The outbreak of rebellion in Upper Canada in early December 1837 caught imperial and colonial authorities largely by surprise. Lieutenant Governor Francis Bond Head, the Executive Council, the commander of the forces, and the chief justice recognized that considerable discontent existed, particularly among settlers of American origins, but they chose to ignore the degree. In his address to a grand jury on 14 March 1838, Chief Justice John Beverley Robinson commented revealingly that it was ‘incomprehensible’ why anyone living in Upper Canada would want to rebel, and he confessed that he was ‘among the last who could believe it possible.’¹...

The Toronto trials were the first and, politically speaking, the most important proceedings arising out of the turmoil of 1837–8 in Upper Canada. Although supporters of the colonial government had won a big majority at the general election of 1836, by the end of 1837 the government was widely unpopular, and the high-handed conduct of some local officials charged with putting down the insurrection did not improve its credit. The trials gave the government an opportunity to improve its image and legitimize its authority in the eyes of colonial public opinion and imperial observers. It did so by appearing...

Rebellion inflamed passions throughout Upper Canada in 1837. The most serious expression of revolt came in Toronto and environs, but farther to the west rebels mustered too. In the west, the state instituted proceedings at Hamilton and London in the late winter and early spring of 1838 against those accused of treason for their parts in the events of December 1837. This essay examines those proceedings and encompasses also the trials at Niagara (Niagara-on-the-Lake) in the summer of 1838. The latter involved prisoners thought to have participated in a fruitless attempt to incite widespread insurrection in the province by launching...

As seen in the previous essay by Colin Read, Upper Canada’s Lawless Aggressions Act (1 Vic. c.3 – see app. D, U.C. doc. 1) created a new felony applicable to foreign invaders in league with British subjects which was applied at the trial of the Short Hills raiders. The act also provided an alternative procedure whereby foreigners and subjects alike could be tried by court martial for lawless-aggression offences. This option was pursued at the Kingston and London proceedings examined here. Courts martial became increasingly likely by the fall of 1838. As Murray Greenwood explains in the next essay, the British...

In the year after Mackenzie’s uprising in December 1837, recurrent invasions of the ‘patriots’ – Americans and Canadians – resulted in much property damage and the death of British subjects. Residents of the province, and most who lived near the border, were tormented by fear.

This was no less true of government officials, whose exaggerated but genuine fears were similar to the ‘garrison mentality’ I have described in early Lower Canada.¹ Lieutenant Governor George Arthur remained convinced in November 1838 that, if the patriots were to gain a solid foothold, sympathizers would pour over the border and widespread insurrection would erupt.² Similarly,...

In the aftermath of the rebellion and invasions of 1837–8, 102 political prisoners were sent out of Upper Canada to be transported to a penal colony in the antipodes. Ninety-two men – participants in the cross-border raids at the Short Hills, St Clair, Windsor, and Prescott – were transported to Van Diemen’s Land (VDL), the former name of Tasmania, Australia.¹ The lieutenant governor of Upper Canada, Sir George Arthur, had extensive experience with penal transportation as the previous governor of VDL, and he saw this option as the most effective way of curtailing further border disturbance.² He was also urged to...

If the soldier and the judge should sit bothonone bench, the drum would drown the voice of the crier. (Sir Edward Coke, 1628).¹

It is superfluous to state with what caution and reserve this ultimate resource should be resorted to, and that it ought to be confined within the narrowest limit which the necessity of the case would admit. But if unhappily the case shall arise in any part of Lower Canada, in which the protection of the loyal and peaceful subjects of the Crown may require the adoption of this extreme measure, it must not be declined....

The constitutional response of British authorities to the Lower Canadian rebellions proved rather slow and ponderous. A first step, taken in early 1838, was to augment other means of temporarily consolidating power in the hands of the provincial executive – notably martial law, examined in the previous essay – by suspending the partially elected Lower Canadian legislature and replacing it with a Special Council wholly appointed by the governor. In the short term, the council enacted several significant security measures designed to place official responses to the crisis on firmer legal ground and to facilitate further interventions. It also served as a...

A civilian rebel tried by court martial usually faced a crushing burden of proof and overt hostility from the ‘bench.’ The unpredictable, often merciful, jury was removed from the equation. Hearsay proof abounded. The prosecutors advised the lay, military officers on the law. These ‘judges’ had sometimes fought the prisoners in battle. The rights of defence counsel were severely restricted and the proceedings were not usually supervised closely by senior judges or the government. An anecdote from Montreal in December 1838 clearly conveys the irregular atmosphere.

During the first trial [1] of the Chateauguay suspects, the presiding officers took grave...

This sequel to the preceding essay explores theviresor constitutionality of the ordinance passed by the Special Council on 8 November 1838 authorizing trials of civilians in peacetime by courts martial (app. D,L.C. doc. 5). Steven Watt’s essay in this volume provides an overview of the council’s state security-related ordinances, including an earlier attempt to bypass regular trials (of prisoners from the 1837 rebellion) through Lord Durham’s controversial Bermuda Ordinance. The court-martial ordinance (applied to prisoners from the 1838 rebellion) lies at the heart of the legality of the Montreal Court Martial and raises broader constitutional issues concerning the...

Though there have been studies of women and crime in Canada, little has been written about female participation in the ‘highest’ form of crime, that directed against the state.¹ This is related to a larger neglect of women’s political involvement before mass female enfranchisement. Recent historical investigation, however, has widened the notion of ‘politics’ and drawn attention to ways in which Canadian women participated in political life before acquiring the vote early in the twentieth century. The interest shown by historians of women in the sphere of ‘informal politics’ has been paralleled by a concern on the part of legal...

Time was extraordinarily precious for fifty-eight men in the Montreal jail on 25 September 1839. The next day they would embark on the HMSBuffalofor transportation to the unknown Antipodes. Emotions ran high as they tried to console loved ones and cloak their despair. Young Jean-Marie-Léon Ducharme (known as Léandre) wrote to his mother of his hallucinations; sometimes, he said, he believed that Lower Canada was free and its ‘enemies [had] returned to that dust from which they sprang.’ But the call of sentries always brought him back to the ‘sad reality’ of his fate.¹ Ducharme would be joined...