1760 British Conquest (Colonial Rule)
The British conquest of New France in 1760 brought a particular rights culture to the colonies. This included the Magna Carta (1215), which limited the monarch’s arbitrary power and promised certain basic freedoms of religion and due process. The constitutional crises in England in the seventeenth century, most notably the English Civil War (1642–51), produced a series of laws that became foundational to the British—and, later, Canadian—state. Among these were the Petition of Rights (1628), which restricted taxation, arbitrary imprisonment, and the use of martial law; the Bill of Rights (1689), which delineated the powers of the monarch and guaranteed elections, the freedom of Parliament, and some religious freedom; and the Habeas Corpus Act (1679), which confirmed the right against arbitrary imprisonment. After the Conquest, British governors routinely trampled on rights.8 Among the most controversial of these governors were Guy Carleton (1768–78, 1785–95), a decorated career soldier who had participated in the attack on Louisburg and who had been wounded at the Battle of the Plains of Abraham; Robert Prescott (1796–99), who was with Carleton at the siege of Louisburg and whose administration so badly alienated French Canadians that he was recalled; and James Craig (1807–11), a distinguished soldier during the American Revolution and the Napoleonic Wars who sought to reduce French Canadians to a minority. These governors were especially hostile to elected officials, demands for reform, and any type of political dissent.9 Carleton declared martial law during the American Revolution, and the British Parliament suspended the right to bail and a trial in the colonies between 1777 and 1783 for any person charged with abetting the revolutionaries. Frederick Haldimand, the governor of Quebec from 1778 to 1785, used these powers to imprison at least twenty-five men suspected of collaborating with Americans (including a journalist, Fleury Mesplet, who later founded the Montreal Gazette ).10 Carleton, who returned to replace Haldimand in 1785, shut down and imprisoned the editors of Gazette du commerce et littéraire de Montréal (one of only two journals in the colony) in 1779 for criticizing judges and writing about tolerance. The Alien Act , passed in 1794, suspended the right to bail, speedy trial, and habeas corpus for persons accused of (not charged with) high treason; required the registration of all aliens and British subjects (forcing them to carry documents at all times); and empowered officials to deport foreigners at will and to imprison those who refused to cooperate. On 30 October 1794, General Prescott ordered all Frenchmen who had entered Lower Canada since 1 May to leave within twenty days. Almost one hundred men were imprisoned in the year following the law’s enactment. The same statute redefined sedition to include any attempt to disturb the happiness of His Majesty’s subjects, and the accused were denied the protections of the Libel Act . This had the effect of banning any public utterance, no matter how moderate, that could be construed as criticism of the government or as fostering ill will towards the propertied classes.
The French Revolution raised the spectre of discontented French Canadians overthrowing the government. Once again, the government responded by restricting civil liberties, justifying these measures as necessary to the security of British North America.13 The colonial legislature passed the Better Preservation Act in 1797, which suspended habeas corpus in cases of suspected treasonable practices and allowed the authorities to hold suspects indefinitely without charge. Craig—whose tenure as governor has been called the “reign of terror”—used the law to imprison the elected leaders of the Parti canadien from the Legislative Assembly without bail or trial.14 Meanwhile, in Montreal, Chief Justice James Monk was busy addressing the grand jury for the case of David McLane. McLane was on trial for espionage and for attempting to raise a fifth column to assist French revolutionaries to invade Lower Canada. Monk explained to the grand jury that any collective violent resistance to law enforcement (e.g., a riot) might be construed as levying war and, therefore, as high treason (even if those involved had no treasonable intent). The trial ended with McLane’s brutal execution: he was hanged, then beheaded and quartered, and his remains burned in front of a crowd of men, women, and children.
Craig also used the Better Preservation Act to shut down the journal Le Canadien , which was a voice for reform in the colonies, and threw the editors in jail (the printing press was confiscated and sold at auction).16 In fact, it was not uncommon during this period for journalists to be imprisoned for defamation, libel, or sedition and to use the courts to intimidate editors. In 1810, Chief Justice Sewell of Lower Canada explained to the grand jury for Le Canadien case that freedom of the press did not mean the right to criticize the government. Rather, the function of the press was to aid in the preservation of order: “Any writing, therefore, which was ‘detrimental to the public safety or happiness,’ which raised discontents against the ruling authorities, or whose ‘effect is prejudicial to the public’ could not be tolerated by government ‘without a dereliction of its own fundamental principles.’”18 In Lower Canada, the editor of the patriote journal Le Minerve , Ludger Duvernay, was imprisoned three times. William Lyon Mackenzie was temporarily expelled from the legislature of Upper Canada for his writings in the Colonial Advocate . Between 1818 and 1820, Upper Canada prohibited all meetings of a political nature. Anyone found guilty could be imprisoned for life.
Ajzenstat, Janet. The Canadian Founding: John Locke and Parliament. Montreal: McGill-Queen’s University Press, 2007.
Ducharme, Michel. Le Concept De Liberté Au Canada À L’époque Des Révolutions Atlantiques 1776-1838. Montreal & Kingston: McGill-Queen’s University Press, 2010.
Fecteau, Jean-Marie, F. Murray Greenwood, and Jean-Pierre Wallot. “Sir James Craig’s ‘Reign of Terror’ and Its Impact on Emergency Powers in Lower Canada, 1810-13.” In Canadian State Trials: Law, Politics and Security Measures, 1608-1837, edited by F. Murray Greenwood and Barry Wright, 323-78. Toronto: University of Toronto, 1996.
Greenwood, F. Murray. “The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance.” In Canadian Perspectives on Law & Society: Issues in Legal History, edited by W. Wesley Pue and Barry Wright, 291-327. Ottawa: Carleton University Press, 1988.
———. “The General Court Martial, 1838-9: Legal and Constitutional Reflections.” In Rebellion and Invasion in the Canadas, edited by F. Murray Greenwood and Barry Wright, 279-324. Toronto: University of Toronto Press, 2002.
———. “Judges and Treason Law in Lower Canada, England, and the United States During the French Revolution, 1794-1800.” In Canadian State Trials: Law, Politics and Security Measures, 1608-1837, edited by F. Murray Greenwood and Barry Wright, 241-95. Toronto: University of Toronto, 1996.
———. “The Montreal Court Martial, 1838-9: Legal and Constitutional Reflections.” In Canadian State Trials: Rebellion and Invasion in the Canadas, 1837-1839, edited by F. Murray Greenwood and Barry Wright, 325-52. Toronto: University of Toronto, 2002.
Greenwood, F. Murray, and Barry Wright, “Introduction: Rebellion, Invasion, and the Crisis of the Colonial State in the Canadas, 1837-9.” In Canadian State Trials: Rebellion and Invasion in the Canadas, 1837-1839, edited by F. Murray Greenwood and Barry Wright, 3-40. Toronto: University of Toronto, 2002.
———. “Introduction: State Trials, the Rule of Law, and Executive Powers in Early Canada.” In Canadian State Trials: Law, Politics and Security Measures, 1608-1837, edited by F. Murray Greenwood and Barry Wright, 3-54. Toronto: University of Toronto, 1996.
Moogk, Peter N. “The Crime of Lèse-Majesté in New France: Defence of the Secular and Religious Order.” In Canadian State Trials: Law, Politics and Security Measures, 1608-1837, edited by F. Murray Greenwood and Barry Wright, 55-71. Toronto: University of Toronto, 1996.