The purpose of The Osgoode Society is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, former attorney general for Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support program, a graduate student research assistance program, and work in the fields of oral history and legal archives. The Society publishes (at the rate of about one a year)...

On a summer’s day in Quebec City, 1797, a young American from Rhode Island stood high on a platform speaking to the crowds below. He was tall, handsome, dressed in virgin white. Women interrupted his address, screaming proposals of marriage. Many of them shed tears that 21 July, for David McLane was about to be hanged for high treason against His Britannic Majesty, George III. Minutes later it was done:

The body hung for five and twenty minutes and was then cut down. A platform … was brought near the gallows, and a fire was kindled … the head was...

In the Quebec of the 1780s hiring a horse could be a risky undertaking. So a man named Mackenzie found. While dining en route he discovered that another traveller had appropriated his transport, later learning that the ‘borrower’ had driven the animal so hard that it died. The owner of the horse sued the innkeeper – who else? Out of curiosity Mackenzie, who was not a party to the suit, wandered into the Montreal courtroom, where seigneur René-Ovide Hertel de Rouville – a judge renowned for his authoritarian tendencies, not to mention his choleric and chronic intoxication on the Bench...

By autumn 1784 the reformers of Quebec City had organized themselves into two committees, English and Canadien, to draft a petition for constitutional change. The former consisted of seven merchants, among them Adam Lymburner, a dominant force in the seal fishery and a polished, dedicated politician in the mercantile interest.¹ The Canadien Committee then consisted of sixteen men. Two were from the seigneurial class (Antoine Juchereau Duchesnay and Philippe de Rocheblave, son of a French noble and outspoken opponent of the seigneurs who sat on the Council). The remainder, drawn from the bourgeoisie, included lawyer Jean-Antoine Panet, merchants Louis Dunière...

On 14 July 1789 the Bastille fell to the Paris crowd and the French Revolution began in earnest. When the news, some two and a half months later, reached Quebec, French- and English-speaking residents noticed the event: some with respect for the passing order, others with hopes of a better life for mankind, but all with wonder. No one, though, had the faintest inkling of how the startling events in far-off France would affect the people living in the valley of the St Lawrence. Unknown to contemporaries, a turning point in the history of Canada was at hand.

For constitutional...

Lower Canada twice experienced severe security crises in the years 1793–7. Both featured plans by revolutionary France to invade the colony – undercover activity by enemy agents (foreign and domestic) or ‘emissaries’ in the jargon of the times; and serious province-wide rioting, which revealed the grave difficulties of maintaining order in the days before professional police. Both also featured paranoid alarm – the ‘garrison mentality’ – among the English élite of merchants, seigneurs, professionals, and government officials, including judges. The garrison mentality in turn resulted in draconian security legislation and a manipulation of the courts.

Citizen Edmond Genêt, appointed...

By late 1793 a pattern to English élite perceptions of security emerged, which would prevail until 1812. The English entertained exaggerated fears of the external danger posed by France and magnified the insurrectionary potential of the Canadiens, who were French in culture, recently conquered, and formed the great majority of the colonial population. These fears – the garrison mentality – were linked. Contemporaries invariably assumed French invaders would meet with a strong, positive, armed response from the new subjects. In the few assertions of apprehended insurrection not directly implying that the rising would be sparked by a previous French landing,...

The government responded to perceived security needs in 1794 by passage and enforcement of the much misunderstood Alien Act. The principles had been decided largely on the advice of Attorney General Monk, by the early winter and the bill was introduced into the Assembly on 15 May by recent political convert, Judge De Bonne. Although not provoked by the Leveillé or militia riots, its enactment was undoubtedly made smoother by those events. The only opposition came from a few supporters of theparti canadien, the most prominent of whom were de Rocheblave and Jean-Antoine Panet. According to Monk, the latter...

Close to midnight on 10 May 1797 the governor’s civil secretary, accompanied by a party of soldiers, knocked at the Quebec City house of shipbuilder John Black, a recently elected member of the Legislative Assembly. Almost three years before, Black had been imprisoned without trial as a suspected agent of revolutionary France. As he bitterly remembered, his prosperous business had been nearly ruined and he had become, in his own words, ‘the scoff and reproach of the times.’

Things would be different now. Black knew he was not the object of the search. The quarry was an American then asleep...

As the century of Enlightenment came to an end, the unspeakable ‘wickedness’ secretly driving the French Revolution, was unmasked by ‘scholars.’ Abbé Barruel, citing McLane’s Intrigues, included Lower Canada in his exhaustive geographical review of Weishaupt’s shadowy but lethal tentacles. The first edition of Professor Robison’sProofs of a Conspiracy(London, 1797) sold out almost immediately and the book went through four editions before the turn of the century, while Barruel’sMémoireswas published in two British versions prior to 1800. These works strongly influenced parliamentarians. The report of a Commons’ committee dated 15 March 1799 exploited their ideas as...

As war again loomed in 1803, intelligence reports forecast the infiltration of the colony by a plague of agents preparing for Napoleon’s invasion. Merchant Alexander Auldjo, for example, had learned from informants in London and Paris that ‘whether theres [sic] a war or peace Buonaparte will be at work in this Country [Lower Canadal by his Emissaries – that they will come in all shapes & under all pretexts.’ According to Auldjo, the Canadian-born artillery captain Frangois-Joseph Chaussegros de Léry, son of the late seigneur of Gentilly who had been an executive and legislative councillor in the 1790s, would command the...

It was almost as if fate had taken a hand. Sir James Craig’s credentials for the role the English party wished him to play were impeccable, right back to his birth in 1748 and his early years as the son of a Scottish judge in the civil and military courts of Gibraltar, a garrison colony par excellence. The son had joined the regular army at fifteen and in a few years proved himself a decisive, brilliant commander. His distinguished record during the American Revolutionary War included command of the advance guard which forced the rebels out of Quebec in 1776....

As 1809 turned into 1810, British-American relations reached an explosive point. In November President Madison informed the hawkish United Kingdom ambassador, Francis James Jackson, that ‘no further communications will be received from you.’ While bellicose words filled the American press and Congress, Jackson and his staff moved to New York where for some months they functioned like a hostile government in exile. The ambassador warned Craig on 17 November to prepare for the worst.¹

Thus in late 1809 and early 1810 war with the United States seemed imminent. Two silver linings enlivened this dark cloud: the American military forces were...

The French Revolution moulded the development of Lower Canadian law in manifold ways. The impotence of the royal court at Versailles in the years 1789 to 1791, for instance, encouraged the imperial government to embark on a complex overhaul of the Quebec constitution, including the potentially risky grant of elected assemblies. I have discussed the crucial importance of timing and refuted the recurrent thesis of representative government resulting from fear of the French Revolution in chapter 3. The riots against the enforcement of militia laws and the Road Act of 1796 owed more to specific grievances (real and apprehended) entertained...