alike. In regard to the perception that the Upper Canadian courts were particularly biased in favour o f merchants, this perception significantly derives, at least in the earliest years, from the power and prominence o f two  75  Neatby, 295.  W . N . T . Wylie, "Arbiters of Commerce, Instruments of Power: A Study of the Civil Courts in the Midland District, Upper Canada, 1789-1812" (Ph.D. diss., Queen's University, 1980), 167. 76  50 men, Richard Cartwright and Robert Hamilton, the two wealthiest people in Upper Canada prior to 1812. Economic dependence on the British military and government characterized Upper Canada's society and economy during the early years. The government heavily subsidized the new province through the payment of salaries, the half-pay pensions of retired military officers, and grants for civil expenses. The garrisons provided the first market for the settlers' produce, which was sold by the farmers to the merchants and by them to the army. Wheat was the first and most important product, but peas were also significant and, after 1793 and especially 1800, pork. Although imports were always important, the export 77  market to and through Lower Canada began to open somewhat later; after 1800 in Niagara, and a little earlier for the eastern parts of the province. The local market was also 78  significant. Settlers sold produce and services to each other. Not all settlers were farmers, some were professionals, artisans, or labourers, as well as merchants; and few farm families produced all they needed of every kind of local produce. In addition, earlier settlers were in a position to sell to those who came later. Much of the local exchange was in the form of 79  barter, but it was accounted for in cash terms. At least some of the time, even for 80  transactions that did not directly concern the storekeeper, the accounting and reconciling of accounts was done in the books of the local store. In such a situation, it is easy to see how 81  merchants and storekeepers could become very powerful in local society. Merchants like Hamilton and Cartwright, however, had more than local power. This power was affirmed in 1792 when they were both appointed to the first Legislative Council of Upper Canada.  Douglas McCalla, Planting the Province: The Economic History of Upper Canada 1784-1870 (Toronto: University of Toronto Press, 199),17-19, 26; Wilson, Enterprises.77-85 and passim. 77  78  Wilson, ibid., 84, 90.  79  McCalla, Planting. 6, 24-7.  Graham D. Taylor and Peter A . Baskerville, A Concise History of Business in Canada (Toronto: Oxford University Press, 1994), 141. 80  Douglas McCalla, "The Internal Economy of Upper Canada: New Evidence on Agricultural Marketing Before 1850," Agricultural History 59 (1985): 407; Douglas McCalla, "Rural Credit and Rural Development in Upper Canada, 1790-1850," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary Ommer (Fredericton: Acadiensis, 1990), 262-3. 81  51 Loyalists, Late Loyalists, and Land Policy The ideological peace of Upper Canada was soon disrupted and the privileges of the United Empire Loyalists threatened by the rapid influx of the "late Loyalists," settlers from the United States who arrived after 1784. How to treat these newcomers was controversial: should they be granted land at all? If so, should they also be provisioned and get the other privileges that the Loyalists felt should be reserved for themselves? Larger settlements were desirable, so by 1788 "the policy adopted seems to have been to grant land to all whom the term loyalist could be stretched to cover." Land was offered free of charge 82  except for fees paid to the officials who surveyed it and handled the administrative paperwork. But the distinction between "Loyalists" and "late Loyalists," and the 83  difficulty of distinguishing between the latter and "Americans" would continue to be invoked over the ensuing decades. The official status of United Empire Loyalist entitled its holder to more than just the privilege of writing the honorific "U.E.L." after his or her name. For example, although all settlers received free land, only Loyalists were exempt from paying administrative and surveyors' fees, and the sons and daughters of Loyalists also received land, sons when they came of age and daughters when they married. This led to rampant confusion for several decades, partly because of a belief that all the descendants of U.E. Loyalists should receive free land, and partly because names on the official U.E.L. list were more than once cut or added. The widespread exemption from fees also reduced government revenues.  84  From the initial small group of Loyalists, the population of European origin increased to about 77,000 by 1811. Most immigration was from the United States. 85  Simcoe believed "that the American Revolution had been a conspiracy instigated by a minority, and that many people in the new republic remained actively loyal to Great Britain,  Gates, 19. 'Craig, 24. 'Gates, 20-1, 63-5; Craig, 49. 'Armstrong, Handbook. 272.  52  while a great many more could easily be won back to their old allegiance."  86  Simcoe  solicited American settlers. He was willing to use his ability to grant land for free (except 87  for administrative fees) in order to attract this population. In the United States, public 88  lands were sold for cash and only in large parcels. In contrast, in Upper Canada, "newcomers merely had to take the oath of allegiance and assert that they had not served in the rebel forces to acquire a free grant of land."  89  Grants that were free except for fees also contributed the problem of delays in patenting land. Land grants were initially given on the basis of location tickets (also known as certificates of occupation), with the process of patenting the land (receiving clear and permanent title) happening somewhere down the road. Most land titles were not regularized until near the end of the period covered by this thesis. There were many delays before patents were issued and, because the fees were charged during the patenting process, many settlers avoided paying fees by delaying their patent applications, relying instead on their location tickets. Land transactions nevertheless took place, based only on the location tickets. Sometimes the original nominee had died and the land passed on to their heirs, in other cases, the land had been sold or mortgaged, sometimes several times, and sometimes to speculators.  90  In 1797, the legislature created a Heir and Devisee Commission that was empowered to hear claims and validate titles. Many of the Commissioners were the same 91  prominent people who held other offices. For example, six of the Common Pleas judges, including Hamilton and Cartwright, were on the Heir and Devisee Commissions for their districts, and their sometime business partner John Askin was a member in the Western district. These merchants (and others like them) had already either bought or received in  'Craig, 21. Craig, 32. ;  Ibid.  'Sheppard 19. 'Gates, 53; Craig, 33. A n Act for Securing the Titles to Lands in this Province. 37 Geo. I l l , c. 3.  53 payment for debt many land certificates. It was therefore in their interest to be lax in their findings regarding what constituted a legitimate transfer. In addition, justices of the peace had for a few years had the power to issue land certificates for up to 200 acres. Some of the justices, notably including John Askin, had bought many certificates issued under these circumstances. Not all of the magistrate's certificates were passed, but in 1802, when a new Heir and Devisee Act was passed, the Commissioners were empowered to hear claims based on a wider range of documentation, and to rely on evidence that would not have been admissible in a court of law.  92  The transfer of certificates was only part of the picture of widespread land speculation. The land speculations of large merchants in relation to the law of debt will be discussed in subsequent chapters. Another aspect of speculative holdings was the unequal size of initial grants; in part a consequence of the attempt to develop a landed aristocracy in Upper Canada. In the Simcoe years, members of the Executive and Legislative Councils received grants of 3,000 to 5,000 acres, and each of their children 1,200. This alone led to 93  the holding of many thousands of acres by a single family, and when the myriad of matrimonial and business cross connections typical of the Upper Canadian elite were taken into account, a massive amount of land could be controlled by a single grouping.  94  Most of these large land holdings remained undeveloped, waiting to gain enough value to be realized as capital, and land policy was also a means to keep part of the population poor. The Upper Canadian elite was unashamed. The literature on land policy 95  and practices in Upper Canada demonstrates the extent to which land was grabbed in large amounts and held, presumably for speculative purposes, without being settled. There was  92  Gates, 59.  9 3  Craig, 33-4.  See John Clarke, "The Role of Political Position and Family and Economic Linkage in Land Speculation in the Western District of Upper Canada, 1788-1815," Canadian Geographer 19 (1975): 18-34. 9 4  L e o A . Johnson, "Land Policy, Population Growth and Social Structure in the Home District, 1793-1851," in Historical Essays on Upper Canada, ed. J.K. Johnson (Toronto: McClelland and Stewart, 1975), 32; Wilson, Enterprises. 142. 95  54 on one side at least a perception of widespread corruption which manifested in popular discontent, a discontent that those at the centre of power claimed to find incomprehensible. For example, in an 1809 pamphlet written to expose Upper Canada's corruption to an English audience, John Mills Jackson alleged that Loyalist and military claimants requesting particular parcels of land would be refused "under the pretence that there was no land vacant in those townships" only to find that "the same lots that had been particularly applied for have been given to some more favoured applicant." The practice was not 96  denied in a public reply, anonymously authored by Richard Cartwright. Instead, Cartwright defended the practice: Where there was a competition, a connection with the Government was surely an allowable motive of preference; nor would an unprejudiced man find any thing very censurable in with-holding from a casual Settler, admitted on grounds of favour, an advantageous location, which might afterwards be granted to a person of superior pretensions. 97  For his services in writing the reply to Jackson, Cartwright was awarded 3,000 acres of land without fees.  98  Elite Fears and the Repression of Dissent Contrary to the traditional history of Upper Canada, in which a Loyalist, Tory consensus is only sporadically disrupted by malcontents, more recent work depicts pre99  1812 Upper Canadian society as made up of a diverse and fragmented population which  John Mills Jackson, A View of the Political Situation of the Province of Upper Canada in North America (London: 1809), 54. Richard Cartwright, Letters. From an American Loyalist in Upper-Canada to His Friend in England on a Pamphlet Published by John Mills Jackson. Esquire: Entitled. A View of the Province of Upper Canada (Halifax: 1810), 23. 97  98  Gates, 78.  "See, for example, Craig.  55 was almost always i n some degree o f turmoil.  100  The majority o f immigrants i n the early  period were American, not English. A s already alluded to, the position o f "late Loyalists" and o f American settlers in general, was contentious. The Upper Canadian elite was frightened o f Americans for many reasons, and even Loyalist members o f the elite could have aspersions cast upon them for being American-born. W i l l i a m Drummer Powell, the Loyalist judge, was repeatedly accused o f having American sympathies. Hannah Jarvis, another member o f the Loyalist elite, complained that "British officials 'think that an American knows not how to speak' and that, 'The language held is that Americans are not trustworthy, they are only fit for hewers o f timber and drawers o f water.""  01  American-born  Loyalists also distrusted most American immigrants. Richard Cartwright believed that they should be excluded from Upper Canada, in part because o f "the opinion fondly cherished by  See for example, Nancy Christie, "Tn These times of Democratic Rage and Delusion': Popular Religion and the Challenge to the Established Order, 1760-1815," in The Canadian Protestant Experience 1760-1990. ed. G.A. Rawlyk (Burlington, Ontario: Welch, 1990); R.L. Fraser; Gates; F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Law. Politics, and Security Measures. 1608-1837 (Toronto: University of Toronto Press, 1996).; Gregory Marquis, "Doing Justice to 'British Justice': Law, Ideology and Canadian Historiography," in Canadian Perspective on Law & Society: Issues in Legal History, ed. W. Wesley Pue and Barry Wright, 43-69; (Ottawa: Carleton University Press, 1988); Katherine M.J. McKenna, "Options for Elite Women in Early Upper Canadian Society: The Case of the Powell Family," in Historical Essays on Upper Canada: New Perspectives, ed. J.K. Johnson and Bruce G. Wilson, 401-423 (Ottawa: Carleton University Press, 1989); Cecilia Morgan, Public Men and Virtuous Women: The Gendered Languages of Religion and Politics in Upper Canada. 1791-1850 (Toronto: University of Toronto Press, 1996); Elizabeth Gillian Muir, Petticoats in the Pulpit: The Story of Early Nineteenth-Century Methodist Women Preachers in Upper Canada (Toronto: The United Church Publishing House, 1991); Potter-MacKinnon; Paul Romney, Mr Attorney: the Attorney General for Ontario in Court. Cabinet, and Legislature 1791-1899 (Toronto: The Osgoode Society, 1986); Paul Romney, "From the Types Riot to the Rebellion: Elite Ideology, Anti-Legal Sentiment, Political Violence, and the Rule of Law in Upper Canada," Ontario History 79 (1987): 113-144; Paul Romney, "Very Late Loyalist Fantasies: Nostalgic Tory History and the Rule of Law in Upper Canada," in Canadian Perspectives on Law & Society: Issues in Legal History, ed. W. Wesley Pue and Barry Wright, 119-147 (Ottawa: Carleton University Press, 1988); Sheppard; Wilson, Enterprises: and James Barry Wright, "Law, State and Dissent in Upper Canada, 1804-1838" (D.Jur. diss., York University, 1988). 100  Katherine M.J. McKenna, "The Role of Women in the Establishment of Social Status in Early Upper Canada," Ontario History 83 (1990): 203. 101  56  the loyalists that the donation of lands to them in this country was intended as a mark of peculiar favour for their attachment to their sovereign."  102  Despite the feelings of Cartwright and others like him, the Loyalist population was being overwhelmed by immigrants from the United States. Americans were feared and distrusted not only because they were thought to be overly democratic in their thinking, but also because of their association with dissident religious groups, especially Methodism. The Church of England had a special place in the British government's vision for Upper Canada, including reserving one-seventh of the land in each township for the support of the clergy. The Church of England, however, had very few adherents in Upper Canada.  103  Many of the Loyalists belonged to other established Protestant denominations.  In 1797, those churches were given some official status when the house of assembly passed a Marriage Act which extended the right to perform marriages to the ordained clergy of congregations professing to be Church of Scotland, Lutherans or Calvinists. The 104  privilege was pointedly not extended to Methodists. As Chief Justice Elmsley explained it, the framers of the statute were careful to confine the relief given by it to: Such of the Protestant Dissenters as, though non-conformists here, are members of an establishment elsewhere and would for that reason bring with them their sober and regulated modes of thinking both in political and religious subjects which are the usual consequences of habitual conformity to an established ritual which form perhaps the best barrier against the encroachment of either infidelity or fanaticism and, the inseparable companion of each, sedition. 105  102  Quoted in Wilson, Enterprises. 102.  103  Christie, 16.  A n Act to Extend the Provisions of an Act Passed in the Second Session of the First Provincial parliament of Upper Canada, entitled. " A n Act to Confirm and Make Valid Certain Marriages. Heretofore Contracted in the Country Now Comprised Within the Province of Upper Canada, and to Provide for the Future Solemnization of Marriage Within the Same. 38 Geo. I l l , c. 4. 1 0 4  Quoted in William Renwick Riddell, "The Law of Marriage in Upper Canada.," Canadian Historical Review 2 (1921): 231. 105  57 Methodism had a controversial history in England, partly because o f its focus on personal conversion and a relationship with G o d that was not mediated through the Church, partly because o f its leaders, who were not conventionally educated and who travelled on circuits, holding classes and preaching extemporaneously and/or in unorthodox locations, and partly because some o f its leaders were women.  106  It was only after the 1791 death o f  John Wesley, its founder, that Methodism in England began to change from sect to church, to take on a more conventional form, and gradually to rid itself o f women leaders.  107  This  caused Methodists who wished to keep to the less conventional roots o f the sect to split off.  108  One reason for the development of an increasingly mainstream Methodism was pressure from the British Parliament, some members o f which "feared that the tide o f republicanism and democracy that threatened to swamp the English nation had some relationship to the enthusiastic 'fanatical' Methodists.... The fact that Methodists championed the poor and desired to dissociate themselves from the established church was for many people enough proof o f the Society's treasonable intent."  109  Methodism was viewed i n much the same way by Upper Canada's ruling elite. Methodism represented not only the affirmation o f a different and threatening kind o f religious ethos, but also a rejection o f the established church; a rejection o f rationality i n favour o f the anarchy o f republicanism, democracy, and unseemly behaviour. Although Evangelical movements, including Methodism, "eschewed" involvement i n political debate, "evangelicals rejected the contemporary relations between church and state in which the ecclesiastical body buttressed the power o f the hierarchical political edifice."  110  Moreover,  in a society marked by uncertainty, "the evangelical ethos provided a high degree o f  106  M u i r , 10-30.  107  Ibid., 30.  108  Ibid., 33.  109  Ibid., 32.  110  Christie, 36.  58 ideological coherence."  The travelling preachers could break down geographical  111  isolation and draw the poorer settlements together "in a new sense of identity which could effectively offset the ideological control of colonial office-holder."  112  John Strachan, an Anglican clergyman and leading ideologue for the Upper Canadian elite, believed that the "rational traditions of the Anglican church" were more important than the constitution for the development and survival of an orderly society.  113  For Strachan, enthusiasm in religion was "pride and presumption," and reason, "must always be the guiding and ruling faculty - the affections must not lead but follow."  In  114  contrast, Methodists preached and exhorted, used and appealed to the emotions. Nor did they adhere to specified rituals and liturgy. Itinerants travelled; their services could take place in fields, barns, or homes. Their "varied use of space contradicted notions of religion occupying a separate area in people's lives, hived off from the daily transactions of society."" Moreover, Methodist itinerants did not have the formal education of the 5  Anglican clergy. Consequently, according to Strachan, "those who should be leaders were just as susceptible to impulse and irrationality as their flock.""  6  Methodism threatened  families, where it sometimes happened that one member converted and others did not."  7  And Methodism threatened women, both by turning them into wantons who would presume to teach and to preach, and because they were the most vulnerable to the emotional excesses of enthusiastic religion." Methodism was also very popular, becoming the largest 8  Protestant denomination in Upper Canada by 1812.  119  "Ibid., 38, 12  Ibid., 38-9.  13  Ibid,17.  14  Quoted in Morgan, 101-2.  15  Morgan, 113.  16  Ibid., 102.  17  Ibid., 114.  18  Ibid., 106-8.  19  Ibid., 111.  A four-day camp meeting in 1803  59 drew 3,000 people.  120  Worse, most of the early Methodist itinerant ministers were  Americans, as were many of their adherents. ' The combination of Methodism's 12  unruliness and the perceived threat of democratic politics was a potent one for the Upper Canadian elite.  Americans were not the only group viewed with suspicion by the elite. The British were in the midst of a long war with the French, and the French had supported the American side in the Revolutionary War. The Irish - or at least some of them - were also viewed as a threat. There had been an whig party in the Irish parliament for some time. The whigs wanted Ireland to continue its association with England, but with legislative autonomy for Ireland. In 1791, an extra-parliamentary opposition formed in Ireland. Calling itself the United Irishmen, the group sought to unite Catholics and Protestants against British rule. The group armed itself, and it supported the French Revolution. Rebellion erupted in 1791. The rebellion was put down, but fears of Irish, French and American plots were constant among the elite in both Upper and Lower Canada, and the elite was much motivated by "official anxiety about apprehended insurrection."  122  Official response to dissent was repressive. An American, accused of plotting with the French, was executed for treason in Lower Canada in 1797.  123  Canadian legislature enacted seditious aliens legislation.  124  In 1804, the Upper  The Act, however, was not  limited to aliens. It "focused directly on the particular conditions in the province and ranged  '  120  Christie, 12.  121  Morgan, 111.  F . Murray Greenwood and Barry Wright, "Introduction: State Trials, the Rule of Law, and Executive Powers in Early Canada.,"in Canadian State Trials: Law. Politics, and Security Measures. 1608-1837. ed. F. Murray Greenwood and Barry Wright (Toronto: University of Toronto Press, 1996), 34. 122  F . Murray Greenwood, "The Treason Trial and Execution of David McLane," in Glimpses of Canadian Legal History, ed. W. Wesley Pue and Dale Gibson, 1-13 (Winnipeg: Legal Research Institute, 1991). 123  A n Act for the Better Securing this Province Against A l l Seditious Attempts Or Designs to Disturb the Tranquilly thereof. 44 Geo. Ill, c. 1. 1 2 4  60 widely to cover the local concerns o f the governing elite. The most important o f these local concerns was the emergence o f articulate dissent and concern about Irish radicals and American'aliens'."  125  A s w i l l be seen i n the following chapters, however, there were many reasons for dissent i n early Upper Canada. The ideal British justice that had been promised to the Loyalists was not delivered, and many dreams o f a modest competency on the land were dashed by the manoeuvring o f the powerful, who were motivated by the peculiar mixture o f paternalism and greed that characterised the early Upper Canadian elite. Issues relating to credit, debt, and land were also issues o f constitutional law and politics. A s discussed in chapter one, highlighting dissent in early Upper Canada remains controversial among historians. In the following chapters, I argue that there was considerable dissent but, despite the repression with which it was met, the majority o f dissenters nevertheless took their stand from a position o f loyalty, not one o f revolution. A t issue were differing interpretations o f loyalty, and o f the meaning o f the rule o f law and o f British justice. The role o f large merchants, their relationship to government, and the propensity and ability o f both merchants and government to use land policy and the credit system for their own benefit was central to disputes over the meaning of justice and the form o f government in early Upper Canada.  Wright, 239.  61 Chapter Three  A L L BAD OR A L L GOOD?: DISAGGREGATING T H E STEREOTYPE OF T H E EARLY UPPER CANADIAN MERCHANT This chapter situates Upper Canada's early mercantile system i n relation to the long credit system that centred on England and Scotland. This approach complicates a received historiography that has, with a few exceptions, tended to see the role o f merchants i n Upper Canada as either very very good or very very bad. The project is pursued with reference to two distinct but related historiographic debates: first the Innis staples thesis which was arguably one o f the defining moments o f Canadian economic and business history; and second, the specific historiography o f the Upper Canadian merchant. The debate regarding the staples thesis provides a context for the rest, so I w i l l begin there.  The Staples Thesis, and its Critics According to Graham Taylor, from the 1930s to the 1980s, Canadian economic and business history was "dominated, i f not virtually monopolized, by adherents o f what was commonly called the 'staple thesis' or 'staple approach' associated with Harold Innis, an economist at the University o f Toronto." Taylor explains the staple thesis as follows: 1  The central argument o f the staple thesis is that the growth o f the Canadian economy was determined mainly by concentration on the production and export o f a series o f raw material commodities or staples: fish and furs i n the seventeenth and eighteenth centuries, timber in the nineteenth century, and wheat and minerals i n the twentieth century. According to Innis, this dependence on staple exports affected nearly every aspect o f Canada's political and economic development: Population was involved directly i n the production o f the staple and indirectly in the production o f facilities promoting (staple) production. Agriculture, industry, transportation, trade, finance, and governmental activities tend to become subordinate to the production o f the staple.... The development o f the merchant community and financial institutions, the construction o f canals and railroads, and the fashioning o f government land settlement and trade policies were all  'Graham D. Taylor, "Writing About Business," in Writing About Canada: A Handbook for Modern Canadian History, ed. John Schultz (Scarborough: Prentice-Hall, 1990), 123.  62  harnessed to the service of the staple sector rather than reflecting the establishment of a diversified economy. 2  According to Innis, the centrality of staple exports kept Canada economically dependent long after it became politically independent, so that the Canadian economy was severely disrupted when foreign demand for Canadian staples shifted or failed due to factors external to Canada. The staple exporting economy also created conditions which encouraged the growth of monopolies. The staple thesis has proven to be an incomplete explanation. Subsequent research has shown that growth was not always export-led, and in Upper Canada "the timing of provincial development and of fluctuations in economic activity do not appear to be immediately explicable in terms of wheat prices, harvests, and export volumes." Douglas 3  McCalla, currently the leading economic historian of pre-1850 Ontario, argues that the booms and busts in the Upper Canadian economy "were essentially those of the emerging general pattern of economic fluctuations in the western economy" and "production for household consumption and for local markets was at least as vital to the economy's survival and expansion as these external dimensions of the economy." Rather than relying on the 4  idea of staple-based growth, McCalla argues that the Upper Canadian economy should be understood as "an example of a broader and more complex process, led by investment."  5  Yet relating the Upper Canadian economy to the pattern of North Atlantic economies overall and asserting that it was led by investment does not in itself negate the staple theory. Investment in early Upper Canada did come from foreign sources, most often from English or Scottish merchant firms or direct subsidies from the British government. Why then would a scholar like McCalla so discount the idea of staple based growth?  2  I b i d , 123-4.  Douglas McCalla, "The Internal Economy of Upper Canada: New Evidence on Agricultural Marketing Before 1850," Agricultural History 59 (1985): 398. 3  Douglas McCalla, Planting the Province: The Economic History of Upper Canada 1784-1870 (Toronto: University of Toronto Press, 1993), 6. 4  5  McCalla, "Internal Economy," 399.  63 M c C a l l a objects not just to Harold Innis's staples thesis, but also to the politicized use made o f it by Innis's followers in the sixties and seventies. In the 1960s, Innis's ideas were taken up by a new generation o f marxist and non-marxist Canadian nationalists who used diverse interdisciplinary approaches to take the basic idea o f the staples thesis i n a variety o f new directions. These scholars: called themselves "political economists" to distinguish their approach from mainstream economists who, in their judgment, were obsessed with quantification, addressed economic issues far too narrowly, and were increasingly under the influence o f American scholars committed to theories that supported the capitalist status quo and the absorption o f Canada into a continental system dominated by the United States. 6  This approach was controversial, partly because it was avowedly left-wing and anticapitalist, partly because o f its Canadian nationalism, and perhaps partly because the interdisciplinary approach o f the new Canadian political economy led to a wide variety o f applications, some o f them far removed from the conventional concerns o f economic historians: The object o f political economy research is typically macro-level description and/or explanation o f material practices.... A t its best, political economy makes the connection between the economic, political, and cultural/ ideological moments o f social life in a holistic way. 7  These concerns have included those generated by a gamut o f inequalities, including regional disparity, labour organization by both capital and the working class, gender and the family,  8  Taylor, 125. Wallace Clement and Glen Williams, "Introduction," in The New Canadian Political Economy, ed. Wallace Clement and Glen Williams (Kingston: McGill-Queen's University Press, 1989), 10. 7  Political economists, like the rest of the white left, were just beginning to take race seriously when the turn toward postmodern theory took place. See Frances Abele and Daiva Stasiulis, "Canada as a 'White Settler Colony': What about Natives and Immigrants?" in The New Canadian Political Economy, ed. Wallace Clement and Glen Williams (Kingston: McGill-Queen's University Press, 1989), 268-70. On this point, it should be borne in mind that much of the impetus for the fracturing of identity that is a hallmark of postmodernism came from people of colour-most often women. The point is discussed in Mariana Valverde, "Poststructuralist Gender Historians: Are We Those Names?" Labour/Le Travail 25 (1990): 229; and in Inderpal Grewal and Caren Kaplan, "Transnational Feminist Practices and Questions of Postmodernity," in Scattered Hegemonies: Postmodernity and Transnational Feminist Practices, ed. Inderpal Grewal and Caren  64 along with the more conventional concerns o f development economics like the relationship between the staple exporter and its trading partner(s). Conventional political economists, whether liberal or marxist, argued that investment led growth was part o f an over-reliance on foreign capital that weakened Canadian industrial development and fostered dependency.  9  In contrast, M c C a l l a argues  that economic growth in Upper Canada was led by investment. Because o f what he views as an exclusive reliance on the staple theory, M c C a l l a argues that the writing o f Canadian economic history was held back by political economy and the staple thesis, which: with its quasi-theological quality evidenced in its repetitious incantations o f sayings o f Harold Innis, and with its ideological, empirical, and methodological blind spots...has tended to become self-contained and simply uninterested in a wide range o f relevant and sophisticated scholarship on the history o f the Canadian economy. 10  For M c C a l l a , the 'new' economic historians who began to dominate the field i n the United States i n the 1960s revealed "large gains in analytical clarity from explicitly applying neo-classical economics to history; and there was a general invigoration."  11  But  neo-classical economics also has its "blind spots." M c C a l l a shares the pro-development bias o f traditional business historians, who present a picture largely devoid o f social causes and effects! Business historians who are influenced by neo-classical economic theory tend to produce work in which: historical agency is attributed to individuals through innate or culturallyconstructed characteristics such as the gift o f entrepreneurship, the Protestant ethic, and ethno-religious stereotypes.... W h y bother with the inherent modalities and social implications o f the capitalist system when it is based on the most rational decisions and, thus, offers the best promise o f fulfilling human desires? A n d why focus on the most sordid aspects o f business  Kaplan, 1-33 (Minneapolis: University of Minnesota Press: 1994). Glen Williams, "Canada in the International Political Economy," in The New Canadian Political Economy, ed. Wallace Clement and Glen Williams (Kingston: McGill-Queen's University Press, 1989), 124. 9  Douglas McCalla, "Introduction," in Perspectives on Canadian Economic History, ed. Douglas McCalla (Toronto: Copp Clark Pitman, 1987), 2. 10  "Ibid., 1.  65 operations when individuals dedicated to progress perform such an essential duty in the metamorphosis o f useless raw materials into valuable commodities? 12  In common with other neo-classical thinkers, M c C a l l a tends to produce histories that present a truncated picture o f the social relations that surround and relate to what we think o f as the economy. In particular, the context o f inequality i n which economic relations are situated is neglected or denied. M c C a l l a has made many contributions that have recast interpretations o f Ontario's past in important ways. In particular, his emphasis on the local economy is welcome, especially because o f its focus on the activities o f farm families and the importance o f farm production and other local productive activity. But, as with his entrepreneurial interpretation o f business history, M c C a l l a does not pay attention to inequality within the family, and he minimizes inequality between the family (head) and the merchant. H i s neo-classical outlook leads him to interpret much o f merchant/farmer interaction as the result o f individual choices made in a bargaining relationship. This allows h i m to avoid recognizing the structural constraints that the long credit system imposed on farmers. A t the same time, he emphasizes the constraints that the system placed on merchants, and uses the existence o f those real constraints to valorize the merchant's role in the local economy. M c C a l l a ' s view is that mercantile investment helped Upper Canada to develop, and that the credit extended to farmers was an important part o f this process, because it permitted them to acquire land, stock, and buildings.  13  Local Merchants in Upper Canada: Two Views There are some problems with the rigid way that merchant power has been portrayed in some o f the works M c C a l l a criticizes. If mainstream historians have tended to valorize rather than to criticize merchant power, leftist and progressive historians have tended to  Jacques Ferland, "Business History and the Buried Treasures of the Theory of Value," Labour/Le Travail 23 (Spring 1989): 237. 12  Douglas McCalla, "Rural Credit and Rural Development in Upper Canada, 1790-1850," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary E. Ommer (Fredericton: Acadiensis, 1990), 256. 13  66 neglect the distinctions between different kinds o f merchant behaviour and different levels of power and influence, distinctions that could help us to understand how merchants interacted with farmers, artisans and labourers. This somewhat superficial level o f analysis of merchants is understandable given the enormous evidence o f an Upper Canadian land policy under which huge grants were given to officials, to their relatives, and to other prominent people such as wealthy merchants, the latter o f whom also acquired land from defaulting debtors.  14  In combination with the powers merchants had as local officials,  magistrates, and lay judges, it is easy to see how L i l l i a n F. Gates could argue that the necessity for settlers to acquire capital to develop land "caused them to become hopelessly indebted to the frequently denounced 'Shopkeeper Aristocracy' and eventually to lose their land," or how Gary Teeple could assert that: 15  The magistrate merchants were always at hand, ready to take advantage o f a pioneer's need for manufactured goods and, in the absence o f much money in circulation, willing to extend credit. The result was often disastrous for the settler. 16  M c C a l l a discounts the extensively documented problems with land distribution, speculation and forfeiture in early Upper Canada, at least in so far as merchants were  The literature on Upper Canadian land policy and land speculation is huge. I discuss the subject as it relates to this thesis in chapters 4 and 5, below. See also John Clarke, "The Role of Political Position and Family and Economic Linkage in Land Speculation in the Western District of Upper Canada, 1788-1815," Canadian Geographer 19 (1975): 18-34; John Clarke, "The Activity of an Early Canadian Land Speculator in Essex County, Ontario: Would the Real John Askin Please Stand Up?" Canadian Papers in Rural History 3 (1982): 84-109; Lillian F. Gates, Land Policies of Upper Canada ("Toronto: University of Toronto Press, 1968); Leo A . Johnson, "Land Policy, Population Growth and Social Structure in the Home District, 1793-1851," in Historical Essays on Upper Canada, ed. J.K. Johnson, 32-57 (Toronto: McClelland and Stewart, 1975); Leo A . Johnson, "The Mississauga-Lake Ontario Land Surrender of 1805," Ontario History 83 (1990): 233-53; Donald B. Smith, "The Dispossession of the Mississauga Indians: a Missing chapter in the Early History of Upper Canada," in Historical Essays on Upper Canada: New Perspectives, ed. J.K. Johnson and Bruce G. Wilson, 23-51 (Ottawa: Carleton University Press, 1989); Robert J. Surtees, "Land Cessions, 1763-1830," in Aboriginal Ontario: Historical Perspectives on the First Nations, ed. Edward S. Rogers and Donald B. Smith, 92-121 (Toronto: Dundurn Press, 1994). 14  15  Gates, 43, quoted in McCalla, "Rural Credit," 257.  Gary Teeple, "Land, Labour, and Capital in Pre-Confederation Canada," in Capitalism and the National Question in Canada, ed. Gary Teeple (Toronto: University of Toronto Press, 1972), 57, quoted in McCalla, ibid. 16  67 concerned, because, according to economic analysis, accumulation o f large land holdings would have been inefficient. M c C a l l a criticizes critics o f the credit system for failing to provide an economic analysis or to explain: W h y the merchant should regard the legal rate o f interest, six percent i n Upper Canada, as sufficient return on the capital tied up in farmers' accounts, or why he should deliberately lend so much that he could eventually take over his customer's farm. He could not farm it himself, and nowhere did tenancy become the main form o f land tenure.... It must be presumed, therefore, that sooner or later the merchant intended to resell the land to another unsuspecting tenant farmer so as to start the cycle over again. Here, it was necessary for the merchant to realize a high enough price on the resale to compensate for his costs in carrying the previous farmer's debts. 17  M c C a l l a ' s important contribution is to explain some o f the reasons why merchants carried so much debt. To put it simply, his positive view o f merchants allows h i m to avoid viewing them as necessarily and deliberately out to bilk their customers into a situation o f dependency. Instead, M c C a l l a is able to recognize that the credit system i n which the merchants .functioned forced them to do business in a situation o f real constraint. In particular, as w i l l be discussed later in the chapter, it was impossible for a merchant i n Upper Canada to make sales without extending credit, and without himself becoming indebted to his suppliers. O n the other hand, however, M c C a l l a too easily dismisses the importance o f land and land holding practices and their relation to creditor/debtor relations. Although land prices never got very high in the pre-1812 period, land was valued for many reasons, both economic and symbolic. Extensive land speculation ensured long-term prosperity for some families. Robert Hamilton, for example, was the province's largest land owner during his lifetime, accumulating more than 130,000 acres.  17  18  He was optimistic that he could hold onto the  McCalla, ibid, 258.  Robert Wilson, The Enterprises of Robert Hamilton: A Study of Wealth and Influence in Early Upper Canada. 1776-1812 (Ottawa: Carleton University Press, 1983), 1. 18  68 land for long enough to profit from it.  19  "Such was Hamilton's confidence that he passed  beyond the acceptance of land from settlers for their commercial debts to direct purchase."  20  Hamilton's portaging, retailing and government supply business fell apart after he died in 1809, but his speculative land holdings "survived to provide a cushion for his family's declining economic fortunes," and his children were able to stay in the upper echelons of provincial society.  21  To give another example of how land was valued in the period, when the Detroit merchant John Askin's fortunes went into decline in the 1790s, he was saved by his economic and kinship network, which included his son-in-law, Robert Hamilton, along with Richard Cartwright, and many other important commercial figures. The network came together to use their influence on the land claims process in order to ensure that Askin obtained clear title to 8,000 acres. These lands "were especially important to Askin because his creditors had agreed to take those lots at a valuation of £4,000 in payment of a proportion of his debts."  22  Not everyone was as fortunate as Hamilton, or as fortunate in their friends as Askin. The point is that Hamilton, Askin, Askin's creditors and, presumably, many others, all thought that large land holdings were worth having in pre-1812 Upper Canada. Whether the practice was economically efficient in hindsight has little relevance to merchant behaviour at the time. Finally, land holding also had important symbolic value for those who aspired to gentility: With the landed gentry outlook of the late eighteenth century, possession of land symbolized a gentleman. The fact that the property, however good,  'Ibid., 96. 'Ibid., 96,97. Ibid., 164. Tt>id., 136-7.  69 might be inaccessible, was irrelevant; the potentiality and the status were there, the development could come later. 23  McCalla argues that local merchants contributed to capital development by granting long-term credit to farmers, artisans and labourers who purchased goods at their stores. Although consumer goods were purchased, these loans supported investment by permitting: farmers, and other producers, to use whatever means they possessed initially for other purposes, such as the acquisition of land or stock, or the construction of buildings, in the knowledge that they could postpone their payments for imported goods and, ideally, make them from sales of produce twelve or more months later. Because the ordinary result of a farmer's work included not merely the production and sale of crops but also the expansion and improvement of his farm, such credit helped to create capital in the province. 24  Because "Upper Canada developed successfully under it," McCalla is explicitly critical of authors who have unfavourable views of this business system, especially those who are "inspired by populist or Marxist interpretations of the place of lenders in a capitalist rural economy."  25  As McCalla points out, unfavourable ideas about merchants in Upper Canada go all the way back to the first lieutenant-governor, John Graves Simcoe. In many cases, 26  subsequent authors have simply accepted Simcoe's views. But Simcoe's oft-quoted remarks regarding merchant monopoly were made in a particular political context, for 27  particular purposes. By the time he left the colony in 1796, Simcoe was working cooperatively with his former opponents among the leading merchants. Further, as will be explored in the next chapter, there are many reasons to believe that Simcoe's often  "Frederick H . Armstrong, "Ethnicity and the Formation of the Ontario Establishment," in Ethnic Canada: Identities and Inequalities, ed. Leo Dreidger (Toronto: Copp Clark Pitman, 1987), 282. 24  McCalla, "Rural Credit," 256.  25  Ibid.  26  Ibid., 257.  . "Quoted by McCalla in "Rural Credit,"257.  70 vituperative attacks on the merchants - especially Hamilton and Cartwright ~ were at times disingenuous or inaccurate. Simcoe was not the only critic of merchant power in early Upper Canada. For example, it was the Upper Canada King's Bench judge and early agitator, Robert Thorpe who coined the phrase "Shopkeeper Aristocracy." Although Thorpe was in many ways a problematic figure, he was not the only person in opposition. The legal historian Barry 28  Wright had suggested "that the opposition figures and the literate people who followed them were indeed spokespersons for popular grievances."  29  However much they may have  blinded twentieth-century historians to a more complex view of the country merchant, these early criticisms nonetheless bear some relation to how merchants were viewed by many early Upper Canadians.  Upper Canada Merchants: Large and Small Upper Canadian merchants had to deal with the constraints imposed by intense competition and a business structure in which they were themselves heavily indebted to their suppliers. The market was small and quickly reached saturation. For example, there were four general merchant shops on the Niagara peninsula in 1789 and twenty-seven by 1803. Thereafter, "despite a rapid turnover, the total number of licensed merchant shops in the peninsula varied by no more than two from 1803 to 1809." The situation was similar 30  in other parts of colonial North America, for example Virginia and Lower Canada. In 31  order to get and to retain customers, merchant storekeepers were forced to extend credit.  32  28  See chapter 5, below.  James Barry Wright, "Law, State and Dissent in Upper Canada, 1804-1838," D.Jur. diss., York University, 1988, 5. 29  30  Wilson, Enterprises. 89.  Nicholls, Michael L., "Competition, Credit and Crisis: Merchant-Planter Relations in Southside Virginia," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary E. Ommer, 273-289 (Fredericton: Acadiensis, 1990); Alan Greer, Peasant. Lord, and Merchant: Rural Society in Three Quebec Parishes 1740-1840 (Toronto: University of Toronto Press, 1985), 140-176. 3 1  32  McCalla, "Rural Credit," 258; Nicholls, 278.  71 Because o f this, to say that farmers were at the mercy o f their local storekeepers is too simplistic. Merchants who were beleaguered by the demands o f servicing their indebted local customers while simultaneously finding a way to pay off their suppliers were not necessarily in a position to easily exploit anyone. Merchant storekeepers, even those reckoned as successful, may have had a difficult time o f it. For example, the former Loyalist non-commissioned officer Thomas Cummings had a store i n the town o f Chippewa on the Niagara Peninsula from about 1801 through 1812. He also ran a potash works. Cummings was frequently berated for his business practices by his Montreal suppliers, Auldjo, Maitland and C o . Montreal firms were indebted to their suppliers i n England or Scotland. They extended credit to their Upper Canadian clients, and needed to be paid in a form that they could use for to pay off their own debts. Montreal firms usually accepted local merchandise (especially wheat), bills o f exchange, as well as specie (coins). Montreal firms were in position to be aware o f changing market conditions, and their clients in the upper country depended on them for this information. Auldjo, Maitland would therefore have had have had an active interest i n the day-to-day operation o f Cummings' business, "advis[ing] Cummings forcefully on what and when to buy and sell."  33  In July, 1791, Auldjo, Maitland expressed their disapproval o f Cummings's entrance into the potash business: W e cannot help blaming both you and M r . Muirhead for undertaking ye potash business which has been attended with considerable expence and after that is gone into - not finding out you cannot or have not time to attend to it - before undertaking there should be reflection - its far better to do little and well than having too many Irons in ye fire to allow some to c o o l . 34  B y 1802, Cummings was heavily indebted to Auldjo, Maitland, who continued to supply him.  33  35  In 1806, the firm asked Cummings to list the bills o f exchange he enclosed with his  Gerald J.J. Tulchinsky, "Alexander Auldjo," Dictionary of Canadian Biography VI: 18.  E . A . Cruikshank, " A Country Merchant in Upper Canada, 1800-1812," Ontario History 25 (1929): 146. 34  35  Ibid., 152, 155.  72 letters "as it would enable us to ascertain ye correctness" and, regarding potash, they urged him to continue production, "ye expense of kettles and ye erecting ye works being now incurred, it would be wrong to drop it." The Montreal firm also complained that 36  Cummings did not order goods promptly, bought local wheat at too high a price, and did not ship his produce at the right time or to the right place. In 1807, they advised Cummings "against extensive credits your goods are better on your Shelves than sold to doubtful people ye giving of inconsiderate credit has been ye ruin of many in your province as well as in this."  37  Yet relations continued cordial; following on this reprimand, the firm  informed Cummings of the price of wheat, and concluded, "your daughter is well."  38  Despite the foregoing, Cummings can be reckoned a success. He acquired 658 acres and many houses and other buildings, and he managed to keep his store in business until the War of 1812, which devastated the Niagara peninsula and all of the Cummings holdings. He was a man of some prominence, holding several local offices including that of justice of the peace. Although he carried a high debt load, his creditors cared for the education of his children, intertwining his family life with theirs. Cummings's store enjoyed an advantageous situation on the Niagara River.  39  Despite this, he could easily have failed without the ongoing patronage and support of Auldjo, Maitland and Co. In addition to cajoling Cummings and extending credit to him, Auldjo, Maitland saw to the Montreal education of at least two of Cummings' children.  40  This appears to have included providing a Montreal home for Cummings' daughter, Jane, and perhaps providing entree into society for her as well. On April 28, 1807, Auldjo, Maitland informed Cummings that a Miss Gamble was being sent back to Upper Canada earlier than expected because her "new pursuits may be incompatible with ye attention that  'Ibid., 163. 'Ibid., 165. 'Ibid. 'Ibid., 145. 'Ibid., 158.  73 should be paid to Miss Cummings." In 1808, Jane Cummings married the Niagara 41  merchant James Crooks. Crooks was the son of a Scottish shoemaker, and, on the gentility scale, "his position in the community was strengthened when he married a daughter of a loyalist and former member of Butler's Rangers." Economically, however, the marriage 42  would have been a step up for Jane. Her new husband was already prominent on the Niagara peninsula, with connections to the powerful group of merchants that centred on Robert Hamilton. Unlike many Niagara merchants, Crooks prospered even after the War of 1812, eventually moving in the upper echelons of provincial business and government.  43  There were many merchants who were less successful than Cummings, and many others who failed. Even the relative success of a merchant like Cummings pales in comparison to the dominant figures of Robert Hamilton and Richard Cartwright, who were unrivalled in the province before the War of 1812. As explained in chapter two, their fur trade contacts and Cartwright's military connections helped them to prosper, and they became the two richest men in Upper Canada. When they entered into partnership in 1780, Hamilton and Cartwright were "supplied and, in part, financed probably by the Montreal firm of Todd and McGill, one of the oldest and most prosperous houses in the southwest fur trade." Todd and McGill soon 44  arranged for Hamilton and Cartwright to enter into a co-partnership with John Askin, at that time a very successful fur trade merchant at Detroit. By 1785, Cartwright was at Cataraqui, Hamilton at Niagara, and Askin at Detroit, the sites of the three major British garrisons in Upper Canada. Along with his connections at Niagara, Hamilton held the contract for portaging military supplies past Niagara Falls, and the Cartwright-Hamilton-Askin group  Ibid., 167. !  David Ouellette, "James Crooks," Dictionary of Canadian Biography VIII: 185.  'Ibid., 185-9. 'Bruce G. Wilson, "Robert Hamilton," Dictionary of Canadian Biography V : 402.  74  influenced or controlled much of the forwarding and transportation business and the military supply contracts throughout Upper Canada before 1800:  45  Hamilton's commercial transactions encompassed the length and breadth of the Niagara peninsula and touched points beyond, an incredible extent for such an operation in a developing pioneer society. 46  Cartwright and Hamilton's political and administrative prominence was also greater than that enjoyed by other merchant office-holders in pre-War of 1812 Upper Canada. This prominence derived only in part from their formal positions as members of the Legislative Council. At least as important, if not more so, they had direct connections with England through their close association with Todd and McGill as well as with the powerful Ellice Brothers, the partnership that first brought Hamilton to Upper Canada.  Merchant Debt and Long Credit Despite the many important differences between them, large and small merchants all operated within the structure of the long credit system. EvenHamilton and Cartwright dealt through Montreal or Quebec import/export firms, and those firms in turn dealt with 47  import/export firms in England and Scotland (primarily London and Glasgow). The difference for Hamilton and Cartwright was on the level of respectability. They were as constrained as anyone else by the long credit structure, but the Montreal merchant community and some merchant houses in England respected them as businessmen on the same level as the prominent Montreal merchants. This added prestige allowed them more room to manoeuver but, like everyone else, they did business on what are called 'long credit' terms. The 'long' in long credit primarily refers to the terms for payment: long credit was typically extended for a year or more, either in accordance with the agricultural calendar, or  Wilson, Ibid.; Wilson, Enterprises: George Rawlyk and Janice Potter, "Richard Cartwright," Dictionary of Canadian Biography V : 167-72. 45  46  Wilson, Enterprises. 1  47  Wilson, Enterprises. 20.  75 with the length o f time necessary for goods sent out from the metropole to be paid for. According to Price, for example, credit advanced by Glasgow merchants to tobacco growers in the thirteen colonies took on average four years to return.  48  O n the other hand, Upper  Canadian storekeepers extended long credit because their customers could not pay until harvest-time. The term 'long credit' is also often used to refer to a lengthy chain o f credit, i n which most people are debtors as well as creditors. For Upper Canada, the chain was anchored on one end by the farmers and other local people who would receive credit from the stores. Because the stores could not stay i n business without extending credit to their customers, debts due comprised an always increasing proportion o f assets.  49  For example,  when Robert Hamilton died in 1809, twelve hundred debtors owed h i m a total o f £69,000, for an average o f £57.10 each.  50  To give another example, the total debt owed to the less  successful Lower Canadian merchant Samuel Jacobs is equally astounding. When Jacobs died 1786, 519 debtors owed h i m an average o f 496 livres each, for a total o f 257,424 livres, or approximately £17,161 averaging to £33.07 each.  51  Merchant storekeepers were indebted i n turn to a Montreal firm or, sometimes, to a larger Upper Canada merchant like Hamilton or Cartwright. In any case, even the large merchants were indebted to the Montreal firms, who were in turn indebted to one or more import/export firms i n the home country. The chain did not end there; the growth o f the export trade effected credit terms in the home country as well:  Jacob M . Price, Capital and Credit in British Overseas Trade: the View From the Chesapeake. 1700-1776 (Cambridge: Harvard University Press, 1980), 96. 48  49  McCalla, "Rural Credit", 260-1.  50  Wilson, Enterprises. 1.  Greer, Peasant. Lord. 174. The conversion is approximate since the two men died 33 years apart and, in any case, currency equivalents in the period can only be rough. Wilson presented all of Hamilton's figures in New York (also known as York) currency, Peasant. Lord. 3, see also A . B . McCullough, Money and Exchange in Canada to 1900 (Toronto: Ministry of Supply and Services Canada, 1985), 72. According to McCullough, one pound York currency was equal to 15 livres, ibid., 292. 51  76 Export merchants were better able to give long credits to their overseas customers and correspondents because they got equivalent credits from their suppliers. Because the big wholesalers and other vendors gave long credit to exporters, they found it difficult or even impossible to resist giving credit almost as long to the inland trade. 52  Thus, the export firms were also indebted, usually to wholesalers who kept large warehouses. O n the other side o f the warehouses were factors (merchants working on commission) who bought the products from manufacturers and advanced the price o f raw materials to them. In effect, the warehousers: supplied both the internal and the export trades on long credit. Thus there appears to have been a distribution o f financial function, the factor (through early payment) financing manufacture and the warehouseman (through credit sales) financing distribution. 53  The most important points in this brief description o f the home country portion o f the credit chain are, first, that the Upper Canadian commercial system existed in an international context. This does not mean that it was always controlled or dominated by that market (as the staples thesis would have it). A s the business historian D a v i d S. M a c M i l l a n pointed out, Scottish mercantile and shipping operations focused on the North American colonies as much because o f their need for an export market as for any want o f Canadian staple imports.  54  Second, Upper Canadian merchants were not unique i n holding  many o f their assets as accounts receivable or debt; Montreal, London, and Glasgow merchant firms were all in a similar position.  Development Or Dependency? Cartwright and Hamilton's direct connection with British firms placed them in a privileged position partly because decisions about Upper Canada were made in England.  Jacob M . Price, "What Did Merchants Do? Reflections on British Overseas Trade, 16601790." Journal of Economic History 49 0989): 278. 52  53  Price, Capital and Credit. 102.  David S. MacMillan, "The 'New Men' in Action: Scottish Mercantile and Shipping Operations in the North American Colonies, 1760-1825," in Canadian Business History: Selected Sketches. 1497-1971. ed. David S. MacMillan (Toronto: McClelland and Stewart, 1972), 45. 54  77 Isaac Todd o f Todd and M c G i l l was frequently in England, lobbying for policies that would be friendly to trade i n general, and to the interests o f Todd and M c G i l l and their associates in particular. B y 1793, Todd "began to envision the supply o f grain to the government as an eventual replacement for the fur trade," which was threatened by the opening o f larger 55  areas for settlement and by the loss o f territory to the United States. "That year, Todd and W i l l i a m Robertson lobbied successfully in London to secure for Todd and M c G i l l ' s Upper Canadian associate Cartwright and others an exclusive sub-contract to victual the military posts on the Great Lakes."  56  The ramifications o f that sub-contract w i l l be explored i n the next chapter. The important point made here is a general one regarding Cartwright and Hamilton's privileged position in the long credit system. It does not necessarily follow that the various monopolies or near-monopolies controlled by Cartwright, Hamilton, and their close associates "translated itself," as the authors o f the article on Cartwright in the Dictionary o f Canadian Biography assert, "into that dependent relationship between debtor and creditor which has characterized so many frontier societies."  57  But clearly, although most merchants  did not have that much power, some o f the largest did, and Cartwright and Hamilton had much larger holdings than anyone else in Upper Canada at the time. The workings o f the rural credit system in different parts o f colonial North America did not always lead to coercive dependency in the sense o f debt-bondage. N o r was the credit system always as exploitative as the despised truck system i n which the coal miner owed his "soul to the company store."  58  It does, however, seem likely that there was a  dependent debtor relationship very close to truck (in degree, i f not kind) i n some parts o f Upper Canada in the very earliest years when the garrisons provided the major market for  55  Myron Momryk, "Isaac Todd," Dictionary of Canadian Biography V : 821.  56  Ibid.  57  Rawlyk and Potter, 168.  Historians are beginning to develop more complex views of the history of truck. See Rosemary Ommer, "Introduction," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary Ommer, 9-15 (Fredericton: Acadiensis, 1990). 58  78 surplus goods. But this situation was transient. Upper Canadian credit practices may in other ways have had something i n common with those o f early eighteenth-century Massachusetts, where merchants paid workers in shop notes rather than specie (coins). This practice forced workers to shop at certain stores, and it allowed merchants to hoard specie and bills o f exchange with which to pay off their own debts.  59  The use o f merchants' notes  in Upper Canadian w i l l be discussed in the next chapter. The degree o f coercion in any early North American credit system varied according to factors that were close to but not part o f the credit system itself. These included the potential for market or subsistence diversity, distance to transportation, government regulation, and a myriad o f ecological and cultural factors. In an article where he gave high praise to McCalla's work on rural credit, Stephen Innes lists several factors to be taken into account when "distinguishing between creative and destructive debts." According to Innes: The conditions that appear to have favored non-exploitative debt include the following: a non-monopolistic public policy; competition among merchants; competition among employers; availability o f by-employments; relative freedom o f contract; relative freedom o f population movement; a nonperiphery location; effective transportation networks; an economy at least partially agriculturally based; and, finally, comparative prosperity and economic growth. Where these conditions prevailed, as they apparently did for a majority o f the free white families in early America, debt relationships at the general store tended to lead to capital formation, not personal dependency. 60  Were all o f Innes's conditions for non-exploitive debt present i n Upper Canada? Probably not, or at least not in unmixed form; especially in the earliest period when the garrisons were a very important market and British government subsidies were key to  See Joseph A . Ernst, '"The Labourers Have Been the Greatest Sufferers': the Truck System in Early Eighteenth Century Massachusetts," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary Ommer. 16-35 (Fredericton: Acadiensis, 1990). 59  Stephen Innes, "Commentary," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary Ommer (Fredericton: Acadiensis, 1990), 305. 60  79 settlement.  61  There was more competition after the export market to and through Lower  Canada began to open. This did not happen until after 1800 i n Niagara, but it was 62  somewhat earlier for the eastern parts o f the province. Thus, the presence o f Innes's conditions varied both regionally and temporally, and it is conceivable that, according to the kinds o f criteria used by Innes and M c C a l l a , there was more exploitation and dependency i n the early period that is the subject o f this thesis than there was i n later years. I do not have the data to answer questions i n reference to employment. However, some o f Innes's conditions can be at least tentatively discussed. For example, i n the early Upper Canadian period, government policy, especially when it came to provisioning or portaging contracts, was often monopolistic. This would have mitigated the benefits derived from competition between merchants. I am not aware o f any legal restrictions as such on population movement (for "free white" people), but i f we recall that many Loyalist refugees were settled in specific areas and with few resources, it is not clear how much effective mobility there would have been. The lack o f effective transportation networks was a frequent grievance. This was exacerbated by the land granting system which, by designating two-sevenths o f each township as clergy and crown reserves, left large tracts uninhabited. Absentee ownership also contributed largely to this problem. Finally, it should be recalled that merchants dominated transportation and communication networks.  63  Therefore, although some o f Innes's conditions cannot be evaluated here, conditions i n early Upper Canada do not support the hypothesis that the credit system was entirely nonexploitative.  6  'McCalla, Planting, 21-4, 17-19.  62  Wilson, Enterprises. 84, 90.  63  Ibid., 39-40.  80 Chapter Four  LAW AND FINANCE IN EARLY UPPER CANADA This chapter continues and expands on the last chapter's discussion o f the mercantile system and the role o f merchants. The purpose is to flesh out the argument made in the last chapter by testing claims about the positive and negative roles played by merchants against the historical record. In particular, a context w i l l be sought i n which to evaluate the anti-merchant statements made in the early 1790s by John Graves Simcoe, the first lieutenant-governor o f Upper Canada. Simcoe's statements are important because the assumptions o f many historians regarding the operation o f the early Upper Canadian business system have their provenance there. Many o f those statements relate to the court reforms i n 1794 that replaced the civil courts mandated by the Quebec A c t with a new superior Court o f K i n g ' s Bench on the English model. In particular, Simcoe claimed that the courts needed to be reformed because the old merchant-dominated Court o f C o m m o n Pleas enforced the Bon, or merchant's note, a kind o f negotiable paper that Simcoe thought was key to merchant domination i n the province. In fact, the Common Pleas records exhibit no trace o f the Bon. This casts doubt on Simcoe's specific claims. The Court o f C o m m o n Pleas did favour merchants, but not, as Simcoe claimed, by enforcing the B o n system. There were, however, complaints from farmers and members o f the legislative assembly about the growing power o f merchants. These complaints were heightened i n 1793, when the British government granted Cartwright, Hamilton, and their associates a privileged position as local agents for the provisioning o f the garrisons in Upper Canada. The chapter opens by providing a context for commercial finance i n Upper Canada with a brief discussion o f bills o f exchange and promissory notes. These negotiable instruments developed as merchants began to trade over longer distances. They can be used both as credit and as payment mechanisms. The chapter then moves on to look at what is known about particular arrangements for commercial finance within Upper Canada. Unfortunately, there is very little information on how the financial system actually worked, since most o f the scholarly focus has been on currency, exchange, and the development o f banking (which did not happen i n Upper Canada until 1821). The chapter w i l l therefore  81 endeavour to bring together scraps o f information about the kinds o f financial and credit instruments that were used in Upper Canada, and to explore the meaning o f barter i n the period. This information is assembled from secondary sources, from printed primary sources, from some court records in manuscript, and from a limited survey o f archival documents. The chapter also looks at some o f the peculiarities o f the B o n or merchant's note. The B o n was a kind o f commercial paper used i n the Canadas. Its use in Upper Canada has not been much studied by historians even though claims regarding the use o f the B o n and its consequences have entered into the historical record.  Commercial Finance In comparison to England and Scotland, there has been little work done on the commercial finance system in pre-1812 Upper Canada. For example, the economic historian Jacob M . Price can explain to us that export merchants i n London and Glasgow began to borrow on bond more frequently as they sunk their assets into long credit, because the length o f time it took for their investments to return tied up their assets overseas, thereby increasing capitalization requirements.  1  Price can also explain that despite this  necessity, borrowing was sometimes more difficult for export than for domestic traders because the property o f domestic traders was at home and that o f the export traders tended to be overseas, and that many small bonds might be preferred to one big one since the small ones were unlikely to be all called in at the same time. Price can provide substantial detail 2  from merchant records i n England and Scotland to support his findings. It is impossible to write with the same level o f confidence about the early Upper Canadian financial arrangements. This is partly because o f a dearth o f records, but also, one suspects, because o f a problem identified by Price:  'Price, Jacob M . , Capital and Credit in British Overseas Trade: the View From the Chesapeake. 1700-1776 (Cambridge: Harvard University Press, 1980), 44. 2  Ibid., 52-4.  82 Most economic historians find it rather trying to have to think about credit without banks. A n d so accounts o f credit frequently start with the foundation o f banks. 3  Banking i n the Canadas did not begin until after the War o f 1812. The majority o f scholars (working i n the English language) who deal with pre-1812 finance focus first on N e w France and the currency instability at the time o f the English takeover, and then on the post1812 world and the development of banks, with a comparatively cursory treatment o f the period from the 1760s to 1812. The work that does exist concentrates on the currency 4  issue and not on financial and credit arrangements. Only two major studies cover the early Upper Canadian period. They are A d a m Shortt's collection o f articles, recently reprinted in one volume (1986), that appeared i n the Journal o f the Canadian Banker's Association, mostly between 1896 and 1906, with another series i n the 1920s, and R. Craig Mclvor's 1958 book, Canadian Monetary Banking and 5  Fiscal Development. practices.  7  6  Neither provides much specific information on financing and credit  Shortt and M c l v o r were interested i n currency problems and exchange rates,  rather than in the mechanics o f financial instruments and their legal regulation, and both identified the prevalence o f credit primarily with lack o f specie, or coins. Because o f the lack o f specie, they present Upper Canada as uniquely credit-dependent. But when Upper  3  Ibid., 278.  See Bank of Canada, The Story of Canada's Currency (Ottawa: Bank of Canada, 1955); R.T. Naylor, "The Rise and Fall of the Third Commercial Empire of the St. Lawrence," in Capitalism and the National Question in Canada, ed. Gary Teeple (Toronto: University of Toronto Press, 1972), 4-8; K.J. Rea, A Guide to Canadian Economic History (Toronto: Canadian Scholars' Press, 1991), 67-72; James Stevenson, The Currency of Canada After the Capitulation (Literary and Historical Society of Quebec, n.d.), C I H M No. 24072. A n exception, albeit of limited scope, is Allan J. Cohoe, "Early Banking in Kingston - Before Banks," Historic Kingston 28 (1980): 85-94. 4  Canadian Bankers' Association, Adam Shortt's History of Canadian Currency and Banking 1600-1880 (Toronto: The Canadian Bankers' Association, 1986). 5  R . Craig Mclvor, Canadian Monetary. Banking and Fiscal Development (Toronto: MacMillan, 1958). 6  Neither did Bruce Wilson, who was more concerned with how Hamilton did business than with how he financed it. See Bruce G. Wilson, The Enterprises of Robert Hamilton: A Study of Wealth and Influence in Early Upper Canada. 1776-1812 (Ottawa: Carleton University Press, 1983). 7  83 Canada is looked at in the context o f late eighteenth-century commerce, its dependency on credit does not seem to be out o f the ordinary. W e know that specie, or at least good quality specie, was scarcer i n Upper Canada than i n Britain or the United States, but that did not mean that Upper Canada was more credit-dependent. Specie was scarce i n those countries as well. There was no official paper money printed by central governments. Coins were scarce, and their value often degraded by the practice o f clipping off bits o f the precious metals o f which they were made.  8  Funds  moved between the home country and the colony by way o f bills o f exchange, which were drawn by both government and private parties. The official money o f account for British North America was Halifax currency, a unit o f account that was not represented by any coin.  9  Instead, the gold and silver coins o f several countries were used, with ratings for  each (relative to Halifax currency) were established by ordinance prior to 1792, and by legislation thereafter.  10  Commerce inside o f Canada was conducted using bills o f exchange  and promissory notes, a wide variety o f coins o f different value and condition, as well as Bons, IOUs and perhaps other kinds o f paper that did not receive official legal recognition. People also conducted business by using their own memoranda books or the ledgers o f the local store to keep track o f what they owed and what was owed to them. W i t h its lack o f specie and constant use o f credit for everyday transactions, Upper Canada was similar to like Craig M u l d r e w ' s description o f K i n g ' s L y n n i n the late seventeenth-century, where sales transactions and employing on the basis o f ongoing credit was prevalent because cash was in short supply.  11  Credit fulfilled more than one function in the late eighteenth-century North Atlantic world. B i l l s o f exchange used credit to transfer sums o f money. L o c a l level sales credit  Angela Redish, "Why Was Specie Scarce in Colonial Economies? A n Analysis of the Canadian Currency, 1796-1830." Journal of Economic History 44 (1984): 713-28. 8  A . B . McCullough, Money and Exchange in Canada to 1900 (Toronto: Ministry of Supply and Services Canada, 1985), 18. 9  10  Ibid., 67-80.  "Craig Muldrew, "Credit and the Courts: Debt Litigation in a Seventeenth-Century Urban Community." Economic History Review 46 (1993): 25.  84  was kept track of, to be reckoned up and reconciled at intervals. Credit could be extended for investment, to capitalize a farm or a business enterprise; or it could be extended for consumption, of luxuries or of necessities. Goods were often supplied on credit because that was the only way to make sales. And people who dealt in foreign bills of exchange could make a profit from the exchange rate and discounting the bills. Upper Canada was not uniquely credit-dependent, but its credit system did operate in peculiarly Upper Canadian ways. Before exploring what we can about the financial instruments that were used within Canada, it is important to briefly discuss bills of exchange and promissory notes.  Legally Recognized Commercial Paper: Bills of Exchange And Promissory Notes Bills and notes are still in use today, in a similar form to 200 years ago. Bills of exchange were used as a mode of payment for goods, as well as to move money around. In their simplest form they worked as follows: if Abel in London owed £30 to Berg in Amsterdam, Abel would not ship a chest full of coins to Berg. Instead, he would go to see Cohen in London, because Dinsdale in Amsterdam owed money to Cohen. Abel would give Cohen £30, and Cohen would write to Dinsdale instructing him to pay £30 to Berg. The letter would be addressed to Dinsdale and signed by Cohen, it would state the exact sum and when it should be paid (usually on sight or 30, 60 or 90 days after sight), and the order to pay would have to be unconditional. Of course bills of exchange were also used in more complicated ways. For example, they could be made payable to order (a specific person) or to bearer, and the payee (e.g. Dinsdale) would not necessarily be indebted to the payor (Abel). Indeed, the payee was more likely to be a mercantile house who had dealings with the payor and therefore kept some of his money on account there. Dealings in bills of exchange in fact formed a very large part of the work of many mercantile firms; and there  85 was profit to be made both in working the exchange rates between different currencies and in discounting (cashing) bills.  12  Whereas bills of exchange started out as payment mechanisms, promissory notes were originally debt instruments in that they were a promise to pay, rather than an instruction to someone else to pay. Goode defines a promissory note as: an unconditional promise made in writing by one person to another signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to, or to the order of, a specified person or to bearer. 13  According to Kyd, "at first these notes were considered only as written evidence of a debt; for it was held that a Promissory Note was not assignable or indorsible over." Parliament 14  intervened with the 1704 statute, An Act for Giving Like Remedy Upon Promissory Notes As is Now Used Upon Bills of Exchange. after which time the two instruments have been 15  treated identically in law. Bills and notes were legally enforceable so long as they met certain specific requirements of form. Conventional legal histories say that negotiable instruments law developed out of a separate law merchant which was gradually absorbed into the common law, especially during the tenure of Lord Mansfield as Chief Justice of the English King's Bench from 1756 to 1788. James Steven Rogers has recently challenged this conventional view, arguing that: The judges of the English common law courts did not borrow the rules of the law of bills from sources external to the common law system. Rather, the  Jacob M . Price, "What Did Merchants Do? Reflections on British Overseas Trade, 16601790," Journal of Economic History 49 (1989): 267-284; James Steven Rogers, The Early History of the Law of Bills and Notes: A Study of the Origins of Anglo-American Commercial Law (Cambridge: Cambridge University Press, 1995). For details of Richard Cartwright's practice in this area, see Cohoe. 12  1 3  R . M . Goode, Commercial Law tHarmondsworth: Penguin, 1982), 520.  Stewart Kyd, A Treatise on the Law of Bills of Exchange and Promissory Notes. 3d ed. (London, 1795), 18. 14  15  3 & 4. Ann, c. 9 (Eng.).  86 English law o f bills developed within the common law system itself, i n response to developments in commercial and financial practice. 16  According to Rogers, the most important legal characteristics o f bills and notes in the late eighteenth and early nineteenth centuries were that they were assignable, and that consideration was presumed unless there were indications to the contrary.  17  This system  simplified the movement o f money and credit. In particular, prior to the development o f bills o f exchange, it was difficult and sometimes impossible to assign or transfer debts or other money obligations.  18  Assignability meant that the bearer (of a bearer instrument) or  the payee (of an instrument payable to order) could endorse the bill or note over to another person (or to bearer), and the next endorsee or bearer could endorse it to someone else. This could happen over and over so that there were many endorsements on one instrument. This means that bills and notes were negotiable i n the sense that they were "legally capable of being transferred by endorsement or delivery."  19  In this period, however, they were not  negotiable in the sense o f the "twentieth-century...key definitional characteristic o f negotiable instruments...in the sense o f freedom from claims and defences," puts it, "the capacity to be acquired free from equities of prior parties."  21  20  or, as Barak  The distinction is  not important for present purposes, except to clarify that when referring to the negotiability of bills and notes, or other paper, I mean it in solely in the sense o f transferability, and not in the modern sense. The presumption o f consideration, by presuming that there had been value given i n consideration for the instrument i n all o f the endorsement transactions, helped to simplify the process o f assigning the bill to the next endorser. While useful, the system o f multiple  16  Rogers, 2.  17  Ibid., 7.  Aharon Barak, "The Nature of the Negotiable Instrument," Israel Law Review 18 (1983): 52 J. Milnes Holden, The History of Negotiable Instruments in English law (London: Athlone Press, 1955), 10-12. 18  19  Black's Law Dictionary. 6 ed., s.v. "Negotiable."  20  Rogers, 7.  21  Barak, 52.  th  87 endorsement was not necessarily reliable. Eventually, the bill would be presented for payment to whoever was ordered to pay on the face o f the instrument. If that person, or the person who had ordered payment, had become insolvent, or for various other reasons, payment could be refused. This led to consequences - mainly unpleasant - all along the chain o f endorsement. Yet the practice o f multiple endorsement was very common, and the consequences o f dishonoured bills was an extremely important part o f the law o f bills and notes in the period.  22  Negotiable instruments were very heavily used both to trade over  distances and as credit instruments, in which case they also had a role as currency substitutes.  Accounting A n d Exchange  Early Upper Canadians kept a variety o f different kinds o f accounts. Farmers and artisans might keep a record o f costs, work, expenses, and income i n a small notebook, while retail partnerships often used just a daybook and a ledger.  23  M a n y sole proprietors  left "the impression that they kept accounts chiefly as a supplement to memory and as a record o f sums due them, and often their accounts did not distinguish very clearly between themselves and their firms."  24  In contrast, larger enterprises, such as import-export houses  "needed more complex accounts, on standard double-entry principles, to record their diverse activities more particularly."  25  Yet the functions performed i n the books o f rural  stores were also complex, since a local storekeeper could serve as account-keeper for many different kinds o f rural transactions. K e y here is the understanding that, although many transactions - at the store or between individuals - were barter exchanges, they were most often valued in cash:  22  Rogers, 195.  Douglas McCalla, "Accounting Records and Everyday Economic Life in Upper Canada, 17901859." Archivaria21 (1985): 152-3. 23  24  Ibid., 153.  25  Ibid.  88 M a n y goods were exchanged for goods. A pound currency o f wheat was exchanged for a pound currency o f sugar, tea, or the equivalent sum i n labour. N o one owed two bushels o f wheat: rather one owed a certain sum o f money which might be paid off by its equivalent i n wheat. In this sense from the very beginning Upper Canada's economy was cash-oriented. 26  People often exchanged goods and services, periodically setting their claims off against each other, at which time one o f them would end up as a net creditor. That credit could be carried forward into a new set o f transactions or, i f the creditor required payment, "it was often in the accounts o f the merchant, with whom all had dealings, that balances were reconciled."  27  Farm produce could be sold or bartered in various ways: between  individuals; to the store; through the store but between customers (that is, i n the store's books); or to the store and assigned to another customer's debt or credit.  28  For example,  someone who owed money to a third party but had a credit with the store might transfer that credit to the third party, or "a merchant might accept as payment o f a debt a'claim on another person who also owed him money but which, for whatever reason, he expected to be able to collect eventually."  29  Under the relaxed evidentiary rules for business records i n the colonies, entries in accounts were easily admissible as evidence o f debt. In England, entries i n accounts or shop-books were admissible only i f attested to by the clerk who made the entry. Blackstone viewed the English practice as dangerous, for "it is a dangerous precedent to give credit to any memorandum by which the writer makes another man his debtor."  30  The dangerous  Graham D. Taylor and Peter A . Baskerville, A Concise History of Business in Canada (Toronto: Oxford University Press, 1994), 141. See also V . C . Fowke, "The Myth of the Selfsufficient Canadian Pioneer," Transactions of the Roval Society of Canada 56, ser. 3, section II (1962): 26. 26  Douglas McCalla, "Rural Credit and Rural Development in Upper Canada, 1790-1850," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary Ommer (Fredericton: Acadiensis, 1990), 262. 27  .. Ibid., 262-3; Douglas McCalla, "The Internal Economy of Upper Canada: New Evidence on Agricultural Marketing Before 1850," Agricultural History 59 (1985): 407. 28  29  McCalla, "Rural Credit," 262-3.  William Blackstone, Commentaries on the Laws of England, ed. and with notes by William Draper Lewis (Philadelphia, 1897), III: 368. 30  89 practice was carried even further in the colonies, "where a man's own books of accounts, by a distortion of the civil law...with the suppletory oath of the merchant, amount at all times to full proof." This practice was explained by William Draper Lewis, who wrote the notes 31  for the 1897 American edition of Blackstone's Commentaries: In the United States, in the early periods of settlement, as business was generally carried on by the principal, and few shop-keepers kept clerks, the book of original entries, proved by the oath of the plaintiff, has, from the necessity of the case, generally, if not universally, been admitted. It has been confined, however, to the case of goods sold and delivered and work and labor done. It is necessary, however, that the book should appear to be the book in which the first entry was made contemporaneously with the original transaction which it professes to record. It is not necessary, indeed, that it should be in the form of a journal or day-book. Entries in ledger-form have been admitted, or in a pocket memorandum-book. Still, the entry must have been made within a reasonable time after the transactions, - not further than twenty-four, or at most forty-eight hours. 32  This was probably the practice in early Upper Canada as well. Given what we know about the casual nature of many account entries, it implies a wide reach for the law into transactions that may have appeared to be fairly informal.  Merchants, Banking Functions, And The Bon Although the Bank of England was founded in the late seventeenth century, enterprises known as banks did not exist in the Canadas until 1817. The Bank of England had been "conceived...as a mechanism to provide money for government expenditure and to facilitate increased circulation of a limited amount of specie."  33  In addition to the Bank of  England, by the late eighteenth century there existed numerous private banks in both London and the provinces. They provided a variety of services, some of which were  31  Ibid., 368-9.  32  Ibid., 369.  Peter Baskerville, The Bank of Upper Canada: A Collection of Documents (Toronto: The Champlain Society, 1987), X V I . 33  90 different from the private banks in London. For example, although none o f the London private banks issued bank notes, many o f the provincial banks d i d .  34  Because o f its connection with the government, the Bank o f England also issued official bank notes. Although legal tender, these notes were not official in the same sense as the government currency we are familiar with today in the form o f the British pound or the Canadian dollar.  35  Legal tender denotes a medium o f payment which creditors would  have to accept i n payment o f a debt.  36  Other than Bank o f England notes, only gold or  silver coins were legal tender in the period. " B i l l s o f exchange, promissory notes or cheques are not proper tender and can be rejected."  37  The notes issued by private banks i n  England were not legal tender. Banks also lent money on promissory notes or other security, and they bought, sold, and discounted (cashed) bills o f exchange.  38  Merchants did those things as w e l l .  39  Although large-scale inter-regional and international dealings in the Canadas were probably confined to the Montreal import-export houses and to the very large Upper Canadian merchants,  40  bills, notes, and other kinds o f commercial paper circulated within Upper  Canada, and merchants at all levels would have been involved. Early Upper Canadian merchants also kept track o f and reconciled accounts and provided and received credit This is one reason why they are often thought o f as having performed banking functions or as having been at the centre o f finance i n early Upper Canada.  41  Less studied has been the role o f Upper Canadian merchants in another banking function, the printing o f small notes as a substitute for specie. Printing notes or producing  34  Baskerville, xvii, xviii; Price, "Capital and Credit," 81-2.  35  Baskerville, ibid.  36  M c C u l lough, 18.  37  C . R . B . Dunlop, Creditor-Debtor Law in Canada. 2nd ed. (Toronto: Carswell, 1995), 19.  38  Price, "Capital and Credit," 87-91.  39  Price 1989, "What Did Merchants Do?; Baskerville, xviii-xxii.  40  Canadian Bankers' Association, 51-2.  41  Cohoe; McCalla, "Rural Credit, 256..  r  91 tokens to take the place o f small coins was common in many parts o f Britain and North America.  42  In Upper Canada, the notes were known as Merchants' Notes, or as "Bons," so  named because "the inscription on such notes invariably began with ' B o n pour-', the amount o f the note then being specified."  43  Bons were used until the War o f 1812, when  they were replaced by army bills, which became legal tender in Lower Canada in 1812 and in Upper Canada i n 1813.  44  Available evidence indicates that Bons were not simply used as small change. Bons were a form o f commercial paper. They were issued by merchants, circulated, were negotiable, yet they did not fit the definition o f bill o f exchange or promissory note because they were not negotiable or discountable in the same way as bills and notes. B i l l s and notes could circulate anywhere. They were payable at a determinable future time as stated on the face o f the note, and they were bought and sold at a rate o f exchange which was either at, above, or below par but i n any case varied according to local and international factors that effected exchange rates overall. In contrast, from what little we know about them, Bons circulated only in their district, and their payment was not unconditional.  45  They were  payable at par by the issuer only in October, and this lack o f liquidity made them riskier than other, more conventional forms o f commercial paper. A t other times o f the year, the issuer would redeem them at 12.5 per cent below par.  46  Those restrictions on the circulation  and negotiability o f Bons were imposed by merchants and storekeepers. Bons have consequently been connected with credit created dependency and exploitative debt. It is  Jacob M . Price, "Conclusion," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary E. Ommer (Fredericton: Acadiensis, 1990), 368; John R.Hanson, II, "Small Notes in the American Colonies," Explorations in Economic History 17 (1980): 417; McCullough, 143-4, 172, 199, 208, 221-2, 247. 42  43  McIvor, 15.  McCullough, 83-5. Bons made a brief re-appearance in Upper Canada during the financial panic of 1837-8, when they were known as "shinplasters." Ibid., 100. 44  E . A . Cruikshank, ed., The Correspondence of Lieut. Governor John Graves Simcoe. with Allied Documents Relating to His Administration of the Government of Upper Canada. 5 Vols. (Toronto: Ontario Historical Society, 1921-23), 3:43, 67. 45  46  Wilson, Enterprises. 17: McCullough, 77.  92 this, rather than their role as currency substitutes, that makes the B o n important for our purposes. The Upper Canadian administration was well aware o f the irregular legal form o f the Bon. In January o f 1794, Peter Russell, then receiver-general for Upper Canada, reported to lieutenant-governor Simcoe that: as these Notes are generally made payable at one day in the year (10th October) and the Holder has consequently no means for securing himself should the Credit o f the Drawer meet with any intermediate shock, they ought certainly to be suppressed i f possible. For altho' the greatness o f the Risk is manifest to everyone, yet their Circulation (Being o f necessity submitted to for mutual convenience) w i l l probably still continue to the ruin perhaps o f many, unless Government can fall upon some means o f rendering it unnecessary. 47  In 1793 John M c G i l l , commissariat officer for Upper Canada, reported to Simcoe that: The nominal money in circulation here, for the payment o f all kinds o f produce, is nothing more than notes o f hand (or what is termed Bons), on small scrips o f paper from 3% Sterling to thirty six shillings Sterling issued . by people i n Trade payable on the 10th, 15th, & 25th October annually subject to no Interest, and generally pass in the neighbourhood where the issuer resides. It, however, not infrequently happens that the holder o f some of this paper currency finds it necessary to realize it into specie, and for that purpose has recourse to the issuer, who w i l l not give specie for his own notes unless he receives Nine Dollars for Eight or at a rate o f 1272 per Cent discount though he had perhaps not long before paid those very notes as Cash to the person, who makes the Application, this added to a risk o f the issuer's failure is a hardship on the Settler. 48  Simcoe and M c G i l l also thought that Bons in particular and the merchant monopoly in general, affected the price o f provisions for the garrisons. M c G i l l reported to Simcoe that the B o n system was: a very great additional expense to Government, because the monopolizer receives the same price for flour i n real cash that he allows the settler i n  Cruikshank, 2: 133. truikshank, 1: 273.  93 nominal, consequently the supplies for Government are not had at the first but at the second market. 49  M c G i l l suggested that the government pay the farmers directly in "cash or transferable Certificates i n ten or twenty days, thus introducing a certain medium o f specie into circulation." He thought that this would prevent the large merchants from using their own 50  paper to "engross" the market, thereby saving the government money by making supplies available without the intervention o f a middleman. superiors i n England, but to no avail.  51  Simcoe suggested this idea to his  52  Simcoe and M c G i l l also thought that eliminating the B o n system would force merchants to be more competitive in pricing their goods, which would i n turn cause prices to drop, thereby saving the government money because it could then pay less for flour.  53  Simcoe and M c G i l l ' s letters indicate that they perceived Bons to be widely used, and that eliminating them would be the key to eliminating the merchant monopoly. However, evidence is sparse that the B o n really was the severe and widespread problem that Simcoe and M c G i l l thought it to be. Simcoe was vociferous in his opposition to the large merchants, particularly Hamilton and Cartwright. It is possible that Simcoe opposed Hamilton and Cartwright simply because they were sufficiently powerful to threaten him. Yet at the same time as Simcoe was embroiled in political battle with the merchants, the British government was giving them more power by providing them with a contract to provision the troops. It is by no means certain that the B o n was central to the power o f the large merchants, but it is clear is that farmers and members o f the assembly were opposed to that growing power.  °Ibid. 'Ibid., I: 273-4. 2  I b i d , 3 : 67.  3  Ibid.,2: 152.  94  The Judicature Bill of 1794 The B o n has been highlighted by historians because Simcoe connected it directly to the 1794 judicature bill that was brought forward by Simcoe and by W i l l i a m Osgoode, the first chief justice o f Upper Canada. This legislation abolished the district Courts o f C o m m o n Pleas and created a centralized Court o f King's Bench on the English model.  54  The Courts o f Common Pleas in Upper Canada began in 1788 when the British military government in Quebec created the first four districts o f the future Upper Canada. The court heard c i v i l actions, the vast majority o f which were for debt. It sat weekly for actions o f less than £10, and quarterly for larger claims. Several powerful merchants including Robert Hamilton and Richard Cartwright - sat on these Courts i n three o f the districts.  55  In the fourth district, which included the established business community o f  Detroit, the merchant appointees refused to serve and thirty-five English merchants memorialized the governor regarding the unsuitability o f merchants serving as judges i n an "almost exclusively commercial community where they were likely to be personally interested in many o f the cases that came before them." professional lawyer as judge o f Common Pleas.  56  They requested and received a  57  The judicature bill originated i n the legislative council. Cartwright and Hamilton, both o f whom were members o f the council, vociferously opposed it. This created something o f a stir at the time. The bill was introduced on June 9, 1794 and was debated two days later. "The Assembly expecting a field day, rose and attended the Council i n a body to hear the debate."  58  In his speech to the council, Cartwright emphasized two points  of opposition. First, the bill would unnecessarily complicate procedure. It would come  A n Act to Establish A Superior Court of Civil and Criminal Jurisdiction, and to Regulate the Court of Appeal. 34 Geo. Ill, c. 2 (U.C.). 5 4  H i l d a M . Neatby, The Administration of Justice Under the Quebec Act (Minneapolis: University of Minnesota Press, 1937), 295. 55  56  Ibid.  "Ibid. William Renwick Riddell, The Bar and the Courts of the Province of Upper Canada or Ontario. Part II: The Courts (Toronto: Macmillan, 1928), 87. 58  95 "with all the glorious uncertainties o f the law in its train, holding out wealth and distinction to the man o f law, but poverty and distress to the unfortunate client" because o f its "multifarious actions" and "hydra o f demurrers, replications, rejoinders" and other complicated and obscure forms o f actions and procedure.  59  Second, actions would have to  be originated and pleas filed at York, instead o f in each District, occasioning much delay and expense. These problems, Cartwright predicted, were more likely to make lawyers rich than to efficiently administer justice. N o r was it calculated to foster good lawyering: The business o f the country is by no means equal to support respectable characters o f the profession, and the House need not be told that the understrappers o f it are the greatest pest that a society can be cursed w i t h .  60  It is likely that Cartwright's criticisms o f the bill were at least as much sincere as they may have been self-serving. According to his historians, Cartwright was an exceptionally capable lay judge who was better versed in law than most, and he adapted English substance and procedure to the colonial context i n a rational and consistent manner.  61  Cartwright and Hamilton were both intelligent and well-educated, but Cartwright  in particular has a reputation as an intellectual and an office-holder who worked for the common good (as he saw it) and not only for his own commercial well-being. In contrast to Hamilton, whose practice at the Home district Court o f Common Pleas appears to have been problematic,  62  Cartwright "was regarded as a conscientious, astute judge who added  C . E . Cartwright, ed., Life and Letters of the Late Hon. Richard Cartwright (Toronto: Belford Brothers, 1876), 70. 59  60  Ibid., 72..  W . N . T . Wylie, "Arbiters of Commerce, Instruments of Power: A Study of the Civil Courts in the Midland District, Upper Canada, 1789-1812," Ph.D. diss., Queen's University, 1980), 44-6. 61  M y assessment of Hamilton's practice as a Common Pleas lay judge is based on my own review of the Common Pleas records. The Home District records are available at Metropolitan Toronto Public Library, Upper Canada, Court of Common Pleas, Nassau District. Minutes, 14 Oct. 1788 - 10 April 1794. Common Pleas records from the other three districts have been published in Alexander Fraser, ed., Fourteenth Report of the Bureau of Archives for the Province of Ontario. 1917: Records of the Early Courts of Justice of Upper Canada (Toronto: Legislative Assembly of Ontario, 1918). 6 2  96 'dignity to the court.'"  63  Cartwright was completely loyal to the empire and the Crown, but  his belief that institutions and practices o f governance should be adapted to the geographical and climatic conditions o f Upper Canada brought him into conflict with Simcoe, whose rather grandiose plans for Upper Canada tended toward the replication o f English institutions no matter what the circumstance.  64  Cartwright did, however, tend to identify the common good with that which was good for trade, especially his own: Early in his life Cartwright had pondered the difficulty o f distinguishing between schemes 'set on Foot' for the good o f one's country and those advocated from 'some private consideration.' His conclusion, that it was impossible even for the individuals involved to distinguish between them, might aptly summarize the relationship between the interests o f Upper Canada and those o f Richard Cartwright. 65  Simcoe was determined to pass the judicature bill, in part because he considered that the administration of justice on the English model was part o f the constitutional promise owed to the Loyalist settlers. Cartwright agreed that the Loyalists "should have the benefit of the English laws and form o f Government," but he thought that those forms should be adapted to the conditions - especially the geography - o f the new province.  66  The majority of the legislative councillors agreed with Simcoe. Before the b i l l went down to the house o f assembly, Cartwright and Hamilton put forward a Dissentient i n which they emphasized the geographic problems with the proposed reform and pointed out pointing out that the objections raised to a system o f district courts would be removed by the appointment o f professional judges.  67  This attempt to distance themselves from  George Rawlyk and Janice Potter, "Richard Cartwright," Dictionary of Canadian Biography. V:170. 63  For Cartwright's assessment of Simcoe's plans, see C.E, Cartwright, 51-6. On the grandiosity of Simcoe's plans for Upper Canada, see S.R. Mealing, "The Enthusiasms of John Graves Simcoe," in Historical Essays on Upper Canada, ed. J.K. Johnson, 302-16 (Toronto: McClelland and Stewart, 1975). 64  65  Rawlyk and Potter, 170.  66  C . E . Cartwright, 50, 49.  67  Cruikshank,2:271.  97 personal interest in defeating the judicature bill was to no avail; the house voted unanimously in its favour. By setting up one centralized court for the entire province, the reforms were bound to bring expense and inconvenience. The members of the assembly must therefore have had some pressing reason for thinking the reformed system would be an improvement over the status quo. Riddell suspected that: Simcoe and the Government party capitalized on the discontent of the farming community and the rural Members in the Legislative Assembly against Cartwright and Hamilton. 68  There is ample reason to believe that Riddell correct in both his allegations; that is, that farmers and other rural people were discontented with Cartwright and Hamilton, and that Simcoe made use of that discontent for his own purposes. The historian S.R. Mealing has made the unsupported assertion that Simcoe's "only important critic in Upper Canada, the Kingston merchant Richard Cartwright, stopped his criticisms after they had met. Earlier, the two had written bitter nonsense about one another." Mealing was clearly wrong. At the latest, Cartwright and Simcoe would have 69  met at the first sitting of the legislative assembly and council in September, 1792. By 1794, for reasons that are explored below, Simcoe's antipathy was at a high pitch. Matters came to a head over the judicature bill. Although he won handily, Simcoe could not report on his victory without casting aspersions on Cartwright and Hamilton. In a letter to Henry Dundas (then Secretary of State for the Home Department) Simcoe alleged that Cartwright and Hamilton opposed the judicature bill for the selfinterested reason that they wanted to hang on to their judicial positions at Common Pleas. He contrasted their behaviour to the merchants at Detroit, who had excused themselves from serving "from the conscientious Plea, that it was impossible any cause could come  68  Riddell, 94.  S.R. Mealing, "The Enthusiasms of John Graves Simcoe," in Historical Essays on Upper Canada, ed. J.K. Johnson (Toronto: McClelland and Stewart, 1975), 307. 69  98 before them in which they should not be mediately or immediately interested."  70  In  Simcoe's opinion, Cartwright and Hamilton were not "actuated by the like scruples"  71  when  they accepted the judicial appointment. Simcoe characterized this as their reason for opposing the reform: Every Art o f misrepresentation was industriously exerted to render the B i l l unpopular. A s it was a question o f great expectation the House o f Assembly adjourned i n order to attend the debate which took place on the first reading. The arguments used against the B i l l were founded on general Topics o f Inexpediency in the present Condition o f the Province, while the population was scattered and the communications uncertain. The B i l l was supported as a measure expected by the public, as one o f the first objects o f every C i v i l Establishment, & as a benefit enjoyed by every Colony connected with the British D o m i n i o n . 72  Simcoe added that "an unexpected attack" prior to the third reading o f the bill: provoked an Enquiry into the payment o f the Notes issued by the Merchants which could never have prevailed so universally thro' the Settlement, had it not received the sanction o f what was deemed to be authority. Some shameful abuses were pointed out by which the people have been hitherto most grievously oppressed & it was suggested that a Court comprised o f persons regularly bred to the Profession o f the L a w would probably differ i n their opinion from the present Expositors upon the time & place o f payment of their Notes o f hand. 73  This part o f Simcoe's account implies that there was an outpouring o f opposition in the assembly to the B o n ; specifically that members o f the assembly were incensed by the practice o f redeeming Bons at face value only on certain dates, and that they felt that whereas merchant judges had enforced this system at common pleas, lawyers would not. A s we have already seen, Simcoe was preoccupied with the B o n , and for precisely those reasons. But was the assembly? It is hard to tell. It is difficult to be exact about dates i n this matter because the Journals o f the Legislative Assembly are missing for several  70  Cruikshank,3: 2.  71  Ibid.  72  Ibid., 3: 3.  73  Ibid.  99 years beginning June 13, 1794 - just when the bill would have been debated in the 74  assembly. Other evidence casts doubt on whether the assembly shared Simcoe's precise preoccupation with the B o n or, i f it did, whether the members believed that abolishing C o m m o n Pleas would have an effect on the B o n in particular. Specifically, there is no record o f Bons ever being enforced by the Court o f Common Pleas in any district.  Evidence For Use of The Bon i.  A t the Court o f Common Pleas  The idea that the B o n system was specifically enforced at C o m m o n Pleas, and that this was a motivation for the abolition o f that court, has been perpetuated by the authors o f major historical studies o f the period. In his study o f Robert Hamilton's business empire, Bruce G . W i l s o n shows that Hamilton rarely used the Court o f C o m m o n pleas to sue his own debtors. However, "even more important to Hamilton than the enforcement o f individual accounts through the court was the enforcement o f the general mercantile system, specifically o f the system o f bons."  75  Wilson describes the system o f redemption at par in  October or at a discount at other times, and he quotes from Simcoe's letter to Dundas regarding the ostensible propensity o f merchant judges to enforce the system.  76  W . N . T . W y l i e also refers to the B o n in the context o f the abolition o f common Pleas. In his study o f the civil courts in the Midland district, Wylie paraphrases Simcoe regarding the enforcement o f Bons by merchant judges. He continues: Though there is no evidence o f this in Midland, the practice there o f relaxing standards o f proof for notes and accounts o f merchants reveals a similar leaning towards the interests o f merchants. 77  Alexander Fraser, ed. Sixth Report of the Bureau of Archives for the Province of Ontario. 1909: Journals and Proceedings of the Legislative Assembly of the Province of Upper Canada (Toronto: Legislative Assembly of Ontario, 1911), xi. 74  75  Wilson, Enterprises. 55.  76  Ibid.  77  Wylie, 167.  100 Unfortunately, Wylie, the only historian who has looked at the Courts o f C o m m o n Pleas i n any detail, confined his study to the district o f Mecklenberg (later Midland), where Richard Cartwright was a judge. That Bons were not mentioned i n the M i d l a n d records, while he assumed they were enforced elsewhere, gave Wylie reason to laud Cartwright for not enforcing the B o n when others did. However, as W y l i e points out, Cartwright did participate in what was probably the real issue in the debates: the pro-merchant leanings o f the Courts o f Common Pleas. It is striking that I did not see the word " B o n " in my review o f Court o f C o m m o n Pleas records, nor did I find actions by other names that could be identified as being i n regard to a Bon. I came to the latter conclusion on the basis o f M c G i l l ' s possibly unreliable report that Bons were issued i n denominations o f "from 3% Sterling to thirty six shillings Sterling." There were no records o f actions for amounts o f thirty-six shillings or less. This is not surprising given that in the Midland district, it usually cost between £ 4 and £5 to bring a case at Common Pleas.  78  More than half o f that would be paid to an attorney or  agent. M a n y people saved by representing themselves, but the costs would still have been 79  greater than what M c G i l l tells us was the value of any Bon. However, there is not much information given on the face o f the records, and it is possible that there were suits on more than one Bon, or on a B o n in addition to other instruments, which would appear i n the record as an action for a sum larger than thirty-six shillings. ii.  A t the Courts o f Request  In 1792, the weekly Courts o f Common Pleas had lost their jurisdiction over sums of less than £2 to the new Courts o f Request.  80  Unlike the Court o f C o m m o n Pleas, which  heard matters o f contract and tort as well as debt, Courts o f Requests existed solely for the recovery o f small debts.  78  Wylie, 82.  79  Ibid., 82-3.  81  Costs were lower at the Courts o f Request, usually less than  A n Act to Abolish the Summary Proceedings of the Courts of Common Pleas in Actions under Ten Pounds Sterling. 32 Geo. Ill, c. 4 (U.C.). 8 0  81  An Act for the More Easy and Speedy Recovery of Small Debts. 32 Geo. Ill, c. 6 (U.C.).  101 £1.  8 2  Requests was also more accessible than Common Pleas, since there could be several  courts in any district. Courts o f Request were under the direction o f the district magistrates. The magistrates divided their district into divisions, in each o f which a court would be held twice each month, presided over by two or more Quarter Sessions magistrates. They could create as many divisions as they wanted and change them as often as they wished.  83  This  created a flexible system, but one that suffered because many o f the magistrates were ignorant o f both local conditions and legal procedure.  84  While ultimately under central control, the de-centralized Court o f Requests system was not necessarily consistent i n regard to what it called things or how it kept its records. In his study o f 1819 to 1825 Court o f Request Records from Bath, in the M i d l a n d District, W . S . Herrington notes that Requests had no court clerk. The magistrates kept the records themselves, switching off every three months and noting in the book's pages which magistrate had the book and when.  85  There is no such overt notation i n the few surviving  pre-1812 Court o f Requests records, but there are distinct variations i n how actions and transactions are noted in them. This renders any attempt to understand the basis for Court of Requests actions very problematic. One o f the Court o f Requests records from the period, the Grenville (County) Minute Book. 1798-1802 show seven actions on Bons out o f a total o f approximately 143. 86  These records show the difficulty inherent in any attempt to precisely delineate the debt instruments or, to put it another way, the evidence o f debt, i n actions at the Court o f Requests. In'particular, there were a total o f eight later actions on notes " o f hand." Notes o f hand are difficult to define, but some writers appear to associate them with Bons, and  82  8 3  84  Wylie, 179. J.H. Aitchison, "The Court of Requests in Upper Canada," Ontario History 41(1949): 126-7. Ibid., 128.  W . S . Herrington, "The Court of Requests," Lennox and Addington Historical Society Papers and Records 6 (1915): 37,39. 85  Archives of Ontario, R G 22-411-0-8 Grenville (County) Minute Book. Court of Requests, 1798-1802. 86  102 Bons were referred to as "notes o f hand" by at least one contemporary source.  87  According  to Black's L a w Dictionary, a "note o f hand" is "a popular name (now obsolete) for a promissory note."  88  It is possible that the term "note o f hand" was ill-defined in the period,  referring both to promissory notes as formally defined, and to other notes o f debt that did not meet the formal definition. To add to the confusion, thirty-three o f the 143 actions at the Grenville Requests were explicitly stated to be on the basis o f "notes," sometimes "promissory notes" and, once, a "promissory note o f hand." To complete the picture, twenty-four o f the Grenville actions were brought on the basis o f "book," "book debt," or "book accounts," which almost certainly indicates the records o f a store or other commercial enterprise (e.g. m i l l or tavern); and fifteen were simply on "account." Some actions on "account" may indicate debts owed to stores or other enterprises, but others may not, since there are references to the parties settling up by making a "ballance [sic] o f accounts." However, even i f the debt was between two individuals, it may still have been recorded in the account book o f the local store. There were also twenty-two actions that were explained simply as "demands." Finally, there were 36 actions the cause for which fall into the category o f "other." Twelve o f these were either non-appearances by a party (defaults) or a non-suit for some technical reason, leaving twenty-four. O f these, fourteen gave no explanation for the debt. The remaining ten break down as follows: three were for costs related to the operation o f the court or enforcement o f its judgments; three were settled; two were for work performed; one for pasturage provided for horses; and the final one explained only by a cryptic reference to monies "due on protested order." The seven actions on Bons all occurred i n the first twenty-four o f the fifty-three months covered by the record. D i d the B o n disappear from use (or at least from law suits) in Grenville County after about 1800, or is it possible that some o f the actions on notes or notes o f hand may have been actions on the B o n by another name? The available evidence points to the first possibility, that the B o n disappeared after 1800.  'Wilson, 55, 79-80; McCullough 77. 'Black's Law Dictionary. 6 ed., s.v. "Note of Hand." th  103 Records from the Grenville County Court o f Requests to 1813 have also survived in the paper o f Solomon Jones, one o f the magistrates.  89  None o f the records from after 1800  mention the B o n . More important, the Solomon Jones papers include some o f the more ephemeral pieces o f paper that would have been relevant to an action at the court. These pieces o f paper were often kept as loose papers between the leaves o f the minute book. A m o n g these are some examples o f notes and notes o f hand. Those notes are clearly not Bons. Recall that Bons received their name because they began with the words " B o n pour," or, in English, "Good for" or "Good to." I have seen only one B o n from the pre1812 period. It is from 1788 Quebec, before Quebec was divided into Upper and Lower Canada. It is a printed form with handwritten inserts, and it reads " G o o d to Thos. Ferguson for T w o Shillings Value Received."  90  N o payment date is indicated. The language on the  notes i n the Solomon Jones records is quite different. Whereas the key phrase i n a B o n is " B o n pour," the key phrase i n the notes is "promise to pay," and the promise includes the sum to be paid and a payment date. The clearest example is provided by a November 6, 1802 action i n which Daniel Jones, Esq. sued John Newman for "two pounds currency debt due from note o f hand." The associated piece o f ephemera reads, "For Value Received I promise to pay to DanT Jones" with a specific sum and payment date. Unlike the B o n , this note contains most o f the legal requirements for a negotiable instrument: it is an unconditional promise to pay a sum certain at a fixed or determinable future date and to a specified or specifiable person. To sum up, first, since there are no other surviving Court o f Requests records i n the period, the evidence is sparse. The evidence that is available indicates that the magistrates at this particular Court o f Request could tell the difference between a promissory note and a  Archives of Ontario, F521 Solomon Jones Papers, Records of the Court of Requests, 17981813. 89  The Bon is reproduced in A . B . McCullough, Money and Exchange in Canada to 1900 (Toronto: Ministry of Supply and Services Canada, 1985), 57. 90  104 Bon, although it is still possible that the looser term "note o f hand" may at times have referred to a B o n . Second, it should be recalled that economic development i n Upper Canada was uneven, and even i f Bons fell into disuse i n Grenville County by 1800, they may have continued to be used in the western districts. It may therefore be relevant that Grenville was in the eastern end o f the province, since the eastern part o f the province was the first to integrate into the export market and therefore to become less dependent on the garrison market. However, given the paucity o f evidence, it is difficult to be more than speculative. iii.  Other Evidence for the Bon?  I had initially assumed that the sketchy information available i n the legal records could be fleshed out i f I had the opportunity to peruse archival collections o f merchants' records and family papers. However, according to A . B . M c C u l l o u g h : The evidence for the widespread use o f bons i n central Canada up to the period o f the War o f 1812 comes almost entirely from contemporary literature. There is little identifiable evidence i n contemporary account books or i n estate inventories o f their use. 91  M c C u l l o u g h credited Douglas M c C a l l a with this information.  92  The contemporary  literature referred to by M c C a l l a is the letters o f Simcoe, M c G i l l , and Russell. Although they are relied on over and over again i n the secondary literature, many o f the assertions i n them are not supported by the legal records. There is not much trace o f the B o n i n merchants records, and no identifiable evidence that the Courts o f C o m m o n Pleas 93  enforced the B o n system, although Bons were enforced by the Courts o f Request. U n t i l research turns up more solid evidence, it must be concluded that the B o n in itself may not have been instrumental in creating dependant or exploitative credit relationships in the early period i n Upper Canada.  9,  McCullough, 297.  92  Ibid.  I spoke to Professor McCalla in October of 1998. He told me that the literature referred to was the letters of Simcoe, M c G i l l , and Russell, and that his work in merchants' records since the publication of McCullough's book confirms his earlier assessment. 93  105 If this is so, there are two questions to be looked at regarding the B o n and the 1794 court reforms. First, what was Simcoe really upset about? Second, why might the members of the house o f assembly have voted unanimously for the reform?  The Provisioning Contract, and Simcoe's Feud with Hamilton and Cartwright Simcoe's attitude toward merchants in general, and Hamilton and Cartwright i n particular, has often been attributed to the disdain of an aristocrat (or someone with aristocratic pretensions) toward persons in trade. That disdain no doubt existed, but it was only part o f a more complicated picture in which it was intermixed with some genuine concern for the position o f farmers, as well as with a fear that merchant power might eclipse the prerogatives o f government. A properly aristocratic disdain for trade may have been difficult to sustain i n the tiny world o f early Upper Canadian society, an elite group that attempted to personify the aristocratic values that they believed would balance and control the democratic inclinations held by many o f the settlers. Leonore Davidoff has stressed the importance o f "Society" i n England as "a linking factor between the family and political and economic institutions" used to "place" individuals "based on common claims to status honour which were i n turn based on a certain life-style."  94  For the tiny Upper Canadian elite, living i n the midst o f a  wilderness, the ideological importance o f the ritualized distinctions o f rank and precedence would have loomed even larger. "Simcoe and his wife Elizabeth deliberately cultivated a sophisticated, class-conscious society for the small official coterie."  95  Yet "society" i n early  Upper Canada was o f necessity a mixed group. English officials and the Loyalist gentry were forced to m i x on terms o f equality with prominent merchants and with the mixed race children o f fur trade marriages. For example, Catherine A s k i n , who married Robert  Leonore Davidoff, The Best Circles: Society Etiquette and the Season (London: Croom Helm, 1973; reprint, London: The Cresset Library, 1986), 14-5. 9 4  Katherine M.J. McKenna, "The Role of Women in the Establishment of Social Status in Early Upper Canada," Ontario History 83 (1990): 180. 95  106 Hamilton, was the daughter o f the fur trader John A s k i n and a First Nations woman.  96  Her  antecedents and trade connections were no barrier to her social prominence. In June, 1793 Catherine, as Hamilton's wife, was ranked second only to M r s . Simcoe at the grand ball in celebration o f the K i n g ' s birthday. This confusion created by social ritual would have been exacerbated by the real dominance o f the large merchants. This dominance was both economic and logistical, because merchants had established communication and transportation networks. The first local appointments for Upper Canada were made by the central government at Quebec i n 1788. The government was forced to rely on people with knowledge o f local conditions i n the new districts. A t Niagara, for example, the government: Turned for advice to the three organizations which had been closely connected with the upper country and which had knowledge o f the new settlements: the army, the Indian Department and, to some extent, the fur trading community. The involvement o f all three o f these groups with provisioning and supply meant that their most direct contacts in settlements like Niagara had been with the local merchants who had participated i n Laurentian trade. 97  Merchants were entrenched in the administrative hierarchy before Simcoe arrived i n 1792. This was important because administrative power - i n Niagara and likely elsewhere as well - was cumulative. "Those who received positions i n the first year o f settlements were often chosen for subsequent appointments or, equally, important, were consulted on such appointments."  98  Simcoe was forced to contend, both socially and politically, with a group o f prominent merchants who were already running the country. Although he had no choice but to appoint Cartwright and Hamilton to the legislative council, that necessity appears to have been distasteful to him. The evidence for this is drawn from Simcoe's own letters, most o f them written to his superiors at Quebec and London.  John Clarke, "The Activity of an Early Canadian Land Speculator in Essex County, Ontario: Would the Real John Askin Please Stand Up?" Canadian Papers in Rural History 3 (1982): 87. 96  97  Wilson, 40.  98  Ibid.  107 A t first, Simcoe was merely perturbed by Cartwright and Hamilton's daring i n attempting to contribute to policy. For example, one o f Cartwright's first acts as a legislative councillor was to introduce a bill to regularize marriages performed, i n the absence o f Church o f England clergy, by military commanders, justices o f the peace, and other officials. Cartwright's own marriage was irregular in this way. Simcoe did not like the way the bill was written, and Cartwright withdrew it on Simcoe's promise that the matter would receive swift attention." There seems to be nothing startling here. Yet i n a letter to Henry Dundas reporting on the first session o f the legislature, Simcoe betrayed his antipathy with a reference to "a hasty and i l l digested Bill...brought forward by a leading Character, who is personally concerned."  100  In 1793, Isaac Todd's lobbying in London resulted i n the awarding o f "an exclusive sub-contract to victual the military posts on the Great L a k e s "  101  to Cartwright, Hamilton,  and their associates. Simcoe switched into high gear, openly alleging to the home government that Cartwright and Hamilton were disloyal and dangerously powerful: M r . Hamilton is an avowed Republican in his sentiments and altho' the merchants are justly obnoxious to the settlers o f this Province, and He is particularly so, yet the ascendancy He and his friend, M r . Cartwright must acquire, by being Agents for the Contract which supplies the King's Troops with provisions, is o f that nature, that there is nothing to prevent them from exercising it to the detriment o f Government, i f they have any particular Object to promote, that may gratify their avarice, ambition or V a n i t y . 102  There is no evidence that Cartwright or Hamilton were disloyal. The merchants did not see eye to eye with the lieutenant-governor on every detail, but their biographers are unanimous in affirming their loyalty to monarch and empire,  103  and Cartwright in particular was a  prominent Loyalist spokesman.  " W i l l i a m Renwick Riddell, "The Law of Marriage in Upper Canada," Canadian Historical Review 2 0921V 227. 100  Cruikshank, 1:250.  101  M y r o n Momryk, "Isaac Todd," Dictionary of Canadian Biography V : 821.  102  Cruikshank, 2: 55.  103  Wilson, 101; Rawlyk and Potter.  108 Cartwright's letters from the same period betray none o f Simcoe's vitriol, although they do leave the reader with the impression that Cartwright found Simcoe to be wellmeaning, but perhaps a bit dim, and certainly over-ambitious in comparison to what could actually be accomplished.  104  After hearing what Simcoe had been saying about him,  Cartwright wrote Todd a hurt letter in which he expressed his outrage that his loyalty was questioned merely because he disagreed with Simcoe on how to adapt English structures and institutions to Upper Canadian conditions. In Cartwright's opinion, he had been appointed to the legislative council because o f his local knowledge: To assist i n framing such laws as might be most applicable to the situation o f the colony; not merely to show my complaisance to the person at the head o f the Government. Such, at all events, is the duty which I conceive that my appointment imposes on me; and do they expect that I should either approve of or be silent upon measures that are totally inapplicable to the state o f society in this country, that are inconsistent with its geographical situation, and must shock the habits and prejudices o f the majority o f its inhabitants? 105  Even this loyal opposition was an affront. Simcoe's grandiose plans were often rigid and eccentric, manifesting themselves in "zealous activity."  106  They were at times  absurd, for example, Simcoe's claims for the efficacy o f trade with Upper Canada "involved him i n the contention that Upper Canada, 250 miles upstream from the nearest port and separated from it by rapids over which the water was less than a foot deep, was in effect on the sea coast..  107  Such illogic must have been deeply irritating to Cartwright.  But Simcoe's antipathy towards Cartwright and Hamilton went beyond the personal. The major merchants - Hamilton, Cartwright, A s k i n , and their associates - did have a huge, i f not completely monopolistic, trade advantage because o f the networks they had developed, their control o f portaging and forwarding, and the large scale on which they did business. According to Bruce Wilson, however, Simcoe paid little attention to the  See C.E. Cartwright, 41-56, and especially 55. Ibid., 57. 'Mealing, 303. 'Ibid., 305.  109 merchants until the new provisioning system began to be protested by people i n the province.  108  Although Simcoe's concerns about the economic impact o f the contract were  genuine, "other implications struck closer to home: the contract might give merchants the power to challenge his political authority."  109  Because he perceived it as increasing their power, it is likely that Cartwright and Hamilton's position as holders o f the contract heightened Simcoe's suspicion o f their political differences. Simcoe warned Dundas that the provisioning contract made the political opposition to the government too powerful.  110  W i l l i a m Osgoode, the C h i e f Justice,  agreed. In an undated memorandum headed "Secret & Confidential," Osgoode advised anyone wanting to encourage opposition to the government to ensure that Hamilton and Cartwright retained the flour contract because, in a house o f assembly that was dominated by farmers, this would retain "the whole patronage o f Government i n the Hands o f Opposition."  111  Simcoe claimed that he had solved the problem when he reminded  Hamilton and Cartwright that they depended on his goodwill for the continuation o f their contract: In the last year an Intimation from the Agent for the flour contract that [Cartwright] and M r . Hamilton being subordinately employed in the branch of the Commissariat, depended upon my approbation, contributed to a very visible change in the language o f those gentlemen. 112  In fact, this letter is dated June 15, 1794, the same week in which Hamilton and Cartwright were opposing the judicature bill i n the council and the house. The debate over the 1794 judicature bill, and Simcoe's claims regarding that debate, must be viewed in the context o f Simcoe's overall antipathy toward Cartwright and Hamilton, and especially his fear that their power would be consolidated by the provisioning contract. Most o f Simcoe's claims regarding merchants arose in this context.  108  Wilson, Enterprises. 112.  109  Ibid., 113.  "°Cruikshank, 2:55. "'Ibid., 2: 124. 112  Ibid., 2: 265.  110 A s the data on which historians have based their views - either pro or con - o f merchants i n the early years o f the province, Simcoe's claims are worth revisiting. But Simcoe's views are not the only ones o f importance, and the finding that his claims were exaggerated and sometimes even untrue does not give cause to doubt that there was real anti-merchant sentiment i n the province at the time.  Wider Anti-Merchant Sentiment Simcoe and Osgoode's fears regarding the power that might accrue to Cartwright and Hamilton as a result o f the contract were unfounded as far as the house o f assembly were concerned. There were few merchants among the members o f the assembly, and none from the Niagara peninsula, where Robert Hamilton's economic influence was preeminent.  113  Throughout the first parliament, which lasted from 1792-96, "the agrarian  element sharply and consistently opposed its interest to that o f the merchants."  114  When  Cartwright and Hamilton took a strong stand i n opposition to the judicature b i l l , the house voted unanimously on the government side, despite indications that the new system would make litigation more expensive and less accessible. The members probably did believe that legally trained professional judges would break the power o f the merchants at the courts, and perhaps also that a centralized system based on the English model could disrupt the entrenched institutional structure o f the districts, where the merchant interest dominated among local officials. A n d , they were genuinely upset about the provisioning contract. Provisioning contracts were awarded in London, and the contractees there would appoint agents i n Quebec. The new contract added a new level o f local agents - Hamilton, Cartwright, A s k i n and their associates: These local agents were to arrange the collection o f the requisite quotas o f flour at each o f the major posts; i n return, they were to be given first option in the provision o f supplies within their respective regions. 115  113  Wilson. Enterprises. 106.  !14  Ibid. .  115  Ibid., 112.  Ill This gave the large merchants (who were already judges o f C o m m o n Pleas and Quarter Sessions, as well as members o f the District Land Boards) another level o f official power, which was quickly protested by the settlers. B y M a y o f 1793, settlers at Detroit memorialized Simcoe "that they were being injured by the new arrangements" and the contract was "heatedly discussed" by the legislative assembly. According to W i l s o n , "Upper Canada's first provincial political agitation was under w a y . "  116  In some ways, the contract may not have been particularly beneficial to Hamilton and Cartwright: Rather than using the contract to destroy all competition and beat down the price they paid for grain, Hamilton and Cartwright feared that, given the erratic nature o f Upper Canadian supply, they might find themselves committed to providing more than they could collect and consequently lose on the enterprise. In 1794 they gladly accepted the interpretation o f the contract that they should have first preference in supply rather than a monopoly. 117  If the large merchants were benefiting unfairly from the contract, it may have been as much at the government's expense as at farmers. A s the contract agents who supplied the garrisons, the merchants: Were paid once yearly in specie on bills drawn i n Quebec and received additional profit since interest was paid on the sum owed. The mode o f payment by Hamilton and other merchants to farmers, however, was different: they paid for produce received by notes o f hand (bons) due annually in October and subject to no interest whatsoever. N o t only farmers, but small merchants who wished to deal with the garrison found themselves obliged to sell their produce through an intermediary; they too found themselves drawn to Hamilton's enterprises. 118  The interest collected by the large merchants was not passed on to the farmers, and this would have been a legitimate cause for grievance, as would the other differences between bills and Bons.  116  Ibid.  117  Ibid., 80.  118  Ibid., 79-80.  112 Even after the term o f the provisioning contract was over, the problems with monopoly continued, i n part because the army would not accept small lots o f flour, even though small lots were all that could be produced by the majority o f farmers. In 1803, Robert Hamilton calculated that the average surplus that could be produced by most farmers on the Niagara peninsula was 14 barrels o f flour. Yet the policy at the Niagara garrison was to refuse lots o f less than 50 barrels and, in practice, it contracted for much larger amounts.  119  Were Bons in themselves the problem? The new provisioning contract did make the distinctions between Bons and conventional bills o f exchange more explicit. This kind o f unfairness, however, is more likely to milk government coffers than to pick the pockets o f local farmers. This does not mean that there was no dependency or exploitation. O n the contrary, as argued i n the last chapter, there is considerable evidence that there were such relationships, especially i n the earliest period when the garrisons were the primary market for Upper Canadian produce. But, as pointed out by both A d a m Shortt and Bruce Wilson, the B o n system was not necessary in order to create the kind o f monopoly and dependency that existed i n Upper Canada at the time. A s emphasized i n the last chapter, there are several conditions that tend to create dependency, and others that tend to mitigate it. Both kinds o f conditions existed in Upper Canada, especially i n the early period when the garrisons were the major market for local produce. The allegations concerning the B o n are important because, i f true, they would indicate that something like a truck system existed i n Upper Canada. But truck is not the only kind o f credit-related dependency, nor is the variety o f credit relationships i n any situation either dependent or not dependent. W e may never know just how prevalent Bons were or how they were used. W e do know that Bons were not necessarily what Simcoe and M c G i l l reported them to be. The easy answers provided by the assumption o f a truck system are no longer possible. They must give way  9  Ibid., 79.  113 to questions rooted i n a more complex understanding informed by the knowledge that there was competition among merchants as well as over-arching domination by a powerful few. In discussing Simcoe's plea for a provincial currency, Shortt asserted that "under the conditions o f the time whatever competition there was operated through the system o f barter and bons quite as well as under a system o f cash sales."  120  Shortt saw the problem as  one o f limited surplus and difficult transportation; that is, lack o f capital rather than o f currency. In a different vein, Wilson has pointed out that: A merchant as well established as Hamilton...did not rely exclusively on his bons to hold his trade; his retailing operations were o f such a scale that they had developed a dynamic o f their own. Pioneer farmers i n the Niagara peninsula, bons or no, would no doubt have found themselves drawn into Hamilton's extensive trade network. 121  Even i f they did not specifically enforce Bons or the B o n system, there is considerable evidence to indicate that the Courts o f Common Pleas fostered and supported the mercantile interest. It is little wonder that the house o f assembly voted unanimously for the abolition o f that court, especially when it was to be replaced with a system mirroring the English court system, with the expectations for the substance o f British justice that the English forms would raise.  Credit, Dependency, And Legal Doctrine Merchant domination o f the system o f justice was not a new problem, and it was a source o f grievance to Loyalist settlers who had expected the benefits o f a British system. A s early as 1787, the governor commissioned an inquiry into Loyalist grievances i n the Kingston and Cornwall area. The commissioners reported that: In the course o f our Enquiry We were led from public Rumour to expect much complaint in the 5th Township, N e w Oswegatchie, o f the Conduct o f Justus Sherwood Esquire in the 3rd Township o f Cataraqui, against Jeptha Hawley Esqr as tradeing Justices, but to our great Surprise not a Complaint was heard in either Township and from our personal Knowledge o f the  120  Canadian Bankers' Association, 54.  121  Wilson, Enterprises. 119.  114 Parties we are apprehensive that Complaint has been suppressed by means however which we cannot account for. 122  Yet the dominance o f merchant interest on the courts should not be attributed solely to the number o f merchants on the bench. It was built into the form and structure o f the law itself, and it is conceivable that the promissory note, a conventional and legally recognized negotiable instruments, was more characteristic o f this problem than was the unconventional B o n . B i l l s o f exchange and promissory notes have many o f the same legal characteristics, yet W y l i e found that i n the Midland district there were fifty actions on notes, and only five on b i l l s .  123  These statistics are borne out by the records o f the Johnstown Court o f  Requests. M a n y o f those actions were on notes, and none were on bills. A clue to this discrepancy might lie in the accounting and debt collection practices o f the time. Although both kinds o f instruments were negotiable, meaning that they could and did circulate widely, they were initially drawn up to express different kinds o f relationships. To reiterate, the drawer o f a bill was drawing on the funds o f drawee to pay a third party, while the signatory o f a promissory note was h i m or herself making a promise to pay. In Upper Canada, promissory notes were often signed after a storekeeper who had been carrying a particular debtor on his books for some time consolidated those debts into note form. In addition, promissory notes were produced and used locally, whereas bills o f exchange tended to be used for transactions over longer distances. Virtually all international commerce went through Montreal firms, and it is likely that Montreal courts would have heard any cases o f dispute over bills moving in and out o f the Canadas. According to Wylie, even litigation between the four districts in Upper Canada was rare and commercial contact between the districts was mainly confined to the major merchant/forwarders like Cartwright, Hamilton, and A s k i n .  124  In a context where  Richard A . Preston, ed., Kingston Before the War of 1812: A Collection of Documents (Toronto: The Champlain Society, 1959), 123. 122  123  Wylie, 101.  124  Ibid., 133.  115 population was scattered and isolated and merchants dominated in official positions, including on the courts, an unconventional instrument like the Bon would not be a necessary prerequisite for credit based dependency. Finally, the relaxed evidentiary rules in the colonies should also be considered. Promissory notes were theoretically 'better' evidence of a debt because they were almost irrefutable. However, in practice it was just as easy to get a judgment for a book or an account debt. There were more debts collected on the basis of books or accounts than on notes at both Midland Common Pleas and the Johnstown Court of Requests.  The change from the Common Pleas to the King's Bench system did create the hazards of expense and inconvenience that had been predicted by Cartwright and Hamilton. It also created new expectations for a standard of British justice: objective, fair, nonarbitrary, and dispassionately administered by professional judges - in contrast to the "tradeing justices" and the merchant magistrates who had been the cause of many grievances. These expectations were to take a beating over the next two decades. The differences between the large merchants and the government would prove to be short-lived. Simcoe relied on the large merchants' expertise even when he was politically hostile to them, and that reliance grew as tensions eased.  125  In 1792, Simcoe set up a system of  county lieutenants to head up local governments. When one of the incumbents on the Niagara peninsula died in 1796, Simcoe appointed Robert Hamilton as his successor. Simcoe also accepted Hamilton's recommendations - all of them merchants - for the important office of justice of the peace.  126  If Simcoe's victory over the merchant interest  was primarily symbolic, their mutual accommodation was very real. The real power issue, then, was not so much between merchants and government as it was between those two groups and others who did not agree with their essentially  'Wilson, Enterprises. 124. 'Ibid., 127.  116 conservative views.  This chapter has tried to demonstrate some disingenuousness i n  Simcoe's frequent denunciations o f the merchants by showing that the B o n i n particular could not have the importance he claimed for it in respect o f the 1794 court reforms. Hostility towards both merchants and government had deeper roots than did any hostility among those two groups toward each other. Justice continued to be administered to the advantage o f creditors. Although this was a feature o f creditor/debtor law that pre-existed settlement i n Upper Canada, the growing wealth and power o f the large merchants provided a focus for anger. The issue o f the seizure o f land for debt was particularly ideologically charged. A s w i l l be explored i n the next chapter, that issue would become the focus for widespread agitation before the decade was over.  117 Chapter Five  LAND SEIZURE AND L E G A L IDEOLOGY The narrative o f this chapter ranges from 1798, when the seizure o f land for debt was first litigated at the Court o f K i n g ' s Bench in Upper Canada, to 1809, when the Judicial Committee o f the Privy Council affirmed that land would remain open to seizure for debt in Upper Canada. The argument throughout is that the legal issue was highly politicized because it highlighted constitutional distinctions between England and Upper Canada, and because seizing land for debt was - or was thought to be - advantageous to merchants and oppressive to farmers. In combination, these two factors disappointed many people whose had expected that 'British Justice' would enhance fairness and equality i n the province. A s I argued i n the last chapter, those expectations would have been enhanced by 1794 judicature act, which abolished the legal structures set up by the Quebec A c t and replaced them with English legal forms and institutions.  Legal Basis And Political Background to Land Seizure The fact that land was open to seizure for debt in Upper Canada stood i n glaring contrast to English legal tradition. In England, creditor's remedies were generally limited to either execution against personal property, that is, its seizure and sale by the sheriff; or execution against the person, that is, imprisonment for debt. There were some remedies available against land, but they did not result in its seizure and sale. Instead, creditors were limited to various ways o f obtaining an interest in the debtor's land as security.  1  Alternatively, a creditor could obtain a writ o f eligit or o f levari facias, "writs which reached the rents and profits o f the judgment debtor's land," providing the creditor with a 2  proportion o f the profits until the debt was paid off. Land was open to seizure for debt in Upper Canada because o f a 1732 English statute which applied to all o f England's North American and Caribbean colonies.  The  ' A . W . B . Simpson, A History of the Land Law. 2nd ed.(Oxford: Clarendon, 1986), 143. 2  C . R . B . Dunlop, Creditor-Debtor Law in Canada. 2nd ed. (Toronto: Carswell, 1995), 80.  118 statute, A n A c t for the More Easy Recovery o f Debts in H i s Majesty's Plantations and Colonies in America. was passed in order to make recovery o f debt i n the colonies easier 3  for creditors in England. This, its framers were convinced, would, "tend very much to the retrieving o f the credit formerly given by the trading subjects o f Great Britain to the natives and inhabitants o f the said plantations, and to the advancing o f the trade o f this kingdom thither."  4  Although the statute applied to all o f the colonies, land was already open to seizure for debt in most o f them, and the legislation was aimed primarily at perceived mischief in V i r g i n i a , where the law was generally lenient toward debtors: 5  6  In 1732 Parliament had come to the assistance o f British creditors who complained that they were compelled at great expense to make an appearance i n the local courts o f the province, but found when doing so that they could not secure attachment o f lands, houses, or slaves o f the V i r g i n i a planters since these were not regarded technically as 'assets.' 7  The English Parliament's remedy had two substantive provisions. First, the statute eased the burden on creditors in England by providing for their affidavit evidence to be accepted i n colonial courts with the same force and effect as v i v a voce evidence.  8  Second,  the statute provided that: The houses, lands, negroes, and other hereditaments and real estates, situate or being within any o f the said plantations belonging to any person indebted, shall be liable to and chargeable with all just debts, duties and demands o f  A n Act for the More Easy Recovery of Debts in His Majesty's Plantations and Colonies in America. 5 Geo. II, c. 7 (Imp.). 3  4  Ibid., s. 1.  Lawrence H . Gipson, "Virginia Planter Debts Before the American Revolution," The Virginia Magazine of History and Biography 69 (1961): 261n-262n; Richard L . Morton, Colonial Virginia. 2 vols. (Chapel Hill: 1960), 2: 508-9; Francis Gardiner v. Sarah Gardiner. Administratrix of James Gardiner. Deceased (1832), 2 O.S. 554 (U.C. K.B.), 579. According to John Beverly Robinson, the statute was also aimed at Jamaica. See Gardiner v. Gardiner, ibid. 5  Peter J. Coleman, Debtors and Creditors in America: Insolvency. Imprisonment for Debt, and Bankruptcy. 1607-1900 (Madison: State Historical Society of Wisconsin, 1974), 205; Morton, 2: 509. 6  7  Gipson, 261n-262n.  8  5 G e o . II, c. 7 (Imp.), s. 1.  119 what nature or kind soever, owing by any such person to his Majesty, or any of his subjects, and shall and may be assets for the satisfaction thereof. 9  This was a substantial departure from English law. In England, land was sacrosanct, ostensibly because it was scarce, and because the system o f land tenure supported the aristocracy, who were an essential part o f the constitution. Whatever the reasons for the sanctity o f land in England, the fact that it was not to be so in North America became a political issue, at least in some o f the colonies. When the 1732 statute was first proposed, the governor o f the Virginia colony wrote that the proposal "would treat the people i n the colonies as i f they were not English subjects, since land would then be held by a different tenure in V i r g i n i a than in England."  10  A n d , according to Gipson, high rates o f indebtedness  o f V i r g i n i a planters to British merchants must be taken into consideration i n regard to the beginnings o f the revolutionary movement i n V i r g i n i a . " The seizure o f land for debt proved to be very controversial i n Upper Canada. The judges on the court o f King's Bench were divided on the issue until 1809, when the Privy Council affirmed that the 1732 statute did apply i n Upper Canada. This controversy was not limited to the judiciary. The judges who refused to validate the seizure o f land for debt were both reacting to and catalysing widespread discontent, a discontent sparked by the contrast between expectations for the benefits o f British justice and the arbitrary authority and abuses o f land policy that were practised by the colony's administrative and mercantile elites. The legal issue regarding the seizure o f land for debt focused on whether 'English law' comprised the law as applied in England or whether it meant the law as England decided it should be applied i n the colonies. This was a constitutional issue, and as such it impinged on the ideologically charged area o f how 'British justice' and the rule o f law should be understood in Upper Canada. The judicial activism and the widespread discontent were both connected to the concerted and organized opposition led by a small group o f prominent: the King's Bench  9  5 Geo. II, c. 7 (Imp.), s. 4.  10  Morton, 508-9.  "Gipson, 259.  •  " .  120 judge Robert Thorpe; the Home District Sheriff Joseph Willcocks; the lawyer and member of the Legislative assembly W i l l i a m Weekes; and the province's Surveyor General Charles Burton Wyatt. They were aided by John M i l l s Jackson, a wealthy Englishman who spent some time i n Upper Canada, then returned to England to agitate there. These men were not revolutionaries, or at least not at the beginning. They were whigs and, as such, they were as devoted to the empire and to the monarchy as were the Loyalists and Tories who dominated the elite, differing primarily in their vision o f the constitutional relationship between England and the colony. Loyalists and Tories considered the Imperial parliament to be sovereign over all o f the colonies. In contrast, whigs thought and acted as i f the Upper Canadian legislature, although subordinate in regard to matters affecting the empire, was sovereign for Upper Canada. Their vision o f British justice was one in which the colony enjoyed a l l o f the perceived benefits o f the British constitution, including a local and responsible government and the non-arbitrary rule o f l a w .  12  The Importance of 'English Law' in Early Upper Canada Some historians have recently begun to view the issue o f land seizure i n relation to expectations for justice and constitutional understandings. The only substantial treatment in this vein, however, is Paul Romney's exploration o f the persecution and swindling o f Robert Randal by a coterie of Niagara and Montreal merchants, aided by D ' A r c y Boulton, an Attorney-General who was Randal's lawyer until he was elevated to the bench, D'Arcy's son Henry John Boulton (who took over as Randal's counsel and almost immediately sought judgment against h i m for a debt comprised o f the legal fees owed by Randal to both Boultons), and John Beverley Robinson. Randal's troubles stemmed from the ability o f his creditors to seize his land for debt, and from his inability to fight them on equitable grounds because the province had no court o f equity prior to 1837. Although the swindling took  Graeme Patterson, "Whiggery, Nationality, and the Upper Canadian Reform Tradition," Canadian Historical Review 56 (1975): 25-44. 12  121 place in the pre-war period, the Randal litigation did not begin until 1815.  13  Romney's  account therefore deals primarily with the consequences o f the seizure o f land for debt i n Upper Canada, and only secondarily with the earlier controversy over whether land should be open to seizure for debt i n the colony. Robert L . Fraser has also been attentive to the constitutional and "rule o f law" elements o f the development o f creditor/debtor relations i n Upper Canada. H e goes farther than Romney, connecting the 1798-1809 controversy over the application o f the 1732 A c t for the More Easy Recovery o f Debts directly to widespread anti-monopoly and agrarian concerns, and to the opposition movement led by Willcocks, Thorpe, Weekes and Wyatt. Fraser notes that Willcocks, Thorpe and Weekes were personally involved i n the two major legal challenges to the statute.  14  In the remainder o f this chapter, I attempt to build on the  work o f Romney and Fraser in order to supply a fuller account o f the controversy from a perspective that incorporates expectations o f British justice and constitutional issues. Gregory Marquis has shown how ideals o f British justice, which legitimated the law, were not confined to the Upper Canadian elite, arguing that "the nineteenth-century term 'British justice'...links law and legal institutions to political culture." He notes that, even though it was largely ignored or selectively honoured, "the culture o f constitutionalism stressing the benefits o f English law was an important ideological force i n the eighteenth and nineteenth-century British w o r l d . "  15  The rhetoric o f British justice was used by  government to defend the status quo, or by merchants to aid i n their economic goals.  16  But  the rhetoric, and the ideas it evoked, were not confined to the elite:  Paul Romney, M r Attorney: The Attorney General for Ontario in Court. Cabinet, and Legislature 1791-1899 (Toronto: The Osgoode Society, 1986), 65-75. 13  Robert L . Fraser, ' " A l l the privileges which Englishmen possess': Order, Rights, and Constitutionalism in Upper Canada," in Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography, ed. Robert L. Fraser (Toronto: University of Toronto Press, 1992), lv. 14  Gregory Marquis, "Doing Justice to 'British Justice': Law, Ideology and Canadian Historiography,"in Canadian Perspectives on Law & Society: Issues in Legal History, ed. W. Wesley Pue and Barry Wright (Ottawa: Carleton University Press, 1988), 45. 15  16  Ibid., 52.  122 Despite the class inequalities o f British North American society, British justice and British liberty were not simply pillars o f elite ideology or state hegemony, but concepts deeply enshrined i n popular culture. 17  For the non-elite, who were often debtors, the deviation from British justice represented by execution against land may have been genuinely shocking. A s Paul Romney has observed, "it is conceivable that nothing did more than this aspect o f the law o f debt to poison relations between the mass o f agrarian smallholders, on the one hand, and the provincial elite on the other."  18  Before Upper Canada was founded i n 1791, civil litigation i n both the old and new districts o f Quebec was conducted in the Courts o f Common Pleas, an apparatus that was set up under the 1774 Quebec Act, the provisions o f which were always considered suspect by English merchants in Lower Canada. While the few English in the lower province had agitated and hoped for what they considered to be the benefits o f British justice, their expectation that they would get it would have been heightened by the Loyalist immigration which created English dominated districts i n which the population shared their attachment to the British system. These expectations among the Loyalists would have been heightened by the founding o f Upper Canada in 1791, and again by the abolition o f C o m m o n Pleas and creation o f K i n g ' s Bench i n 1794. Before 1791, however, the Quebec A c t and its structures were business as usual. This may help to explain why the seizure o f land for debt appears to have been uncontroversially enforced by the courts o f C o m m o n Pleas between 1788 and 1794.  19  For example, on September 1, 1791, W i l l i a m Drummer Powell, the judge o f the  Western District Court o f Common Pleas and one o f only two trained lawyers in Upper Canada, declared that:  17  Ibid., 60.  Paul Romney, "Very Late Loyalist Fantasies: Nostalgic Tory History and the Rule of Law in Upper Canada," in Canadian Perspectives on Law & Society: Issues in Legal History, ed. W. Wesley Pue and Barry Wright (Ottawa: Carleton University Press, 1988), 136. 18  William Renwick Riddell, ' " F i . Fa. Lands' in Upper Canada," Canadian Bar Review 7 (1929): 450. 19  123 A s the law stands the judgment o f the Court is to be satisfied out o f the lands and tenements o f the debtor, failing his goods and chattels. The judgment, i f for more than ten pounds sterling, hypothecates all the real property o f the debtor. 20  In fact, the English regime in Quebec prior to the 1791 division o f that province into Upper and Lower Canada had made itself clear on the issue starting in 1764, when it promulgated the first o f a series o f statutes and ordinances either presuming or declaring that execution against real estate was available, and providing sometimes very detailed procedures. These provisions had to be spelled out very clearly in order to prevent abuses o f execution against land. B y February 1, 1770, A n Ordinance, for the More Effectual Administration o f Justice, and for Regulating the Courts o f L a w in this Province stated that: Great and manifold inconveniences and Losses, have arisen to the proprietors o f real Estates in this Province, by having their Houses and Lands taken i n execution, and exposed to Sale, for the payment o f small debts, and also from the hasty and Informal methods, o f setting the same to Sale even in cases where the Extent o f the Judgement w i l l admit o f no other Satisfaction. 21  To remedy this mischief, the ordinance stipulated that execution should not issue against real estate for debts o f less than £ 1 2 , and then only i f the judgment could not be satisfied out o f personal property. It also provided a specific procedure for advertising the sale (in both English and French), including where the advertisement should appear and what information it should contain; and that the sale could not take place until six months after it was advertised. This indicates that inadequate advertising o f sales had already created an advantage for creditors, as would still be the case fifty years later in Upper Canada.  22  In 1791, then, Justice Powell was simply enforcing what had already been the law for decades. He took this approach with h i m into the King's Bench, to which he was  Alexarider Fraser, ed., Fourteenth Report of the Bureau of Archives for the Province of Ontario. 1917: Records of the Early Courts of Justice of Upper Canada (Toronto: Legislative Assembly of Ontario, 1918), 95. 20  A n Ordinance, for the More Effectual Administration of Justice, and for Regulating the Courts of Law in this Province. February 1, 1770 (Que.). 2 1  22  Romney, Mr. Attorney. 78.  124 appointed when that Court was organized in 1794. A few years later, i n 1799, the legal issue became overtly politicized when it was heard for the first time at Upper Canada's Court o f K i n g ' s Bench, a venue in which the organization o f the administration o f justice "upon English models using, for the most part, English forms and procedures"  23  had some  impact on popular expectations for British justice.  King's Bench Litigation According to Riddell, the first King's Bench judgment involving the seizure o f land for debt was Robert Hamilton v. Francis Ellsworth in July, 1798.  24  This case pitted the  great merchant against a man who was well known to Hamilton. Francis Ellsworth appeared before Hamilton at the Home District Court o f Common Pleas nine times between 1788 and 1794, five times as plaintiff and four times as defendant. In a court where plaintiffs almost always prevailed, Ellsworth was unusual because he lost two o f the five law suits that he initiated.  25  When Hamilton v. Ellsworth came to the K i n g ' s Bench i n July o f 1798, W i l l i a m Drummer Powell was on the bench, along with John Elmsley, the English-born chief justice.  The record says only that "the Court gave no opinion in this case, because it was  an argument to ascertain whether lands can be taken in execution and sold for debts."  26  Riddell made the unsubstantiated claim that "the real difference o f opinion was, apparently,  R.L. Fraser, xlii. 24  Riddell, " ' F i . Fa. Lands,' 451.  Metropolitan Toronto Public Library, Upper Canada. Court of Common Pleas. Nassau District. Minutes. 14 Oct. 1788 - 10 April 1794. This record also includes some minutes from the Court of Quarter Sessions of the Peace. In the October term of 1789, that court bound a Mrs. Elizabeth Elsworth over to keep the peace after she allegedly assaulted a Mrs. Frelich. Names are not spelled consistently in the old court records. It is probable that Elizabeth Elsworth was a relation of Francis Ellsworth's, the more so because in January term of 1790, Francis Ellsworth successfully sued John Frelich on a bond in the amount of £35.9.6. 25  26  65.  Archives of Ontario, R G 22-127 Vol. 1, King's Bench Term Book (Transcripts), 1794-1801,  125 as to the form o f the writ."  27  The writ referred to is fieri facias lands, the colonial  companion to fieri facias goods. "Fieri facias," commonly referred to as " f i . fa.," means "cause it to be done." It is an instruction from a judge to the sheriff to seize and sell the goods or the land o f a judgment debtor. When the issue came up again a year later i n Bliss v. Street.  28  it involved another  prominent Niagara merchant. Samuel Street, Sr. was a member o f the house o f assembly "whose entrepreneurial activities in the [Niagara] peninsula stretched back into the Revolutionary period."  29  Street wanted a writ o f fi. fa. lands against the plaintiff, Daniel  Bliss. B y this time, Powell and Elmsley had been joined on the bench by another Englishborn judge, Henry Allcock. The case was argued twice because at first, although Powell and Elmsley agreed that the 1732 statute applied i n Upper Canada, they again disagreed about the form o f the writ. When the case was re-argued, Elmsley and Powell had worked through their differences on the form o f the writ and were ready to allow it to issue. A l l c o c k dissented.  30  For him, the law o f England meant the law as applied i n  England. The 1732 statute, he said, had applied only to merchants i n the home country who were trading to the colonies, and it no longer applied since the first act o f the Upper Canadian legislature introduced English law.  31  In addition, the judicature act o f 1794 had 32  bestowed on the Upper Canadian King's Bench the same powers as held by the King's Bench in England, but no more. Therefore, since lands could not be taken i n execution by a  27  Riddell, " F i . Fa. Lands," 451.  Cited by Riddell as Ellis v. Street, ibid., the case is Bliss v. Street. King's Bench Term Book (Transcripts), 89, 94, 98. 28  29  Wilson. Enterprises. 148.  The following account of legal arguments in the case is based on excerpts published in the Upper Canada Gazette on November 16, November 30 and December 7, 1799. 30  A n Act to Repeal Certain Parts of an Act Passed in the Fourteenth Year of His Majesty's Reign. Entitled. " A n Act Making More Effectual Provision for the Government of the Province of Quebec in North America and to Introduce the English Law as the Rule of Decision in A l l Matters of Controversy. Relative to Property and Civil Rights." 32 Geo. Ill, c. 1 (U.C.). 3 1  A n Act to Establish A Superior Court of Civil and Criminal Jurisdiction, and to Regulate the Court of Appeal. 34 Geo. Ill, c.2 (U.C.). 3 2  126 judgment creditor i n England, the same held for Upper Canada, unless and until the Upper Canadian legislature said otherwise. The majority held that the 1732 statute did apply, and that it applied to debts between Upper Canadians as well as those owed to creditors in England. The statute was applicable according to the provisions o f s. 18 o f the Quebec A c t o f 1774, which retained in force all acts o f the English Parliament made "for prohibiting, restraining, or regulating the trade or commerce o f H i s Majesty's Colonies and Plantations in A m e r i c a . "  33  Section 1 o f  the first act o f the Upper Canadian legislature, said the majority, repealed only s. 8 o f the 34  Quebec A c t , which had made the laws o f Canada (meaning those o f the French regime i n Canada before 1763) the rule o f decision i n matters respecting property and c i v i l rights. The Upper Canadian legislature had substituted English law as the general rule, but this did not touch on the particular provisions i n s. 18 o f the Quebec A c t . Bliss v. Street "aroused intense interest among farmers and merchants alike."  35  At  this time, the province was at a high point o f furore over the monopolistic practices o f large merchants, sparked off by a proposal from Robert Hamilton and two others that they would engage in major road improvements in the Niagara region and build a canal linking Lake Erie to Lake Ontario in exchange for gaining a monopoly over tolls.  36  Excerpts from the  arguments i n Bliss v. Street were published i n the Upper Canada Gazette on November 30 and December 7, 1799, and the result in the case was opposed in the columns o f the Canada Constellation, where ' " A c r e s ' observed that, 'if lands are taken by execution, it w i l l ruin this country."  37  A lengthy reply from " A Friend to Justice"was published i n the Gazette on M a y  2, 1800. Unfortunately, there are no surviving legible copies o f the number o f the Constellation in which the letter from "Acres" appears, and " A Friend to Justice" quoted  A n Act for Making More Effectual Provision for the Government of the Province of Quebec, in North America. 14 Geo. Ill, c. 83, s. 18 (Imp.).. 3 3  34  32 Geo. II, c. l , s . 1 ( U . C ) .  35  R . L . Fraser, xlix.  36  Ibid., xlvii-xlix.  "Quoted ibid., xlix.  127 only the one phrase, using it a jumping off point to attack "Acres" on moral grounds and to expound upon the differences in social and economic structures as between England and Upper Canada. Every honest debtor, according to " A Friend to Justice," looks upon his debt as sacred. Imprisonment for debt, he said, was no substitute for the seizure and sale o f property, because imprisonment cannot get the debt paid. In a country like Canada, where land is abundant, the land o f a farmer, the wares o f a manufacturer and the profits o f a merchant "though nominally different, is i n effect the same and should consequently be liable to attachment for their bona fide debts." Yet " A Friend to Justice" clearly saw not just a practical but a political distinction between the two countries, because the exemption o f landed property from seizure for debt i n England was necessary for the support o f the aristocracy, whose survival was considered a constitutional necessity. In England: The number o f freeholders is comparatively small to the tenantry; the lands principally the properties o f the nobility and gentry, the families o f these are educated according to their rank - (the constitution renders certain ranks necessary) on what can they depend for the preservation o f this rank, but upon the preservation o f their estates. The government by its fostering care, may have made this wise provision, that a permanent property be secured to such families, and that the public (knowing the statute) might not be deceived. In that country, I believe, that estates and titles devolve hereditarily - the oldest son is generally considered the heir; i f there be coheirs the estate must support them, it must also provide for them. - Cruel indeed would it be, if, through the indiscretion and prodigality o f one member, the little community should be reduced to want. 38  But not cruel, one supposes, to take away the livelihood o f an Upper Canadian farm family? Perhaps not, at least for " A Friend to Justice." Elite belief that land was widely available at virtually no cost appears to have persisted despite evidence that many i n the province resented the required administrative fees and found them a burden to pay. The labour that a farm family may have put into clearing and improving the property is another factor that was left unconsidered. It seemed to contemporaries that the alternative to execution against property was not the cancellation o f the debt, it was rather execution against the body, and  'Upper Canada Gazette. May 2, 1800.  128 Richard Cartwright's opinion that it was morally preferable to take "a person's land rather than his body" was probably representative o f many people, or at least o f many creditors. 39  The issue came up for the final time i n Gray v. W i l l c o c k s .  40  John Gray was a  prominent Montreal merchant (he would become the Bank o f Montreal's first president in 1817). W i l l i a m Willcocks was a minor merchant and a magistrate, who was related to both the opposition leader Joseph Willcocks, and to Peter Russell, who was administrator o f Upper Canada from 1796 to 1799. In 1800, W i l l i a m Willcocks had borrowed £500 from John Gray. Willcocks's business interests soured and he was unable to pay the money back. Gray obtained a judgment and a writ o f fi. fa. goods against Willcocks. When the execution against goods did not realize enough to satisfy the debt, Gray sought a writ o f fi. fa. lands. Elmsley had by this time departed from Upper Canada and, with A l l c o c k and Powell alone on the bench, the court split. The case was re-argued before Allcock, Powell, and the newly-appointed judge, Thomas Cochrane, who agreed with A l l c o c k that fi. fa. should not attach to lands. Cochrane drowned in October o f 1804. H i s replacement on the bench was Robert Thorpe, an Irish-born judge who had served as Chief Justice o f Prince Edward Island and would soon become a leader o f the opposition in Upper Canada. When the case was re-argued in 1806, Thorpe took the same position as had been taken by A l l c o c k , who had by then also left the colony. Powell stuck to his original opinion that the writ o f fi. fa. lands could and should issue. The Court o f Appeal agreed with Thorpe, but Gray appealed to the Privy Council who, i n 1809, affirmed that the 1732 statute did apply i n Upper Canada, vindicating Powell. W i l l i a m Renwick Riddell concluded that "since this judgment, there has never been any doubt i n the matter."  41  W . N . T . Wylie, "Arbiters of Commerce, Instruments of Power: A Study of the Civil Courts in the Midland District, Upper Canada, 1789-1812," Ph.D. diss., Queen's University, 1980 , 219. 39  M y account of the case and the circumstances surrounding it is drawn from the following sources: Riddell, " F i . Fa. Lands"; Riddell, Gray v. Willcocks. A n Old Cause Celebre ( C I H M microfiche #77511, 1913?), 29-35; Edith G. Firth, "William Willcocks," Dictionary of Canadian Biography 5: 859-60; R.L. Fraser, lv. 4 0  41  Riddell, " F i . Fa. Lands," 451.  129  Henry Allcock: English Judges And Constitutional Politics For this thesis, the legal correctness o f the decision that land would be open to seizure for debt i n Upper Canada is less relevant than the social and political forces behind the issues, the arguments, and the decisions. Assessing which legal answer is correct depends on which constitutional understanding is brought to bear on the matter; that is, whether the Imperial parliament retains sovereignty over all questions, or whether the provincial legislature is sovereign in matters respecting the province. Henry A l l c o c k ' s role in the fight against fi. fa. lands is key to understanding the connections between the narrow legal issues and popular political and constitutional expectations for the rule o f law among Upper Canadians. The other individuals involved in Gray v. Willcocks are also important to this analysis, but A l l c o c k is highlighted because received understandings o f his role has allowed have obscured those important connections. The dominant perception amongst historians appears to have derived from the work o f W i l l i a m N . T . Wylie, whose 1980 doctoral thesis is the most substantial existing study on creditor/debtor relations in early Upper Canada. Wylie's study is based mainly on work with primary sources, and as such it remains very valuable. Other studies are few, and they tend to depend on Wylie's assessments o f various factors. For instance, Robert L . Fraser, who perceptively situates Bliss v. Street in its context o f popular and justified discontent, takes his assessment o f A l l c o c k from Wylie, so that even i n the midst o f his generally perceptive discussion he reduces Allcock's role to that o f an old-fashioned and uncreative judge, telling us that " A l l c o c k was only defending the landed basis o f an aristocratic society."  42  This assessment misses the way that common law doctrine and  expectations for British justice were used to fight back against what was perceived at the time as the arbitrary use o f power. Attitudes toward merchants and mercantile practices were a central factor i n Upper Canadian politics at this time, especially in regard to creditor/debtor issues. Merchants were perceived as acquiring vast tracts o f land either through seizure and sale, or, perhaps  R.L. Fraser, xlix.  130 even more often, settling for the land i n payment for the debt.  43  Paraphrasing A l l c o c k ,  W y l i e wrote, "caught in a web o f debt, many small property owners were being robbed o f their birth-right by the major merchants who were acquiring vast tracts o f land."  44  As  discussed in earlier chapters, the accuracy o f this perception is controversial. What is important here, however, is the perception itself: The political world o f Upper Canada was shaped as much by perception as by reality. A n d the perception o f monopoly and its equation with oppression was heady stuff. Merchant-bashing, or rather monopoly-bashing, was simply good politics. Its language had a calculated appeal and was used to manipulate voters for political ends. 45  The underlying issue was the fundamental question o f what kind o f society should be built i n Upper Canada. This implicates the attitudes o f the official as well as the mercantile elites, and the popular reaction to both. S.F. Wise identified two strains o f conservatism i n early Upper Canada: One was that brought by the Loyalist founders o f the colony: an emotional compound o f loyalty to K i n g and Empire, antagonism to the United States, and an acute, i f partisan sense o f recent history. To the conservatism o f the emigre was joined another, more sophisticated viewpoint, first brought by Simcoe and his entourage, and crystallized i n the Constitutional A c t o f 1791: the Toryism o f late eighteenth century England. What Upper Canada received from this source was not merely the somewhat creaking intellectual edifice o f Blackstone and Warburton, but a conservatism freshly minted into a fighting creed through Edmund Burke's philippics against the French Revolution. 46  A common thread for both Loyalists and Tories was the sovereignty o f the British crown and constitution, even though each emphasized a subtly different component. For Loyalists, as George Rawlyk and Janice Potter explain, the British system o f government symbolized orderly traditions and institutions, which contrasted with the chaos  A l a n Greer, Peasant. Lord, and Merchant: Rural Society in Three Quebec Parishes 1740-1840 (Toronto: University of Toronto Press, 1985), 174; Wylie, 225. 43  44  Wylie, 221.  45  R . L . Fraser, lxxxvi.  S . F . Wise, "Upper Canada and the Conservative Tradition," in Profiles of a Province, ed. Edith Firth (Toronto: Ontario Historical Society, 1967), 20. 46  131 and conflict they had experienced i n the United States. The other important dimension o f Loyalist belief was the unity o f the empire, manifested, for example, in Richard Cartwright's "conviction that the many different branches o f the British empire should be united under the authority o f [the English] parliament, which ensured order, stability, and a uniformity o f interests throughout the empire's various parts."  Although they believed  47  that ultimate authority should rest with the English parliament, Loyalists, being American born, had experience with legal and administrative structures that were adapted to colonial conditions, and this was the system under which they wanted to live. For example, i n 1784 a group o f Loyalists from N e w Y o r k who were slated to be resettled at Cataraqui petitioned the governor o f Quebec with a detailed list o f the supplies and equipment they would require. Included i n the petition was a request that they be given "a Form o f Government A s nearly similar to that which they Enjoyed in the Province of N e w Y o r k in the year o f 1763 A s the Remote situation o f their new settlement from the seat o f Government here w i l l at Present Admitt of."  48  Tories, on the other hand, brought with them a notion o f the English constitution "composed o f the three classical forms o f polity: monarchy, aristocracy, and democracy, represented respectively by a lieutenant-governor, an appointed legislative council, and an elected legislative assembly.... A proper aristocratic emphasis would allow the newly erected colonies to hold the democratic element o f the constitution i n check"  49  O f course  an aristocracy did not develop in Upper Canada, even though the Imperial act which divided Quebec into Upper and Lower Canada made provision for one.  50  George Rawlyk and Janice Potter, "Richard Cartwright" Dictionary of Canadian Biography. V : 168. 47  Richard A . Preston, ed., Kingston Before the War of 1812: A Collection of Documents (Toronto: The Champlain Society, 1959), 57. 48  49  R . L . Fraser, xxvii-xxix.  A n Act to Repeal Certain Parts of An Act. Passed in the Fourteenth Year of His Majesty's Reign Intituled. " A n Act for Making More Effectual Provision for the Government of the Province of Quebec, in North America." and to Make Further Provision for the Government of the Said Province. 31 Geo. Ill, c. 31, s. 6. 5 0  132 What does this have to do with Henry Allcock? Wylie has characterized the controversy over execution against land as between those who wanted commercial development and those who wanted an aristocratic type o f order i n the province.  51  He  minimizes conflict and asserts that the opposition were mere opportunists who manipulated and misguided the disaffected elements i n the population. Wylie's analysis instead focuses on a dichotomous contrast between British and American born judges. In W y l i e ' s view, British born judges, prominently including Allcock, were resistant to adapting the law to colonial conditions, whilst American born judges like W i l l i a m Drummer Powell and Richard Cartwright (as a lay judge o f Common Pleas) were innovative and adaptable. Cartwright in particular emerges as an almost heroic figure for W y l i e , ready to cast aside Blackstone and draw on L o r d Mansfield's work on commercial law in England and his own background as the scion o f a merchant family in upstate N e w Y o r k to propound innovative c i v i l law forms and practices appropriate to the development o f a commercial economy.  52  Cartwright was unusually intelligent and innovative but, as Rawlyk and Potter  suggest, he did not always distinguish between what was good for h i m and what was good for Upper Canada.  53  Cartwright was a leader among those lay judges o f C o m m o n Pleas  who "exhibited a preference for the interests of justice over the prerequisites o f procedure (at least insofar as justice served the interests o f large merchants)."  54  In contrast to American born judges, Wylie sees English born and trained judges as resistant to law reform: Resistance was encouraged by their professional training. They had been schooled i n England and i n the virtues o f the common law and led to believe that reform o f any part o f the system would threaten the certainty and precision o f the whole. This was a popular opinion i n English legal circles  'Wylie, 217. 2  Ibid., 44-6.  3  Rawlyk and Potter, 170.  4  R . L . Fraser, xli.  133 despite the inefficiency o f some procedures and the recent challenges to tradition offered by Chief Justice Mansfield. 55  W y l i e sees A l l c o c k as exemplary o f this judicial style.  56  This is far too simplistic a  view. If A l l c o c k feared disrupting the ancient edifice o f the common law, he appears to have been motivated by its potential for use as an instrument in defence o f the rule o f law and against the growing and arbitrary authority o f the Upper Canadian elite, an elite increasingly empowered by the mercantile wealth o f figures like Cartwright and Hamilton. If we are to take contemporary notions of the rule o f law as seriously as Paul Romney suggests they should be for Upper Canada, then surely it is wrong to dismiss judges like 57  A l l c o c k , who clung to the ancient common law doctrines, as merely hidebound, uncreative, and anti-progressive. In 1801, Elmsley and Cartwright introduced a bill which stipulated the procedure to be followed by Sheriffs carrying our executions against land, thereby implicitly enshrining the practice into the statute law o f the province. A n opposing b i l l , introduced by A l l c o c k , received considerable support from the members o f the assembly. The house split evenly, and the Speaker, who broke the tie, voted in favour o f the Cartwright/Elmsley b i l l .  58  A l l c o c k , who was the chief legal advisor to the lieutenant-governor, Peter Hunter, persuaded Hunter to have the bill reserved for royal assent. This kept it from coming into force until 1803.  59  According to Wylie, Allcock, in a letter o f June 12, 1801, persuaded  Hunter to reserve the bill "on the grounds it sought 'to confirm by a side wind the Decision of the Court o f King's Bench', which should first have been appealed to the provincial Court o f Appeal and then to the K i n g i n Council in Britain."  55  Wylie, 230.  56  Ibid.  60  This implies that A l l c o c k  "Romney, "Very Late Loyalist Fantasies." 58  Wylie, 226.  Romney, Mr. Attorney. 78-9; Wylie, 227. The resulting statute was A n Act to Allow Time for the Sale of Lands and Tenements by the Sheriff. 43 Geo. 3, c. 1 (U.C.). 59  60  Wylie, ibid.  134 persuaded Hunter to reserve the bill because so great a deviation from English law should first have approval from England. Romney, however, found a different set o f motivations in the same June 12, 1801 letter: In criticizing the bill o f 1801, A l l c o c k had stated two main objections. First of all, the sale o f land in execution of judgments for debt was calculated to deprive the farmer o f his best means o f paying off his debt — the produce o f his land. Second, since the scarcity o f specie and abundance o f land made land prices very low, the vindictive creditor would be able to strip a debtor of his land in order to buy it himself at auction for a song. 61  This position is not incompatible with a determination to uphold English law i n order to develop an orderly, hierarchical society, but it is certainly more complex. If W y l i e ' s dichotomous view of the differences between English and American born judges in the period was too simplistic an assessment o f Henry A l l c o c k , it is equally so as regards Robert Thorpe, who in addition to his dissent on the bench was a leader o f both the parliamentary and the extra-parliamentary opposition in Upper Canada. The dichotomous view is also, as W y l i e admits, inapplicable to John Elmsley. Elmsley was one o f Richard Cartwright's closest friends, and was influenced by Cartwright on matters involving land.  62  W y l i e describes Elmsley as an "unusual English bureaucrat" who "was strongly aligned with the major merchants on most issues and deeply involved with them i n colonial land speculation."  63  In Elmsley's opinion:  Labour would become more plentiful as land became dearer. Thus the means o f employing capital to advantage would be increased. "While land can be had as cheaply as at present that true proportion between capital and labor which is the only source o f wealth i n any country w i l l never be attained in this," wrote Elmsley. "Instead o f opulent farmers we w i l l have miserable cottagers who cannot afford to cultivate their land properly, scraping a  6  'Romney, Mr. Attorney. 78.  Edith G. Firth, "John Elmsley," in R.L. Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1992), 77. 62  63  Wylie, 210.  135 subsistence for an acre or two.... What is capital," he concludes, "but property unequally distributed?" 64  Wylie's view o f English judges other than Elmsley appears to derive i n part from his view o f the judicature reforms o f 1792-4, and especially the creation o f King's Bench. For W y l i e , the Upper Canadian administration (Osgoode and Simcoe in particular) wanted to foster an English-style judicial administration, with English trained judges and using English precedents i n order to encourage English values, by which "the early administrators also hoped to instill a respect for authority which, when combined with the centralized structure o f the provincial bureaucracy, would serve to consolidate their control over the colony and discourage the growth o f American influence."  65  This may have been what the administration wanted, but judges were not necessarily willing to cooperate. A l l c o c k may have had some ideological affinity with the lieutenantgovernor and the administrative elite, but positing ideological affinity with the administration as a characteristic o f British judges as opposed to those born in British North America seems somewhat far-fetched, especially when A l l c o c k is contrasted with the American born W i l l i a m Drummer Powell. A l l c o c k remained in Upper Canada for only seven years, whereas Powell had one o f the longest judicial and administrative careers i n Upper Canada. Powell was justice o f the Western District Court o f C o m m o n Pleas from 1788 to 1794, when he was appointed to the new Court o f K i n g ' s Bench. He sat on that court until 1825, and was Chief Justice from 1816. Yet, because Wylie confines his analytical paradigm to the binary pair o f either commercial development or aristocratic order, A l l c o c k and Powell must each fit into one opposing side, and any conflict that does not derive from one o f those sides falls out o f the picture. Instead o f taking grievances and conflict seriously, Wylie portrays discontented Upper Canadians as "easily manipulated by persons seeking to encourage opposition to the government."  Lillian F. Gates, Land Policies of Upper Canada (Toronto: University of Toronto Press, 1968),  64  47. 6 5  66  66  Wylie, 193.  Ibid., 277.  136  Upper Canada's Early Opposition W y l i e ' s view o f the opposition is in some ways understandable, since it is consistent with what was, until recently, the dominant interpretation o f the motivations and activities o f a group o f pre-1812 opposition leaders in Upper Canada. This group has been discounted in conventional histories as opportunistic and disgruntled marginal office holders who made trouble because they were not admitted to the centres o f power. For Gerald M . Craig, author o f the standard history of Upper Canada, they were: A particularly active little group o f smoke-makers, busy at their selfappointed task o f making the most o f existing controversies and o f seeking to raise up new ones. These men were all recently arrived from the British Isles, and they all felt that they were deserving o f better and more lucrative posts than they had so far received. 67  In fact, the members o f the group, however disgruntled, all held prominent posts. Robert Thorpe was a K i n g ' s Bench judge, Charles B . Wyatt was Surveyor-General o f Upper Canada, Joseph Willcocks was sheriff o f the Home District and a member o f the legislative assembly and W i l l i a m Weekes was an M L A and one o f the few barristers i n the province. They were, admittedly, not a very pleasant collection o f people. Thorpe was arrogant and genuinely resentful that he was a mere puisne judge and not Chief Justice. Weekes must also have been arrogant, sufficiently so to have been killed i n a duel i n October o f 1806. Wyatt was notorious among the ladies o f Upper Canada for beating his wife, Mary Rogers, "a lively good humoured pretty little girl, being only about seventeen."  68  Charles and Mary may have had political differences, as indicated by her  provision o f information regarding Judge Thorpe's activities to the lieutenant-governor, Francis G o r e .  69  Wyatt was reputed to have blamed his wife when he was stripped o f his  office as a result o f his political activities. Mary paid for her husband's blame with  Gerald M . Craig, Upper Canada: The Formative Years. 1784-1841 (Toronto: McClelland and Stewart, 1963), 59. 67  Elizabeth Russell Diary, entry for Jan. 8, 1806, quoted in Katherine M.J. McKenna, "The Role of Women in the Establishment of Social Status in Early Upper Canada," Ontario History 83 (1990): 200. 68  69  Douglas Brymner, ed., Report on Canadian Archives. 1892 (Ottawa. 1893), 113, 134.  137 "confinement to the bedpost, locking up i n the Cellar, bruised A r m s & broken head." divorced h i m for cruelty in Scotland i n 1811.  70  She  71  Weekes was dead, and Thorpe and Wyatt returned to Britain after they lost their struggle with the Upper Canadian government. Joseph Willcocks stayed in Upper Canada and remained politically active. After he was removed from his sheriff s job in 1807, Willcocks founded an opposition newspaper and published it until 1812. A l s o in 1807, he won a by-election for an assembly seat. Willcocks was jailed for most o f the first legislative session after he was elected. The government, angered by his paper, had moved to prosecute him for seditious libel. It changed its tactics after Willcocks's election, for fear that his evident popularity would make it impossible to find a jury that would convict him. Willcocks was instead tried by the house in a proceeding that lacked the usual protections of formal legal process. Willcocks remained popular, and was re-elected i n 1808 and 1812.  72  H i s paper was a continuing thorn in the government's side: Judge W i l l i a m Drummer Powell complained i n 1809 that it was in almost every house, and Gore lamented the "vulgar attacks" by the "Seditious Printer" which were "relished too much, by the good people o f Upper Canada." 73  Willcocks himself remained central to an informal but sustained opposition group i n the house. In 1812-13, Willcocks was at the forefront o f resistance in the house against government efforts to put the province on a war footing by refusing to pass legislation suspending civil liberties such as habeas corpus. A t the same time, he aided the war effort in other ways that did not affront his constitutional principles.  74  B y 1813, however, there  had been several battles fought on Upper Canadian soil and the government was able to push its war measures through the assembly. "The collapse o f virtually all resistance to the  Powell Papers, Anne Powell to George Murray, Feb. 13, 1807, quoted in McKenna, "Social Status," 200. 70  71  S.R. Mealing, "Charles Burton Wyatt," Dictionary of Canadian Biography 7: 929.  72  Jones, 856; Wright, 278-83.  73  Jones, ibid.  74  Ibid., 857-8.  138 erosion o f the constitution by the executive dashed [Willcocks's] hopes for the province."  75  For Willcocks, Upper Canadians were not willing to defend their constitution or the independence o f their assembly. Although he did not consider himself to be pro-American, Willcocks was "certain" that the Americans "would never challenge or subvert the supremacy o f the local legislature."  76  He went over to the American side i n 1813, where he  raised and commanded a unit o f expatriate Canadians. He was killed in action i n 1814.  77  Sexist, violent and arrogant behaviour was hardly confined to the men o f the opposition. Those traits should not be used to discredit the politics o f the opposition i n a context where the men o f the establishment, who were equally culpable,  78  are not subject to  criticism on the same grounds. In fact, the politics o f the opposition group were not always discredited. Graeme Patterson suggested in 1975 that the group was, at one time, viewed as part o f the provincial reform tradition.  79  The negative portrayal that comes across i n  standard histories like Craig's reflects the views o f the group's enemies in the pre-1812 Upper Canadian establishment. It is a view o f the opposition that: Began to re-emerge in 1892 when Douglas Brymner published transcripts from official files relevant to 'The Political State o f Upper Canada 1806-7,' a period i n history about which writers then knew remarkably little. In the pages o f Brymner the conduct o f the Thorpe group stood out i n stark contrast against the stereotyped, sober, judicious behaviour then believed to have  7  Tbid., 858.  76  Ibid.  77  Ibid.  See McKenna, "Social Status"; Katherine M.J. McKenna, "Options for Elite Women in Early Upper Canadian Society: The Case of the Powell Family," in Historical Essays on Upper Canada: New Perspectives, ed. J.K. Johnson and Bruce G. Wilson, 401-23 (Ottawa: Carleton University Press, 1989). Recent book-length studies of women in Upper Canada include Elizabeth Jane Errington, Wives. Mothers. School Mistresses, and Scullery Maids: Working Women in Upper Canada 1790-1840 (Montreal: McGill-Queen's University Press, 1995); Cecilia Morgan, Public Men and Virtuous Women: The Gendered Languages of Religion and Politics in Upper Canada. 1791-1850 (Toronto: University of Toronto Press, 1996); Janice Potter-MacKinnon, While the Women Only Wept: Loyalist Refugee Women (Montreal: McGill-Queen's University Press, 1993). 78  79  Patterson, 26.  139 been the norm o f 'constitutional reformers.' Thorpe and his friends seemed self-revealed as a turbulent, half-crazed handful o f discontented placement given to a violent but cliched rhetoric out o f all proportion to all known grievances. 80  M y reading o f the Brymner file  81  in 1998 reveals a unanimity o f tone and stridency  as between the opposition and the dominant members o f the elite. Both sides wrote frequently to the Colonial office in England, telling tales and attempting to set each other up for a fall. The reprinted file, over one hundred printed pages long, consists mainly o f letters sent to the colonial secretaries and under-secretaries i n England by members o f the government and their supporters, and by the opposition. This is supplemented by addresses (public statements) made by people in Upper Canada to each other and to the government, replies from the government, and copies o f letters between Upper Canadians that were enclosed i n the correspondence to England. It is perhaps ironic that the opposition, whose vision o f the Upper Canadian constitution involved local sovereignty over local matters, made frequent appeals to Imperial authorities. The paradox is lessened by when we recall that they believed British justice existed i n England, and that it could exist i n Upper Canada, i f not for what they saw as its continual frustration by the arbitrary actions o f the Upper Canadian authorities. The opposition group o f politicians and agitators for several years significantly disrupted the attempted hegemony o f the Upper Canadian elite by their actions i n the assembly and elsewhere, yet they were reformers who all remained loyal to the crown until at least 1809,  82  and probably later. The opposition believed that exposing the arbitrary and unfair practices of the Upper Canadian administration would cause the Imperial government to step i n and restore the rule o f law. Contrary to this expectation, the Imperial authorities i n the main allowed and facilitated the colonial government's suppression o f the opposition. In the atmosphere o f Upper Canada at the time when the government perceived itself to be under  "Ibid., 26-7. 'Brymner, ed., 32-135. 2  Patterson, 30.  140 siege from seditious movements emanating from the United States, France, and Ireland, the administration was very much motivated by "official anxiety about apprehended insurrection," and the pre-war reformers were perceived by the rest o f the Upper Canadian 83  elite to be dangerous revolutionaries. This perception may have been exacerbated by the fact that Wyatt, Weekes, Willcocks and Thorpe were all Irish. Politically, the group's beliefs were similar to those o f the Irish whigs, an opposition group i n the Irish parliament whose members "desired a voluntary association o f Ireland with Great Britain and undiminished loyalty to the Crown, but...demanded legislative autonomy for Ireland."  84  This view o f the constitution is similar  to the Upper Canadian opposition's insistence that their own legislature should have supreme power over the internal affairs o f the province. In 1791, an extra-parliamentary opposition began to organize in Ireland. K n o w n as the United Irishmen, "they adopted as their emblem the harp without the crown, indeed with a cap o f liberty in place o f i t . "  85  They armed themselves, supported the French Revolution, and were eventually forced underground, then provoked into open conflict. Rebellion erupted in M a y o f 1798. General Peter Hunter, who was lieutenant-governor o f Upper Canada from A p r i l 1799 to August 1806, "played a prominent role" in putting down the rebellion. 86  Although their politics were whig, the members o f the opposition group steadily denied membership in or support o f the United Irishmen. The authorities, however, believed them to be disloyal and associated them with the United Irishmen. 87  88  Lieutenant-  F . Murray Greenwood and Barry Wright, "Introduction: State Trials, the Rule of Law, and Executive Powers in Early Canada.,"in Canadian State Trials: Law. Politics, and Security Measures. 1608-1837. ed. F. Murray Greenwood and Barry Wright (Toronto:. University of Toronto Press, 1996), 34. 83  84  Harry H . Guest, "Upper Canada's First Political Party," Ontario History 54 (1962): 293.  85  Ibid., 294.  86  Wright, 231.  87  Brymner, 72, 80, 81, 86, 115  88  I b i d , 63,68, 77, 113, 118  141 governor Gore intercepted the correspondence o f members o f the group and had an agent spy upon Willcocks during a trip to N e w Y o r k in 1807.  89  Opposition to Land Policy There is little direct evidence that the opposition was specifically interested i n land law i n regard to the seizure o f land for debt as a political issue. Apart from articles on the members o f the group i n the Dictionary o f Canadian Biography, the most substantial recent treatments o f the group are provided by Wright, Greenwood, and Romney, whose focus is on state trials and security proceedings, not on land issues.  90  There is, however,  considerable evidence that general opposition to land policy and its abuses was a major area of activity for Thorpe, Wyatt, Weekes and Willcocks. According to E l w o o d H . Jones: What in practice sparked the rise o f a political opposition i n Upper Canada was the widespread reaction against government changes in land policy, implemented between 1802 and 1804, which increased the fees for land grants and tightened the rules concerning the eligibility o f Loyalists for free land grants. 91  A s sheriff o f the Home District, Joseph Willcocks "had seen many people forced to sell their land at auction to pay off debts to merchants."  92  According to Barry Wright, one o f  W i l l i a m Weekes' early attempts to "stir the pot on the legal front" was in regard to what he alleged were illegal official proceedings i n a land case.  93  Further, Charles Burton Wyatt  "was important because his knowledge o f land issues as Surveyor-General provided  89  Ibid., 104, 113  James Barry Wright, "Law, State and Dissent in Upper Canada, 1804-1838," D.Jur. diss., York University, 1988; Greenwood and Wright, "Introduction"; F. Murray Greenwood and Barry Wright, "Parliamentary Privilege and the Repression of Dissent in the Canada," in Canadian State Trials: Law. Politics, and Security Measures. 1608-1837. ed. F. Murray Greenwood and Barry Wright, 409-49 (Toronto: University of Toronto Press, 1996); Paul Romney and Barry Wright, "State Trials and Security Proceedings in Upper Canada During the War of 1812," in Greenwood and Wright, ibid., 379-405. 90  9,  E l w o o d H . Jones, "Joseph Willcocks," Dictionary of Canadian Biography 5: 855.  92  Ibid.  93  Wright, 234.  142 damaging concrete evidence that powerfully demonstrated the validity o f broader constitutional arguments made by the others."  94  Weekes, Thorpe and Wyatt turned the 1806 session o f the Upper Canadian assembly upside down. Weekes, a member o f the assembly, was advised by Thorpe, who, although not a member, was present i n the house every day. Weekes began his agitation over the issue o f fiscal irregularities in the administration o f Peter Hunter, the late lieutenantgovernor who had died i n office, and o f Alexander Grant, the interim administrator o f the province. Although Grant was conciliatory, he prorogued the assembly. When it reconvened, Weekes moved successfully that the house form a general committee on the state o f the province. This was a significant assertion o f local authority on the part o f the assembly and "a significant step in defiance o f the government."  95  The opposition initially had high hopes that Francis Gore, who was sworn i n as lieutenant-governor in August o f 1806, would support them, not least because Gore and 96  his wife Annabella were related to the higher ranks o f the English aristocracy.  97  They were  quickly disappointed. In a December, 1806 letter to Sir George Shee, Under-Secretary o f State for the Colonies, Thorpe complained that Gore was: Surrounded with the same Scorch Pedlars, that had insinuated themselves into favour with General Hunter, & that have so long irritated & oppressed the people; there is a chain o f them linked from Halifax to Quebec, Montreal, Kingston, York, Niagara & so on to Detroit - this shopkeeper Aristocracy has stunted the prosperity o f the Province & goaded the people until they have turned from the greatest loyalty to the utmost disaffection.  98  Changes in land policy o f 1802-4 had ended the previous open-door policy o f the Simcoe government by raising fees on land grants and tightening eligibility rules. Wyatt co-operated with the general committee o f the house, appearing before it and producing the  'Ibid., 248. Ibid., 244. 'Brymner, 52. 'S.R. Mealing, "Francis Gore," Dictionary of Canadian Biography 8: 336. 'Brymner, 57.  143 records from the Surveyor-General's office." This so incensed the Gore administration that Wyatt was removed from his office. In co-operating with the general committee o f the house, Wyatt was acting i n accordance with his whig politics. A s Gore put it in a letter to the colonial authorities in Britain: M r . Thorpe's intimacy with the Surveyor General, and the influence he had evidently over him, taught him to mistake the Functions and to overrate the Power o f the House o f Assembly for, when I represented to M r . Wyatt that his conduct had been highly improper and offensive to the Government, he told me 'that the House o f Assembly was omnipotent, and that it was his duty to obey i t . ' 100  Wyatt's information accused the government o f arbitrarily cutting off land grants to incoming United Empire Loyalists and o f administering the new scheme unfairly by giving themselves all the best land and charging fees to some people but not others. Wyatt also exposed official misconduct on government land transactions with the Mississauga First Nation, which held the only remaining native title on the north shore o f Lake Ontario, and with government restrictions on the sale o f parts o f the Grand River reserve by the Six Nations.  101  The Six Nations had appealed to the Imperial government on this issue. Before  leaving England, Wyatt had met with the Iroquois representative who had travelled to London to make representations to the government there. Thorpe and Weekes may also have been involved in supporting the Six Nations.  102  T h e L i n k to C r e d i t o r / D e b t o r R e l a t i o n s  The other evidence derives from the involvement o f opposition figures i n the K i n g ' s Bench litigation on the issue. O f the four leaders, Wyatt is the only one does not appear to have been closely connected to Gray v. Willcocks. O f the other three, Joseph Willcocks was cousin and Weekes was counsel to the defendant, W i l l i a m Willcocks, and Thorpe was  'Brymner, 62. l0  Brymner, 62.  "Wright, 248-51 ,2  Wilson, 106.  144 the judge whose opinion that land could not be seized for debt in Upper Canada was appealed to the Privy Council. W i l l i a m Willcocks was also a political supporter o f Thorpe. The controversy over Bliss v. Street occurred in 1798-9, just when Weekes arrived i n the colony, and several years prior to the arrival o f the others. They would all have been aware of the case, however, especially since both Weekes and Willcocks were close to Henry A l l c o c k , the dissenting judge in the case.  103  It is likely that the group jumped at the chance  to get involved in the legal issue, especially when it involved defending the interests o f one of their own against a wealthy Montreal merchant and financier. Acknowledging the opposition's personal interest in the case should not take away from seeing it as also political. Patterson has noted that "the extent to which such men were attached to, and actuated by, their varying concepts o f law is seldom appreciated, and has usually been dismissed as irrelevant."  104  Those varying concepts were illustrated by the  controversy over the seizure o f land for debt i n Upper Canada, much o f which was focused on the perception that seizing land for debt gave merchants another way to oppress farmers and engage in large and harmful land speculations. The crux o f the dissenting legal argument in Bliss v. Street was that when the Upper Canada legislature introduced the law of England as the rule o f decision in property and civil rights, it meant the law o f England as applied in England, an argument carrying the necessary implication that the Upper Canada legislature had sovereignty over its internal matters. This idea o f a sovereign legislature (as opposed to a "balanced" constitution) was not mainstream English constitutionalism at the time. But the dissenting argument was also laden with the ideology of British justice, because the issue in the case and the choice to be made in deciding it confronted Simcoe's promise that Upper Canada would be: Singularly blessed, not with a mutilated constitution, but with a Constitution which has stood the test o f experience, and is the very image and transcript of that o f Great Britain, by which she had long established and secured to her  R.L. Fraser, lv; Jones, 855. 'Patterson, 42.  145 subjects as much freedom and happiness as it is possible to be enjoyed under the subordination necessary to civilized Society. 105  In the opposition's view, merchants had too much influence over the aristocratic elements in the government, and this had led to the land-grabbing policies and arbitrary and repressive actions o f the government. If the establishment stereotyped the opposition as Irish revolutionaries, the opposition stereotyped the merchants as clannish Scots. The hook on which this stereotype was built was probably Robert Hamilton. Hamilton expanded his business by bringing many o f his relatives over from Scotland. This kinship network brought over many other Scots. Hamilton also consolidated his network by marrying Catherine A s k i n , daughter o f John A s k i n o f Detroit and widow o f another Scot, Samuel Robertson. Samuel was the brother o f W i l l i a m Robertson, a close associate o f A s k i n ' s and partner with Cartwright and Hamilton i n the 1793 provisioning contract.  106  Family based business organization was typical at the time in both Upper Canada and E n g l a n d ,  107  but the Upper Canadian opposition saw the Scots merchants as closely  attached to government. Their views were probably coloured by the fact that Peter Hunter, a Scot, had been lieutenant-governor from 1799 to 1806, the period during which the opposition thought that the administration had become arbitrary and abusive o f land policy. Hunter's administration replaced that o f Peter Russell, Irish and a distant cousin o f Joseph Willcocks.  108  A military man, Hunter had participated in crushing the United Irish rebellion  in 1798. He died in office in 1805. W i l l i a m Weekes's fatal duel was fought over an insult to the memory o f Hunter, and against W i l l i a m Dickson, one o f Hamilton's relatives. Dickson and Weekes appeared as opposing counsel during the Niagara assizes o f 1806 when, before judge Thorpe, Weekes launched into an attack against Hunter's character, calling h i m a "Gothic Barbarian whom the providence o f God...removed from this world for  1 0 5  A . Fraser, Sixth Report. 18.  l06  Wilson, Enterprises. 58-67.  Ibid., 65; Leonore Davidoff and Catherine Hall, Family Fortunes: Men and Women of the English Middle Class. 1780-1850 (London: Hutchinson, 1987), 201. 107  108  Jones, 854.  146 his tyranny and Iniquity."  109  Thorpe declined to censure Weekes, and Dickson protested.  Insulted, Weekes challenged Dickson and lost his life. The opposition, then, had a dense assortment o f political, personal, and legal/ constitutional reasons to oppose the merchant interest. M y purpose here has been to sketch out enough o f the constitutional beliefs and political attitudes o f the opposition group to show that they likely took the issue o f the seizure o f land for debt very seriously and they may have been instrumental i n bringing forward cases that challenged the application o f the 1732 statute in Upper Canada. Far from being a narrowly economic issue, land policy, and, by extension, creditor/debtor relations, was intertwined with the early constitutional issues that helped to shape the legal and economic history o f Upper Canada. The constitutionalization o f the issues surrounding the seizure o f land for debt provides one illustration o f how a narrow legal or economic analysis o f creditor/debtor relations can fail to perceive the broader context o f inequality i n which a credit system operates.  'G.H. Patterson, "William Weekes." Dictionary of Canadian Biography V: 845.  147 Chapter Six  FRAMEWORKS FOR T H E STUDY OF CREDIT This thesis has framed its arguments i n terms o f conflict and o f power relations. This was done in deliberate contrast to conventional views o f credit as consensual, but it was not my intention to set up an essential dichotomy between conflict and consensus. There are many obvious consensual elements to credit relations, but part o f my point has been that many o f the elements that appear as consensual when they are viewed through a narrow perspective on economic or legal relations look less consensual when that perspective is widened to include the unequal economic system o f which the credit relations are a part. It has been a specific argument o f the thesis that credit relations i n Upper Canada were from the beginning imbued with unequal power relations and that this inequality impacted upon early constitutional politics in the province. Recent historical writing, i n seeking out the community based nature o f creditor/debtor relations has often tended to overlook the extent to which social, political, and economic conflicts were also played out in the arena o f credit and debt. In early Upper Canada, matters relating to credit and debt were not infrequently the focus o f conflicts about constitutionalism and the rights o f colonial subjects. Unfortunately, the conventional historiography o f the period has failed to acknowledge this dynamic, favouring instead narrow economic arguments regarding the desirability or otherwise o f merchant capital, i n a debate primarily based upon the recorded views o f officials. Chapters three and four o f this thesis have critically reviewed that debate. Chapter three nuanced the debate by differentiating between large and small merchants. Chapter four then focused on large merchants, particularly Robert Hamilton and Richard Cartwright, who held a great deal o f economic and political power. The chapter demonstrates that the anti-merchant rhetoric o f John Graves Simcoe, the first lieutenantgovernor, was used propagandistically in an effort to propagate his own often unrealistic vision for the province. Once the detritus of historiographic debate over Simcoe's claims is cleared away, it is possible to begin uncovering the wider anti-merchant sentiment i n the province, a sentiment that was focused on the large merchants, who soon became a part o f  148 the governing elite. Chapter five follows through on these arguments by focusing on the seizure o f land for debt in relation to constitutional politics. Land was not open to seizure for debt i n England, settlers in Upper Canada had been promised a constitution that was the "image and transcript" o f England's, and there were massive abuses o f land policy on the part o f the elite. These factors resulted in an "extraordinary interest" in the legal cases 1  regarding whether land should continue to be open to seizure for debt i n the new colony. A s we have seen, the arguments in the cases put the issue o f the local sovereignty for the Upper Canadian legislature squarely on the agenda. In the end, however, the Judicial Committee o f the Privy Council affirmed that land would remain open for seizure for debt. The story o f creditor/debtor relations in early Upper Canada is therefore a tragic one; tragic because the expectation that a British legal system would bring economic justice was disappointed. The creditor/debtor system in Upper Canada went from bad to worse as the seeds o f unfairness that were sown in the early years bore the fruit o f continued corruption i n the 1820s and 1830s. The practice o f seizing and selling land for debt, i n combination with the lack o f a court o f equity until 1837, would prove to be an especially potent weapon i n the hands o f the powerful.  2  The tragedy o f legal and economic inequality is a commonplace story, but it is worth retelling in its myriad versions for the sake o f trying to understand how it is that the story keeps repeating itself. Simply retelling the story it is not enough. It is also necessary to re-visit the assumptions that condition how the story is told. This thesis is, I hope, a contribution toward that re-examination, but the re-examination has been limited by the terms o f the debate, in particular the debate between neo-classical economic theory and left-  'Robert L . Fraser, ' " A l l the privileges which Englishmen possess': Order, Rights, and Constitutionalism in Upper Canada," in Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography, ed. Robert L . Fraser (Toronto: University of Toronto Press, 1992), lv.. See John C. Weaver, "While Equity Slumbered: Creditor Advantage, A Capitalist Land Market, and Upper Canada's Missing Court," Osgoode Hall Law Journal 28 (1990): 871-914; Paul Romney, M r Attorney: The Attorney General for Ontario in Court. Cabinet, and Legislature 17911899 (Toronto: The Osgoode Society, 1986), 65-75. 2  149 wing political economy. Some o f the problems that arise from those limited terms have been touched on i n the thesis. Here, I w i l l attempt to expand on those problems and to sketch some directions for further work.  Problematizing The Terms of The Debate The issue o f "development" or "dependency" cannot be left behind without delving into the concepts that have so far formed the terms o f the debate. A s explained in chapter three, there has been a debate over whether merchant credit i n early Upper Canada contributed positively to the economic development o f the province by facilitating capitalization, or whether it had the negative effect o f creating dependency because an economy based on the extraction o f staples fails to develop its own industrial infrastructure. Both sides, however, have presented arguments based on the assumption that development is unproblematically desirable. But development cannot be assumed to be desirable, and issues o f dependency are not confined to those that may arise between a merchants and the head o f a producing household. This section o f the thesis therefore seeks to problematize 3  the pro-development bias and truncated consideration o f dependency that has been shared by both neo-classical economics and many o f the political economists. The debate has thus far locked the terms "development" and "dependency" into a binary relationship. Those binary terms are linked by the relationships o f subordination that are subsumed within each o f them, relationships that can begin to be exposed i f we ask the question: development for whom, and at whose expense? Clearly, indigenous peoples paid much o f the price for the development of North America. A s for dependency, Daniel Vickers pointed out in a short commentary on M c C a l l a ' s and Innes's papers on rural credit,  For an extended consideration of the term "dependency," see Nancy Fraser and Linda Gordon, " A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State," Signs 19 (1994) 309-36. 3  4  Those papers were discussed in chapter three.  4  150 "so far as one can speak o f labour strategy in this context, credit had a very real connection to unfree labour forms."  5  He explains:  The relationship between merchants and heads o f families might well have been relatively free, open and competitive, but that did not mean that the relationship between credit and economic power was unimportant i n these agricultural communities. Crucial power relationships that credit facilitated were, for example, those between planter and slave, father and son, mother and daughter. 6  M u c h (although not all) o f the debate between the two positions has centred on whether merchant capital developed Canada's independence or led it into dependency on its trading partners. This narrow focus on the role o f merchant capital, because it focuses on economic activity as conventionally defined, accounts in part for the neglect o f differences between larger and smaller merchants on the part o f some historians working i n the political economy tradition. M c C a l l a ' s work on the local economy appears to have been motivated by the insight, derived from neo-classical methods, that "focusing on staples alone yields an oversimplified and fundamentally inaccurate view o f the process o f economic development in Upper Canada."  7  Yet the focus on local economy has moved the debate only so far, onto  yet another stage on which (male) family heads, whether merchant or farmer, are the economic and legal actors. R . W . Sandwell's 1994 review article notes that although historians like Douglas M c C a l l a have challenged the staples thesis by highlighting the role of the local economy i n sustaining growth even when the wheat market was depressed: Recent studies suggest...that theories placing local markets at the centre o f economic activity i n Canada are as vulnerable to attack as the deposed wheat staple theories. Specifically, theories positing the predominance o f local market activity fail to account for the inconclusive role o f 'the market' i n agriculture or that o f farming in rural life. 8  Daniel Vickers,"Discussion," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary E. Ommer (Fredericton: Acadiensis, 1990), 316. 5  6  Ibid.  Douglas McCalla, Planting the Province: The Economic History of Upper Canada 1784-1870 (Toronto: University of Toronto Press, 1993), 5. 7  R . W . Sandwell, "Rural Reconstruction: Towards a New Synthesis in Canadian History," Histoire Sociale/Social History 43 (1994): 10. 8  151 A crucial fact that is neglected by an exclusive focus on either local economy or on staple exports is that the nuclear family was the key resource for labour i n the period.  9  Frustratingly, that aspect o f the problem continues to go unrecognized by the majority o f historians, so that, to paraphrase Joan W . Scott, the category o f recipients o f rural credit attains its stability by resting on both inclusions (white male heads o f families) and on exclusions. The exclusions include those Scott identifies i n her discussion o f working-class history as "those who held no property in their labor, women and children."  10  In early  Upper Canada, the category would have also excluded First Nations people and enslaved Blacks. European women and children, First Nations people and enslaved Black people would all have had separate and particular relations to legal structures and day-to-day practices o f credit and ownership. A s Vickers pointed out, members o f those groups formed the majority o f the population." Yet they have been largely left out o f debates on merchant credit and Canadian economic development. The unspoken issue in the debate between M c C a l l a and the political economists is over which group contributed most to capitalist industrial development. Was it the workers? Or was it the merchants/entrepreneurs? Both sides take it for granted that capitalist industrial development is a good thing.  12  The political economists do so because,  for the form o f economist marxism o f which some o f them were exemplary, industrial  Taylor and Baskerville, 141; see also Vickers, 316; and Marjorie Griffin Cohen, Women's Work. Markets, and Economic Development in Nineteenth-Century Ontario (Toronto: University of Toronto Press, 1988). 9  Joan W. Scott, "On Language, Gender, and Working-Class History," in Gender and the Politics of History, ed. Joan Scott (New York: Columbia University Press, 1988), 60. l0  "Vickers, 316. For an example of what I am criticizing in the "political economy" historiography of Upper Canada, see Gary Teeple's argument that the dominance of mercantile capital in Canada held back development because merchants accumulate capital in the process of circulation of goods, rather than their production, and only production-based accumulation can provide the basis for industrialization. The problem with the argument is the presumed positive nature of industrialization. Gary Teeple, "Land, Labour, and Capital in Pre-Confederation Canada," in Capitalism and the National Question in Canada, ed. Gary Teeple (Toronto: University of Toronto Press, 1972), 60. 12  152 capitalism is a necessary precursor to socialism; the neo-classical economists do so because for them industrial capitalism equals growth, an end i n itself. Both views distort history by forcing it to fit into pre-conceived categories organized i n accordance with capitalist industrialism, and its peculiar paradigms o f profit and growth. Historians who share this preoccupation are guilty o f a kind o f presentism for the way they seek particular kinds o f economic relationships or categories which they can call 'capitalism' or 'working class.' A m o n g marxist scholars, this is known as 'economism' because certain economic categories are pre-imposed. When and how capitalism emerged is a legitimate and important question for historical study, but it is not the only or always the best way to understand the social and economic relationships o f the past. Assuming that all economic relations exist in reference to capitalism or are on their way to becoming capitalist, presents a problem for historians who are concerned with the economic relations o f the past. If capitalism is assumed to be what everything is necessarily becoming, then economic development narrowly construed w i l l retain its central and privileged position in the preconceptions that we bring to historical enquiry, excluding other equally important relations o f production: U n t i l we redefine economics to include the variety o f activities carried on to 'make a living' within the household and redefine the family as an economic and political site - not simply an affective one - the culture and society o f the nineteenth century rural majority w i l l remain obscure, marginalized to the 'real' political and economic concerns o f historians. 13  A s Sandwell has commented, "key aspects o f the political economy upon which rural society was based were themselves marginalized within the parameters o f both neoclassical and Marxist economic theory."  14  Leaving aside most o f the implications o f this  homology as between neo-classical economics and hitherto dominant economist forms o f marxism,  ,3  15  it is important to observe that the industrialization paradigm was not particularly  Sandwell, 32.  14  Ibid., 16.  For a book-length consideration of this problem, see J.K. Gibson-Graham, The End of Capitalism (As We Knew It): A Feminist Critique of Political Economy (Oxford: Blackwell, 1996). 15  153 relevant to Upper Canada before 1809, and neither was proletarianization. Preoccupation 16  with those paradigms has blocked participants i n both sides o f the debate from producing more insightful work on the period.  17  M y concern in this final chapter, however, is  primarily with the political economists and marxists and with other progressive historians and theorists, for it is that tradition, and not neo-classical economics, that has laid the basis for moving the discussion forward.  Gendering The History of Law And The Economy Although I set myself the goal o f integrating gender analysis into the thesis, women have appeared but rarely i n the story I have told about creditor/debtor relations i n early Upper Canada. Nevertheless, a desire to use the history o f credit as a way to understand women's legal and economic history was a strong factor motivating this research. I chose to work on the earliest period in Upper Canada because I thought it would be easier to study credit relationships when they were small, because o f the small population, and new, because the colony was newly founded. I found newness had little to do with credit and debt in Upper Canada because the credit system in the new colony operated i n relation to and was conditioned by the ideas and practices o f the old world. A n d , even though the population was small, the complexities o f the issues were already large. A t least two major issues affecting creditor/debtor relations i n the early years were barely touched upon, even though there is ample material for research. These were the impact o f religion and morality on creditor/debtor relations, and the technicalities o f land ownership i n the period. A substantial treatment o f either issue would most likely have expanded and corrected many o f the arguments made in this thesis, as well as facilitated the incorporation o f a more focused and nuanced gender analysis. Unfortunately, a sustained  Bryan D. Palmer, Working-Class Experience: Rethinking the History of Canadian Labour. 1800-1991 (Toronto: McClelland and Stewart, 1992) 35-6. 16  Alan Greer, "Wage Labour and the Transition to Capitalism: A Critique of Pentland," Labour/LeTravial 15 (1985): 19, 21. 17  154  consideration o f either would have expanded the scope o f this work beyond what can be encompassed i n a master's thesis. Recent work has demonstrated the importance o f religion and morality to business history, and it is another area i n which the activities o f women would have been more 18  apparent than they were in the story that I told. This would be particularly the case i n Upper Canada, where women were more able to be active i n the creation o f religious than of political discourse,  19  and where the Methodist religion, with its tradition o f women  preachers, played a large role both as a symbol o f disorder and as an active force i n the lives o f many people.  20  A more stringent examination o f the impact o f religion and morality may  have added depth o f understanding to my arguments about the ideological importance o f British justice, and it would certainly have added substance to the ideas about moral economy that I sketched out in chapter one. Regarding the nature o f landholding i n early Upper Canada, as was briefly reviewed in chapter two, most o f the land in Upper Canada during the first part o f the period was held not i n freehold, but on the basis o f location tickets. A l o n g with the other aspects o f land holding and land law that were explored in chapters two and five, the fact that land was not (yet) freehold, and that it cost money to get land patented and thereby converted into freehold, was o f some ideological significance. A more substantial analysis o f the technicalities o f landholding and o f the manoeuvring o f the elite would have contributed to the arguments about constitutionalism and expectations for British justice that have been  Leonore Davidoff and Catherine Hall, Family Fortunes: Men and Women of the English Middle Class. 1780-1850 (London: Hutchinson, 1987); Boyd Hilton, The Age of Atonement: the Influence of Evangelicalism on Social and Economic Thought. 1795-1865 (Oxford: Clarendon, 1988). 18  See Cecilia Morgan, Public Men and Virtuous Women: The Gendered Languages of Religion and Politics in Upper Canada. 1791-1850 (Toronto: University of Toronto Press, 1996). 19  See Nancy Christie, "Tn These times of Democratic Rage and Delusion': Popular Religion and the Challenge to the Established Order, 1760-1815," in The Canadian Protestant Experience 1760-1990. ed. G.A. Rawlyk, 9-47 (Burlington, Ontario: Welch, 1990); Elizabeth Gillian Muir, Petticoats in the Pulpit: The Story of Early Nineteenth-Century Methodist Women Preachers in Upper Canada (Toronto: The United Church Publishing House, 1991). 20  155 central to this thesis. It may also have illuminated some o f the history o f women and property in the early period. In the opinion o f Chief Justice Elmsley i n 1797, the holding o f land on the basis o f location tickets was a legal lacuna, creating an interest which he understood to be: So unknown to our L a w , as to be without a name, consequently it cannot o f its own nature be accompanied by any o f the incidents which accompany and distinguish the Interests which are so familiar to us by the names o f Legal & Equitable Estates, o f course, in an interest o f this nature, neither the Husband is o f right entitled to an Estate by the Curtesy, nor the Wife to Dower. 21  Roughly speaking, curtesy was the common law right o f a widower to a freehold life estate in any freehold lands o f which his wife was seised i n her lifetime, provided they had children who could inherit the estate. Dower was the common law right o f a w i d o w to a life estate i n a one-third share o f any land her husband had been seised o f during his lifetime. Dower was an extremely important property right for women, and one effect o f 22  land holding by location ticket was to rescind this right.  23  The Upper Canadian government  intervened to make dower available, and, as in England, to provide married women with the legal ability to bar their dower right, by passing three statutes relating to dower before  Cruikshank, E.A., ed., The Correspondence of the Honourable Peter Russell. 3 Vols. (Ontario Historical Society, 1932-36), 2: 25.. 21  The term "dower" has been used loosely here to cover the variety of forms of widow's share that were known in English law. There were rough equivalents to dower for other forms of land holding, such as copyhold tenure. A considerable literature is available on the widow's share at common law, its gradual replacement by equitable separate property, and its eventual abolition in England in 1833. See, for example, Eileen Spring, Law. Land and Family (Chapel Hill: University of North Carolina Press, 1993); Susan Staves, Married Women's Separate Property in England. 1660-1833 (Cambridge: Harvard University Press, 1990); Barbara Todd, "Freebench and Free Enterprise: Widows and Their Property in Two Berkshire Villages," in English Rural Society. 1500-1800: Essays in Honour of Joan Thirsk. ed. John Chartres and David Hey , 175-200 (Cambridge: Cambridge University Press, 1990); and the essays collected in Sue Sheridan Walker, ed., Wife and Widow in Medieval England (Ann Arbor: University of Michigan Press, 1993). 22  I am indebted to Professor Douglas Hay for alerting me to the potential importance of dower in the period, and to Professor Hay's former student, Doug Brooker, for allowing me to see his unpublished work on dower. The insight regarding the effect of location tickets on dower is M r , Brooker's. See Doug Brooker, "The Invisible Relic: Ontario's Dower History; Part I: Upper Canada, 1792-1840" (unpublished paper, 1992). 23  156 1812.  24  A study o f land holding and o f dower law would have provided more o f a picture o f  how women and women's property fit into the picture o f creditor/debtor relations. But the subject o f dower is extremely complex, and it would have made the thesis even longer, without necessarily providing many direct connections to creditor/debtor relations. The study o f either landholding and dower rights or moral and religious ideas about credit and debt may have revealed information that would necessitate my rethinking some of my findings. There were also avenues o f research that were precluded by my choice to work on very early Upper Canada. In particular, legal records are sparse, law reporting did not begin i n Upper Canada until the 1820s, and I was unable to locate any contemporary legal treatise literature that was specific to Upper Canada. Without these, my arguments were mostly based on the bare face o f the record i n the minute books and term books produced by the various courts. Future research into the letters or family papers o f judges, administrators, lawyers, and litigants might also necessitate some rethinking o f my arguments.  Although married women were not able to contract at common law until the late nineteenth century, they were able to contract in respect o f their equitable separate property, i f they had any, from the late seventeenth century, i f not before.  25  Issues o f debt and credit  as between husbands and wives, and between married people and their creditors, were very common, and would have played a role in shaping both family law and creditor/debtor law. For example, creditor/debtor issues regarding property conveyed within families caused the seventeenth century English equity judges to create a hierarchy between "good" and  A n Act for the More Easy Barring of Dower. 37 Geo. I l l , c. 7 (U.C.); A n Act to Extend the Benefits of an Act Passed in the Thirty-seventh Year of His Majesty's Reign. Intituled. " A n Act for the More Easy Barring of Dower." and to Repeal Certain Parts of the Same. 48 Geo. I l l , c. 7 (U.C.); and A n Act Further to Extend the Benefit of an Act Passed in the Thirty-seventh Year of His Majesty's Reign. Intituled. " A n Act of the More Easy Barring of Dower." 50 Geo. I l l , c. 10 (U.C.). 2 4  25  Staves.  157 "valuable" consideration, and eighteenth and nineteenth century law reports are rife with 26  judgements on issues such as whether a husband's conveyance to his wife was fraudulent, or when a married woman's pledge o f her credit in respect o f her equitable separate property was good and when it was negated by her coverture.  27  Married women were also  economically active as feme sole traders where permitted by medieval borough l a w .  28  Finally, the economic activities o f widows should not be neglected in studies o f credit. Widows invested their capital i n enterprises or mortgages, lent money on bond, and bought shares i n chartered companies. Jacob M . Price lists women who loaned money on bond to English and Scottish export merchants in the first half o f the eighteenth century.  29  There is a growing body o f evidence that women were more commercially active in the late seventeenth and early eighteenth centuries than they were in subsequent decades,  30  and that changes in the private law o f property and contract were instrumental i n circumscribing their ability to act economically on their own behalf.  31  These indicators o f  the changing status o f women and o f familial sources for business finance have been neglected by historians, but they provide a rich basis for further investigation into a history of credit that includes women.  V . V . Palmer, The Paths to Privity: The History of Third Party Beneficiary Contracts at English Law (San Francisco: Austin & Winfield, 1992), 94. 2 6  Staves; Lori Chambers, Married Women and Property Law in Victorian Ontario (Toronto: The Osgoode Society for Canadian Legal History, 1997), Karen Pearlston, "Legal and Ideological Implications of the Private Separation Agreement in England: 1675-1878" (unpublished paper, 1996). 27  See Kay E. Lacey, "Women and Work in Fourteenth and Fifteenth Century London," in Women and Work in Pre-Industrial England, ed. Lindsey Charles and Lorna Duffin, 24-82 (London: Croom Helm, 1985). 2 8  Jacob M . Price, Capital and Credit in British Overseas Trade: the View From the Chesapeake. 1700-1776 (Cambridge: Harvard University Press, 1980), 46-9. See also Barbara Todd, "Freebench and Free Enterprise: Widows and Their Property in Two Berkshire Villages," in English rural society. 1500-1800: Essays in Honour of Joan Thirsk. ed. John Chartres and David Hey , 175-200 (Cambridge: Cambridge University Press, 1990). 29  30  Davidoff and Hall; Staves.  31  Staves.  158  New Questions For Legal Theory And Legal History One factor not considered by Innes in his discussion o f distinctions between "creative and destructive debt" is the particularities o f the legal regime i n which the credit 32  system is situated. M u c h o f this thesis has focused on demonstrating that Upper Canadian merchants had a great deal o f legal power, in addition to their raw economic power, not (only) because they dominated the magistracy and, i n the early years, all c i v i l courts, but also because the law was on their side in tending to favour creditors. This was especially so in Upper Canada where land was open to seizure for debt, but it was not limited to Upper Canada, because the coercive structures o f private law predated their use in Upper Canada. Although it would be wrong to say that the law o f credit and debt has acted instrumentally to always favour creditors, the doctrines and structures o f Anglo-Canadian 33  private law have helped to facilitate the accumulation o f large concentrations o f wealth. Yet both private law in general and creditor/debtor relations i n particular have usually been viewed as noncoercive so long as they meet the substantive and procedural standards that have developed in the Anglo-Canadian system. Innes did, however, highlight one feature o f the legal system, which he refers to as "relative freedom o f contract."  34  For Innes, freedom o f contract translates into a relatively  non-coercive credit system. But freedom o f contract is an ideological construct. Moreover, it is an ideological construct that was generated during the nineteenth century. The classical contract law o f the nineteenth century: Generated a new ideological imagery that sought to give legitimacy to the new order... 'Freedom o f contract'... was the legitimating image o f classical contract law.... It projected an ideal o f free competition as the consequence o f wholly voluntary interactions among many private persons, all o f whom  See chapter 3. O n the contrary, specific legal regimes have swung between favouring creditors and favouring debtors. The swings occurred because of political as well as economic factors, and they were often highly moralized as well. For a brief account of swings between pro-creditor and pro-debtor provisions in late eighteenth and early nineteenth century English law, see Hilton, 263-4. 33  Stephen Innes, "Commentary," in Merchant Credit and Labour Strategies in Historical Perspective, ed. Rosemary Ommer (Fredericton: Acadiensis, 1990), 305. 34  159 were in their nature free and equal to one another. A s a result, the nineteenth-century law o f contracts consisted of a series o f forms ostensibly designed solely to realize the w i l l o f free and equal parties, as that w i l l was objectively manifested in agreements. 35  Even this critical view o f contract law as ideology confines its critique to the level o f the development/dependency debate, that is, to contractual relations between free white men, the only people who had contractual rights during most o f the nineteenth century. Innes's (and by extension, M c C a l l a ' s ) use o f freedom o f contract as a factor by which to judge the level o f coercion in colonial creditor/debtor relations, then, falls into the ideological use o f contract law in two ways: by its use o f nineteenth century developments to read back into the colonial period, and by the assumption that contractual agreements between parties who were juridically equal but economically unequal were freely chosen. However, there is another level on which their use o f contract law is ideological, and on this level the problem is also shared by marxist approaches to private law. The problem, o f course, is the exclusion from the freedom o f contract paradigm o f people who did not have contractual rights. Freedom o f contract has been a concept o f some importance i n marxist legal theory, where the figure o f the proletarian who has some measure o f freedom because he sells his labour power rather than being tied into a feudal (or slave) labour relationship has been valourized. A great deal has rested on the relationship o f the labourer to commodity exchange relations, and on whether the labour i n question is useful for commodity exchange (the creation o f value in the marxist sense). For some marxist legal theorists, even a proletarian is a property-owner; liberated from feudal social relations and "free" to sell his labour power.  36  It is this freedom that B o b Fine first translates into a legal notion o f "the  Jay M . Feinman and Peter Gabel, "Contract Law as Ideology,"in The Politics of Law: A Progressive Critique, ed. David Kairys (New York: Pantheon, 1982), 376-7. 35  This idea has been much criticized by theorists and historians. See, for example, GibsonGraham; Sandwell; Scott, "On Language, Gender, and Working-Class History"; Shelley A . M . Gavigan, "Marxist Theories of Law: A Survey, With Some Thoughts on Women and Law," Canadian Criminology Forum 4 (1981): 1-12; Amy Dru Stanley, From Bondage to Contract: Wage Labor. Marriage, and the Market in the Age of Slave Emancipation (Cambridge: Cambridge 36  160 social incarnation o f free and equal human labour"  37  (a dubious proposition at best), and  then seizes on to show that although "equality before the law necessarily entails inequality in fact," equality before the law nevertheless provides "a measure - albeit limited and formal, but not illusory - o f equality."  38  This right is a patriarchal one, for it did not include  women; and Fine's emphasis on exchange relations occludes the fact that male proletarians owned their labour power, while their wives did not. B y law, their labour power was owned by their husbands, who would receive any wage that their wives earned. Fine equates this situation unqualifiedly to "equality before the law." Women's unwaged labour, which is not useful for commodity exchange, does not enter into or affect his assessment o f the real but limited freedoms provided by bourgeois legal rights. This idea about the measure o f equality provided by bourgeois law and the capitalist economic system needs to be rethought in a manner that fully integrates the fact that married women, whose labour power was owned by their husbands, did not gain that measure o f formal legal equality enjoyed by men until the married women's property acts o f the late nineteenth century. Further, the assumed universality o f this limited measure o f equality, and the largely unexamined legal forms and procedural rules through which it is expressed, play an important role in maintaining the strength and flexibility o f an ideology o f rule o f law which appeals to and universalizes notions o f British justice and freedoms.  L i k e economic history, legal history and legal theory needs to move away from its pre-occupation with capitalist industrial development and formal equality in order to open up its field o f inquiry to include people and social relations that have heretofore been excluded. I have tried to use this study to problematize and workshop the issues i n a  University Press, 1998); Christine Delphy and Diana Leonard. Familiar Exploitation: A New Analysis of-Marriage in Contemporary Western Societies (Cambridge: Polity, 1992); Wally Seccombe. A Millennium of Family Change (London: Verso, 1992). B o b Fine, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (London: Pluto, 1984), 140. Ibid., 161. 37  38  161 beginning attempt to develop an adequate framework for looking at credit. In doing so, I have opened a very small window on a very large vista. It is clear that the topic o f credit and debt intersects social, legal, and economic relations. A research agenda that includes women in the study o f credit has the potential to open the subject up from the narrow doctrinal legal and entrepreneurial histories that have hitherto dominated.  162  BIBLIOGRAPHY Secondary Sources Abele, Frances and Daiva Stasiulis. 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"An Ordinance to Regulate the Proceedings of the Courts of Civil Judicature, and to Establish Trials by Juries in Actions of A Commercial Nature and Personal Wrongs to Be Compensated in Damages." with Such Additional Regulations As Are Expedient and Necessary. 27 Geo. I l l , c. 4.  iii.  Upper Canada  A n A c t to Repeal Certain Parts o f A n A c t Passed in the Fourteenth Year o f His Majesty's Reign. Entitled. " A n A c t M a k i n g More Effectual Provision for the Government o f the Province o f Quebec, in North America." and to Introduce the English L a w A s the Rule o f Decision in A l l Maters o f Controversy. Relative to Property and C i v i l Rights, 32 Geo. I l l , c. 1. A n A c t to Establish Trials by Jury. 32 Geo. II, c. 2. A n A c t to Abolish the Summary Proceedings o f the Courts o f Common Pleas i n Actions Under Ten Pounds Sterling. 32 Geo. I l l , c. 4. A n A c t for the More Easy and Speedy Recovery o f Small Debts. 32 Geo. I l l , c. 6. A n A c t for Building a Gaol and Court House in Every District Within this Province, and for Altering the Names o f the Said Districts. 32 Geo. I l l , c. 8. A n A c t to Prevent the Further Introduction o f Slaves, and to L i m i t the Term o f Contracts o f Servitude Within this Province. 33 Geo. I l l , c. 7. A n A c t to Establish A Superior Court o f C i v i l and Criminal Jurisdiction, and to Regulate the Court o f Appeal. 34 Geo. I l l , c.2.  178 A n A c t for Securing the Titles to Lands i n this Province. 37 Geo. I l l , c. 3. A n A c t for the M o r e Easy Barring o f Dower. 37 Geo. I l l , c. 7 (U.C.). A n A c t to Extend the Provisions o f an A c t Passed i n the Second Session o f the First Provincial parliament o f Upper Canada, entitled. " A n A c t to Confirm and M a k e V a l i d Certain Marriages. Heretofore Contracted i n the Country N o w Comprised Within the Province o f Upper Canada, and to Provide for the Future Solemnization of Marriage Within the Same. 38 Geo. I l l , c. 4. A n A c t to A l l o w Time for the Sale o f Lands and Tenements by the Sheriff. 43 Geo. I l l , c l . A n A c t for the Better Securing this Province Against A l l Seditious Attempts Or Designs to Disturb the Tranquillity Thereof. 44 Geo. I l l , c. 1. A n A c t to Extend the Benefits o f an A c t Passed i n the Thirty-seventh Year o f H i s Majesty's Reign. Intituled. " A n A c t for the More Easy Barring o f Dower." and to Repeal Certain Parts o f the Same. 48 Geo. I l l , c. 7. A n A c t Further to Extend the Benefit o f an A c t Passed i n the Thirty-seventh Year o f H i s Majesty's Reign. Intituled. " A n A c t o f the More Easy Barring o f Dower." 50 Geo. I l l , c. 10.  Newspapers Canada Constellation Upper Canada Gazette  Archival Sources i.  Archives o f Ontario  F521 Solomon Jones Papers, Records o f the Court o f Requests, 1798-1813. R G 22-411-0-8 Grenville (County) Minute Book. Court o f Requests, 1798-1802. R G 22-127 V o l . 1, K i n g ' s Bench Term Book (Transcripts), 1794-1801.  179 ii.  Metropolitan Toronto Public Library  Upper Canada. Court of Common Pleas. Nassau District. Minutes. 14 Oct. 1788 - 10 A p r i l 1794.  

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