So Elegant a Web

8/10/2019 So Elegant a Web

1/23

Citation: 38 U. Toronto L.J. 184 1988

Content downloaded/printed from

HeinOnline (http://heinonline.org)

Fri Oct 10 13:26:06 2014

-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license

agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.

-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:

https://www.copyright.com/ccc/basicSearch.do?

&operation=go&searchType=0

&lastSearch=simple&all=on&titleOrStdNo=1710-1174


2/23

PROVIDENTIAL ORDER

AND THE RULE

OF

SECULAR

LAW

IN EARLY

NINETEENTH-

CENTURY

UPPER

CANADAt

I

take as my starting-point aJune 826

episode

of

semi-ritualistic

derision

perpetrated

by members

of the

Juvenile

Advocate

Society,

a voluntary

gentlemen s

club

of

young Upper

Canadian

lawyers

and

law students

active in

the

provincial

capital

between 1821

and 1826. The

antic in

question was the charivari,

perpetrated

by

a

small

crowd

that

included

tw o

of York s leading

junior barristers

and five

legal apprentices

serving

the

attorney

general

or

the

solicitor

general

of

Upper

Canada,

of

a

printing-

shop

belonging

to

the

populist

editor

of

the

Colonial

Advocate and

future

rebel leader,

William

Lyon

Mackenzie.

This

event, the types

riot , has

often

been

characterized

by

political

historians

as the

first in

a series of

abuses

of

civil

rights

by

local

statesmen

which

lead

to

the

Rebellions

of

1837.

2 It

will be reconsidered

here with

a view

to

introducing

discussion

of

the self-images

of early

Upper Canadian

lawyers,

especially

their

develop-

ing

conceptions

of

responsibility,

order,

normativity,

and

destiny.

3

The

choice

of the types

riot as

a

nominal

starting-point

for

a

discussion

of

this

sort

is

not meant

to

suggest that there

is

any

apparent

uniqueness in

Faculty of Law,

McGill University

f

Versions

of this paper

were

presented

to the

1986

meeting

of

the

American

Society

for

Legal History

and

to the

1987 seminar in modern

legal

history

at the

University

of

Western

Ontario.

Basic

biographical

information

about

Mackenzie

can be found

in Armstrong

and

Stagg,

William

Lyon

Mackenzie, in

9

Dictionary

of

Canadian

Biography(hereinafter

DCB)

(1976)

496.

The

group

of

law students

included

Samuel Peters

Jarvis, Charles

Richardson,

Henry

Sherwood,

Charles

Baby,

Raymond Baby, James King,

and

John

Lyons.

James

Buchanan

Macaulay played an indirect

role

in the

proceedings. A

detailed

contemporary

account

of

this incident

can be

found

in

Mackenzie

The

History

of

the Destruction

of

the Colonial

Advocate

Press y Officers of

he

ProvincialGovernment of

Upper

Canadaand Law Students

of

the Attorney

and

SolicitorGeneral (1827).

For indications of this historiographical

orientation,

see,

for

example, Romney

Mr

Attorney The

Attorney General for Ontario

in Court, Cabinet,

and

Legislature

1791-1

899

986

10

5 37;

Flint

William Lyon Mackenzie: Rebel

Against

Authority 97 ) 4o 6;

and

Dunham

PoliticalUnrest in

Upper

Canada,

18 15 183 1927)

10 7 8. Compare Bernard

es

ribellionsde 1837-38: es patriotes

du

Bas-Canadadans ta

mdmoire collective et chez

les

historiens

1983).

3

For

more

ambitious examples

of

this

genre, see, for example,

Darnton The Great

Cat

Massacre

and

Other Episodes

in

French Cultural

History (1984). For discussion

of the

methodological

implications

of

inquiring

in this

manner

into

such semi-autonomous

social

or

cultural

fields

as

lawyers

or

law

see

Moore Law

as

Process:An Anthropological

Approach

(1978).

(1988), 38 UNIVERSITY OF TORONTO LAW JOURNAL

184

SO ELEGANT A WEB :

. Blaine Baker


3/23

PROVIDENTIAL

ORDER

AND

THE

RULE

OF

LAW

IN

UPPER

CANADA

8

this episode

for

the purposes

of

the

study

proposed. Any

number

of other

Upper Canadian

causes cglbres

of

the day

might have

donejust

as well.

But

one

intriguing

feature

of

the types riot

is that it

occurred in

the context

of

a

self-conscious

process

of professional

formation

of

young

lawyer-

statesmen

about

which

much

is

known.

4

Another

is

that

it

was, in

part,

triggered

by anti-lawyer

sentiment

in the

fledgling

provincial

press:

sentiment

and modes

of

expression

which,

according

to

thirty-three-year-

old types

rioter Samuel

Peters

Jarvis, exposed

gaps

between

the British

radicalism

or

American

egalitarianism

of certain

recent

immigrants to

the

colony,

and

the older

local

mentalitd

of members

of

the ruling

legal-

administrative

61ite who

had

been

born

and brought

up in

Upper

Canada.

5

The destruction

of

Mackenzie s

printing-shop

by

the students-at-law,

and

especially

the

events

that

immediately

followed, has

been

said

to have

been permeated

with

an

utter

disregard

for the

rule

of law by

the

province s

most

outspoken

and

committed proponents

of privileged

status

for

a

highly

selective

legal

fraternity.

6

By

self-proclamation,

the

profession

was

to

be

animated

by

classical

notions

of public

virtue, and

populated

by Upper

Canada s

most

worthy,

intelligent,

loyal

and opulent

inhabitants

[gentlemen]

of

high character,

of

large property,

and

of

superior

information.

7

For their

role

in

promoting,

viewing,

officially

condoning,

and

financially

underwriting

vandalism,

theft,

and riotous

conduct

at

Mackenzie s

shop

by

the

province s favourite young men

of

eminence,

its potential

rulers

of

the

next

generation,

and

later

for

4

See

Baker,

The Juvenile

Advocate

Society,

1821-1826:

Self-proclaimed schoolroom

for

Upper

Canada s

governingclass,

inJohnson (ed.)

HistoricalPapers

1985

(1986) 74,

92.

5 Statement

of facts relating to

the

trespass

on the printing

press

in the possession of

Mr.

William

Lyon Mackenzie

inJune

1826 (1827) 78-9;

a copy

can be found

in c-o. 42,

vol.

385, at 52-68.

For a

survey of

relevant immigration

patterns

see

Macdonald

Canada

1763 1841:

Immigration

and

Settlement 1939). n

the principal

point, namely ideologi-

cal

strife, compare

Craig, The

American impact

on

the Upper Canadian

reform

movement

before

1837 (1948)

29

C.H.R.

333;

Senior,

The

Genesis

of

Canadian

Orangeism

1968) 6o

Ont. Hist. 13;

and

Mathews,

Susanna Moodie,

pink

Toryism,

and

nineteenth-century

ideas

of

Canadian

identity

1975)

o J

of

Can.

Studies

3

6 A

current

and carefully

constructed

version of this

thesis

can

be found

in Romney,

From

the types

riot to

the rebellion:

Elite

ideology,

anti-legal

sentiment,

political

violence, and

the rule of

law in Upper

Canada

1987)

79 Ont.

Hist.

113.

Similar

interpretive

treatments

of Upper

Canada s

treason trials of

1814

and 1838,

and of

Lower

Canada s

famous

Guibord

affair, can

be

found

in Wright, The

ideological

dimensions

of

law

in

Upper

Canada:

The

treason

trials of

1814

and 1838,

in 1

Papers

Presentedat

the 1987

CanadianLaw in

History

Conference

1987)

373, and

Anon.

History

of

the

Guibord

Case: Ultramontanism

versus

Law and Human

Rights

1875).

7

J.B. Robinson

Canada

and he CanadaBill

Beingan

Examination

oftheProposedMeasurefor

the

FutureGovernment

of

Canada 1840)

144-5.

See generally

Baker,

Legal education

in

Upper Canada

1785-

1889:

The

law society

as educator,

in

Flaherty

(ed.)

2

Essays in

the

History

of Canadian

Law 1983) 49,

and Baker, supra

note

4.


4/23


5/23

PROVIDENTIAL

ORDER

AND THE RULE

OF LAW IN

UPPER CANADA

187

has

proceeded

in

this

case, as

in

others,

from the

atavistic and etic

attribution

of

a

utilitarian

or

constitutional

conception

of the normative

precision

of

law

as revealed in

judicial decisions

to Upper

Canadian

statesmen who

do

not

appear

to

have

pretended

to live by

the

convention-

al

limits

upon human

action

promoted

by

such

juristic popularizers

of

liberal thought

as Jeremy

Bentham,

Albert Venn

Dicey, or James

Chalmers

McRuer.

2

Assuming that all

postures

in the world

are,

in

some

measure,

self-interested,

it

is

not apparent

that labelling

the

beliefs

and

actions

of

Upper

Canada s

legal-administrative

aristocracy

of the

182os

as

self-

serving reveals

much about how its

members conceived

of

themselves,

how

they understood

the

roles

they were

filling, what

theories of

order

they

embraced, or how they

portrayed

the

common law

and

the

judiciary s

role

in

enforcing

it.

As

has

been

emphasized

with

respect

to

the

recurrence by

late nineteenth-century

Anglo-American

lawyers to

con-

cepts

like objectivity,

Darwinian science,

and

logic in their

efforts

to

revitalize

the

profession s

status, one

of the tasks

of

the

intellectual

historian

is to understand

what

is distinctive

and

coherent

about

particular constellations

of

thought, blatantly

self-interested

or otherwise,

and to

describe

apparent

sources

of

the vocabulary

in

which

they

are

expressed.

1

A

primary goal of this

essay is therefore

to contrast,

in a tentative

and

heuristic

way,

61ite

Upper Canadian notions

of order,

normativity,

and

appropriate

public

censure with

Benthamite,

Diceyesque,

and McRuer-

like conceptions

of

the rule

of

law. A

secondary goal

is to

canvass

ways in

which the rhetorical

aspects

of

liberal

theory

seem to

have coloured

the

ability

of

reform-minded

social

critics

of the

day,

and that

of

most

twentieth-century

commentators,

to

document

the

internal

coherence of

an older,

local

system

of

values,

or

to

take

it

seriously

on

its

own

terms.

14

The

Law Society

of

Upper

Canada

received

a statutory

monopoly

with

12 See,

for

example

entham

An Introduction

to

the

Principles

of Morals and Legislation,

Principles

of

the

Civil

Code

Principles

ofthe

PenalLaw (1843);

Dicey Introduction

o

the

Study

of

he

Law

of the Constitution

1885); and

McRuer

Royal ommission

Inquiry into Civil

Rights

(1968-7

1 .

3

See generally Vovelle

ldiologies et

mentalitis (1982);

Duby, Histoire

des

mentalit6s,

in

Samaran (ed.)

L histoire

et

ses mithodes

1961) 937;

Godelier,

The ideal

in the real, in

Samuel

andJones (eds)

Culture, Ideology and

Politics:Essaysfor

Eric

Hobsbawm 1982) 12.

The literature

treating

the late

nineteenth-century

transformation

of

professional

ideology

is developing rapidly;

representative

entries in

the legal field

are Gordon,

Legal thought

and legal

practice

in the age of American

enterprise

1870-1920,

in

Geison

(ed.) Professions

and

Professional

deologies

in America(1983)

70; Sugarman,

Legal

theory,

the

common-law

mind,

and the making of

the textbook tradition,

in

Twining

(ed.)

Legal Theory and

Common Law (1986)

26;

and Gordon,

Holmes ommon Law

as

legal

and

social

science

1982)

1o

Hofstra

L.R.

719.

14 Compare

Grant

English-SpeakingJustice

2d ed. 1985);

Maclntyre After

Virtue: A

Study

in

Moral

Theory

(2d ed.

1984); Murdoch, The Sovereignty

of Good

1970).


6/23

188 UNIVERSITY

OF TORONTO

LAW

JOURNAL

respect to

the

practice

of

law

and virtually

exclusive

control over

admission

to

the provincial profession

in 1797.15

This

political

anoint-

ment

of

a group of

twelve or fifteen

backwoods

lawyers

as

a

discrete,

self-regulating

body

was

the

result

of

a congeries

of

influences

and

ambitions,

not

least

of

which

were

the desire

of

a

number

of

late

eighteenth-century

colonial

civil servants to encourage

the rapid

emer-

gence

of an

anti-democratic

and non-egalitarian

provincial

aristocracy,

and the desire

of committed

Loyalists

to

replicate the

prestigious

North

American

seaboard

legal

professions

of England s

First

Empire.

6 The

society s

6lite-building

tendencies

of

the

early

nineteenth century

also

were

spurred

by its

legislative description

as a

learned and

honourable

body whose members

chief responsibility was

to assist

their

fellow

subjects

as occasion

may

require

and

to support

and maintain

the

constitution

of

the

said

Province.

Understood

in early provincial

par-

lance, the constitution

of the

said

province

was not

the

set

of explicit rules

that defined

its formal

organs of

government, but

rather

the

unwritten,

and often

unspoken,

spiritual

and social

premises upon

which this

Loyalist community

was to be

based.

17

As

a

perennial

treasurer of

the

law

society

confided

to the

attorney

general of

Upper Canada

in

the

aftermath

of the

types

riot,

there is

in the

object

of

[the

Law

Society

Act]

not merely

legal wisdom,

but

a

religious

obligation

from

morality

...

[which means

that

persons]

insensible to

those impressions

must

be

unworthy

of

the

Calling.

1 8

A

distinction

between

culture and

constitu-

tion, or

providence

and

government,

was dimly

drawn at

best.

Expressed more

bluntly,

a major

premise of

this essay is

that

Upper

15

An Act for Better Regulating the

Practice

of

the

Law 1797) 37

Geo.

ni,

c.

8 (u.c.),

Confirmed and

made

perpetual

by

the

Law Society Amendment

Act

1822)

2

Geo.

iv,

c.5 (u.c.) See

generally Riddell

The Bar and the

Courts

of

UpperCanadaor

Ontario

Pt i

the bar

1928) 34-

57, 79-8o;

and

Riddell

TheLegalProfession

n

UpperCanada n

its Early

Periods 1916) 9-20

133-42.

16

See Tousignant,

Problbmatique

pour une

nouvelle approche de

la

constitution

de 1791

1973)

27

Revue d histoirede l Amiriquefrancaise

(hereinafter

R.H.A.F.

181; Mealing,

The enthusiasms

ofJohn

Graves Simcoe in

AnnualReport of

the

Canadian

HistoricalAsso-

ciation

1958)

5o; Firth,

The Administration

of Peter

Russell,

1796-1799

1956)

48 Ont.

Hist.

163. On

the

colonial American

legal professions,

see, for example, Roeber

Faithful

Magistrates

and

Republican Lawyers:

Creators

of

Virginia

Legal

Culture,

161

o r 81o 1981);

Klein, From

community to status:

The development

of

the

legal profession

in colonial

New York 1979)

6o

New York

Hist.

136;

and Gawalt

The Promise of

Power:The Legal

Profession in

Massachusetts 176o

-

z84 o

1979).

17 Law Society

Act,

supra

note

15,

ss

1,5. Compare

Mann,

Law

legalism,

and community

before

the American

revolution

(1986) 84 Mich. L. R. 1415;

Konig,

The

theory

and

practice

ofconstitutionalism

in

pre-revolutionary Massachusetts Bay: James

Otis on the

writs of

assistance,

1761 (1984)

8

DalhousieL.J. 25

18 William

Warren

Baldwin

to

John

Beverley

Robinson, 31

May 1828, W.W. Baldwin

Papers,

Metropolitan

Toronto

Public

Library,

box

B

103.

See also C.W.

Robinson

Life

of

Sir.]ohnBeverley Robinson

0904) 236, 350,

400.


7/23

PROVIDENTIAL ORDER AND THE RULE

OF

LAW IN UPPER CANADA 189

Canadian

spiritual,

governmental,

and social

order

were

regarded

as

indissociable

and that

one

cannot

consider

the

presence

or

absence

of a

discrete concept

like

the rule

of secular law

when

the

isolation

of

such a

concept

would not

have

commended

itself to

the relevant

actors.

9

This

unity

of

Upper Canadian

conceptions

of

order

found

expression,

in

diverse

public

settings,

in a

potent provincial

normative

vernacular which

transcended

formal,

statist, and

secular

rule of

law rhetoric

latterly

deployed

as a standard

for

human

conduct

by English

and

American

whig

constitutionalists.

William

Blackstone s

Commentaries

on the

Laws of

England,

published in

the 176os, have

routinely

been cited

by

many

modern legal

historians

as definitive

authority

for the

proposition

that

late

eighteenth-century

English

constitutionalism

was

premised

on no-

tions

of equality

before the

law

and

widespread popular

acknowledgment

of

the omnipotence,

certainty, and

pervasive

relevance

of

formal,

state-sanctioned

normativity

Yet rigorous,

detailed

studies of

the

contours

of

late

eighteenth-century

British

justice

are remarkably

few

and far

between.

None

the

less,

this slim

secondary literature

can

be

summarized

by

stating

that

the centrality

and

importance

of

conventional

law to

that culture should

not be exaggerated.

Scholarship

is insufficiently

advanced

to

warrant

the assumption

that the

rule of consensual,

statist,

formulaic law

was

a cornerstone

of

British

constitutionalism

in theory

or

fact,

or to

justify

the

measurement

of colonial

justice

against such

a

benchmark.

2

The

challenge,

therefore,

is

to

undertake

emic

reconstruc-

tions

of Upper

Canada s

normative

vernacular

that

are

informed

but not

overwhelmed

by a

nascent metropolitan

historiography.

Typical

of the early

attitudes

and practices

of Upper

Canadian

lawyers

19

Compare Howes,

Property,

God,

and nature in the

thought

of

Sir

John Beverley

Robinson

1985)

30

McGilL.J.

365;

de Villiers-Westfall, The

dominion of the

Lord:

An

introduction

to

the

cultural history of Protestant

Ontario

in the Victorian

period 1976)

83

Queen s Q

47;

Wise, God s peculiar

peoples,

in Morton (ed.)

The Shield of

Achilles

spects of Canada

n the

Victorian

Age

(1968) 36.

2o For internal

or

doctrinal

critiques of

the

Commentaries place

in, and significance

for,

Anglo-American

constitutional

thought of

the

day see,

for example,

Kennedy,

The

structure

of Blackstone s

Commentaries

1978)

28

Buff.

L.R.

2o5; Nolan,

Sir

William

Blackstone

and the new

American

republic:

A study

of intellectual

impact

1976)

51

N.Y.U.L.R. 731;

and Cairns,

Blackstone,

an

English institutist:

Legal

literature

and

the

rise of the

nation state,

4 OxfordJ.

of Legal Studies

(1984)

318.

21 Compare

Thompson Whigs

and Hunters:

The Origin

of the Black

ct 1975)

258-69;

Hay,

Controlling

the English

prosecutor (1983)

21 Osgoode

Hall L.J.

165; Brewer,

The

Wilkites

and

the law

1763-74:

A

study

of

radical

notions of governance,

in Brewer and

Styles

(eds)

An

Ungovernable

People:

The English and

Their

Law

in

the Seventeenth and

Eighteenth

Centuries

(g8o)

128

For

indications

that

neither the

rulers nor the ruled

of

late

eighteenth- and

early

nineteenth-century

Britain

were

so

enamoured

of,

or

inhibited

by

state

law as Thompson,

Brewer,

or Hay has

concluded,

see, for

example,

Ignatieff,

supra

note to; Green

Verdict According

o

Conscience

Perspectiveson

the

English

Criminal

Trial ury,

1200 18oo (1985)

267-383;

and

Arthurs,

supra note

io.


8/23

190 UNIVERSITY

OF TORONTO LAW

JOURNAL

to which their profession s gestation

gave

rise were Attorney General

William

Firth s and Solicitor

General

D Arcy

Boulton s

181o

objections to

the English

prime

minister,

Lord

Liverpool,

that a provincial

statute

regulating

barristers fees would undercut

the status

of

the

bar

by

making

it

subject

to

the

casual

mandate

of

a

popular

assembly.

Such

affronts

were

alleged

to flow

from

an

invidious

spirit of republicanism, which

seeks to

reduce

all orders of

Men

to

a level, and to put

the

man of Science

on a

footing with

the labourer.

22

The

relevant general conclusion to

be drawn

from

these

and diverse

similar assertions

is

that the

Upper

Canadian

bar

was

originally

and explicitly conceived of

as

a

guardian of

the

theistic,

closely knit,

ordered,

content, and secure community

that the province s

early

governors

hoped

would follow

from the

introduction

of

a graduated

social structure, the

discouragement

of

democratic tendencies,

and

the

promotion of strong internal

communications

and

civil

authority.

23

The ground upon

which these

constitutional seeds were

sown

proved

fertile. Innumerable early

nineteenth-century

observers commented

that

commercial

opportunities in

the

new colony

were

few or

unreliable,

and

that land

was

an inferior good. Since

neither land

ownership nor

commerce

could

provide

a

sufficient

basis for

power or

gentility,

a

provincial

bureaucracy

supplied and supported by

the

legal profession

was widely

affirmed on

material

as well as

ideological

and spiritual

grounds as

the most suitable keystone

for the province s

social pyramid.

2 4

By

the

third

decade

of

the nineteenth century

most

lawyers

were

office-holders

of one kind

or

another,

and most

office-holders

in the

provincial capital were

lawyers.

25

Neither the governmental,

the legal, the

22

Attorney

General William

Firth

and

Solicitor

General D Arcy Boulton

to

Lord

Liverpool,

io April

181o,

reproduced in Romney, supra

note 2

at

45-6. See

also

Mandamus in

re

Lapenotisre

(1848) 4 u.c.Q.B.

N.s.)

492 (per

Robinson

c.j.);

Journal

of the

Proceedings

of the Convocation

of Bencherso

the Law

Society

o

Upper

Canadavol.

1 i 19,

Law

Society of Upper Canada Archives

(hereinafter

Proceedings .

23 See generally Cook,

John Beverley Robinson

and the conservative

blueprint for the

Upper

Canadian community

1972)

64 Ont.

Hist.

79;

Wise,

Upper

Canada

and

the

conservative tradition,

in Firth

(ed.)

Profilesof a Province:Studiesin

the History of Ontario

(1967)

2o; and

Hartz

The Founding

of

New

Societies

(1964)

3-23

234 47.

24

See, for example,

Fidler Observations

on Professions, Literature,

Manners,andEmigration

n

the United

States and Canada (1833) 333-8; Moodie

Roughing It

in the

Bush; or,

Life in

Canada 1852) 14o;

and Traill The Backwoods

of Canada; Being Letters

rom the Wife of an

Emigrant

Officer,

Illustrativeof the omestic Economy

of

British

America (1836)

3-4,

81-2.

See generally

Wilson The Enterprises

of

RobertHamilton:

Study

of Wealthand Influence

in

Early Upper

Canada

(1983);

Johnson, The

settlement

of

Western

District

1749-1850,

in

Armstrong,

Stevenson,

and Wilson (eds.) spects of

Nineteenth-CenturyOntario:

Essays

Presented to

JamesJ

Talman (974)

19; Teeple, Land, labour,

and capital in

pre-

Confederation

Canada, in Teeple

(ed.)

Capitalism

and the NationalQuestion

in Canada

1972)

48.

25 Compare

Armstrong Handbook

of

Upper

CanadianChronology

(rev. ed. 1985);

Keele The

Provincial

ustice (1835) v-vii, appendix

3-1

o;

and R. Baldwin

The Rules of the

Law

Society of Upper Canada

(1833)

appendix.


9/23

PROVIDENTIAL

ORDER

AND

THE

RULE

OF LAW

IN UPPER

CANADA

191

ecclesiastical,

nor

the

lay mind seems to have dissociated (or

cared to

dissociate)

the professional

qualification of advocate

from the status of

landed proprietor,

man of business, governor,

or colonial official.

According to the archdeacon

of York and de facto

prime minister

of

the

province,

for

example,

Lawyers

must,

from

the

very

nature of

our

political institutions from there being

no great landed proprietors no

privileged

orders become

the

most powerful

profession, and must

in

time

possess

more influence and

authority

than

any

other.

They

are

emphatically our

men

of business, and

will

gradually engross

all the

colonial offices

of profit

and

honour.

26

The fact that

this exhortation and

others like

it could

have

been

penned in late eighteenth-century Britain

by William

Blackstone

or in

early

nineteenth-century America

by Alexis

de Tocqueville

highlights

the power of the transatlantic

image of the

landed

gentleman

as a

general aspiration

for

lawyers.

2 7

But

since

there

was

little to

conserve

in

the boundless

wood of early nineteenth-century

Upper Canada,

an important

material

responsibility

of this

emergent

(and

not resurrected)

aristocracy

was to

preside

patriotically over

measured,

centralized,

and

administratively

planned

development.

28

In

short,

public and private spheres

of activity

or influence

appear

to

have

been

entirely

congruent.

2

9

The Juvenile Advocate

Society, to

which

most of the young bloods who

participated

in the types riot belonged, was the

first in a

series of

organized

efforts

by

York lawyers

or

their senior students

to

socialize

initiates to

the

legal

profession

en bloc

and thus

to reproduce

the bar and

26 Archdeacon

John

Strachan

to Lieutenant-Governor

Sir Peregrine Maitland, io March

1826,

reproduced

in Alexander

ed.) The University

of

Toronto

and Its

Colleges 182

7 19o6

19o6)

149-50. Compare

Gagan,

Property and interest : Some preliminary

evidence

of land

speculation

by

the Family Compact

in Upper Canada, 1820-1840

1978) 70

Ont.

Hist.

63;

Wise,

supra note 23;

Baskerville,

Entrepreneurship

and the

Family

Compact:

York-Toronto,

1822-1855 1981) 9 Urban

Hist. Rev. 15

27

Compare

Blackstone i Commentaries on the Laws

of England (1765-9)

3-37;

de

Tocqueville

i Democracy

in

America

1945)

272-8o. See generally Thompson

English

Landed

Society in the

Nineteenth Century

971);

and

Spring ed.) EuropeanLanded Elites

in

the

Nineteenth Century 1977).

28 On

the community

service

of

Upper

Canadian lawyers

and

their

pursuit

of local

development

through the promotion

of such

public

improvements

as canals, roads,

harbours,

and

bridges,

see, for example, Armstrong, Toronto s

first railway venture,

1834- 1838

1966)

58 Ont. Hist. 21 Aitken,

The

Family Compact

and the Welland

Canal

Company 1952)

18

Can.

J of Econ. Pol. Sci 63; and

Johnson,

John A.

Macdonald

and the Kingston business community,

in Tulchinsky

ed.)

To Preserve

and

Defend:

Essays on Kingston

in

the NineteenthCentury

(1976)

141

29

Compare

Hannah

Arendt The

Human

Condition(1958) 22-

78. For

explicit treatments

of

this

Upper

Canadian

unity

of

functions

see,

for example, Gundy,

The

Family

Compact at work:

The

second

Heir and

Devisee

Commission

of Upper Canada,

18o

5

1841

1974)

66

Ont. Hist. 129; Aitchison,

The

development

of

local government in

Upper

Canada, 1783-

1850

(PH.D.

thesis, University of oronto 1953);

and

George

and

Sworden, The

courts

and the development

of

trade in Upper Canada,

1830-186o

1986) 6o Bus. Hist. Rev. 258.


10/23

192

UNIVERSITY OF TORONTO LAW

JOURNAL

ultimately

the provincial

administrative lite

in the image

of

prototypical

local

statesmen.

It was explicitly

and

self-consciously

a context

for the

cultivation

of

a particular

ethos,

and a

procreator

of 61itism

for dissemina-

tion

across Upper

Canada. The society

was

composed exclusively

of

student

members

of

the

Law

Society

of

Upper

Canada, persons already

properly

known

to

senior

members

of

the

bar

whose

habits

of

conduct

and

character and

particulars

of family residence

and connections

had

withstood

the

scrutiny of the

law

society s

necessary

inquiries and

objections

at

the

moment

of

the

candidates

admission

to

the

profession

as students-at-law.

3 0

Weekly meetings

of the

Juvenile Advocates,

which

occurred under

the direct patronage

of luminaries

of the local

bar, were

conducted with ponderous

ceremony

according to

the rules of

practice of

the Court of

King s Bench

and

the procedures

of the Upper

Canadian

government. This informal schoolroom

for the

colony s

self-proclaimed

meritocracy

therefore

provided a

setting in which

the providentially

inspired assumptions

and structure

of

the

provincial

administration were

inculcated

methodically

in

new recruits through

study, discussion,

advice,

and

role-modelling.

3

1

Most important

to

this

five-year

process

of

professional formation

or

refinement,

which

complemented time

spent apprenticing in

the offices

of

leading

members

of the

profession,

was its exclusive

and patrician

character.

Members of

the Juvenile

Advocate

Society were

repeatedly

told

that

principles,

education, and

habits

of

life

distinguished

the

Upper

Canadian

statesman. A

strict

regard

to

decorum

and gentlemanly

and

forbearing

conduct was mandated

in all aspects

of the Juvenile

Advo-

cates activities.

3 2

Revealingly,

in

response to

suggestions

that

membership

in this

debating club

be

extended to

persons

other

than

law

students, its

members were

uniformly

counselled by

their mentors

that the differences

inherent in a

divinely ordained

vertical

social mosaic

were the essence

of

the

provincial

constitution, that

equality might

prevail

as

between

men of

the

same rank

but that egalitarianism

was

anathema to the

social fabric,

and

that rigorous maintenance

in

all

aspects

of

life

of

the

boundaries

30 Proceedings

supra note

22,

133,

207-9

227.

Compare

Vachon

Histoire

du

notariat

canadien

1621-196o (1962) 79-132;

Bernard Linteau,

and Robert,

La structure

professionnelle

de Montrhal

en

1825 1976)

3 R.H.A.F. 383; Bell, The

transformation

of

the

New

Brunswick

bar 1785-1830:

From family connexion

to peer

control,

in

Papers supra

note 6,

vol.

1

240.

31 See Baker,

supra note 4 passim.

Compare Armstrong,

John Strachan,

schoolmaster,

and the evolution of

the Mite

in

Upper Canada/Ontario,

in Wilson (ed.) An

mperfect

Past:

Education and

Society

in anadian

History

(1984)

154;

Brauer

The Education

of

a

Gentleman:

Theories

of

Gentlemanly

Education

in

England 166o-1

77

1959).

32

Baker,

supra

note

7 69-71; Baker,

supra note

4

93.


11/23

PROVIDENTIAL

ORDER

AND

THE

RULE OF

LAW

IN

UPPER

CANADA

9

between

diverse

classes

was

crucial

to

natural

and

thus

social

balance.

3

3

Lawyers

claims

to superior

civility were

to

be

derived

from an

imbibed

professional

culture and moral

knowledge

rather

than

from

privileged

birth

or upbringing.

To

the

extent that

they

were

relevant

to

the Juvenile

Advocates

formation, or to

general patterns

of professional

activity,

abstracted

statements

of legal

rules

capable

of

expression

in a

coherent

form

were

only one

among

many

codes

for the

description

and

perpetuation

of

providential

distributions

of

responsibility and

power in the

great chain

of

being.

According to

a prominent

member

of

the York

bar and

long-time

treasurer of

the

law

society,

for

example,

the

science

of

the

law

is the

science of

human

nature,

not

in

the

abstract

but

in all the

diversities

of

active life

[S]ociety

is formed

of

so

elegant

a

web

that every

violence

done

[its

patterns

of

order]

makes

a

breach

which

however

repaired

will

long

remain a blemish.

In all

[life s] rich

tapestry

distinction

is necessary;

this is

nature

or

more properly

speaking,

the order

of providence.

3 4

It

bears

emphasizing

that

early

nineteenth-century

Upper

Canada was

a

time

and place in

which

the finger of God

was

thought

to be

visible

everywhere,

animating

all manner

of

disparate

worldly events.

3 5

Similarly

concerned

about

the

intimacy

of

social

distinction

and natural

order,

and the threat

posed to

cultural

stability

by

a

disregard

of

limits and

castes, Chief

Justice

Robinson

cautioned

that

when

we

behold

an

indifference

to

the

observance

of

the

Laws

and

a

restless

diligence

to evade

them

a want of

reverence

to

Magistrates

Superiors a

disrespect

to stations

offices ranks, and

orders of

persons

... we

may consider

these

as symptoms

fatal

to

the liberty

of that

country ... Everyone

carves out

his

own method of

redress, and

prosecutes

his

designs

by the dictates

of his own

33

See, for example,James

Buchanan

Macaulay

to Richard

Cartwright

Robison,

15

March

1823;

Henry John

Boulton to

Richard

Cartwright

Robison,

21

March

1823;

George

Ridout to

Richard Cartwright

Robison,

18

March

1823;

and

Simon

Washburn to

Richard

Cartwright Robison,

17 March 1823Journals

of the dvocate

Society vol.

9, 64-7,

77-82,

83-6

Law

Society

of Upper

Canada

Archives

(hereinafter

Journals). Compare

Dumont

Homo

Hierarchicus:

An

Essay

on

the

Caste

System

1970).

34 William

Warren

Baldwin to

Richard Cartwright

Robison,

23 March

1823,

9Journals

67-74.

Although

they

are

widely regarded

as

moderate

reformers,

the

Baldwins

attitudes

towards

the provincial

legal profession

of which they

were part,

and

towards

larger

issues of social class,

were

remarkably consistent

with

those

of their ostensible

Family

Compact

antagonists.

For

an elaboration

on

this theme

from slightly

different

perspectives,

see Patterson,

Whiggery,

nationality,

and the Upper

Canadian

reform

tradition

1975)

56 C.H.R.

25 and

Careless,

Robert Baldwin,

in

Careless

(ed.)

The

Pre-Confederation

Premiers:

Ontario Government

Leaders

1841-1867

198o)

89.

35 Compare

Westfall,

Order

and

experience:

Patterns

of

religious

metaphor in

early

nineteenth-Century

Upper

Canada

(1985) 20J.

of

Can.

Studies 5;

Berger

Science

God

andNature

in

Victorian

Canada

1983);

McKillop Disciplined

ntelligence:

Criticallnquiry

andCanadian

Thought

in

the Victorian

Era

1979)

1-93.


12/23

94 UNIVERSITY

OF

TORONTO

LAW

JOURNAL

corrupt

will

To prevent

these evils a love

of Order

becomes

necessary by which

we are

induced

to

conform

to the Laws and to

promote the welfare of the

community.

3

6

The

Laws,

generically,

seem to have

been

thought

to

comprehend

such

diverse encapsulations

of

the

principles

of a superior

order as the

imperatives of sacred scripture, the

patterns inherent

in natural history,

the gentle code of virtue, the implicit

norms of constitutional

stability,

and

distillations of the statements

of judicial

authorities. They

also framed

a

conception

of

the

good rather

than of rights: a love

of

order,

difference,

and interdependence,

and a revulsion

towards sameness, equality, and

independence. This

conception

of the good is the antithesis of

modern

and radical concepts

of egalitarianism embedded in democratic

political

theory.

Studying

the

deployment

of

the

common law

writs was

therefore

one

process

among

many of

discovering the

immanent

order

of reality and

linking it to patterns

of human experience.

3

7

But

this

opportunity for

revelation did not

follow

from the study of

legal doctrine

or processes

in

themselves. It was said to exist by virtue

of

the

fact that applying and

reapplying

the

forms of

action

in

particular

instances

were the discretion-

ary prerogatives of a

rank

of virtuous

men who

would

necessarily

leave a

judicial

distillation

(for

which

they

were

accountable

to themselves, to

more virtuous men,

and

to

their

Maker)

of

the

divine

order of

things.

Contemplation

and reflection

by students

upon

this record

were under-

stood and promoted

as activities

likely

to lead to

comprehension

of the

natural rather than consensual

limits of

human action.

3

8

In

any

case,

a

capacity

for

genteel conversation

and action had to be refined

through

consideration of something; the common

law, parliamentary usage,

constitutional norms, international

relations, and political or topical

issues were

commended to aspiring lawyers

as

equally suitable

vehicles for

36

John

Beverley

Robinson to

the

Grand Jury of

the

Western

District,

1836,

reproduced

in Brode

Sir John Beverley

Robinson: Bone and Sinew of the

Compact (1984) 176

See

also

Lewis

The

Youth s

Guard

againstCrime (1844) ix .

37

For discussion of the

cultural

contingency ofconceptions

of private

law in other corners

of the

North

Atlantic world,

see Hoeflich, Law

and geometry: Legal science

from

Leibniz to Langdell (1986)

3o Am. J of Legal

History

95;

Kelley

Historiansand the Law in

Post-Revolutionary

France

1984); and Boorstin The Mysterious

Science

of the

Law: An Essay

on Blackstone s

CommentariesShowing

How

B lackstone

EmployingEighteenth-Century deasof

Science, Religion, History,Aesthetics and Philosophy,

Made

of

the

Law at Once a

Conservative

and Mysterious Science 94

i

38 Compare

White, The

working

life of

the Marshall

court (1984)

70 Va. L.

R.

1;

Bloomfield,

David

Hoffman

and the shaping of

a

republican legal culture

1979)

38

Maryland

L.

R. 673;

Newmyer,

Harvard

Law

School, New

England

legal

culture,

and

the antebellum

origins

of

American jurisprudence (1987)

74J of Am. Hist.


13/23

PROVIDENTIAL ORDER AND

THE RULE

OF

LAW

IN UPPER CANADA 195

formative

personal

instruction.

3 9

Indeed,

much

more

time seems

to have

been

spent by

the bar

in

explicit

cultivation

of students

principles

and

habits

of

life

than

in honing

the

skills

of legal

drafting, conveyancing,

and

pleading.

Law

students

were bound

to govern,

and governing

required

morally knowledgeable

and

ambidextrous

persons

rather

than trained

specialists.

In

this

connection

it bears

repeating

that no notion

of

the

separation

of governmental

powers

had

yet

taken root

in the

province,

and that

the law

courts

were

more

or

less

incidental

to

the

broad-ranging

activities

of

most

members

of the

local

legal-administrative

6lite.

Even

as

chiefjustice,

J.B.

Robinson

(1829-62)

sometimes

combined

the activities

of

president

of

the Executive

Council,

speaker

of

the Legislative

Council,

Visitor

of

the Law

Society of

Upper

Canada,

university

administrator,

county

registrar,

foreign

ambassador,

pamphleteer,

heir

and

devisee

commissioner,

legislative

draftsman,

and

potent

political

lobbyist.

4

Intended

to govern

in all

aspects

of secular

life, men

like

Robinson

do

not

fit modern

conceptions

of independent

and

neutral

legal

professionals.

In

view

of

their

professional

formation

according

to the

values

and

modes

of

discourse

imbibed

by

the

Juvenile

Advocates,

what

is one

to

make

of

their

participation

in vandalism,

theft,

and

riots

in June

of

8 6?

And

how is one

to understand

the

fact that

none

save

one

of their mentors

made

recorded

public

or

private

mention

of

discomfort,

disapproval,

or

disappointment

with respect

to

the students

actions?

Moreover,

what

is

one

to

make

of

the fact

that

most

of the types

rioters

were quickly

incorporated

into

the

select

ranks

of the

provincial

6lite?

4 1

When

reconsidered

from

the perspective

of their

self-perceptions,

the

behav-

iour of

the types

rioters

and their

mentors

does

not appear

to contradict

principles

of

professional

commitment

in

the way that

it

might when

measured

against

external

standards.

Much

has been

written

about

the

amorphous

governing

clique

for

39

See

Baker,

supra

note

4, 92-7; Baker,

supra note

7 91-

119; Bucknall,

Baldwin,

and

Lakin,

Pedants,

practitioners,

and

prophets:

Legal

education

at Osgoode

Hall to

1957

(1968)

6

Osgoode

all

L.J.

137,

141 59

40 Prior to

1831 each

chief justice

of

Upper

Canada

united

all

three branches

of the

provincial

administration

by assuming

simultaneously

and

as

of

right

the

speakership

of the

Legislative Council

and

the

presidency

of

the

Executive

Council.

See

Riddell,

Judges

in the executive

council of

Upper

Canada

(1921-2)

20 Mich.L

R

716; Riddell,

Judges

in

the Parliament

of

Upper

Canada

1918-19)

3

Minn.

L. Rev.

244. See

also

Saunders,

Sir

John

Beverley

Robinson,

9

D.C.B.

668;

Read

The

ives

of

theJudges

of

Upper

Canada

and Ontario

rom 79

to the

Present

Time (1888)

86-95;

and

Riddell

The

Life

of William

Dummer

Powell

First

Judgeat

Detroitand

Fifth ChiefJustice

of

Upper

Canada

(1924).

41 On

the career paths

of

the types

rioters

see, for

example,

Leighton

and Burns, Samuel

Peters

Jarvis, 8

D.C.B.

430;

Beer,

Henry

Sherwood,

8

D.C.B.

796; Armstrong,

The

oligarchy

of

the Western

District

of Upper

Canada,

in

Historical

Papers

977

1977)

86; and

Dobbs,

SirJames

Buchanan

Macaulay,

8 D.C.B.

51

1.


14/23

196

UNIVERSITY

OF

TORONTO

LAW

JOURNAL

which

provincial

law

students

were bound,

but, although

qualified

by

twentieth-century

historians,

Lord Durham s

pithy

thumbnail

sketch

of

the

late

183os

remains

suggestive

of

the contours

of one

important

aspect

of this caste:

Upper

Canada

...

has long

been governed

by

a

party,

commonly

designated

throughout the

province

as the Family

Compact

The

Bench, the

magistracy,

the

highest offices

of

the Episcopal

Church,

and a

great

part of the

legal profession

are

filled

by adherents

of this party:

by

grant

or purchase

they have acquired

nearly

the whole of

the waste

lands

of the

Province: they

are all-powerful

in the

chartered

banks,

and till lately,

shared among

themselves

almost exclusively

all

offices

of

trust

and

profit.

4

2

Composed

largely (but not

exclusively) of

colonial Loyalists or expatriate

Britons

of

high

tory

orientation,

the

61ite

in

issue

extended

beyond the

Family

Compact

and succeeded

not

only

in

dominating

the

province s

established

church,

its

judiciary,

its bureaucracy,

its legal

profession,

and

its

mixed

enterprises,

but also

in publicizing

a myth

or

structure

of

assumptions

that

came to underpin

much

local

culture:

The

form

of the

Loyalist

myth suggests

a Christian

typ s

of

suffering (the

Revolution),

redemption

(the

acquisition

of Canada),

and ultimate

vindication

(success

in

1812 material

growth),

all in

the

service of

a

covenant

(fealty

to

crown

and

British institutions

brings

national

survival

under imperial

aegis).

4 3

This

set

of

beliefs

amounts

to

a

sort

of

cultural

law

of

survival

of

the moralist.

The prescriptions

of the province s

oracular

lawyer-

administrators

for

the Upper

Canadian

church, state,

and community

were

often

conceived

of as part

of a providential

mission

of preservation

in a

provincial outpost or

garrison of

grace on

a continent

where

American

democracy

and non-episcopal

faith

were posing

a

gross and

blasphemous

affront

to the necessary

order

of things.

The

local

aristocracy

and the colony

of

which it

was a part

were, in

effect,

regarded

as

crucial

instruments

of

the divine.

Theistic imperatives

of provincial

patriotism

thus

reinforced the notion that

virtuous

and

intelligent men,

rather than

humanly

negotiated

laws,

were fated to

rule. To call

into

4

Lord

Durham

The

Report and Despatches

of the

Earl

of Durham

Her

Majestys High

Commissioner

and

Governor-General

fBritish

NorthAmerica 1839)

105.

See

also

Saunders,

What

was

the Family

Compact?

(1957)

49 Ont.

Hist.

16

5

;Johnson,

The

U.C.

Club

and

the Upper Canadian

6lite,

1837-40

(1977)69

Ont.

Hist.

151;

Patterson,

An

enduring

Canadian

myth:

Responsible government

and

the

Family

Compact 1977)

12J.

of Can.

Studies 3.

43

Duffy, Gardens

Covenants Exiles:Loyalism

in theLiterature

of

Upper

Canada/Ontario

1982)

93. See also

Fellow,

The

Loyalist

myth in

Canada,

in Atherton,

Heisler,

and Monet

(eds.)

HistoricalPapers

97

1971)

94;

Bell,

The

Loyalist

tradition

in

Canada

1970)

5 of

Can.

Studies

22;

Smith, Old

Ontario and

the emergence

of

a

national

frame

of

mind,

in

Aspects supra

note 24, 194.


15/23

PROVIDENTIAL

ORDER

AND THE RULE

OF

LAW IN

UPPER

CANADA

197

question

the

destiny

of such

men to

govern

was therefore

to subvert

the

providential

order

of

things,

to

breach

the covenant,

and

to invite

transformation

of the

Upper

Canadian

garden

into a

secular

and unduly

entrepreneurial

wasteland.

4 4

In the

three

weeks

preceding

the

types

riot,

Mackenzie

had been

publishing

a

stream

of

invective

directed

towards

the

conduct of

particular

members

of Upper

Canada s

bar, the

governing

pretensions of

its

bureaucracy,

and the vanity

of

the

entire

ilite.

4 5

j.B.

Robinson was

said,

for

example,

to be

descended

from

thieves,

prostitutes,

and

incorrigible

vagabonds;

stink-pot

executive

councillor

and

law

society

bencherJames

Buchanan

Macaulay s

peg-shaped

nose

was attributed

to

a childhood

spent

pounding

into

shape

patent

medicines

like hysteric

pills

for old

women;

Archdeacon

John

Strachan

was

described as

a diminutive,

paltry,

insignificant

Scotch

turn

coat ;

and

Chairman

William

Allan

of

the

Bank

of Upper

Canada

was alleged

to have

begun

his

professional

life as

a

boot-black.

Judges

were accused

of

bullying juries,

lawyers

in

general

were

described

as

the

scourges

of provincial

society

rioting

upon

the

ruins

of

the

farmer

and

mechanic,

and

the attorney

general

in

particular

was likened

to

a biblical

figure who

attempted

to destroy

all theJews

in the

Persian

empire.

4

6

The

diatribes

of

which

these

snippets

were

part

have

been

characterized

variously

as

an orgy

of

slander

and

scurrility,

vulgarities

[that]

were

the

essence

of

political

satire

and

cogent

political

criticism,

and

gross

and

mindless abuse.

4

7

The

key

point,

however,

is

that the

icons

Mackenzie was

attacking

were

men rather

than

institutions,

policies,

or acts.

And

those

men

were

ostensibly

virtuous, propertied,

well

informed,

intelligent,

and

opulent.

By

calling

into question

the

local

aristocracy s

virtue,

Mackenzie

was

44

See Wise,

supra

note

i9; Smith,

American

culture

and

the

concept

of mission

in

nineteenth-century

English Canada,

in

Historical

Papers

97

1971)

169;

and Aitken,

Defensive

expansionism:

The state

and economic

growth

in Canada,

in

Aitken

(ed.)

The

State

and Economic

Growth

1959)

79.

45

For

similar

instances

of

publicly

censured behaviour

of

the

early

nineteenth-century

Canadian

press,

see Gardner,

When

the Plain

Speaker s

type

was pied

1923)

20 Ont.

Hist.

Soc Papers

Rec.

84;

Herity,

Journalism

in Belleville

1937)

27

Ont.

Hist.

Soc

Papers

Rec

400;

and

Marion,

La libert6

de la presse

canadienne-franqaise

au debut

du

xixe

si4cle

(1942)

3 Culture

183, 331.

46 See,

for example,

ColonialAdvocate

York,

18

May 1826,25

May

1826,

and

8June

1826.

See

also Fairley (ed.)

The

Selected Writings

of

William

LyonMackenzie,

1824 1837

1q6o).

Compare

Ferguson Law

and Letters

in American

Culture 1984);

Marquis,

Anti-lawyer

sentiment

in mid-Victorian

New Brunswick

1987) 36

U.N.B.L.J.

163; and Careless,

Mid-Victorian

liberalism

in central

Canadian

newspapers,

185o-67 1950)

31 C.H.R.

221.

47 Le Sueur

William

Lyon

Mackenzie:

A

Reinterpretation

ed. McKillop

1979 97-8;

Romney,

supra note

6,

115;

Brode,

supra

note

35,

133.

For

a

detailed

description

of

the

events

that

preceded Mackenzie s

remarks,

see Romney,

supra

note

6,-at

115-

17.


16/23

198

UNIVERSITY

OF TORONTO

LAW

JOURNAL

challenging

nothing

less than

providence,

a

divinely

inspired theory

of

government,

the gentle

code, the

provincial constitution,

and the

predestined

existence

of

Upper Canada

itself. In

a

world

where the habits

of

thought

and action of

honourable

men

rule

as

primary

instruments

of

fate, attacks

on

the personalities

of

such

men are

precisely attacks

on the

Laws, the social order,

the constitution,

and

the

government.

That

many

talented

local lawyers

and office-holders

had

been recruited

from intellectually

or

materially unprivileged

backgrounds,

as

Mackenzie

pointed

out, was irrelevant.

In the

language

of

the day, their virtue

and

subsidiary

personal

qualities

destined

them

to rule

and

justified

their

claims

to

superior ability.

Unlike the

aristocracy of

natural leaders

craved

by

England s

early

nineteenth-century

romantic

or radical

tories,

Upper

Canada s

inaugural

patriotic

61ite

had to

be

one

of talent

rather than birth,

erected

on the

basis

of

moral knowledge

and

professional

culture

in

the

future

rather than resurrected

in

a

reactionary

manner

from a chivalrous

past.

48

By the same

token,

a

belief

that public

and private realms

are

personified

in oneself

and

the 6lite

of which

one

is part

might be

said

to

invite what

would today

be characterized

as

ad hominem

commentary.

Admittedly,

as

the

nineteenth century

waned,

persons

would

be

separated

from

their

destined

positions,

from their

innate capacity

to fill

the roles

assigned

to them

by

providence,

and

from the

way that

they

acquired

their statuses.

4 9

But this modern

progression

would

have

seemed

incoherent

to

the

pre-liberal

Upper

Canadian

legal

mind. In that

older

world, virtue

was neither

scientific nor

objective, and

certainly

could not

be acquired

through technical education.

Nor could it

be

evaluated

by

any other than

those who possessed

it.

5

Obviously,

there are elements

of rhetoric,

false

consciousness, mystifi-

cation, self-interest,

and

tautology

in this seemingly

extravagant

set of

truth-claims.

But

one

distinctive

feature

of

rhetoric

is

that people do come

to

believe their

own,

especially

young

and impressionable

people.

And

how is the quality

of belief

to be appraised,

except according

to the

sincerity with which

values

are embraced and

practised,

their

internal

48

Compare

Disraeli

The

Young

Duke

1905);

Kranmick

Bolingbroke

and His

Circle:

The

Politics

of Nostalgia

in the Age of Walpole

(1968); and Pocock

The Machiavellian

Moment:

FlorentinePolitical

Thought and the Atlantic

Republican Tradition

1975).

49 Compare

Cole, A

le rned and

honourable

body: The

professionalization

of

the law in

Ontario, 1870 1930 (PH.D.

thesis, University

of Western Ontario

1987);

Sennet

The

Fall of PublicMan

1977); and Larson The

Rise of Professionalism:

A Sociological

Analysis

(1977).

50 See generally

Pocock Virtue

Commerce and

History: ssays on Political

Thought

and History

Chiefly in the Eighteenth

Century 1985) 37-50,

157-91;

Mansfield

Statesmanshipand

Party

Government: A Study

of Burke and

Bolingbroke 1965);

and Ignatieff and Hont

(eds.)

Wealth and

Virtue:

The Shaping

of Political

conomy

in

the

Scottish

Enlightenment 1983).


17/23

PROVIDENTIAL

ORDER

AND

THE

RULE OF

LAW IN UPPER CANADA

199

coherence,

or their

culturally

contingent

capacity

to

persuade?

5 1

For

present

purposes,

the most

relevant

feature

of the mentalitd

imbibed

by

the types

rioters in such

settings as

meetings

of the Juvenile Advocate

Society

is that its

processes

of

constitution

and

legitimation

did

not

promote the

exclusivity

or

even

the

primacy

of

formulaic,

conventional

law

and its rule.

Whether rhetoric

or truth,

the discourse

of

the professional culture

inculcated

in

the Juvenile

Advocates

revolved

around

their ordained

social

pre-eminence

and their ability

to discern and

enforce

boundaries

through

the application

of moral knowledge.

It

was said

that as a

result

of

knowing God

and,

of course,

the

province s

6lite were

in a

privileged

position

to

do

so

virtuous

men could know

what

was

in other

men s

hearts and therefore

discern

all

others

appropriate

places

in the world.

Society

in

turn,

was

not

thought

to be

a

structure

capable

of

management

or manipulation

through

the

application

of acquired

sociological exper-

tise or technical

skills

but was

in

Chief

Justice Robinson s

words,

a

divinely

mandated

order

self-evidently

worthy

of

comprehension,

appre-

ciation,

and

replication:

By

those

who

are sufficiently

humble

to

believe

in

the

existence

of a superior

intelligence,

it is

very

frequently remarked,

as

they

pass

through life

how

much better

matters have

been ordered for

them

by

Providence

than

they would

have

been ordered

by themselves,

if

their

wishes had

availed

them.

52

All

of this must

have been

heady stuff

to

sixteen-

and eighteen-year-old aspiring patricians

who,

surrounded

by

affirmations

that

they

were destined

to judge and

govern as

personifica-

tions

of fate almost

everywhere,

presumably

had

few

doubts about

their

assessment

of Mackenzie s

affronts

to their government,

families, legal

principals,

and

especially

to their

professional

identity.

Nor

did

they

hesitate

in deciding his appropriate

fate.

They

did, after

all,

have

the

examples

of their

role models

ostracism

of

social

commentator

Robert

Gourlay and King s

Printer Charles

Fothergill from

which

to

work.

And

the

attorney general

himself had

routinely

referred

privately

to Macken-

zie as a

malignant

...

uneasy spirit,

another

reptile

of

the Gourlay

51 Compare

Gordon,

The

ideal and the actual in

law: Fantasies

and

practices

of

New York

City lawyers,

1870-1910,

in Gawalt (ed.) The

New

High

Priests: awyers

in

Post-Civil

War

America (1984)

51;

Kennedy,

supra note

2o;

and

Grey,

Langdell s

orthodoxy

1983) 45

U.

Pitt

L.

R.

52

J.B. Robinson,

supra note

7 13.

This particular observation,

while

typical

of

others by

Upper

Canadian lawyers of

the day,

was responsive

to

Lord Durham s

legal

instrumentalism

or

Benthamite

orientation.

See

also Fallis, The idea of

progress

in

the

Province

of Canada:

A study

in the history of ideas,

in The ShieldofAchilles,

supra

note

19

176-81; Wise, Sermon

literature and

Canadian intellectual history,

in Bumsted

(ed.) Canadian

History Before

Confederation:

Essays

and

Interpretations

1979)

249; Cross

and Fraser,

The Waste

That

Lies Before

Me :

The

Public and Private

Worlds

of

Robert

Baldwin,

in

Johnson and Lacelle

(eds) Historical

Papers

1983

(1983)

164.


18/23

2 UNIVERSITY

OF TORONTO

LAW

JOURNAL

species, and a conceited red-haired fellow who was

too

contemptible an

adventurer

to notice.

5

How, precisely, did the

situation

look

to

the

future

types rioters

through

these eyes?

Mackenzie s

liberty-of-the-press-behaviour

and rights-based,

secular,

rule

of

law

assertions

were

a

direct attack

on

a

system

of government

and

a

subversion

of

the community s cultural

underpinnings,

all expressed

in

a foreign

ethical language.

5

4

They were

also

aspects of a point of view

that

was routinely

castigated

in

its American

and

British incarnations by many

senior members of

the

provincial

patriciate

as

blasphemous and

infidel.

5 5

A repertoire of

tory, whig, reform, and

Loyalist discourses did coexist

in

Upper Canadian

political debate, but, in

the realms of ethics and

metaphysics,

legal, bureaucratic,

ecclesiastical, and high

social

discourse

were fused into one dominant, anti-egalitarian,

and genteel mode.

56

In

view

of

the absence

of

such

visible

badges

of

birthright

or

status

as

hereditary

titles and settled estates from Upper

Canada, it is perhaps

not

surprising that

the emergent 6lite in issue was particularly

sensitive to

perceived assaults

upon

those few and

ephemeral qualities such as

principles,

habits of life, and especially shared

languages

of ethical

discourse which

signalled its

members

station

in the world.

Mackenzie had also

shown himself to be in base, ungentlemanly

breach

of

the

gentle

code; his

public

journalistic affronts

had

offended

grievously

against

propriety

and honour. Most important, he had

confused and

therefore

compromised

the natural

order

of

things.

Far

beyond the limits of acceptable

good sense

or

docile and

grateful

53 Reproduced in Craig Upper Canada:The FormativeYears 784 184

1

1963)

111-12. See

generally

Milani Robert Gourlay,

Gadfly:

The Biography

of

Robert Fleming) Gourlay,

1778-1863,

Forerunner of the

Rebellion

in Upper Canada

1971); Baillie,

Charles

Fothergill

1782-1840

(1944)

25 C.H.R. 376.

54 On

Mackenzie s intellectual

orientation and its

apparent

sources, see Gates, The

decided policy

of

William

Lyon

Mackenzie 1959)

40 C.H.R.

185;

MacKay, Political

ideas of William Lyon Mackenzie 1937) 3 Can.J

of

Econ.

Pol.Sci. i; and

Rhea,

William Lyon Mackenzie -Jacksonian? (1968)

50

Mid-America223. See

also

Hamil,

The

reform movement in

Upper

Canada,

in

Profiles, supra

note

23 9.

55

See generally

Love,

Anti-American ideology and

education reform

in 19th-century

Upper Canada,

in

An

Imperfect

Past,

supra note

31,

170; Wise,

Colonial

attitudes

from

the era

of

the

War

of 1812 to the Rebellions of

1837,

in

Wise

and Brown (eds)

Canada

Views

the United States: Nineteenth-Century

Political

Attitudes (1967) 16;

and

Nelson The

American Tory (1961)

153-69.

56 Compare Read, The

London

District

oligarchy in the

Rebellion

era 1980) 72 Ont.

Hist.

195;

Richards,

The

Joneses

of

Brockville and

the

Family

Compact

(1968)

6o

Ont.

Hist.

169; and Nelles, Loyalism and

local

power:

The District of

Niagara,

1792- 1837 (1966)

58

Ont. Hist. 99. On the

beginnings

of

fragmentation of this more

or less

monolithic

Upper Canadian 6lite

discourse, see, for example, Wilton-Siegel, Administrative

reform:

A

conservative

alternative to

responsible

government (1986) 78

Ont. Hist.

105;

Romney,

The

Spanish

freeholder

imbroglio

of

1824: Inter-6lite and

intra-6lite

rivalry

in

Upper

Canada

(1984)

76

Ont.

Hist. 32;

and Wise, Tory

factionalism: Kingston

elections and pper

Canadian

politics, 1820-1836

1965)

57

Ont. Hist.

205.


19/23

PROVIDENTIAL

ORDER AND THE

RULE

OF LAW

IN UPPER CANADA 201

yeomanry,

Mackenzie

himself

was

dirt,

completely

out

of

place.

5

7

Moreover, he had

transgressed the boundaries

of his rank and station, at

least

in

the assessment

of

the

natural

leaders whose role it was to

divine,

police, and affirm such limits.

On one

level Mackenzie s

calvinistic,

anti-lawyer,

and anti-bureaucratic

rantings therefore merited

public

ridicule and humiliation.

On another, they represented

an unpreceden-

ted

and

dangerous incursion

of cultural otherness

that

needed to be

put

in its

place. On a third plane, they demonstrated

that the reward

for

which

their author was

suited

was

something

like excommunication or banish-

ment. Thus, nine

young presumptive

patricians

masquerading as

Indians

paraded

through

the

streets of York in the customary

form

of a

charivari

and reduced

the

Colonial dvocate

press to wreckage on the

evening of 8 June

1826

Such ritualistic forms

of derision, practised by

members

of

6lite

and

popular

classes,

were

not otherwise

unknown

in

Upper Canada.

58

This kind

of extra-state redress of libellous

statements

appears

to

have been

the

rule rather

than the

exception

in several

quarters

of the

early nineteenth-century

North Atlantic world.

5 9

In

any

case,

Mackenzie

was relegated

to journalistic silence

and impotent

resentment,

at

least

in

the

short

term.

6

0

The

harshest collegial

assessment

of

the

Juvenile

Advocates

execution

of

their

judgment of

William

Lyon

Mackenzie

was

that

of

the

reform

leader,

Dr

Baldwin. It is

revealing in

So Elegant a Web

Documents

Transcript of So Elegant a Web