Skip to main content Accessibility help
×
Home
Hostname: page-component-59b7f5684b-j5sqr Total loading time: 0.736 Render date: 2022-09-27T03:56:22.383Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "displayNetworkTab": true, "displayNetworkMapGraph": false, "useSa": true } hasContentIssue true

Race, Upper Canadian Constitutionalism and “British Justice”

Published online by Cambridge University Press:  23 February 2015

Extract

This article explores a puzzle in Canadian legal historiography: the meaning of “British justice” and its relationship to race. Scholars have noted the use of this term in the interwar years of the twentieth century, to object to demonstrations of racial bias in the legal system. The puzzle is why. From the mid-1850s onward, statutes aimed at circumscribing the rights and opportunities of aboriginal people multiplied. British Columbia passed anti-Chinese, anti-Japanese, and anti-Indian legislation. Saskatchewan prohibited Chinese and Japanese employers from hiring white women. At least some officials supposed that legislation targeting African Canadians would be permissible. In 1924, the Toronto Telegram called for a poll tax against Jews. It is clear that between 1880 and 1920 or thereabouts, federal and provincial law was deeply involved in creating and reifying legal categories that rested explicitly on physical distinctions perceived to exist among people, which were assumed to signal morally and legally relevant characteristics. Why, then, would anyone have thought that “British justice” should be a shield against racism?

Type
Articles
Copyright
Copyright © the American Society for Legal History, Inc. 2015 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. For an introduction to the extensive literature on discrimination, statutory and otherwise, in early twentieth-century Canada, see Backhouse, Constance, Colour-Coded: A Legal History of Racism in Canada 1900–1950 (Toronto: University of Toronto Press for the Osgoode Society, 1999)Google Scholar; Mawani, Renisa, Colonial Proximities: Crossracial Encounters and Juridical Truths in British Columbia, 1871–1921 (Vancouver: UBC Press, 2009)Google Scholar; and St. G. Walker, James W., “Race,” Rights and the Law in the Supreme Court of Canada: Historical Case Studies (Waterloo: Wilfrid Laurier University Press for the Osgoode Society, 1997).Google Scholar

2. Barrington Walker, “The Gavel and the Veil of Race: ‘Blackness’ in Ontario's Criminal Courts, 1858–1958” (PhD diss., University of Toronto, 2003), 1; Walker, “Race,” Rights and the Law, 130.

3. Walker, “Race,” Rights and the Law, 184.

4. Walker, Barrington, Race on Trial: Black Defendants in Ontario's Criminal Courts, 1858-1968 (Toronto: University of Toronto Press for the Osgoode Society, 2010)Google Scholar, 49, 55, 83, 124, 127–28, 134–35, 156. Walker's examples of claims to British justice date from before World War II.

5. Ibid., 82.

6. Ibid., 87. Compare Strange, Carolyn and Loo, Tina, “Spectacular Justice: The Circus on Trial and the Trial as Circus, Picton, 1903,” Canadian Historical Review 77 (1996): 182–83.CrossRefGoogle Scholar

7. Walker, James, “Claiming Equality for Canadian Jewry: The Struggle for Inclusion, 1930–1945,” in Nazi Germany, Canadian Responses: Confronting Antisemitism in the Shadow of War, ed. Klein, L. Ruth (Montreal & Kingston: McGill-Queen's University Press, 2012)Google Scholar, 219.

8. Ibid., 249–51.

9. Girard, Philip, “British Justice, English Law, and Canadian Legal Culture,” in Canada and the British Empire, ed. Buckner, Philip (Oxford and New York: Oxford University Press, 2008)Google Scholar, 260.

10. See, for example, Walker, Race on Trial, 24–25. Donald Fyson likewise observes that in Quebec law, “there is no evidence that either in law or in colonial policy there was any formal recognition of difference between Blacks as Blacks and other British subjects, except if they were so unfortunate as to be slaves”: Minority Groups and the Law in Quebec, 1760–1867,” in Quebec and the Canadas, Vol. 11, Essays in the History of Canadian Law, ed. Baker, G. Blaine and Fyson, Donald (Toronto: University of Toronto Press for the Osgoode Society, 2013)CrossRefGoogle Scholar, 291.

11. John McLaren, “Chasing the Chameleon: The Rule of Law in the British Empire” (lecture, Law, Spaces, Cultures & Empires: Engagements and Legacies conference on the Legal Histories of the British Empire, Singapore, July 5–7, 2012).

12. Girard, Philip, with Phillips, Jim, “Rethinking ‘the Nation’ in National Legal History: A Canadian PerspectiveLaw and History Review 29 (2011): 621.CrossRefGoogle Scholar

13. Fugitive Slave Act, Ch. 60, 9 Stat. 462 (1850). On the magnitude of this immigration, see Wayne, Michael, “The Black Population of Canada West on the Eve of the American Civil War: A Reassessment Based on the Manuscript Census of 1861,” Histoire Sociale/Social History 48 (1995): 465–85.Google Scholar

14. See Van Gosse, “‘As a Nation, the English Are Our Friends’: The Emergence of African American Politics in the British Atlantic World, 1772–1861,” American Historical Review 113 (2008):1003–28.CrossRefGoogle Scholar

15. R.C. Macleod, “Macleod, James Farquharson,” Dictionary of Canadian Biography Online, http://www.biographi.ca (date accessed November 18, 2014).

16. For example, Eric M. Adams notes a similar principle discussed in the dissenting appellate decision in York Corporation v. Christie (1938), 65 R.J.Q. 126: Errors of Fact and Law: Race, Space, and Hockey in Christie v. York,” University of Toronto Law Journal 62 (2012): 465.Google Scholar

17. Risk, Richard C.B., “A.H.F. Lefroy: Common Law Thought in Late-Nineteenth-Century Canada – On Burying One's Grandfather,” in A History of Canadian Legal Thought: Collected Essays, ed. Baker, G. Blaine and Phillips, Jim (Toronto: University of Toronto Press for the Osgoode Society, 2006), 70.CrossRefGoogle Scholar

18. Ibid., 69.

19. Ibid. See also Risk, Richard C.B., “Canadian Courts Under the Influence,” University of Toronto Law Journal 40 (1990): 687.CrossRefGoogle Scholar

20. Heaman, E.A., “Rights Talk and the Liberal Order Framework,” in Liberalism and Hegemony: Debating the Canadian Liberal Revolution, ed. Constant, Jean-François and Ducharme, Michel (Toronto: University of Toronto Press, 2009), 155–56.Google Scholar

21. “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown,” 1 W. & M. Sess. 2, c. 2 (1688). See also Heaman, “Rights Talk,” 156 and, on petitioning, Wilton, Carol, Popular Politics and Political Culture in Upper Canada, 1800–1850 (Montreal & Kingston: McGill-Queen's University Press, 2000).Google Scholar

22. Girard, “British Justice,” 259; and Murdoch, Beamish, Epitome of the Laws of Nova-Scotia, Vol. 1 (Halifax: Joseph Howe, 1832)Google Scholar, 35.

23. Murdoch, Epitome, 1: 49.

24. Ibid.

25. Mills, David, The Idea of Loyalty in Upper Canada, 1784–1850 (Kingston and Montreal: McGill-Queen's University Press, 1988), 7172.Google Scholar

26. Quoted by Simpson, Donald George, Under the North Star: Black Communities in Upper Canada Before Confederation (1867) (Trenton, NJ: African World Press, 2005)Google Scholar, 135.

27. Miller, Bradley, “British Rights and Liberal Law in Canada's Fugitive Slave Debate, 1833–43,” in Freedom's Conditions in the U.S.–Canadian Borderlands in the Age of Emancipation, ed. Freyer, Tony and Campbell, Lyndsay (Durham, NC: Carolina Academic Press, 2011), 143.Google Scholar

28. Ibid. Regarding the Maritime provinces, see Cahill, Barry, “Habeas Corpus and Slavery in Nova Scotia: R. v. Hecht ex Parte Rachel, 1798,” University of New Brunswick Law Journal 44 (1995): 179209Google Scholar; Cahill, Barry, “Slavery and the Judges of Loyalist Nova Scotia,” University of New Brunswick Law Journal 43 (1994): 73135Google Scholar; Bell, David G., “Slavery and the Judges of Loyalist New Brunswick,” University of New Brunswick Law Journal 31 (1982): 20Google Scholar; and Whitfield, Harvey Amani and Cahill, Barry, “Slave Life and Slave Law in Colonial Prince Edward Island, 1769–1825,” Acadiensis 38 (2009): 4546.Google Scholar

29. In Paul Halliday's reading of Coke and Hale, “protection draws subjection, and subjection draws protection.” Halliday, asserts that “scores, perhaps hundreds, of foreigners sued the writ from the sixteenth century to the ninetenthHabeas Corpus: From England to Empire (Cambridge: Belknap Press of Harvard University Press, 2010)Google Scholar, 203.

30. R. v. Knowles, Ex Parte Sommersett (1772) 20 State Trials 1 (K.B.).

31. See Brode, Patrick, The Odyssey of John Anderson (Toronto: University of Toronto Press, 1989)CrossRefGoogle Scholar and Halliday, Habeas Corpus, 299–301.

32. “Proceedings of a Meeting of Toronto Blacks Convened at the Residence of William Osborne, 203 King Street, Toronto, Upper Canada, 13 January 1838,” in C. Peter Ripley, ed., The Black Abolitionist Papers. Vol. 2, Canada, 1830–1865 (Chapel Hill: University of North Carolina Press), 69. A claim to “the liberty and protection which alone is afforded by the British Government” accompanied a call for legislation “similar to the Alien Act, passed by the Provincial Legislature in 1828”: “Great Meeting of Coloured People at Ancaster,” Toronto British Colonist, April 8, 1840.

33. Stouffer, Allen P., The Light of Nature and the Law of God: Antislavery in Ontario 1833–1877 (Montreal & Kingston: McGill-Queen's University Press, 1992)Google Scholar, 61.

34. Ibid. Ultimately the Colonial Office declined to act on this suggestion, explaining that it would be unnecessary to change the law as Rolph wished because, as Upper Canadian law did not distinguish between whites and blacks, it would be illegal to surrender fugitive slaves in circumstances in which whites also would not be given up: ibid. 59–60.

35. Peter Gallego to Thomas Rolph, November 1, 1841, in Ripley, Black Abolitionist Papers, 2: 87–94.

36. For example, enthusiasm for “colonization” in the British West Indies began to be in evidence: see “The Late Coloured Convention,” Toronto Examiner, September 24, 1851.

37. Stouffer, Light of Nature, 88–93, 144. One interesting aspect of this incident is that it shows liberals and evangelicals arguing for equality (George Brown and the Toronto Globe strongly promoted the Elgin Association's work), whereas people of African descent generally framed their claims in the more conservative rhetoric of British justice. Opposition to “class legislation,” which I discuss below, also tended to be voiced by conservatives.

38. “Colonization of the Coloured Race––in the Settled Townships,” Toronto Examiner, August 29, 1849.

39. Ward to Henry Bibb and James Theodore Holly, October 1852, in Ripley, Black Abolitionist Papers, 2: 227.

40. Quoted in Simpson, Under the North Star, 392. Compare Winks, Robin W., “Negro School Segregation in Ontario and Nova Scotia,” Canadian Historical Review 50 (1969): 171–72.CrossRefGoogle Scholar

41. Drew, Benjamin, The Refugee: Narratives of Fugitive Slaves in Canada (Toronto: Dundurn Press, 2008 [1856]), 2954.Google Scholar

42. I concur in this view with George Elliott Clarke, “Introduction: Let Us Now Consider ‘African American’ Narratives as (African-) Canadian Literature,” in Drew, Refugee Narratives, 18.

43. Quoted in ibid., 278.

44. Emphasis in original. Quoted in ibid., 149–50.

45. Quoted in ibid., 169.

46. Ibid., 123.

47. It appears that similar claims were made in Nova Scotia as well by “Black Loyalists” in the 1790s, who asserted that the British constitution and laws should shield them from assertions of the existence of slavery in the province. See Cahill, “Habeas Corpus and Slavery,” 186, discussing St. G. Walker, James W., The Black Loyalists: The Search for a Promised Land in Nova Scotia and Sierra Leone 1783–1870, new ed. (Toronto: University of Toronto Press, 1992).Google Scholar

48. Stouffer, Light of Nature, 12–13.

49. James C. Brown, a leader of the group, as quoted in Drew, Refugee, 227–28. Compare Proceedings of the Ohio Anti-Slavery Convention, Held at Putnam, on the Twenty-Second, Twenty-Third, and Twenty-Fourth of April, 1835 (Beaumont and Wallace, 1835), 18–19; Bailyn, Marilyn, “From Cincinnati, Ohio to Wilberforce, Canada: A Note on Antebellum Colonization,” Journal of Negro History 58 (1973): 430–31Google Scholar; and Winks, Robin W., The Blacks in Canada: A History (New Haven: Yale University Press, 1971), 155–56.Google Scholar

50. Using the database PaperofRecord.com (https://paperofrecord.hypernet.ca/default.asp), which, although incomplete, does contain a broad range of newspapers surviving from the colonial period, I searched for the word “negro” in the newspapers for the entire span of their publication within this period. I reasoned that as “negro” tended to be the most polite of the pejorative labels for people thus racialized, if Upper Canadians condoned the practice of using law to solidify racial boundaries, such thinking would turn up in connection with that particular word. Words such as “black” and “coloured” produced too many false positives to be useful search terms. I surveyed sixteen newspapers, which included in some cases newspapers with different titles that succeeded one another. I excluded from my review the African Canadian Voice of the Fugitive and Provincial Freeman, whose aims and viewpoints could not be assumed to reflect those of the predominantly white majority of the population and whose circulation was generally community-specific. The database returned 470 “hits” for “negro,” of which approximately 10% turned out to be false positives produced by optical character recognition on digitized nineteenth century newspapers; however, I also frequently found other articles referring to persons labelled “negro” or “coloured” or “slave” in those pages. The sample, therefore, is not comprehensive for appearances of the word “negro” in Upper Canadian newspapers; however, it does seem representative of depictions of people of African descent in those newspapers over this period.

51. For example, “Anecdote,” Chronicle & Gazette and Kingston Commercial Advertiser, November 3, 1841.

52. For example, “Barbarity,” Norfolk Observer, April 3, 1841.

53. One particularly extraordinary article is the report of Thomas Babington Macaulay's address to the British Parliament on the internal American slave trade in 1845: “Extracts from a Speech,” Toronto British Colonist, April 18, 1845.

54. See, for example, “Fruits of Abolition,” Chronicle & Gazette and Kingston Commercial Advertiser, September 12, 1835; “United States,” Chronicle & Gazette and Kingston Commercial Advertiser, October 28, 1835; “Imprisonment for Debt,” Toronto Examiner, June 23, 1841; and “European Slavery,” Toronto Examiner, February 25, 1846. An article urging support for American abolitionists was “Proposal for a National Remonstrance Against Slavery,” Toronto British Colonist, April 2, 1847.

55. For a strenuous critique of mob justice and what it says about the legal system (evidently written by an American critic) see “Progress of Disaffection to the Laws, and Decline of Public Virtue,” Chronicle & Gazette and Kingston Commercial Advertiser, August 20, 1836.

56. See, for example, “Upper Canada,” Bytown Gazette, and Ottawa and Rideau Advertiser, November 3, 1836.

57. See, for example, “Imprisonment for Debt.”

58. See, for example, “Liberty in the United States,” Bytown Gazette, and Ottawa and Rideau Advertiser, March 21, 1844.

59. See, for example, “To the Irish in America,” Toronto British Colonist, November 17, 1843. See also Untitled, Windsor Western Herald, February 4, 1842, regarding the arrival of a petition organized by O'Connell and one Father Matthew.

60. One occurred in a commentary on the extradition of Nelson Hackett in 1842, but the worry was that if Hackett could be spirited away in the middle of the night, so could anyone else: “[t]he law makes no distinction on account of color, and therefore if a negro can be detained in prison for five months, for an offence committed in a foreign country ... we say, if these things can be done towards a negro, they can equally be done when the subject to be operated upon happens to be a white-man: we therefore contend that the affair concerns the dearest rights of every British subject ....”: Untitled, Windsor Western Herald, July 22, 1842.

61. “American Slavery,” Bathurst Courier, October 19, 1847 urged instant abolition and support for abolitionists.

62. Untitled, Chronicle & Gazette and Kingston Commercial Advertiser, December 26, 1835, from New York Enquirer.

63. See “Slavery in Cuba,” Toronto British Colonist, March 12, 1844; “From Hayti,” Toronto British Colonist, June 4, 1844; “Atrocities at Mainnaeas,” Toronto British Colonist, July 2, 1844; “House of Commons,” Toronto British Colonist, April 11, 1848; and “United States,” Toronto Examiner, September 20, 1843.

64. See generally, Stephen Middleton, “The Judicial Construction of Whiteness in the Borderlands of the Northwest Territory, 1803–1860,” in Freedom's Conditions, 227–55, and Middleton, The Black Laws: Race and Legal Process in Early Ohio (Athens: Ohio University Press, 2005)Google Scholar. A bill in Tennessee intended to bar white people from gambling with slaves was briefly noted, but no commentary accompanied this note: “Miscellaneous,” Bathurst Courier and Ottawa General Advertiser, February 15, 1842. It was an unstated assumption in an article copied from a New York state paper in 1846 that American justice was not always color blind, but Upper Canadians were not told of specifics: “State of New York––the Van Nest Murders––Trial, Conviction, and Sentence of Freeman,” Toronto British Colonist, July 31, 1846.

65. See, for example, Untitled, Bathurst Courier, October 11, 1850; “Fugitive Slave Bill,” Bathurst Courier, October 18, 1850; “Arrest of Fugitives––Great Excitement––Bloodshed Anticipated,” Bathurst Courier, November 15, 1850; “Higher Law in Boston,” Bathurst Courier, February 28, 1851; “Baltimore Sept. 19,” Toronto Examiner, September 24, 1851; “Effect of the Fugitive Slave Law,” Toronto Examiner, September 24, 1851.

66. See, for example, “Colored Passengers by Railroad,” Toronto Examiner, February 15, 1843 and Untitled, Toronto Examiner, August 18, 1841 (re. an African American man unsuccessfully suing for assault and battery after being thrown out of a railway car despite having a ticket––there were white women in the car).

67. See, for example, “Murder and Slavery,” Bathurst Courier, December 5, 1851.

68. “Imperial Parliament,” Niagara Gleaner, July 6, 1833.

69. Untitled extract from late American papers, Toronto Correspondent and Advocate, August 13, 1835; Untitled, Toronto Correspondent and Advocate, November 26, 1835; “St. Louis, April 29, 1836,” Toronto Correspondent and Advocate, May 25, 1836; “Horrid Murder,” Toronto Correspondent and Advocate, July 6, 1836; “Gore Assizes” Toronto Correspondent and Advocate, August 24, 1836; “Alleged Military Outrage at Chippewa,” Toronto Examiner, October 21, 1840); “Baltimore Sept. 19”; and “Effect of the Fugitive Slave Law.”

70. Huttenback, Robert A., Racism and Empire: White Settlers and Colored Immigrants in the British Self-Governing Colonies 1830–1910 (Ithaca: Cornell University Press, 1976)Google Scholar, 21, 23.

71. Swinfen, David B., Imperial Control of Colonial Legislation 1813–1865: A Study of British Policy towards Colonial Legislative Powers (Oxford: Clarendon Press, 1970), 123–24.Google Scholar

72. Swinfen, Imperial Control, 29; Knaplund, Paul, James Stephen and the British Colonial System 1813–1847 (Madison: University of Wisconsin Press, 1953), 35Google Scholar, 11–12.

73. Swinfen, Imperial Control, 127–28; Smandych, Russell, “‘To Soften the Extreme Rigor of Their Bondage’: James Stephen's Attempt to Reform the Criminal Slave Laws of the West Indies, 1813–1833,” Law and History Review 23 (2005): 537–88.CrossRefGoogle Scholar

74. Advertising in the Kingston Chronicle and Gazette indicates that in the 1830s, printers in Boston and Philadelphia were accepting Canadian orders for the Edinburgh Review, the London Quarterly Review, Blackwood's Magazine, and others, although some kind of regulatory impediment arose in 1833 (see “Report,” British Colonist, January 26, 1834), which may have prompted importers to buy directly from Britain. Libraries and clubs also contained copies. In Toronto, Hugh Scobie was advertising these magazines and others in the 1840s. The Bathurst Courier and Toronto British Colonist in the late 1840s and the Toronto Examiner and Perth Courier in the 1850s advertised New York reprints of the Quarterly, Edinburgh and Westminster Reviews, as well as Blackwood's and others. Optical character recognition on nineteenth century newspapers is not reliable enough to permit an assessment of how frequently articles were copied from the Edinburgh Review or other journals; however, they did appear regularly and in a wide range of different newspapers. Blackwood's and the Quarterly were Tory, the Edinburgh was Whig, and the Westminster was described as Radical/Utilitarian in the early period and Liberal later. Joseph Howe's Novascotian, in Halifax, also regularly contained excerpts from the Edinburgh Review.

75. See, for example, “Mr. T. Macaulay's Speech to the Electors of Edinburgh,” Toronto Examiner, March 4, 1840; and “Foreign,” Toronto Canadian Freeman, October 11, 1827.

76. This information comes from the catalog of the American Antiquarian Society in Worcester, MA. New York publishers appear to have quickly caught up on the back issues as well.

77. Rice, C. Duncan, “Enlightenment, Evangelism, and Economics: An Interpretation of the Drive towards Emancipation in British West India,” Annals of the New York Academy of Sciences 292 (1977): 127.CrossRefGoogle Scholar

78. Rice argues that the Edinburgh's attacks on West Indian planters were “part of a wider campaign to bring all divisions of British society within a single canon of ethics and social organization. This canon was applicable even where it was self-evidently at odds with tradition, local preference and vested interest. The overthrow of slavery, like the destruction of church patronage and rotten burghs, was an early attempt to iron out aberrations from an ethical norm to which all elements of Victorian society would eventually be expected to conform”: ibid., 123.

79. Briggs, Asa, A History of Longmans and Their Books 1724–1990: Longevity in Publishing (London: British Library, 2008)Google Scholar, 183.

80. Rice, “Enlightenment, Evangelism, and Economics,” 127; Paul Mowbray Wheeler, “America Through British Eyes: A Study of the Attitude of The Edinburgh Review toward the United States of America from 1802 until 1861” (PhD diss., Johns Hopkins, 1930; pamphlet published by Rick Hill, SC but printed by Edwards Brothers, Ann Arbor, MI, for the author, 1935), 8–9.

81. Rice, “Enlightenment, Evangelism, and Economics.”

82. Ibid.

83. Allen P. Stouffer makes it clear that although all Upper Canadian churches deplored slavery, Canada's small antislavery movement was dominated by Scottish evangelical Presbyterians, among them Peter Brown, whose Edinburgh-born son George founded the Toronto Globe, a stalwart voice of reform, antislavery and the black immigrant. George Brown went on to become a “father of Confederation”: Light of Nature, 73–79, 172–89. As Stouffer remarks, “[i]nevitably, the values and institutions of the homeland retained a powerful hold on immigrant behaviour patterns”: ibid., 5.

84. Winter Studies and Summer Rambles in Canada (Toronto: McClelland & Stewart, 1990 [1838]), 152–53.

85. Journal of the House of Assembly of Upper Canada. From 8th January to 20th March, 1829 ... Being the First Session of the Tenth Provincial Parliament of Upper Canada. Sess. 1829 (York, UC: Francis Collins, 1829)Google Scholar, 37.

86. Catalogue of the Books in the Library of the Law Society of Upper Canada (Toronto: Printed for the Society by Rowsell & Ellis, 1863)Google Scholar. The library of Toronto lawyer William Hume Blake contained the Edinburgh, Quarterly and Westminster reviews, and Blackwood's Magazine: Catalogue of Books Belonging to the Library of the Hon. Wm. Hume Blake, to be Sold by Auction [etc.] (Toronto: Henry Roswell, 1856).

87. Strachan's library was dispersed, but volumes have been identified within the library system of the University of Toronto and indexed as such.

88. Stouffer, Light of Nature, 144.

89. Shadd, Adrienne, Cooper, Afua, and Frost, Karolyn Smardz, The Underground Railroad: Next Stop, Toronto! 3d ed. (Toronto: Natural Heritage Books, 2009)Google Scholar, 49; compare Winks, Blacks in Canada, 166.

90. St. G. Walker, James W., A History of Blacks in Canada: A Study Guide for Teachers and Students (Hull, QC: Canadian Government Publishing Center, 1980), 9394Google Scholar; Walker, Race, “Rights” and the Law, 249. On the disallowance of Nova Scotia's legislation and on New Brunswick's similar initiative from the same period, see Journals and Proceedings of the House of Assembly (Halifax: R. Nugent, 1834)Google Scholar; Journal and Proceedings of the House of Assembly of the Province of Nova Scotia (Halifax: R. Nugent, 1836)Google Scholar; Appendix to the Journal of the House of Assembly of the Province of Nova-Scotia. For the Session Commencing the 21st January, 1836, and Ending the 4th April, 1836 (Halifax: Royal Gazette, 1836)Google Scholar; Journal of the House of Assembly of New Brunswick, from the Twentieth Day of January to the Seventeenth Day of March (Fredericton: John Simpson, 1835)Google Scholar; and Journal of the Legislative Council of the Province of New-Brunswick. From 20th January to 17th March, 1835 [etc.] (Fredericton: John Simpson, 1835)Google Scholar. The next effort Walker recounts of using immigration legislation to exclude black immigrants took place just before World War I: History of Blacks in Canada, 94.

91. Even the legislation drafted to respond to the “Famine Irish” of the late 1840s, which carried diseases such as cholera and typhus into the Province of Canada, seems to have been drafted so as not to single out Irish immigrants: An Act to make better provision with respect to Emigrants, and for defraying the expenses of supporting Indigent Emigrants, and of forwarding them to their place of destination, and to amend the Act therein mentioned, S. Prov. C. 1848 (11 Vict.), c 1, s 17. Instead, the act caught different classes of “passengers,” arriving in particular ports. Statutes that purported to protect aboriginal people are a somewhat different case and are discussed below.

92. Constitutional Act of 1791, 31 Geo. III, c. 31, ss. 4, 20, 22, 23. See also Garner, John, The Franchise and Politics in British North America 1755–1867 (Toronto: University of Toronto Press, 1969), 7391.Google Scholar

93. Knaplund, James Stephen, 138–43, quotation at 139.

94. For the experiences of one person who was deeply embroiled in both of these controversies, see Brode, Patrick, Sir John Beverley Robinson: Bone and Sinew of the Compact (Toronto: Osgoode Society, 1984), 4243CrossRefGoogle Scholar, 118–41. See also Wilton, Popular Politics, 29, 3654.Google Scholar

95. See, for example, “Sir [?] Charles Metcalfe,” Bytown Gazette, March 9, 1843; and “The New Governor General,” Bytown Gazette, March 9, 1843. Elgin gave a speech in Fife, Scotland before leaving for Canada in which he referred to enslaved Africans as “our fellow men” and expostulated in a liberal vein upon the importance of training them up in habits of industry and Christianity as part of eliminating slavery and its after-effects in the West Indies: “Speech of Lord Elgin,” Bathurst Courier, February 16, 1847; and “Public Entertainment to the Earl of Ellgin [sic],” British Colonist, February 5, 1847. Elgin's wife was a daughter of Lord Durham and a niece of Lord Grey, the colonial secretary.

96. This insistence is described in detail in Buckner, Phillip A., The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, CT: Greenwood Press, 1985)Google Scholar, esp. 205–41.

97. “York County Election,” Bytown Gazette, and Ottawa and Rideau Advertiser, February 6, 1838.

98. Buckner, Transition, 268. McNairn, Jeffrey L. writes, “On the very day of the crisis with Baldwin and LaFontaine, Metcalfe had received from the Colonial Secretary a letter instructing him never, under any circumstances, to give up his power of bestowing patronage––the most powerful tool of a colonial governor”: The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press, 2000)CrossRefGoogle Scholar, 323. Metcalfe thereafter dissolved the assembly and called an election, which in the short term bolstered conservatism but in the longer term rendered the reformers a cohesive party (Buckner, Transition 268–69).

99. Journals of the Legislative Assembly of the Province of Canada. From the 28th Day of September to the 9th Day of December, in the Year of Our Lord 1843 and in the Seventh Year of the Reign of Our Sovereign Lady Queen Victoria. Being the Third Session of the First Provincial Parliament of Canada (Kingston: Edward John Barker, 1844)Google Scholar, 29. On the political violence of the period see Wilton, Popular Politics, 129–36, 168–220.

100. Journals of the Legislative Assembly of the Province of Canada. From the 28th Day of September to the 9th Day of December, in the Year of Our Lord 1843 and in the Seventh Year of the Reign of Our Sovereign Lady Queen Victoria. Being the Third Session of the First Provincial Parliament of Canada (Kingston: Edward John Barker, 1844), 208–9.Google Scholar

101. Journals of the Legislative Council of the Province of Canada ... Being the First Session of the Second Provincial Parliament, 1844–5. Vol. IV (Montreal: Lovell & Gibson, 1844)Google Scholar, A4-228–29. The bill's passage can be traced in Journals of the Legislative Assembly of the Province of Canada. From the 28th Day of September to the 9th Day of December, in the Year of Our Lord 1843 ... Being the Third Session of the First Provincial Parliament of Canada (Kingston: Edward John Barker, 1844)Google Scholar; and Journals of the Legislative Council of the Province of Canada ... Being the Third Session of the First Provincial Parliament, 1843. Vol. 3 (Kingston: Stewart Derbishire and George Debarats, 1843)Google Scholar. New Brunswick made similar efforts in 1843 and 1844.

102. Egerton Ryerson, “Sir Charles Metcalfe Defended Against the Attacks of His Late Counsellors,” Toronto British Colonist, July 2, 1844.

103. It seems that the vehemently racist Edwin Larwill suggested in the legislature in 1854 that in order to discourage black immigration and avoid associations with abolitionists in the northern states, a poll tax be imposed on “Negro immigrants” in an amount equal to that imposed on other foreigners and that the legislature “not incorporate any associations for the special benefit of men of color as a class.” Newspapers reported with relief the lack of support this proposal received, touting Canada's status as a land of freedom: “An Ill-Advised Movement,” Bathurst Courier October 13, 1854, reprinted from the Hamilton Spectator.

104. Huttenback, Racism and Empire, 23.

105. Swinfen observes that if James Stephen ever believed that colonial laws could be disallowed for repugnancy to fundamental principles of British law, he had turned from this belief by 1834: only legislation by a subordinate legislature that actually clashed with parliamentary legislation required disallowance: Imperial Control, 56–57. Stephen's successor, Sir Frederic Rogers, by the 1850s, accepted that colonial legislatures were competent to pass almost any laws, as long as they did not conflict with imperial statutes that had been intended to apply to the colony: ibid., 58–63. The Act of Union, which in 1841 united Upper and Lower Canada under a single legislature and reconstituted them as Canada West and East, made imperial review of statutes prima facie unnecessary unless the governor general reserved them for Crown assent. They were still to be sent to England and could be disallowed within two years (3 & 4 Vict., c. 35).

106. Heaman, “Rights Talk,” 159. Michael Eamon notes the same phenomenon in Upper Canadian poetry of the period: The Co-optation of Tecumseh: The War of 1812 and Racial Discourses in Upper Canada,” Journal of the Canadian Historical Association 23 (2012): 3963.CrossRefGoogle Scholar

107. Garner, Franchise and Politics, 160.

108. See, for example, An Act to prevent the Profanation of the Lord's Day, commonly called Sunday, in Upper Canada, S. Prov. C. 1845 (8 Vict.), c. 45, s. 14. Harring, Sidney L., White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence (Toronto: University of Toronto Press for the Osgoode Society, 1998), 3233, 91–99.Google Scholar

109. Chief Justice Robinson noted both this policy and its failures in John Young Brown v Alden Baker West (1846), 2 U.C. Jurist (o.s.) 676 (Exec. Council).

110. Harring, White Man's Law, 99–107, cf. 262–67.

111. McKay, Ian, “The Liberal Order Framework: A Prospectus for a Reconnaissance of Canadian History,” Canadian Historical Review 81 (2000): 617–45CrossRefGoogle Scholar, reprinted in Constant and Ducharme, Liberalism and Hegemony, 33–63. Lisa Ford has described the extension of claims to jurisdiction over aboriginal crime––and with it settler sovereignty over aboriginal peoples––in Georgia and New South Wales in the 1820s and 1830s: Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge: Harvard University Press, 2010)Google Scholar. The timing of the events described here is consistent with Ford's observations.

112. Report of the Special Commissioners Appointed on the 8th of September, 1856, to Investigate Indian Affairs in Canada (Toronto: Stewart Derbishire & George Desbarats, 1858)Google Scholar, reprinted in Appendix to the Sixteenth Volume of the Journals of the Legislative Assembly of the Province of Canada. From the 25th February to 16th August, 1858 ... in the Twenty-First and Twenty-Second Years of the Reign of ... Queen Victoria: Being the 1st Session of the 6th Provincial Parliament of Canada (Toronto: R. Campbell, 1858), A21–7.Google Scholar

113. Ibid., A21–9–14.

114. Ibid., A21–14–98.

115. Ibid., A98; S. Prov. C. 1857, (20 Vict.), c. 26. This statute received startlingly little debate and passed with only one “nay”: Journals of the Legislative Assembly of the Province of Canada from the 26th February to the 10th June 1857 ... in the Twentieth Year of the Reign of ... Queen Victoria: Being the 3rd Session of the 5th Provincial Parliament of Canada (Toronto: R. Campbell, 1857), 4849Google Scholar, 427, 455, 473–74. It was similarly treated in the Legislative Council: Journals of the Legislative Council of the Province of Canada ... Being the Third Session of the Fifth Provincial Parliament, 1857 (Toronto: Leader & Patriot Office, 1857).Google Scholar

116. Report of the Special Commissioners, A99.

117. Ibid., A–101.

118. Harring, White Man's Law, 33. The notion that Christianizing and then civilizing indigenous peoples the world over was the only proper remedy for the horrendous exploitation they had suffered was strenuously propounded by the British “Aborigines Protection Society” in its publication of a parliamentary report on aboriginal tribes: Report of the Parliamentary Select Committee on Aboriginal Tribes [etc.] (London: William Ball and Hatchard & Son for the Aborigines Protection Society, 1837).Google Scholar

119. Simpson, Under the North Star, esp. 242–48; and Winks, Blacks in Canada, 142–49.

120. An Act for the Better Establishment and Maintenance of Public Schools in Upper Canada, and for Repealing the Present School Act, S. Prov. C. 1849 (12 Vict.), c. 83, s. 69.

121. An Act for the Better Establishment and Maintenance of Common Schools in Upper Canada, S. Prov. C. 1850 (13 & 14 Vict.), c. 48, s. 19. For an extensive discussion of the background to segregated education in Canada West, see Winks, “Negro School Segregation.”

122. Simpson, Under the North Star, 241–48; Winks, Blacks in Canada, 368–76; and Winks, “Negro School Segregation,” 171.

123. Winks, “Negro School Segregation,” 172–82.

124. Ibid., 182.

125. Ibid., 190.

126. Act for the Better Establishment and Maintenance of Common Schools.

127. Simpson, Under the North Star, 243–44, 367.

128. Ibid., 244. Compare Winks, “Negro School Segregation,” 173.

129. Simpson, Under the North Star, 245–46. Robinson CJ, however, opined that the legislature must have intended to permit municipal councils to establish black schools as a response to white prejudice, against the wishes of the actual “class of persons whose children were to be taught in such schools”: Hill v. Camden & Zone School District (1854) 11 U.C. Q.B. 573.

130. In the 1859 consolidation of the statutes of Canada West (which was a re-enactment, not merely a reorganization, of the statutes), the twelve or more householders were clearly specified as having to be “colored people”: An Act respecting Separate Schools, Cons. S. U.C. 1859 (22 Vict.), c. 65, s. 1.

131. “Attempt to Assassinate the Queen,” Bathurst Courier and Ottawa General Advertiser, July 31, 1840.

132. I sampled bench books from the 1840s and 1850s kept by Robert Baldwin Sullivan, Christopher Hagerman, William Buell Richards and Robert Easton Burns (Archives of Ontario [“AO”], RG 22-390-5, RG 22-390-3, RG 22-390-12, and RG 22-390-9). I looked at their notes from cases that they heard around London, Chatham, Hamilton and Niagara, areas with relatively large black communities. Barrington Walker mentions having to turn to jail records to find criminal defendants categorized as black or Negro: Walker, “Gavel,” 40–41. Determining racial categorizations in judicial records is difficult.

133. I sampled the reports from the 1840s for various districts contained in AO, RG 4–1, Department of the Attorney General, Pre-Confederation Records 1794–1865.

134. Report for district of Newcastle, sitting at Cobourg in May 1843, in Report of Criminal Indictments Before the District and County Assizes––Johnstown to Niagara District, 1843, AO, RG 4–1.

135. R v. Oliver Dawsey; R v. Oliver Dawsey, Thomas Cavill, Jesse Tillason and Joseph Butler; and R v. George Foreman and Joseph Butler, in Robert Baldwin Sullivan, Bench book for Oxford Circuit, Autumn 1852, Common Pleas and Criminal Cases, AO, RG 22-390-5, box 45, file 4, 146–48, 157–60, 172–82. See also “The Queen vs. George Foreman and Joseph Butler––Murder,” Hamilton Weekly Spectator, November 4, 1852, 2; and Campbell, Lyndsay, “‘The Disorderly Conduct of a Few’: Crime and Hamilton's Racial Geography in the Early 1850sCanadian Journal of Law & Society 28 (2013): 369–86CrossRefGoogle Scholar and “Race and the Criminal Justice System in Canada West: Burglary and Murder in Hamilton, 1852–53” Queen's Law Journal (2012) 477–522.

136. “Assize Intelligence,” Hamilton Weekly Spectator, October 21, 1852, 6. Sullivan, a cousin of Robert Baldwin, seems to have been an astute lawyer and a sound, practical administrator with both liberal and conservative inclinations. One biography concludes, “A superb orator and incisive analyst when sober, Sullivan nevertheless remained known as a flawed figure, devoid ... of ‘genuine earnestness of purpose’ and ‘strong political convictions’”: Victor Loring Russell, Robert Lochiel Fraser, and Michael S. Cross, “Sullivan, Robert Baldwin,” in Dictionary of Canadian Biography, www.biographi.ca (date accessed November 20, 2014). His views on race are unknown.

137. See Finkelman, Paul, “International Extradition and Fugitive Slaves: The John Anderson Case,” Brooklyn Journal of International Law 18 (1992): 767Google Scholar; Brode, Patrick, The Odyssey of John Anderson (Toronto: University of Toronto Press, 1989)CrossRefGoogle Scholar, 40; and Robert C. Reinders, “Anderson, John” in Dictionary of Canadian Biography, www.biographi.ca (date accessed December 11, 2014).

138. Paul Romney says that because of problems with patronage appointees from distant places, resident Crown counsels began to be appointed in the early 1850s. The Crown Attorneys Act (An Act Respecting County Attorneys, S. Prov. C. [20 Vict.], c. 59) did not pass until 1857: Romney, Paul, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature 1791–1899 (Toronto: University of Toronto Press for the Osgoode Society, 1986), 216–22.Google Scholar

139. R. v. Foreman and Butler, 172, 174.

140. The gunsmith was Benjamin Harris and the cab driver Peter Price. Their census records appear in Census of 1851 (Canada East, Canada West, New Brunswick, and Nova Scotia), Hamilton, St. George's, Schedule A, at 122, and Hamilton, St. Andrews, at 516 (Library and Archives Canada, www.collectionscanada.gc.ca (date accessed November 20, 2014)).

141. R. v. Dawsey et al. 160–62, 169.

142. “The Queen vs. George Foreman and Joseph Butler––Murder.”

143. The women's Irishness also went unmentioned. Windsor Prince “(a negro),” must have been a special case. Others called him “ancient” and “decrepit,” and he presented himself as unable to keep the young people away from Prince's Island. Something about him seems to have made him seem so disorderly and unreliable that he alone was labelled in this unusual way. The term “negro” was associated with the “scientific racism” that was emerging at mid-century through texts such as Thomas Carlyle's “Occasional Discourse on the Negro Question.” The word was coming to connote troubling moral characteristics: see Darian–Smith, Eve, Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law (Oxford: Hart Publishing, 2010)Google Scholar, 133.

144. Campbell, “‘Disorderly Conduct of a Few.’”

145. Miller, British Rights and Liberal Law. Miller sees the judges as committed to liberal principles in their treatment of international law: treaties were to be obeyed, and everyone covered by them was to be viewed as essentially the same, whether black or white. Many judges also felt that states should stay out of each other's affairs: see “The United States Borderers [sic] and the Population of the British American Provinces,” Chronicle & Gazette and Kingston Commercial Advertiser January 3, 1838 and Stouffer, Light of Nature, 51, 110–12, 145–46, 167–70.

146. Robinson, C.W., Life of Sir John Beverley Robinson BART., C.B, D.C.L. Chief-Justice of Upper Canada (Toronto: Morang & Co., 1904)Google Scholar, 327. A later decision freed Anderson.

147. Winks, “Negro School Segregation,'” 172.

148. The Underground Railroad, which brought some African American immigrants to Canada, had a nautical component involving steamboats on the Great Lakes: Tobin, Jacqueline with Jones, Hettie, From Midnight to Dawn: The Last Tracks of the Underground Railroad (New York: Anchor Books, 2007), 193–94Google Scholar. Figures appear in A.B. Hawke to A.C. Buchanan, December 17, 1845, in Letterbook of A.B. Hawke, 1845–1850. AO, RG 11-1-0-3; A.B. Hawke to A.C. Buchanan, December 7, 1846, in Letterbook of A.B. Hawke, 1845–1850. AO, RG 11-1-0-3; and Letterbook of A.B. Hawke, 1845-1850, 475–87, AO, RG 11-1-0-3. The statistics that Hawke reported would have included all immigrants, regardless of color, but African American immigrants do not seem to have come to Hawke's notice in any particular way. Only one reference in Hawke's correspondence seemed at all likely to be referring to African Americans: Hawke quoted a letter of October 27, 1845, from a local agent at Port Stanley, who observed, “An unusual number of Settlers are arriving here from the United States and many of them are persons who have resided in different parts of the United States for many years, and no less than 20 of the latter description have applied to me today for shelter. All intend to settle in this District and are possessed of a little capital”: A.B. Hawke to A.C. Buchanan, October 27, 1845, in Letterbook of A.B. Hawke, 1845–1850. AO, RG 11-1-0-3. I suspect that African Americans in the 1840s seldom asked Hawke's office for help, and he considered it inappropriate to single them out in his reports.

149. Stouffer, Light of Nature, 205–12.

150. Noll, Mark A., “Revival, Enlightenment, Civic Humanism, and the Evolution of Calvinism in Scotland and America, 1735–1843,” in Amazing Grace: Evangelicalism in Australia, Britain, Canada, and the United States, ed. Rawlyk, George A. and Noll, Mark A. (Montreal & Kingston: McGill-Queen's University Press, 1994), 8788.Google Scholar

151. John Strachan and Egerton Ryerson, with their emphasis on education, seem to have assumed as much. Lord Elgin propounded such a view before arriving in Canada: “Speech of Lord Elgin.” Another article marveled at a reward being offered in Kentucky for a “runaway preacher,” evidently a slave. The author seemed to reason that God's command to go forth and preach the gospel could reach an African American just as well as it could a white preacher: “A Runaway Preacher,” Bathurst Courier, August 24, 1847.

152. “Enquirer,” “Human Being,” Bathurst Courier, April 5, 1850. The article reports on variations of human beings purportedly recently discovered in remote parts of the world, one supposedly bearing a six-inch tail. A rejoinder was published the following week: “Observer,” “Human Being,” Bathurst Courier, April 12, 1850. See also “The Caffres of South Africa,” Bathurst Courier, September 19, 1851.

153. I used HeinOnline to search for legal periodicals published in Canada after 1850. In my sample––which was thorough for the terms “coloured” (person/man/woman) and “negro” between 1850 and 1875 and more idiosyncratic thereafter––I found more than fifty-five articles, almost all of which were published after 1865. (Unsurprisingly, Confederation seems to have prompted a surge in legal publishing in Canada.)

154. The common carrier articles included Derry v. LowryLocal Court & Municipal Gazette 1 (1865): 109–11Google Scholar and Obligations of CarriersLegal News 3 (1880): 386Google Scholar. Articles that exhibited some concern about legal equality for African Americans include Richard A. Dawson,” Local Court & Municipal Gazette 6 (1870): 189Google Scholar; General Notes,” Legal News 7 (1884): 48Google Scholar; A Judicial Reminiscence,” Legal News 7 (1884): 363Google Scholar; and May, 1872Canada Law Journal 8 (1872): 101Google Scholar. A report on a proposal to appoint an African American man as attorney general was decidedly cool about the idea, but as it was reprinted from the Albany Law Journal, it is hard to know what the Canada Law Journal editors thought of it, other than that the proposal was newsworthy: Untitled, Canada Law Journal 9 (1873): 44Google Scholar.

155. Some Humors of the Law,Legal News 1 (1878): 404–6Google Scholar. See also Lawyers Soliciting Business,Canada Law Journal 48 (1912): 256.Google Scholar

156. “Richard A. Dawson.”

157. See Review of of Wrongs and Rights of a Traveller––By Boat, by Stage, By Rail,” Canada Law Journal 11 (1875): 178Google Scholar; and The Liability of Innkeepers,Canada Law Journal 11 (1875): 100104.Google Scholar

158. The English Writ of Habeas Corpus,” Upper Canada Law Journal 7 (1861): 5359Google Scholar. The context was the John Anderson case.

159. Changes in the Law,” Upper Canada Law Journal 7 (1861): 256Google Scholar.

160. See, for example, A Juryman Fined,” Local Court & Municipal Gazette 7 (1871): 80Google Scholar; and A Negro Jury,Local Court & Municipal Gazette 2 (1866): 32.Google Scholar The jury apparently awarded twenty-one dollars in damages against both the plaintiff and the defendant in an assault and battery case between two African Americans.

161. See, for example, “Some Humors of the Law” and Review of John G. Hawley, American Criminal Reports, Canada Law Journal 14 (1878): 159.Google Scholar

162. See, for example, Untitled Editorial, Canada Law Journal 33 (1897): 705–7.Google Scholar

163. The claims brought in the 1870s by and on behalf of the Métis in the Red River area were framed in the logic of British rights: Heaman, “Rights Talk,” 164–69. It seems likely that this process is connected with the reconceptualization of sovereignty as specifically territorial and no longer tolerant of pluralism, which Lisa Ford describes as having happened in the later 1820s and 1830s in Georgia and New South Wales: Settler Sovereignty.

164. Act for the Better Protection of the Lands and Property of Indians in Lower Canada, S. Prov. C. 1850 (13 & 14 Vict.), c. 42, s. 5. Providing the history of the use of the concept of “blood” in the later nineteenth century, Renisa Mawani observes that “the federal government see sawed between the importance of ‘blood’ and ‘culture’”: In Between and Out of Place: Racial Hybridity, Liquor, and the Law in Late 19th and Early 20th Century British Columbia,” Canadian Journal of Law & Society 15 (2) (2000): 18.Google Scholar

165. An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42, S.C. 1869, c. 6, s. 4. Backhouse, Colour-Coded, 21–27, describes the evolving definitions of “Indian” from 1850 through the mid-twentieth century.

166. Mawani, “In Between and Out of Place,” 19.

167. Ibid., 142–43.

168. Ibid.

169. McLaren, John, “The Early British Columbia Judges, the Rule of Law and the ‘Chinese Question’: The California and Oregon Connection,” in Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West, ed. McLaren, John, Foster, Hamar and Orloff, Chet (Regina: Canadian Plains Research Center, University of Regina, 1992)Google Scholar; and McLaren, John P. S., “The Early British Columbia Supreme Court and the ‘Chinese Question’: Echoes of the Rule of Law,” Manitoba Law Journal 20 (1991): 107.Google Scholar

170. Walker, “Race,” Rights and the Law, 70. See also Walker's helpful discussion of these cases, ibid., 67–77, 97–106. Specific statutes include An Act to Amend “The Qualification and Registration of Voters Act, 1871”, S.B.C. 1872, c. 37, s. 13; An Act Respecting the Registration of Births, Deaths, and Marriages in the Province of British Columbia, S.B.C. 1872, c. 26, s. 22; An Act to Provide for the Better Collection of Provincial Taxes from Chinese, S.B.C. 1878, c. 35; An Act to Regulate the Chinese Population of British Columbia, S.B.C. 1884, c. 4; Alien Labour Act, 1897, S.B.C. 1897, c. 1; An Act Relating to the Employment of Chinese or Japanese Persons on Works Carried on Under Franchises Granted by Private Acts, S.B.C. 1898, c. 28; Labour Regulation Act, 1900, S.B.C. 1900, c. 14; Labour Regulation Act, 1902, S.B.C. 1902, c. 38; Labour Regulation Act, 1903, S.B.C. 1903, c. 14; Labour Regulation Act, 1905, S.B.C. 1905, c. 30; and An Act to Amend the “Coal Mines Regulation Act”, S.B.C. 1903–4, c. 39. Provincial legislation aimed at disfranchising Japanese and Indian (i.e., from India) people appeared in 1895 and 1907: Provincial Voters' Act Amendment Act, 1895, S.B.C. 1895, c. 20 and Provincial Elections Act Amendment Act, 1907, S.B.C. 1907, c. 16. Federal legislation included An Act to Restrict and Regulate Chinese Immigration into Canada, S.C. 1885, c. 71.

171. McLaren, John P. S., “The Burdens of Empire and the Legalization of White Supremacy in Canada, 1860–1910,” in Legal History in the Making: Proceedings of the Ninth British Legal History Conference, Glasgow 1989, ed. Gordon, W. M. and Fergus, T. D. (London: Hambledon Press)Google Scholar, 188, citing Gough, Barry M., “Keeping British Columbia British: The Law and Order Question on the Gold Mining FrontierHuntington Library Quarterly 38 (3) (1975): 269–80CrossRefGoogle Scholar.

172. Ibid.

173. Now Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3.

174. McLaren, John, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History and the Francis Forbes Society for Australian Legal History), 8384.Google Scholar

175. Swinfen, Imperial Control, 43–49. Swinfen notes that the Privy Council's involvement in reviewing the decisions of colonial judges arose later, after 1867.

176. Ibid., 49–50.

177. McLaren, “Early British Columbia Judges,” 246–47.

178. James Walker discusses some of these cases in “Race,” Rights and the Law, at 67–77.

179. McLaren, “Early British Columbia Judges,” 249–50, 264.

180. Ibid., 247.

181. Ibid., 248.

182. “Evening Session,” Victoria Daily British Colonist, April 20, 1875.

183. BNA Act, ss. 91(2), 91(25), 92(2) and 92(9).

184. Tai Sing v. Maguire (1878), 1 B.C.R. (Pt. 1) 101 (B.C.S.C.), citing Lin Sing v. Washburn, 20 Cal. 534 (1862).

185. R. v. Wing Chong (1885), 1 B.C.R. (Pt. 2) 150 (B.C.S.C.).

186. R. v. Mee Wah (1886), 3 B.C.R. 403 (Cty. Ct.), citing Baker v. City of Portland, 5 Sawy. 566, 2 F.Cas. 472 (1879 C.C.Or.).

187. Yet another case framed mainly in terms of division of powers was Re. Gold Commissioners of Victoria District, (1886) 1 B.C.R. Pt. II 260 (Div. Ct., per Taylor J.), which concerned differential pricing for free miners' certificates. The scheme was struck down for exhibiting an impermissible purpose under s. 92 and encroaching on federal powers over aliens and trade and commerce, as well as conflicting with British treaty obligations.

188. Tai Sing, citing Emerich de Vattel, The Law of Nations; on Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, ed. Joseph Chitty (Philadelphia: T. & J.W. Johnson & Co., 1867), 260–65 (*Book 2, Chapter VIII, 172–73).

189. Tai Sing, citing James Kent, Commentaries on American Law, 8th ed. (New York: William Kent, 1854), II: 388.

190. R. v. Wing Chong.

191. Compare Walker, “Race,” Rights and the Law, 74.

192. Ho Ah Kow v. Nunan 5 Sawy. 553, 12 F.Cas. 252 (1879).

193. Ibid.

194. In re Tiburcio Parrott 1 Ky.L.Rptr. 136, 6 Sawy. 349, 1 F. 481 (1880).

195. Mee Wah, 186.

196. Ibid.

197. Huttenback, Racism and Empire, 144.

198. Saywell, John T., The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press for the Osgoode Society, 1979), 6975Google Scholar. Similarly, Swinfen, Imperial Control, 98, cites Secretary of State Duke of Newcastle in 1861 observing that constitutions were matters in which the colonies were “‘exclusively interested’” and that could be altered through colonial legislation, without the interference of the Colonial Office.

199. Richard C.B. Risk, “Constitutional Scholarship in the Late Nineteenth Century: Making Federalism Work,” in History of Canadian Legal Thought, 52.

200. Ibid., 55.

201. Ibid., 56.

202. Risk, “A.H.F. Lefroy,” 70.

203. Ibid., 77. Risk writes that Lefroy occasionally identified the problem but could imagine no solution: ibid., 78–79. Risk (with R.C. Vipond) writes at length about the preeminence of legislatures in “Rights Talk in Canada in the Late Nineteenth Century: ‘The Good Sense and Right Feeling of the People,’” in History of Canadian Legal Thought, 94–129. Schneiderman, David, in “A.V. Dicey, Lord Watson, and the Law of the Canadian Constitution in the Late Nineteenth Century,Law and History Review 16 (1998): 495526CrossRefGoogle Scholar, argues that Dicey's understandings shaped Lord Watson's approach to the federal trade and commerce power in a series of alcohol-related decisions culminating in A.G. Ontario v. A.G. Dominion and the Distillers and Brewers Association of Ontario, [1896] A.C. 348 (J.C. P.C.) (the Local Prohibition case). Watson found that the federal government's power to regulate trade and commerce did not include the power to prohibit it. He protected property rights by locating the power to prohibit only in the provinces, whose jurisdiction was territorially circumscribed. Even if a habit of referring to larger constitutional canons of interpretation (which might protect property or equality) existed among Canadian judges a generation later, an indigenous Canadian commitment to formal equality would not have been likely to have crossed the ocean to become a driving force in the Privy Council's thought.

204. Risk, “A.H.F. Lefroy,” 79.

205. Risk has observed that the attention of Canadian legal writers between 1867 and 1900 was most strongly drawn to federalism and that “[i]n contrast, there was very little discussion of basic constitutional theory, the British constitution, or individual rights”: Risk, “Constitutional Scholarship in the Late Nineteenth Century,” 38. The only guarantees of individual rights in the BNA Act pertained to education and to the use of English and French in Parliament and the federal and Quebec courts (ss. 93 and 133). These provisions aimed to manage French–English and Catholic–Protestant tensions.

206. Risk with Vipond, “Rights Talk in Canada,” 119.

207. Lefroy, A.H.F., The Law of Legislative Power in Canada (Toronto: Toronto Law Book and Publishing Company, 1897–98), 254–59.Google Scholar

208. Ibid., 726.

209. Ibid., 423. Elsewhere in the text, Lefroy doubts other aspects of Gray's reasoning in Tai Sing: ibid., 669, 680.

210. Union Colliery Co. of British Columbia Ltd. v. Bryden (1899), [1899] A.C. 585 (P.C.). For an analysis of the meaning of this case for British Columbia, see Lambertson, Ross, “After Union Colliery: Law, Race, and Class in the Coalmines of British Columbia,” in British Columbia and the Yukon, Vol. 6, Essays in the History of Canadian Law, ed. Foster, Hamar and McLaren, John (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 1995), 386422.Google Scholar

211. Cunningham v. Tomey Homma (1902), [1903] A.C. 151 (J.C. P.C.).

212. Quong–Wing v. R. (1913–14), 49 S.C.R. 448.

213. Ibid., 452. The backgrounds of these judges was different. Davies was born and raised on Prince Edward Island and studied law at the Inner Temple in London. He was elected to the legislature in 1872 and became premier and attorney general in 1876. In 1879, he left provincial politics and was elected to the House of Commons in 1882. In 1901 he joined the Supreme Court of Canada and became chief justice in 1918. Idington, on the other hand, was born and raised in Ontario, attended the University of Toronto, and practiced most of his life in Stratford, Ontario. He joined the Ontario High Court of Justice in 1904 and the Supreme Court of Canada the next year: see Idington's biography on the website of the Supreme Court of Canada, www.scc-csc.gc.ca, last accessed November 22, 2014. Idington was also the oldest member of the bench: Walker, “Race,” Rights and the Law, 104.

214. Quong–Wing, 452.

215. [1940] S.C.R. 139. Adams, “Errors of Fact and Law.” Davis J. carefully identified Christie, black and Jamaican-born, as a British subject already deeply rooted in the community, in large part by his enjoyment of hockey: ibid., 469–72.

216. See Backhouse, Colour-Coded, 278–81. Walker, “Race,” Rights and the Law, 256–57 sets out early twentieth century and later immigration legislation that spoke of “unsuitability,” required immigrants to possess certain amounts of money or speak English, or required that an immigrant have arrived via particular routes, all of which were aimed at excluding particular groups. This language vested discretion in immigration officials and made judicial review very difficult.

217. Moore, Christopher, The British Columbia Court of Appeal: The First Hundred Years, 1910–2010 (Vancouver: UBC Press, 2010)Google Scholar, 38.

218. Race and the Criminal Justice System in British Columbia, 1892–1920: Constructing Chinese Crimes,” in In Honour of R.C.B. Risk, Vol. 8, Essays in the History of Canadian Law, ed. Baker, G. Blaine & Phillips, Jim (Toronto: University of Toronto Press for the Osgoode Society, 1999)CrossRefGoogle Scholar, 428.

219. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 15.

220. Marquis, Greg, “Doing Justice to ‘British Justice’: Law, Ideology and Canadian Historiography,” in Canadian Perspectives on Law and Society: Issues in Legal History, ed. Pue, W. Wesley & Wright, Barry (Ottawa: Carleton University Press, 1988), 4369.CrossRefGoogle Scholar

Save article to Kindle

To save this article to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Race, Upper Canadian Constitutionalism and “British Justice”
Available formats
×

Save article to Dropbox

To save this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Dropbox account. Find out more about saving content to Dropbox.

Race, Upper Canadian Constitutionalism and “British Justice”
Available formats
×

Save article to Google Drive

To save this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Google Drive account. Find out more about saving content to Google Drive.

Race, Upper Canadian Constitutionalism and “British Justice”
Available formats
×
×

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *