Abstract
Prosecutions for treason and sedition, supported by executive measures such as suspensions of habeas corpus and deportations, saw courtrooms as a site of repression and resistance, and sometimes a place of counter-hegemonic success. There is a rich record of such ‘state trials’ in the British North American colonies that remained after 1776, a reflection of loyalist reaction to the American, French and Irish revolts. The anxieties of colonial elites continued after the War of 1812, their power increasingly challenged by organised political opposition and an emerging popular public sphere. Canada’s revolutionary moment, the 1837–38 rebellions, was contained by the modernisation of the colonial state. State trials remained a colonising resource as Ottawa displaced London after the Age of Revolution.
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Notes
- 1.
On political trials, see e.g., Otto Kirchheimer, Political Justice: The Use of Legal Process for Political Ends (Princeton, 1961). He distinguishes political trials involving prosecutions for political offences, the focus in this chapter, trials for routine offences committed for political purposes, and trials designed to discredit political opponents. See also the work of Judith Shklar. T.L. Becker, Nathan Hakman, Austin Turk, Ron Christensen, Victor Ramraj, and most recently, Jens Meierhenrich and Devin O. Pendas, Political Trials in Theory and History (Cambridge, 2017). Political trials also figure in the context of regime transition, and while this chapter focuses on British North America in the wake of the American Revolution, political trials during the establishment of the American republic are not examined.
- 2.
“State trials” as genre of legal, constitutional and political literature are examined in the introductory chapter of F.M. Greenwood and Barry Wright (eds), Canadian State Trials Volume One: Law, Politics and Security Measures, 1608–1837 (Toronto, 1996), 3–11. Reflecting a general libertarian Whig sensibility, the Howells’ English State Trials series ranged beyond treason and sedition cases to suspensions of habeas corpus, deportations, resorts to martial law and the trials of civilians by military courts. This provides a definitional range for the modern Canadian state trials series, but rather than presenting annotated trial records, the published volumes in this series examine the Canadian record of such proceedings to 1939 in the form of scholarly studies placed in political, social, cultural, economic and comparative contexts (in four volumes, a fifth and final volume in progress).
- 3.
See eg., E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (Harmondsworth 1977); “The Moral Economy of the English Crowd,” Past and Present, 50 (1971), 76. On suspensions of regular law and emergency measures in British colonial contexts that contradict formal claims about British Justice and the rule of law, see N. Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor, 2003) and R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford, 2005)
- 4.
P. Corrigan and D. Sayer, The Great Arch: English State Formation as Cultural Revolution (Oxford, 1985)
- 5.
In the earliest periods of British influence over claimed, conquered, ceded or discovered territories in North America, British subjects brought their laws with them, applied as far as local British executive authority determined feasible, an “informal reception” of English law derived from the 1608 precedent, Calvin’s Case (Case of the Postnati, 7 C0.Rep.1)
- 6.
Subsequent criminal statutes passed at Westminster did not apply unless they were explicitly imperial in reach, a colony was indicated, or a colonial legislature expressly adopted them. However, imperial oversight continued beyond the local presence of London appointed governors and senior judges. From 1801 colonial legislation was reviewed by the Colonial Office and from 1833 colonial cases could be appealed to the Judicial Committee of the Privy Council.
- 7.
For instance, Robert Peel’s Criminal Law Consolidations of the late 1820s and early 1830s were adopted by Upper Canada’s legislature in 1833, and only 11 capital offences were retained after that date, while Lower Canada (Quebec) had over 200, reflecting the unreformed state of English criminal law as it stood in 1774.
- 8.
See Douglas Hay, “Civilians Tried in Military Courts: Quebec, 1759–64” in Canadian State Trials I, 114.
- 9.
See Earnest A. Clarke and Jim Phillips, “Rebellion and Repression in Nova Scotia in the Era of the American Revolution” in Canadian State Trials I, 172.
- 10.
Carleton’s successor Haldimand confiscated property and repeatedly suspended habeas corpus by executive order, detaining 25 activists, lawyers, journalist/printers for “republican sedition”. Pierre Du Calvet, who had called for law reforms and criticised executive decrees, took his petitions for “state justice” to London, calling for Haldimand’s recall (the governor was, ironically, defended by Thomas Erskine) and initiating actions for compensation in the English courts, only to die when his ship sank in the Atlantic – see Jean-Marie Fecteau and Douglas Hay, “Government by Will and Pleasure Instead of Law: Military Justice and the Legal System in Quebec, 1775–83” in Canadian State Trials I, 129.
- 11.
John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1797 (Oxford, 2000). As noted elsewhere in this collection, after the acquittals of Hardy, Tooke and Thelwall, the remaining ‘Jacobin’ cases were dropped. Temporary legislation passed by Westminster in 1793, renewed to 1797, restricted foreign correspondence, extended prerogative registration and deportation powers over aliens and British subjects with contacts in France. In 1794 habeas corpus was suspended for these persons and anyone suspected of high treason, renewed every year (except 1796) until 1802.
- 12.
33 Geo.III c.3, c.27; F.K Proschaska, “English State Trials in the 1790s: A case Study”, Journal of British Studies, 13 (1973), 63; Clive Emlsey, “An Aspect of Pitt’s ‘Terror’: Prosecutions for Sedition During the 1790s” Social History, 6 (1981), 155.
- 13.
F. Murray Greenwood, “Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution, 1794–1800”, in Canadian State Trials 1, 243.
- 14.
34 Geo. III c.5 (L.C.); See generally, F. M. Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto, 1993).
- 15.
Greenwood, Canadian State Trials 1, 266–9.
- 16.
J-M Fecteau, J-P Wallot and F.M. Greenwood, “Sir James Craig’s Reign of Terror and its Impact on Emergency Powers in Lower Canada, 1810–13”, in Canadian State Trials I, 323.
- 17.
37 Geo. III c.1 (U.C.). American criminal law fell within state level jurisdiction and Article 3, section 3 of the US Constitution limited the reach of treason, article 1, section 9 limited the suspension of habeas corpus, while the First Amendment limited measures against the press. The Federalists attempted to work around these constraints with the Sedition Act, Alien Enemies Act, Alien Friends Act and the Naturalization Act (Statutes at Large, 1798, 1:566–97). See J.M. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY, 1956), L.W Levy, Freedom of Speech and the Press in Early American History: A Legacy of Suppression (New York, 1963); also, Barry Wright, “Migration, Radicalism and State Security: Legislative Initiatives in the Canadas and the United States c. 1794–1804” Studies in American Political Development, 16 (2002), 48.
- 18.
Wright, “Migration”, 51–2; F.M. Greenwood and Barry Wright, “Parliamentary Privilege and the Repression of Dissent in the Canadas” in Canadian State Trials 1, 418. See also John McLaren, Dewigged, Bothered and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto, 2011), 63–71.
- 19.
See Paul Romney and Barry Wright, “State Trials and Security Proceedings in Upper Canada during the War of 1812”, in Canadian State Trials 1, 379.
- 20.
See e.g., Barry Cahill, “R v. Howe (1835) for Seditious Libel: A Tale of Twelve Magistrates”, in Canadian State Trials I, 547.
- 21.
See Barry Wright, “Libel and the Colonial Administration of Justice in Upper Canada and New South Wales, c. 1825–30”, in Hamar Foster, Benjamin Berger and A.R. Buck(eds), The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver, 2008), 15. See also J.L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto, 2000) and more generally C. Calhoun (ed.), Habermas and the Public Sphere (Cambridge, MA, 1992).
- 22.
Barry Wright, “The Gourlay Affair: Seditious Libel and the Sedition Act in Upper Canada, 1818–19”, in Canadian State Trials I, 487.
- 23.
See Wright, “Libel”; Greenwood and Wright, “Parliamentary Privilege”; and Paul Romney, “Upper Canada in the 1820s: Criminal Prosecution and the Case of Francis Collins”, in Canadian State Trials I, 505.
- 24.
A. Greer, “1837–38: Rebellion Reconsidered” Canadian Historical Review, 76 (1995), 6.
- 25.
See Jean-Marie Fecteau, “This Ultimate Resource: Martial Law and State Repression in Lower Canada, 1837–8”, in Greenwood and Wright (eds), Canadian State Trials Volume Two: Rebellion and Invasion in the Canadas, 1837–39 (Toronto, 2002), 207; Steven Watt, “State Trial by Legislature: The Special Council of Lower Canada, 1838–41”, in Canadian State Trials II, 248.
- 26.
See F. Murray Greenwood, “The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison”, in Canadian State Trials II, 279; Beverley Boissery, “The Punishment of Transportation as Suffered by the Patriotes Sent to New South Wales”, in Canadian State Trials II, 383.
- 27.
See R. Baehre, “Trying the Rebels: Emergency Legislation and the Colonial Executive’s Overall Legal Strategy in the Upper Canadian Rebellion”, in Canadian State Trials II, 41; P. Romney and B. Wright, “The Toronto Treason Trials, March–May 1838”, in Canadian State Trials II, 62; C. Read, “The Treason Trials of 1838 in Western Upper Canada”, in Canadian State Trials II, 100.
- 28.
B. Wright, “The Kingston and London Courts Martial”, in Canadian State Trials II, 130. The 78 transported joined 24 convicted at the Toronto, Hamilton and London criminal trials who received conditional pardons, and were transported to Australia – see C. Pybus, “Patriot Exiles in Van Diemen’s Land” in Canadian State Trials II, 188.
- 29.
See Ian Radforth, “Sydenham and Utilitarian Reform” in A. Greer and I. Radforth (eds), Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada (Toronto, 1992), 64.
- 30.
See Desmond H. Brown and B. Wright, “Codification, Public Order, and the Security Provisions of the Canadian Criminal Code 1892” in Barry Wright and Susan Binnie (eds), Canadian State Trials Volume 3: Political Trials and Security Measures, 1840–1914 (Toronto, 2009), 529–31, 541–2. On developments in the law of treason generally see the Introductions to Canadian State Trials volumes 1, 2 and 3. The Statute of Treasons of Edward III, set out three major heads of treason (along with four other acts against the sovereign): Levying war/armed insurrection, adhering to enemies at war, and compassing/plotting sovereign’s death. Legislative and judicial constructions typically extended the definition to various forms of treasonous conspiracies and assisting enemies of the state outside war-time. The 1848 Treason Felony Act also modified procedural protections established in the 1696 Treason Act (advance sight of prosecutor’s evidence, two witness rule, right to defence counsel).
- 31.
Brown and Wright, “Codification”, in Canadian State Trials III, 531–2. On the Fenian raids and state responses, see R. Blake Brown, “Stars and Shamrocks Will Be Sown: The Fenian State Trials, 1866–7” in Canadian State Trials III and David A. Wilson, “The D’Arcy McGee Affair and the Suspension of Habeas Corpus” in Canadian State Trials III, 35, 85.
- 32.
See Bob Beal and B. Wright, “Summary and Incompetent Justice: Legal Response to the 1885 Crisis” in Canadian State Trials III, 353; J.M. Bumsted, “Another Look at the Riel Trial for Treason,” in Canadian State Trials III, 411; Bill Waiser, “The White Man Governs: The 1885 Indian Trials” in Canadian State Trials III, 451.
Bibliography
Calvin’s Case, 1608 (Case of the Postnati, 7 C0.Rep.1).
33 Geo. III c.27, Correspondence with Enemies Act, 1793.
34 Geo. III c.5, (Lower Canada), Aliens Act, 1794.
37 Geo. III c.1, (Upper Canada), Enemy Aliens Act, 1796.
44 Geo. III c.1, (Upper Canada), Sedition Act, 1804.
1 Vic. c.3, (Upper Canada), Lawless Aggressions Act, 1838.
11&12 Vic. c.12, Treason Felony Act, 1848.
F.M. Greenwood and Barry Wright (eds), Canadian State Trials Volume One: Law, Politics and Security Measures, 1608–1837 (Toronto, 1996).
F.M. Greenwood and Barry Wright (eds), Canadian State Trials Volume Two: Rebellion and Invasion in the Canadas, 1837–39 (Toronto, 2002).
Barry Wright and Susan Binnie (eds), Canadian State Trials Volume Three: Political Trials and Security Measures, 1840–1914 (Toronto, 2009).
R. Baehre, “Trying the Rebels: Emergency Legislation and the Colonial Executive’s Overall Legal Strategy in the Upper Canadian Rebellion”, in Greenwood and Wright Canadian State Trials II, 41–61.
John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford: Oxford University Press, 2000).
Bob Beal and B. Wright, “Summary and Incompetent Justice: Legal Response to the 1885 Crisis” in Wright and Binnie, Canadian State Trials III, 516–63.
R. Blake Brown, “Stars and Shamrocks Will Be Sown: The Fenian State Trials, 1866–7” in Wright and Binnie, Canadian State Trials III, 35–84.
Beverley Boissery, “The Punishment of Transportation as Suffered by the Patriotes Sent to New South Wales”, in Greenwood and Wright, Canadian State Trials II, 383–401
J.M. Bumsted, “Another Look at the Riel Trial for Treason,” in Wright and Binnie, Canadian State Trials III, 411–450.
Desmond H. Brown and B. Wright, “Codification, Public Order, and the Security Provisions of the Canadian Criminal Code 1892” in Wright and Binnie, Canadian State Trials III, 516–63.
Barry Cahill, “R v. Howe (1835) for Seditious Libel: A Tale of Twelve Magistrates”, in Greenwood and Wright, Canadian State Trials I, 547–75.
C. Calhoun (ed.), Habermas and the Public Sphere (Cambridge, MA, 1992).
Earnest A. Clarke and Jim Phillips, “Rebellion and Repression in Nova Scotia in the Era of the American Revolution” in Greenwood and Wright, Canadian State Trials I, 172–220.
P. Corrigan and D. Sayer, The Great Arch: English State Formation as Cultural Revolution (Oxford, 1985).
Clive Emsley, “An Aspect of Pitt’s ‘Terror’: Prosecutions for Sedition During the 1790s” Social History, 6 (1981), 155–84.
Jean-Marie Fecteau and Douglas Hay, “Government by Will and Pleasure Instead of Law: Military Justice and the Legal System in Quebec, 1775–83” in Greenwood and Wright, Canadian State Trials I, 129–71.
J-M Fecteau, J-P Wallot and F.M. Greenwood, “Sir James Craig’s Reign of Terror and its Impact on Emergency Powers in Lower Canada, 1810–13”, in Canadian State Trials I, 323–78.
Jean-Marie Fecteau, “This Ultimate Resource: Martial Law and State Repression in Lower Canada, 1837–8”, in, 207–247.
F.M. Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto, 1993).
F.M. Greenwood and Barry Wright, “Parliamentary Privilege and the Repression of Dissent in the Canadas” in Greenwood and Wright, Canadian State Trials I, 409–49.
F. Murray Greenwood, “Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution, 1794–1800”, in Greenwood and Wright, Canadian State Trials 1, 241–95.
F. Murray Greenwood, “The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison”, in Greenwood and Wright, Canadian State Trials II, 279–324.
A. Greer, “1837–38: Rebellion Reconsidered” Canadian Historical Review, 76 (1995), 1–18.
Douglas Hay, “Civilians Tried in Military Courts: Quebec, 1759–64” in Greenwood and Wright, Canadian State Trials I, 114–28.
N. Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor, 2003).
Otto Kirchheimer, Political Justice: The Use of Legal Process for Political Ends (Princeton, 1961).
R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford, 2005).
L.W. Levy, Freedom of Speech and the Press in Early American History: A Legacy of Suppression (New York, 1963).
John McLaren, Dewigged, Bothered and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto, 2011).
J.L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto, 2000).
Jens Meierhenrich and Devin O. Pendas, Political Trials in Theory and History (Cambridge, 2017).
F.K. Proschaska, “English State Trials in the 1790s: A Case Study”, Journal of British Studies, 13 (1973), 63–82.
C. Pybus, “Patriot Exiles in Van Diemen’s Land” in Greenwood and Wright, Canadian State Trials II, 188–204.
Ian Radforth, “Sydenham and Utilitarian Reform” in A. Greer and I. Radforth (eds), Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada (Toronto, 1992), 64–102.
C. Read, “The Treason Trials of 1838 in Western Upper Canada”, in Greenwood and Wright, Canadian State Trials II, 100–129.
Paul Romney, “Upper Canada in the 1820s: Criminal Prosecution and the Case of Francis Collins”, in Greenwood and Wright, Canadian State Trials I, 505–21.
Paul Romney and Barry Wright, “State Trials and Security Proceedings in Upper Canada during the War of 1812”, in Greenwood and Wright, Canadian State Trials 1, 379–405.
P. Romney and Barry Wright, “The Toronto Treason Trials, March-May 1838”, in Greenwood and Wright, Canadian State Trials II, 62–99.
J.M. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca NY, 1956).
E.P. Thompson, “The Moral Economy of the English Crowd,” Past and Present, 50 (1971), 76–136.
E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (Harmondsworth, 1977).
Bill Waiser, “The White Man Governs: The 1885 Indian Trials” in Wright and Binnie, Canadian State Trials III, 451–80.
Steven Watt, “State Trial by Legislature: The Special Council of Lower Canada, 1838–41”, in Greenwood and Wright, Canadian State Trials II, 248–278.
David A. Wilson, “The D’Arcy McGee Affair and the Suspension of Habeas Corpus” in Wright and Binnie, Canadian State Trials III, 85–120.
Barry Wright, “The Gourlay Affair: Seditious Libel and the Sedition Act in Upper Canada, 1818–19”, in Greenwood and Wright, Canadian State Trials I, 487–504.
Barry Wright, “Migration, Radicalism and State Security: Legislative Initiatives in the Canadas and the United States c. 1794–1804” Studies in American Political Development, 16 (2002), 48–60.
Barry Wright, “Libel and the Colonial Administration of Justice in Upper Canada and New South Wales, c. 1825–30”, in Hamar Foster, Benjamin Berger and A.R. Buck(eds), The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver, 2008), 15–37.
Barry Wright, “The Kingston and London Courts Martial”, in Greenwood and Wright, Canadian State Trials II, 130–159.
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Wright, B. (2019). State Trials in Post-revolution British North America. In: Davis, M., Macleod, E., Pentland, G. (eds) Political Trials in an Age of Revolutions. Palgrave Histories of Policing, Punishment and Justice. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-98959-4_14
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