Race, Upper Canadian Constitutionalism and “British Justice”

Lyndsay Campbell

doi:10.1017/S0738248014000558

Race, Upper Canadian Constitutionalism and “British Justice”

Published online by Cambridge University Press: 23 February 2015

Lyndsay Campbell

Article contents

Extract
Introduction
The Claims of People of African Descent
Constitutional Practices and Beliefs
Mid-Century Changes
British Columbia's Anti-Chinese Cases
Footnotes

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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?

Information

Type: Articles
Information: Law and History Review , Volume 33 , Issue 1 , February 2015, pp. 41 - 91
DOI: https://doi.org/10.1017/S0738248014000558 [Opens in a new window]
Copyright: Copyright © the American Society for Legal History, Inc. 2015

Introduction

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.Footnote ¹ At least some officials supposed that legislation targeting African Canadians would be permissible.Footnote ² In 1924, the Toronto Telegram called for a poll tax against Jews.Footnote ³ 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?

But some did. A dominant theme in Barrington Walker's Race on Trial: Black Defendants in Ontario's Criminal Courts, 1858–1957 is a judicial insistence that unlike the American legal system, Canadian “British justice” paid no heed to race, despite the pseudoscientific characterizations of people characterized as black that were being introduced into early twentieth century trials.Footnote ⁴ For example, Walker quotes an accused man named Crosley in 1937 vigorously protesting a doctor's courtroom characterizations of him by turning to the judge, sobbing, and saying “‘Stop him from introducing racial feelings into this trial ... I was born in this country and nowhere in the world is a colored man treated as he is under the British flag. Make him stop these South American tactics.’” Walker remarks, “[c]loaking himself in the dominant rhetoric of colour-blind British justice and Canadian nationhood through a disavowal of ‘South American tactics’ (presumably U.S. Jim Crowism) was clearly one of the strategies Crosley used to assert his humanity under circumstances in which such a possibility was highly circumscribed.” The judge, Walker relates, assured Crosley that he would get a fair trial, that race or gender made no difference: “‘there will be no discrimination by the law.’”Footnote ⁵ Walker observes that even as black defendants were being characterized as “incapable of premeditation, unable to control their passions, and incapable of appreciating the gravity of their crimes,” (white) jurists were depicting the courtroom as a place where color-blind British justice demonstrated its superiority to the lynch law of the United States.Footnote ⁶

Similarly, before World War II, claims to “British justice” were the basis of Jewish objections to the discrimination they so frequently confronted.Footnote ⁷ After World War II, the rhetorical and legal framing of the wrong changed to rely on new articulations of “human rights,” but in the 1930s, it was “British justice” that was invoked to ground objections to the wave of anti-Semitism that broke over Canada, as Canadians exercised their freedom of association and expression and their rights over property to exclude Jews from employment, services and places.Footnote ⁸ Similarly, the appeal to British justice was made in 1918 to the benchers of the Law Society of Upper Canada by Chinese Canadian Gordon Won Cumyow, who unsuccessfully sought to be admitted as a student-at-law.Footnote ⁹

I do not argue for false consciousness but instead that this understanding of British justice was rooted in a real legal and cultural tradition that had roots that predated Confederation. Scholars have observed that after slavery was abolished in the Empire in 1834, Upper Canadian law in fact provided formal equality.Footnote ¹⁰ They have also drawn our attention to the multitude of ways in which this promise failed to be fulfilled. This article explores how this idea that law had to be formally equal took root in Canada. I am examining whether, and how, the absence of overt discrimination in statutes and judicial practice had come to be interpreted as having something like constitutional significance in popular legal thought by the early twentieth century. The concept was linked to the phrase “British justice.” This phrase encompassed such rights as habeas corpus, the right to petition the Crown and the right to trial by jury.Footnote ¹¹ That a commitment to color blindness was another aspect of British justice in Canada has been suggested by Philip Girard and Jim Phillips.Footnote ¹² After exploring the roots of this tradition, I argue that whatever legal force it may have had—and its actual legal force is uncertain—was formally squashed by the Judicial Committee of the Privy Council and the Supreme Court of Canada between 1899 and 1914. This development probably reflected a shift in the interpretive practices of judges at the highest levels, along with Canada's new status as a federal nation with autonomous legislatures whose intergovernmental powers required specification, but whose relationship to Britain had been loosening since the 1840s.

The people in British North America in the mid-nineteenth century who were visibly non-European were mainly African Canadian and aboriginal. African-descended people arrived in Nova Scotia in the later eighteenth and early nineteenth centuries, propelled mainly by developments in the United States. African Americans immigrated to Upper Canada/Canada West throughout the middle decades of the nineteenth century, but their numbers increased considerably after the passage of the American Fugitive Slave Act of 1850.Footnote ¹³ Aboriginal people relocated westward and northward as their land was absorbed into expanding European settlements.

Judges and administrators during this period seldom made clear statements of principle related to race, but instead evidenced reluctance to be seen to be paying attention to race in making decisions. A number of different factors appear to have combined to turn a factual absence of laws that distinguished on racial grounds into a phenomenon that appears to have had at least some normative power in the legal community. As I describe in this article, the origins of this sense of what law should or should not do seem to lie in a conservative ideas of rights, importantly habeas corpus. This sense appears to have been supported by a thread in early nineteenth century imperial policy that envisioned a color-blind empire, a thread that by no means successfully prevented discrimination, but whose underlying principles were promulgated in journals that Upper Canadians read. This thread dovetailed with British efforts to disrupt American slaveryFootnote ¹⁴ and with antirepublicanism. The view that law should not acknowledge race fit well with a frequently articulated aversion to “class” legislation in mid-nineteenth-century political theory. African-descended people in Canada, too, appear to have had an important measure of success in insisting that a real commitment to racial equality grounded this practice; that British law really intended to treat everyone equally. This claim about British justice still resonated among groups subjected to discrimination even after the highest courts held that color-blind British justice as a concept was irrelevant under the constitution that made Canada a country in 1867.

This article focuses on Upper Canadian constitutionalism, but it seems likely that lawyers and jurists elsewhere in British North America held similar views, including some of the early British Columbia judges, and quite likely some of the early western administrators, such as British Columbia's James Douglas and Calgary's James Macleod.Footnote ¹⁵ Further research on the Maritime provinces and Quebec might well suggest that this understanding of British justice existed there as well.Footnote ¹⁶

Canadian judicial practice changed at the end of the nineteenth century. An essay by Richard Risk bears the unusual subtitle “On Burying One's Grandfather.” Risk's subject, A.H.F. Lefroy, published a pivotal text on Canadian constitutional law in 1897–98. Risk describes Lefroy as promulgating an understanding of law and judging articulated primarily by a small group of Oxford scholars. In Risk's words, “Legal reasoning was distinctive, and sharply separated from politics and context. The common law was a set of internally consistent and coherent general rules, which expressed important moral and social standards, but which were autonomous or independent from their immediate context. The reasoning of the courts in elaborating and applying the common law was objective and apolitical.”Footnote ¹⁷ A previous judgment of the court or one from a higher level in the judicial hierarchy became binding, rather than simply persuasive.Footnote ¹⁸ This understanding of law and judging contrasted with an earlier one, associated with Mansfield and Blackstone, for whom “the common law was composed of principles derived by the judges from reason and justice, and from the collective experience of the English people.” Precedent was not binding just because it was precedent; judicial decisions were evidence of the law, rather than the law itself. If there was no settled pattern of cases, judges drew on “reason, justice, and experience.”Footnote ¹⁹ The grandfather Lefroy buried—by obscuring his approach to legal interpretation—was Upper Canada's long-time chief justice John Beverley Robinson.

Before 1870 or thereabouts, Upper Canadian judges, or some of them, along with some colonial administrators and others, acted as if they believed that “reason, justice and experience”—accompanied perhaps by religion or a dose of colonial policy as they understood it—dictated that law should not make explicit distinctions on the basis of racial or ethnic affiliation. A judge or lawyer would not suggest to a jury that race or ethnicity might be relevant to guilt or innocence. Statutes appeared facially neutral. Deeper commitments to social or political equality are harder to be sure of from the record and varied from person to person. Prejudice was extremely common—even pervasive—and rested on evolving beliefs about the nature of racial difference. Against the growing divide over slavery in the antebellum United States, African-descended people's claims about British justice acquired resonance. Between 1867 and 1915, however, Canadian legislatures were in the ascendant, and their attention turned to railway building, “settling” the West, and immigration. A new constitution was in place, and practices of legal interpretation changed. The color blindness implicit in Canadian “British justice” lost its grounding in legal practice, while remaining part of the popular legal heritage.

The evidence in this study comes from a mixture of other scholars' observations and from my own sampling of statutes, newspapers, law journals, court cases and other records. I begin with the claims for equality that people of African descent repeatedly made about British justice in the mid-nineteenth century. I describe popular discourse about African Americans from the 1830s to the 1850s, the likely resonance of certain religious and policy-oriented threads in imperial thought, the prevalent political suspicion of “class” legislation, and the actual practices of judges and legal writers. I describe the emergence of racializing legislation at mid-century, and, finally, I move west to explore how, after some resistance, the early twentieth-century judiciary, interpreting the 1867 constitution, eliminated the legal basis for claims that nondiscrimination was a principle of Canadian constitutionalism. This story is one not only of shifting sensibilities around race but also of the impact of independence, as colonies turned into a self-governing nation with a complex relationship to its southern neighbor and profound covetousness toward aboriginal land.

The Claims of People of African Descent

The early twentieth century claims by African Canadians that British justice was ignoring its commitment to treating them equally drew on a well-established Upper Canadian tradition, and one that people of African descent in British North America, and especially in Upper Canada, had been already drawing on for three or four generations. These rights claims were rooted in the conservative rights tradition that liberalism ultimately overwhelmed. The rights associated with British justice were, in Elsbeth A. Heaman's words, “collective, social, or historical” and rooted in specific historical relations, unlike the abstract and universal liberal rights that came to dominate Canadian political thought in the later nineteenth century.Footnote ²⁰ The 1689 English Bill of Rights provided for rule of law and the rights to bear arms (if Protestant) and to petition, and to the due constitution of juries. It prohibited excessive bail and fines and cruel or unusual punishments, and it protected parliamentary privileges, including freedom of speech in debate.Footnote ²¹ In 1832, legal scholar Beamish Murdoch claimed for Nova Scotians “what are generally esteemed the most valuable portions of British law”: habeas corpus, freedom of the press, trial by jury, a representative legislative assembly, and the viva voce examination of witnesses. “[I]n fine,” observed Murdoch, “all those branches of public law which have drawn the eulogium of the wisest and best of men upon the British constitution, we possess.”Footnote ²² Murdoch observed elsewhere, “All the natural born subjects of the British crown are entitled to all the rights of citizens, in whatever part of the empire they may reside or sojourn. Those who are born within the dominions of the crown of Great-Britain are considered in law as natural born subjects of his Majesty, and are said to be born within his allegiance.”Footnote ²³ Murdoch observed that strangers owed allegiance and were entitled to protection when within the Crown's dominions.Footnote ²⁴

There is remarkable consistency in the claims made by people of African descent in Canada in the middle decades of the nineteenth century. Loyalty, allegiance and protection were linked. The concept of loyalty played a key role in Upper Canadian political discourse as the reform movement gathered strength in the turbulent 1830s: the choice, as Tories saw it, was between loyalty to British institutions, and disloyalty, which they generally linked to republicanism.Footnote ²⁵ In the later 1830s, as the tensions that led to the Rebellions of 1837 and 1838 increased, people of African descent in Upper Canada tuned their rhetorical instruments so as to link their claims to equal British justice to their loyalty to the Crown. Radical leader William Lyon Mackenzie in 1837 called them “extravagantly loyal.”Footnote ²⁶ Loyalty, service to the Crown, and “contentment at living under the British constitution” were emphasized in the petitions through which African-descended people protested high-profile extradition cases brought against former slaves accused of crimes south of the border. Carefully linking black freedom to support for British authority, petitioners “touted not simply their own loyalty but their service, arguing thereby that they actively deserved the rights for which they were pleading.” The focus of these debates was on British rights, rather than on a more expansive conception of human liberty.Footnote ²⁷

The highest-profile claims to “British justice” made by people of African descent were claims for habeas corpus brought to arrest efforts to extradite former slaves for crimes allegedly committed in the United States.Footnote ²⁸ Habeas corpus was available to all who were, even temporarily, present as “local subjects,” within the monarch's realm.Footnote ²⁹ The landmark British Sommersett v. Stewart decision arose from habeas corpus,Footnote ³⁰ as did the decision that famously set John Anderson free in the extradition proceedings taken against him in Canada West in the early 1860s.Footnote ³¹ Initiating habeas corpus proceedings to invoke the protection of British law against American slaveholders' claims was an early and compelling move in African-descended people's claims about the nature and purpose of British justice in British North America.

African-descended people claimed not just habeas corpus but the full panoply of rights associated with the term “British justice.” After the Rebellion period, they publicly pronounced their expectation that British justice meant legal equality, even though the expectation that legal equality would translate into social equality was often disappointed. Examples from the late 1830s through the 1850s may be multiplied. One of the resolutions passed at a “Meeting of Toronto Blacks” in January 1838 expressed the meeting's “perfect contentment” with living under “free and equal laws, which recognize no distinction of colour in the protection which they afford and the privileges which they confer.”Footnote ³² The white antislavery activist Thomas Rolph argued in 1840 that fugitive slaves should become British subjects as soon as they crossed the border, which would protect them from extradition and also guarantee them access to churches and schools, which discrimination prevented in some places.Footnote ³³ Rolph argued that fugitive slaves accused of crimes in the United States should be tried in Upper Canada by juries, rather than extradited to the United States, because he wanted them to benefit from the evenhandedness of British justice.Footnote ³⁴ In a letter of November 1841, the black activist Peter Gallego outlined for Rolph the discrimination being experienced by people of African descent in Upper Canada, expressing an expectation that British philanthropists would not wish to think that their goal of equal justice for “the coloured population” was being thwarted on British soil in Canada.Footnote ³⁵

Prejudice against people of African descent was pronounced by the 1850s, at least in some parts of Canada West, but they and their supporters continued to insist that the law's insistence on equality protected them, albeit imperfectly.Footnote ³⁶ In the late 1840s and early 1850s, locals in Chatham arrayed themselves against the establishment nearby of a settlement for black settlers, the initiative of William King, an Irish-born Free Church Presbyterian educated in Scotland. The locals urged the government to refuse to allow the land to be sold to King's Elgin Association, which would then resell it to the settlers. King and his defenders argued that it was illegal “to prevent blacks from buying property in the region when they clearly had the right to do so.”Footnote ³⁷ The Toronto Examiner deplored the opposition, protesting that “the general welfare will best be promoted by fostering the growth of a national Canadian character of settlements in which people of every nation, and every creed, will be found living side by side on terms of amity and friendship.” The Examiner disliked the idea of insular colonies forming within the province but spoke of the inalienable right of all persons anywhere in the British dominions. There were many groups that might not like to live beside on another, but “all this prejudice cannot be justified upon any sound principle.”Footnote ³⁸ The land was transferred to the Elgin Association, and the settlement prospered until the end of the American Civil War.

Similarly, the antislavery activist Samuel Ringgold Ward declared that British law made no distinctions on the basis of skin color and referred to discrimination as illegal, as well as un-Christian and inconsistent with the British example.Footnote ³⁹ Protesting against ill treatment in 1855, the Provincial Freeman, a black newspaper, observed, “‘It is notorious that colored citizens of St. Catharines cannot hope for protection nor justice in that town. Their rights as tax payers are not recognized by the Administration of British law.’”Footnote ⁴⁰ Both legal protection and justice were claimed, and they were associated moreover with the assertion that the claimants were taxpayers and, therefore, full members of the community. In rooting this rights claim in the payment of taxes and thus in the ownership of property, the Provincial Freeman's correspondent was framing this claim in the Canadian conservative rights tradition captured by the phrase “British justice.”

One last set of voices must be mentioned. Benjamin Drew, an abolitionist from Boston, toured Canada West in 1854 interviewing people of African descent. Ultimately, he produced a text for American audiences that aimed to show that African Americans could succeed as freed people, notwithstanding arguments to the contrary emanating from the South.Footnote ⁴¹ Drew's text should not be read as suggesting that Canada was a paradise for fugitive slaves but as advocating the superiority of British law and jurisprudence.Footnote ⁴² One of Drew's interviewees, R. van Branken, who had been brought up in New York state, commented, “Among some people here, there is as much prejudice as in the States, but they cannot carry it out as they do in the States: the law makes the difference.”Footnote ⁴³ Aby B. Jones, a sometime Kentucky field hand, observed that although he had “free papers” in the United States, he had to emigrate to find a place where he could “be really a FREE MAN.”Footnote ⁴⁴ John D. Moore observed, “There is prejudice here among the low class of people, but they have not got the power to carry it out here that they have in the States. The law here is stronger than the mob—it is not so there.”Footnote ⁴⁵ Drew himself responded to the scarcity of black children in Hamilton's public school by commenting, “It is much to be regretted that the coloured people do not to a greater extent avail themselves of the advantages presented by the perfect equality of the English laws. Yet it is scarcely to be wondered at, when we consider that prejudice against them prevails to too great an extent in Hamilton.”Footnote ⁴⁶ While acknowledging the discrimination Drew's text evidences, we must also note that some of his interviewees did expect more justice out of Canadian legal institutions than they understood was to be found in their American counterparts and that Drew himself, like others before him, understood that English laws provided “perfect equality.”Footnote ⁴⁷

Constitutional Practices and Beliefs

This article explores the significance of the absence of statutes that explicitly discriminated: did that absence signal a commitment to formal equality? It is difficult to be sure how fully Upper Canadian legal officials agreed with African Canadians' claims about the equality guarantees of British justice. Scholars have accepted that Upper Canadian law provided formal equality, slavery having disappeared as a practice long before it was abolished in the Empire; but to what extent principle—rather than accidents of history—grounded this fact merits questioning, because prejudice was common, and also because pre-Confederation constitutional commitments deserve our attention. To assess Upper Canadian attitudes, this section begins by exploring attitudes toward people of African descent as expressed in newspapers, and then discusses the transmission into Canada of the liberal and evangelical ideas that promoted emancipation in the Empire. I move on to examine concerns about “class legislation.” Last, I examine evidence from certain administrative and judicial records and law journals for their discussion of the legal treatment of race. I conclude that the overall environment provided few rhetorical impediments to African Canadians' claims that British justice was committed to racial equality and, indeed, a good deal of support for these claims; both practice and political logic supported such a position, even if individual judges, legislators, or lawyers had discriminatory inclinations. It might be going too far to say that Upper Canadian justice before Confederation was deeply committed to formal equality (a commitment to social equality would be impossible to maintain), but claims to formal equality were certainly supported by legal practice and political principle before the clouds began to gather in the later 1840s and 1850s, as responsible government and settler voracity for aboriginal land took hold.

The Popular Climate

Powerful individuals in Upper Canada were committed to at least the legal equality of people of African descent. John Graves Simcoe, the first lieutenant-governor of Upper Canada, opposed slavery and wrote privately that he would not approve legislation that treated descendants of Africans differently from people of European descent.Footnote ⁴⁸ Sir John Colborne, who held the same office from 1828 to 1836, was written to circa 1829 by a group of African Americans who were exploring the possibility of moving to Upper Canada because Cincinnati was taking measures to make it difficult for them to live and work there; Colborne is said to have assured them that if they came and lived as loyal subjects, they would have all the privileges of British subjects, irrespective of color.Footnote ⁴⁹

Regardless of how important these influences may have been in the corridors of power, however, they were not part of the newspaper discussion of African-descended people in Upper Canada in the first half of the century. My sampling of newspapers from that period reveals a hatred of slavery, a sort of pathos-driven sympathy for the slave, a casual and hegemonic racism, and indifference to the legal status of African Americans who were not slaves.Footnote ⁵⁰

Before 1820 or thereabouts, “negroes” were depicted generally as either comical, violently dangerous, or objects of pathos. The late 1820s and early 1830s saw not only a rise in sympathetic reporting about the abolition of slavery in the British Empire, but also a growing horror at antiabolitionist violence in the United States. Many, if not the majority, of the newspaper articles—especially before about 1840—were obviously racist, most often depicting people of African descent either as violent and irrational, as faithful and somewhat dog-like servants, or as naive and comic, although the comic depictions increasingly bore a pointed anti-American political edge as the period went on. The figure of the selfless old “negro” man was fairly common,Footnote ⁵¹ as were stories of the victimization of slaves.Footnote ⁵² Stories of the sexual danger allegedly posed to white women appeared in the later 1830s but were uncommon. It should be noted that almost all of these accounts were reprinted from other newspapers, generally American ones, so one cannot be absolutely certain that there was no irony in the image of “the negro” that they presented, but there is also no commentary that suggests any consistent critique of these characterizations.

In article after article, Upper Canadian newspapers demonstrated their hatred of slavery and the slave trade,Footnote ⁵³ but the fundamental target was American republicanism. These newspapers tended to be skeptical about the merits of emancipation in the Empire in the late 1820s and 1830s and about American abolitionism until the later 1840s.Footnote ⁵⁴ Articles appeared regularly about the violence done to and by slaves, and about Southern lynching.Footnote ⁵⁵ Writers decried the lawlessness of Americans.Footnote ⁵⁶ Some writers compared black slavery to other conditions, to evoke sympathy for other causes and with the effect of minimizing the misery of slavery.Footnote ⁵⁷ The main interest, however, was in the hypocrisy of American republicanism's promises of liberty, supported by slavery.Footnote ⁵⁸

Slavery was the manifest evil, but Upper Canadian newspapers were almost completely silent about what liberty would look like for freed African Americans. Upper Canadian newspapers reveal no interest in discriminatory lawmaking in Upper Canada; but they were also mostly silent about legal inequality for African-descended people elsewhere, at least until the 1840s, when Daniel O'Connell's dramatic linkages between Irish oppression and American slavery and his ringing calls for legal equality for all were reported.Footnote ⁵⁹ There were extremely few declarations that Upper Canadian law should not attend to skin color.Footnote ⁶⁰ Some earlier Upper Canadian newspapers depicted abolitionists as dangerously subversive and often self-interested, although this depiction disappeared by the later 1840s.Footnote ⁶¹ One article—and only one—argued that abolitionists interfered with the previously stable and mutually beneficial relations between masters and slaves; American “free negroes,” to this writer, were a troublesome caste that needed to remember its place.Footnote ⁶² Similarly, although emancipation in the Empire in 1834 was enthusiastically reported, the names of William Wilberforce, James Stephen and Thomas Babington Macaulay were viewed with a certain skepticism in the later 1820s. The grave difficulties that followed emancipation in Britain's West Indian colonies—as apprenticeship was tried and abandoned in the 1830s—were also extensively covered. Bloodshed in the Caribbean was news.Footnote ⁶³ Overall, the newspaper coverage suggests that although slavery was horrible, free people of African descent were, at best, an unknown quantity as full citizens or subjects.

The various legal constraints on African American citizenship in the northern United States received practically no Upper Canadian commentary at all.Footnote ⁶⁴ It is hard to believe that editors were unaware of such constraints, as they copied almost all of their American news stories from American papers. Even after the passage of the Fugitive Slave Act of 1850, which imposed significant legal peril even on free African Americans, articles about fugitives tended to focus on those who had taken refuge in the North and on the anticipation of unruly, possibly dangerous African American mobs intent on rescue, rather than on the wider danger that the Act posed to fugitives and free African Americans alike.Footnote ⁶⁵ Writers occasionally noted discriminatory American laws without evident approval,Footnote ⁶⁶ but they did not point to legal inequality as something to rectify, perhaps because of a reticence to interfere in American affairs, but perhaps also because the legal inequality of African Americans—such as their inability to testify against whites in many places—did not seem worth objecting to.Footnote ⁶⁷ James Stephen's disapproval of how West Indian courts were treating the evidence of black witnesses was published in 1832, but it was part of a much longer parliamentary speech.Footnote ⁶⁸ Some Upper Canadian writers were sympathetic to the plight of slaves and former slaves, but on the whole, the breathless reporting of slave uprisings and violent assaults by African Americans suggest a belief that Americans had brought all this misery on themselves by introducing African slaves in the first place and therefore were the authors of their own misfortune, hardly a clarion call for equal rights for African Americans. The point was simply to show that slavery and the greed behind it had produced a multitude of evils, including a corrupted legal system.Footnote ⁶⁹ America was not to be emulated.

Imperial Policy and the Reformist Thread

In general, then, the popular Upper Canadian newspapers resolutely opposed slavery, which they characterized as a diabolical foundation of republicanism; but they did not talk about legal equality for people of African descent. Another influence on Upper Canadian constitutionalism, however, which probably had a particular impact on administrators and judges, as Crown appointees, has been characterized by Robert Huttenback as a “minor chord” in pre-nineteenth century British political ideology: an ideal of a “nonracial empire,” whose subjects were all equal before the law. In a multitude of ways, white settlers' racism made this vision impossible to realize in Australia, New Zealand, South Africa and Canada in the nineteenth century, and not all imperial policy makers thought it worthwhile to pursue such ends.Footnote ⁷⁰ However, the thread in imperial policy was nevertheless there to be appreciated by those upholding imperial policy in the colonies. Midcentury colonial legislation pertaining to slaves, ex-slaves, immigrant labor and other classes of disadvantaged people received greater imperial scrutiny than other kinds of legislation.Footnote ⁷¹ James Stephen, legal adviser and, from 1834, assistant under-secretary to the Colonial Office, was deeply concerned about the slaves and former slaves in the West Indies and the Cape, although not all of his superiors were sympathetic.Footnote ⁷² After emancipation in the Empire, Stephen continued to object to West Indian statutes that perpetuated distinctions between people of African descent and others.Footnote ⁷³

News of the British debates over West Indian abolition, Catholic and Jewish emancipation, and electoral reform travelled to Upper Canada through British journals, reprinted in the United States and copied by Upper Canadian newspapers.Footnote ⁷⁴ Speeches by Thomas Babington Macaulay, Henry Brougham, Daniel O'Connell and others appeared in reform-oriented newspapers such as the Toronto Examiner.Footnote ⁷⁵ Probably the most important of the British journals was the Edinburgh Review, which was founded in 1802, and by 1812 or thereabouts was being published not only in London and Edinburgh but also in New York. By 1813, an American edition was being sold in major cities along the eastern seaboard.Footnote ⁷⁶ This journal—“the most distinguished periodical of its time, in any language”Footnote ⁷⁷—was impeccably Whig, full of literary reviews of all kinds, and, in the 1820s and 1830s, strongly devoted to parliamentary reform and the elimination of slavery and the functional substitutes contrived by West Indian governments in the wake of emancipation.Footnote ⁷⁸ Its status rose even further when the British Whigs emerged from the political wilderness in 1830.Footnote ⁷⁹ Its reviewers (who included Macaulay, Brougham and Stephen) aggressively championed the slave from its origins in 1802, through emancipation in the Empire until the American Civil War.Footnote ⁸⁰ The Review melded the urgency of evangelical Christianity with common sense philosophy's insistence that a universal moral law governed all people in all places, and the eighteenth century economists' view that free labor was inherently superior to slave labor.Footnote ⁸¹ This melded view was part of the Victorian ideal of a uniform British inheritance to shape the self-understanding of its holders and be spread across the Empire.Footnote ⁸² The religious and philosophical bases for its position would have resonated particularly with Scottish Presbyterians, who were numerous and politically powerful, and who maintained a keen interest in British and Scottish affairs.Footnote ⁸³

Evidence of what individual Upper Canadians actually read is scarce, but there are certainly strong hints that the Edinburgh Review found a receptive audience among Upper Canada's lawyers, judges and politicians. In 1838, Anna Jameson commented on the general scarcity of books in Upper Canada and the reliance on American reprints of English magazines and reviews, as well as newspapers, which regularly contained extracts from American and English publications.Footnote ⁸⁴ The Edinburgh Review was first in the long list of journals that Mackenzie moved that the House of Assembly add to the legislative library in 1829.Footnote ⁸⁵ The Edinburgh Review and the Tory Quarterly Review appear to have been the only literary journals held by the library of the Law Society of Upper Canada, and the catalogue in 1863 noted that the library had the full run for the Edinburgh Review only.Footnote ⁸⁶ The library of John Strachan—a Scottish teacher who had risen to become an Anglican bishop, office-holder and extraordinary influence in the political and personal lives of the Upper Canadian elite, including longtime Chief Justice John Beverley Robinson—contained the Edinburgh Review among a variety of other reviews.Footnote ⁸⁷ Strachan opposed slavery and wrote about racial prejudice in his early years, even volunteering part of his salary to organize a school for black children.Footnote ⁸⁸ One of his proteges was Peter Gallego, “the brilliant son of a former slave.”Footnote ⁸⁹ It seems likely, therefore, that one strong religious, political and philosophical current circulating among those at the apex of power in Upper Canada encouraged empathy for the oppressed and criticized discriminatory legal practices elsewhere in the world.

Class Legislation

Upper Canadian history reveals a number of episodes in which legislators debated legislation that allocated legal rights and responsibilities on the basis of personal characteristics–what opponents referred to as “class” legislation. A select committee of the Upper Canadian Assembly recommended restrictions on black immigration in 1830, but British approval was withheld, as it also was from similar efforts in Nova Scotia in 1815 and 1834.Footnote ⁹⁰ Although these scattered efforts were made in the era before responsible government, this kind of legislation does not seem to have crept into the statute book until the constitutional changes of the 1840s were afoot.

Scholars of Canadian history have noted no statutes from before the 1840s that overtly distinguished among people on the basis of physical characteristics that we would identify as racial.Footnote ⁹¹ The Constitutional Act of 1791, which split Quebec into Upper and Lower Canada, did not condition voting or office-holding on religion (or race) but only on property holding.Footnote ⁹² By at least the early 1840s, James Stephen in the Colonial Office recognized that there had to be “‘absolute equality amongst all Christian Societies’” in British North America.Footnote ⁹³ Major controversies in the early decades of the nineteenth century over the rights of the American-born and the “clergy reserves” (land constitutionally allocated to the maintenance of a “Protestant clergy”) formed the backdrop for issues that arose with respect to other “classes” within society.Footnote ⁹⁴

Liberal reformers in Britain worked hard for Catholic and Jewish emancipation in the 1820s. They took aim at ending slavery in the West Indies and reforming those societies. Charles Metcalfe and James Bruce, Earl of Elgin, who became governors general of the (united) Province of Canada in 1842 and 1847 respectively, had been governors in Jamaica before moving to the Canadas, and their commitment to smoothing the transition of emancipated former slaves into full subjects in that colony was celebrated in Upper Canadian newspapers.Footnote ⁹⁵ A liberal version of the preference for treating all religious and racial classes equally therefore had a place in Upper Canadian political discourse.

Statements about the importance of treating all “classes” equally in political terms appeared more frequently in conservative rhetoric. This language resonated with the efforts of the British government and the Colonial Office to resist the arrival of party politics and cabinet-style government in the Canadas, and to insist instead that governors could maintain political equilibrium through astute dispensations of patronage.Footnote ⁹⁶ Guarding against “class” legislation could be presented as guarding the current constitutional arrangement. In 1838, the Bytown Gazette, quoting an article from the Toronto Christian Guardian about an upcoming by election, included among a list of considerations for voters the question of which candidate had the greatest desire “to secure, to the greatest possible extent, equal rights and privileges to all classes of the community.”Footnote ⁹⁷

Concerns about class legislation were woven through the “Metcalfe Crisis” in late 1843. This crisis is generally understood as the penultimate step on the road to responsible government in the Canadas, which arrived before the decade was out. When Governor General Charles Metcalfe refused to follow the advice of his executive council in distributing patronage, all but one member of the council resigned. The members of the executive council wanted control over patronage both to signify that responsible government had arrived in the colony (in that they, not the governor general, were in charge) and to give them the glue they needed to hold the French- and English-speaking wings of the reform movement together. The British government was prepared to yield on many vital issues but not that one. Metcalfe “was thus ordered to give ‘all due deference’ to his advisors on questions of patronage but not to exclude from employment ‘any class of Her Majesty's faithful subjects.’”Footnote ⁹⁸

This crisis unfolded in conjunction with Attorney General Robert Baldwin's effort, beginning in early October 1843, to have the assembly pass two bills aimed at curbing the Orange movement, one of them restraining “Party Processions in certain cases” and the other “for the discouragement of Secret Societies.” A third bill, “to provide for the calling and orderly holding of Public Meetings in this Province, and for the better preservation of the public peace thereat,” was introduced at the same time. It was aimed at the violence—largely promulgated by Tories—that had characterized politics for more than a decade.Footnote ⁹⁹ The bills regarding processions and public meetings duly passed both houses and received royal assent.Footnote ¹⁰⁰ However, Metcalfe reserved the bill for discouraging secret societies, and on March 27, 1844, Lord Stanley, Secretary of State for the Colonies, informed him that no assent would be given to it. Stanley wrote, “‘The Queen cannot be advised to concur in an enactment placing any class of Her Majesty's Subjects beyond the protection of the Law, and depriving them, without a previous conviction for crime, of the privileges to which all British Subjects have a common title.’” Stanley thought it was “‘more safe, more just, and more constitutional’” to rely on the executive branch of government to protect the peace. The precedent of doing so through legislation was too dangerous.Footnote ¹⁰¹

In July 1844, Methodist leader Egerton Ryerson, defending Metcalfe, said the bill not only proscribed from office but also erased from the jury list “a class of persons,” who were thus “reduced very nearly to the state of aliens and slaves—though still subjects of taxation.” Ryerson went on to attack Baldwin's advocacy of party government, in which the ruling party would prefer its own adherents in distributing patronage. Ryerson asserted that such a system would “promote the selfishness of party at the expense of the general good.” He asserted that it was absurd to think that responsible government must thus tie the hands of the governor. Ryerson preferred Metcalfe's understanding of responsible government, “which recognizes ministerial responsibility, and at the same time the purest and noblest attribute of the prerogative, to be equally just to all classes.” Maintaining the British connection required the governor general to continue to control appointments. Ryerson concluded by expressing the hope that “the great majority of all classes will unite to maintain a constitutional and affectionate connexion with the mother country, and a legitimate Responsible Government, upon the principles of equal justice to all classes of her Majesty's Canadian subjects.”Footnote ¹⁰²

The resistance to “class” legislation, therefore, had political resonance beyond a liberal commitment to treat different races and religions fairly. The point is not that in the eyes of the governing elite and their supporters those “classes” who were entitled to equal justice actually included people of African descent. Clearly the main concern of Metcalfe, Stanley, and Ryerson was maintaining the necessary conservative support for the imperial connection. However, this resistance to preferring particular “classes” was an aspect of the Tory discourse around British rights. Reformers, who wished to curtail the rights of “orangemen,” were the opposition; ten years later they seem to have succeeded in passing “class legislation” that favored immigrants of African descent.Footnote ¹⁰³ Ultimately, liberal reformers succeeded both in achieving responsible government and—as I discuss subsequently—in making room for class legislation, but the conservative rhetoric of the equality guaranteed by British justice was there to be adapted by other hearers.

Mid-Century Changes

As the British settler colonies acquired responsible government, the imperial government became even less likely to object to discriminatory statutes. “What responsible government did was to add constitutional impediments to natural reticence and to make British intervention essentially illegal except in matters of imperial or international concern. To be sure, the right to disallow colonial legislation remained, but a sort of imperial common law precluded its use except on rare occasions.”Footnote ¹⁰⁴ The doctrine of repugnancy was understood by the Colonial Office to pertain only to clear clashes between colonial legislation and British law, and no longer to clashes of principle only.Footnote ¹⁰⁵

It was aboriginal people who experienced Canada's earliest efforts to create racially specific class legislation, efforts that intensified at mid-century. Initially aboriginal people were seen as being outside of the British public sphere and were understood not to be entitled to the specific rights of British subjects.Footnote ¹⁰⁶ They were not formally disfranchised, individual property requirements being sufficient to exclude the vast majority.Footnote ¹⁰⁷ They were subjected to “protective” statutes (especially with respect to alcohol and sales of land); were relegated to reserves and heavily regulated in their transactions with nonaboriginal people; and were occasionally exempted from the operation of other statutes, such as the Lord's Day Act.Footnote ¹⁰⁸ The tone was one of protecting distinctly different peoples and their collective landholding practices, even though these protective measures were half-hearted and often failed in practice.Footnote ¹⁰⁹ When aboriginal people did encounter the legal system in Upper Canada before the second half of the century, they were afforded ordinary legal rights and were not subjected to particular, formal restrictions in their access to courts. In court they were treated as competent witnesses and were able to make wills and contracts.Footnote ¹¹⁰

The treatment of aboriginal people as legal minors began at mid-century, as what Ian Mackay describes as hegemonic liberalism reached out to convert their persons into individualistic, property owners and their lands into the domain of the Crown, to be reallocated as governments saw fit.Footnote ¹¹¹ A special commission was appointed in 1856 “‘[t]o enquire into and report upon the best means of securing the progress and civilization of the Indian Tribes in Canada, and on the best mode of so managing the Indian property as to secure its full benefit to the Indians, without impeding the Settlement of the Country.’”Footnote ¹¹² Reducing the government's funding obligations was also an imperative.Footnote ¹¹³ The report revealed in detail the living conditions of the many different groups in the Province of Canada and identified the efforts already afoot to Christianize them, render them sedentary, and train them to prepare them for integration.Footnote ¹¹⁴ The report reviewed an 1839 assessment by the chief justice of their legal status, which concluded that they had “no claims to separate nationality such as would exempt them from being amenable to and entitled to the protection of the laws of the land”; but nevertheless that the regular courts were open to them for the enforcement of contracts and redress for injury to person or property, not only between themselves and white people but among themselves as well. They would be qualified to vote and to fill municipal offices if they held sufficient property. An opinion by the attorney general in 1840 had similarly pronounced that they could make civil contracts and had legal capacity as plaintiffs and defendants. The Commission's report, however, noted with approval that since these statements had been made, “the Canadian Parliament have from time to time provided for the Indians as a class incapable in many respects of managing their own affairs.” One important step that had recently been taken was the Gradual Civilization Act, passed the previous session, which “expressly acknowledges their inferiority in regard to their legal rights and liabilities as compared with Her Majesty's other subjects resident in this Province, and provides means whereby they may be ‘gradually enfranchised.’”Footnote ¹¹⁵ A review of the “protective” statutes that applied to them—which included selling them liquor and protecting their land from taxation and confession of judgment—disclosed that they were “virtually minors though holding in some respects unusual territorial privileges and exemptions.”Footnote ¹¹⁶

No longer to be viewed as separate nations, aboriginal people were now characterized as minors, who needed a framework to facilitate their transition to legal majority and cultural integration. Such a solution would reduce the number of people who were defined as Indian (thus reducing the demands on the treasury), improve the living conditions and legal status of aboriginal people, and “throw open for settlement the unoccupied land.”Footnote ¹¹⁷

The 1857 Gradual Civilization Act “defined an inferior legal status for Indians, creating a system of legal dualism, denying them the franchise, and placing them in a distinct legal category, under the paternalistic protection of the government. Legally holding Indians in this condition, the government could subject them to unique forms of social control, educate and Christianize them, and ‘gradually’ train them for the full responsibilities of citizenship.”Footnote ¹¹⁸ A heavy-handedly discriminatory legal regime was to be the means of converting aboriginal people into equal, liberal members of society. No longer to be seen as separate societies, they were now to be understood as members of one of the few “classes” that Canadian law found acceptable: minors. Thus did liberal and conservative approaches to legal status blend in the interests of salving the liberal, Christian conscience and freeing up land for exploitation. The result was the most egregious class legislation that has ever existed in Canada, which necessitated increasing refinement of the legal definition of “Indian,” as aboriginal people declined to abandon their cultures and the demands on the state and the small parcels of land allotted to them continued.

African Canadians did not experience legal disabilities anything like those imposed on aboriginal people in the 1850s. In Canada West, discrimination against people of African descent increased in the 1830s and 1840s, as conditions worsened in the American North and their numbers in Canada West grew. This discrimination turned into outright hostility in some places by the 1850s; however, outside the realm of education, they were not targeted for discriminatory legislation.Footnote ¹¹⁹ In education, however, segregation based on local preferences was facilitated in Canada West in the late 1840s, as it also was in Nova Scotia. Although segregated schools appeared in some places much earlier, it was not until 1849 that segregation was explicitly enabled by positive law in Upper Canada. After legislation in the 1840s permitted the establishment in Canada West of publicly funded schools for Protestants and Catholics, schools “for the education of the children of colored people” were also facilitated by statutory amendment.Footnote ¹²⁰ The 1849 statute permitted municipal councils to determine whether or not to establish separate schools; the 1850 legislation permitted “twelve or more resident heads of families” to apply and thereby cause the trustees to establish such schools.Footnote ¹²¹ Segregated education was not a policy of the colonial government, but a combination of demands by whites in some communities and calls for separate schools from a minority within the black population, largely in these same communities, seem to have made enabling segregation seem necessary.Footnote ¹²² Litigation ensued, and children ended up being required to attend these schools where they existed and had space, so that segregation increased through the 1850s and 1860s in certain parts of the province.Footnote ¹²³ Ultimately these schools, being underfunded, fell into disrepair, and the children were integrated into the larger system.Footnote ¹²⁴ The enabling legislation was repealed in 1964.Footnote ¹²⁵

The provision of the 1849 statute that permitted segregation began by attributing the need for such schools to “the prejudices and ignorance of certain other inhabitants” of the province.Footnote ¹²⁶ Although Egerton Ryerson—now school superintendent—disapproved of accommodating racism by segregating schools, he appears to have tolerated it in order to advance his plan for public education as a whole.Footnote ¹²⁷ Contemplating the proposal to let local school trustees designate separate schools for black children on request, Ryerson observed in a letter to Attorney General W. H. Draper in 1847 that this approach would respect and promote the rights of “‘the coloured people’” and, moreover, would ensure that “‘nothing invidious [would] be admitted into the Statute book.” Ryerson thought that “a law recognizing difference based on color ‘would be an anomaly on the Canadian Statute Book and a disgrace to our Legislature.’”Footnote ¹²⁸ Ryerson may even have thought that with the 1850 statute he was placing the decision to set up such schools into the hands of black communities themselves and was also keeping the statute book clear of explicit distinctions based on race.Footnote ¹²⁹ For a time, however, any twelve heads of families—whites included—were empowered to demand separate schooling for black children.Footnote ¹³⁰

Judges and Lawyers

Ryerson's sense that racializing legislation would be anomalous and invidious, which he presumably thought Draper would share, is consistent with the suspicion of class legislation that Ryerson and others had voiced only a few years earlier. A concern about protecting and promoting the education of children of African descent is consistent with the reformist principles articulated in the Edinburgh Review. Although it is unclear to what extent judges were motivated by liberal or Christian concerns for the oppressed, judicial records do seem to evidence a belief that the law should not be seen to depart from an adherence to formal equality. Newspaper reports on the insanity defense raised by one “Oxford” in his trial, in England, for an attempt on the life of the queen in 1840 noted, “‘His father was a coloured man–His grandfather a negro.’” The papers reported on the court's painstaking assessment of the evidence of the man's own behavior and statements, despite his ancestry. British justice evidently demanded such a careful, dispassionate, unbiased approach.Footnote ¹³¹

In practice, judges in Upper Canada/Canada West seldom acknowledged racial difference. Judges' bench books that I have sampled contain strikingly few racializing terms for people of African descent.Footnote ¹³² Counsel for the Crown, also, in lodging their reports of the results of the criminal indictments that they filed in the 1840s, did not make racializing notes.Footnote ¹³³ The only mention of race that I found in the attorney general's records from the period was in a reference to two witnesses, a married couple who were “coloured persons.”Footnote ¹³⁴

A bit more of a sense of the legal system's treatment race emerges from a set of cases at the Hamilton assize in the fall of 1852. Two burglary prosecutions and one for murder took place, many aspects of which suggest both that legal processes were not supposed to take account of race and that race mattered all the same. The burglary suspects were a group of four men, three black and one white, accused of breaking into the houses of two prominent men, stealing their silver and melting it down in tree stumps in the bush just west of Hamilton. The two murder suspects were one of these African-descended men and one other, prosecuted for the death of a young white brick maker who had visited this remote location to drink, resurrect a quarrel, or have sex with one of the young Irish women who frequented the place.Footnote ¹³⁵

Despite what could—and may—have been a racially charged situation, when Justice Robert Baldwin Sullivan addressed the grand jury on the causes of crime in the Hamilton area, he did not mention race or immigration.Footnote ¹³⁶ The crown prosecutor at this assize was Samuel B. Freeman, a founding member of the Anti-Slavery Society of Canada who would defend the fugitive ex-slave John Anderson against extradition not long afterward.Footnote ¹³⁷ Because the accused men in one of the burglary trials seem not to have had effective counsel, the choice of Crown prosecutor was important, although the basis of that choice is unknown.Footnote ¹³⁸

In Sullivan's bench books, accused men and witnesses were sometimes racially identified and sometimes not. Oliver Dawsey, prosecuted alone in the first of the cases, went unlabeled. In the second case, with four accused, one of them white, Sullivan wrote “coloured” and “white” perpendicular to the men's names. In the murder case, squarely under the style of cause, Sullivan wrote, “The prisoners are both colored men.” The African-descended Windsor Prince, who formally or informally owned the establishment where the murder had taken place, was identified as “a negro.”Footnote ¹³⁹ On the other hand, a gunsmith and a cab driver who both described themselves as “colored” in a contemporary censusFootnote ¹⁴⁰ received no racial ascriptions in Sullivan's notes, and neither did George Foreman, who was also facing the murder charges, when he appeared as a witness in one of the burglary cases.Footnote ¹⁴¹ Concluding its report of the murder trial, the Hamilton Spectator assured its readers of the care taken by defense lawyers and the judge.Footnote ¹⁴² No hints that young black men were dangerous were made. My impression from the text is that the judge certainly “saw” race and felt it was important to note it, to keep the accused men straight in his mind and perhaps to create a record for sentencing or commutation. However the judge also understood that the law had to be—and be recorded as being—impartial in how it treated participants; therefore, the bench book was largely silent on race.Footnote ¹⁴³ However, the result in the second burglary trial suggested that race mattered nonetheless; despite an almost complete lack of evidence against him, Joseph Butler was convicted of burglary, whereas the white man, Thomas Cavill, against whom there was more evidence, was acquitted. I have argued elsewhere that Butler's association, and Cavill's lack thereof, with the vice-ridden swamp just outside Hamilton where the burglaries were planned—a site for alcohol, interracial sex with Irish women, idleness, and the planning of crimes—seems to have been key to the result of this trial.Footnote ¹⁴⁴

This reluctance to acknowledge race in the courtroom is consistent with other accounts of the pre-Confederation judiciary. In the 1830s and early 1840s, Upper Canadian judges hearing applications to extradite ex-slaves accused of committing crimes in the course of their escapes refused to formally treat African Americans differently from any other accused persons; refused, in other words, to explicitly take into account the judges' knowledge that such people would be returning to slavery or summary execution at the hands of slave masters, rather than to fair trials.Footnote ¹⁴⁵ C.W. Robinson's 1904 account of the life of his father, Chief Justice John Beverley Robinson, suggests this same commitment to a diligent, blindly positivist neutrality. On the one hand, the younger Robinson celebrates Upper Canada's progressive thinking in beginning the eradication of slavery in 1793; but on the other hand, he quotes, with apparent approval, a journal's account of the Court of Queen's Bench's unprejudiced, entirely dispassionate application of the Webster–Ashburton treaty in the case concerning the extradition of John Anderson. The elder Robinson and the Court ordered Anderson extradited to face murder charges, despite their sympathy for “a fellow-man in agonising peril.”Footnote ¹⁴⁶ Although slavery was an evil, Robinson and his court believed that the law had to be applied formally equally, regardless of the human implications.

Other legal voices also seem to have assumed that legal outcomes should not depend upon “class” distinctions such as race. The president of Hamilton's Board of Police, in 1843, thought the law “‘ought to be enforced without distinction of colour.’”Footnote ¹⁴⁷ Anthony Bewden Hawke, the Chief Emigrant Agent in Canada West in the 1840s, wrote regularly to his superior in Montreal, reporting on his office's increasing financial difficulties under the pressures of the Irish famine and cholera. His records from 1845–46, however, which I have examined at some length, do not speak of “the Irish.” Hawke classified immigrants according to their ports of arrival but not by nationality. Not only did he not explicitly refer to Irish immigrants but he also did not mention “colored” immigrants, who must have been among the 2500 or more arriving each year by steamship at places such as Port Stanley, Cobourg, Toronto and Hamilton.Footnote ¹⁴⁸ The emigrant agent office's concerns and the efforts to change the legislation were clearly aimed at the Irish; however, terminology that would have connected “class” to the legislative and bureaucratic response was not used.

New ideas about race were in the air by the middle of the nineteenth century, but they do not seem to have affected the attitudes to racializing legislation represented in Upper Canadian legal journals before Confederation. Canadian theories do not seem to have directly tracked American ones. Canadian newspapers opposed racial “mixing” and had very little sympathy for freed African Americans after the Civil War, but the negative opinions they frequently expressed did not particularly resonate with either of the two major antebellum American schools of racial thought—the “Romantic Racialists” and the American School of Ethnology—which both held that the races were essentially different.Footnote ¹⁴⁹ The multiple origins theory (associated with the latter school) was inconsistent with common sense philosophy, which was committed to a scientific understanding of human morals, so that one philosophy could apply to all.Footnote ¹⁵⁰

Writers in Upper Canadian newspapers tended to suppose that Africans and those of African descent were inferior in some way, but whether that inferiority was caused by social conditions (such as slavery) or was innate was not a question to ponder. Some assumed that with a sound religious and cultural education, such a person could be rendered an acceptable member of society.Footnote ¹⁵¹ The only articles I encountered that suggested that physical characteristics might be a marker of fundamentally significant biological and moral difference appeared in 1850 and 1851.Footnote ¹⁵²

According to my review of Canadian legal periodicals after 1850, even as resistance to class legislation was starting to weaken and new theories of race were being propounded, Canadian legal writers did not advocate using racial classifications to allocate legal rights.Footnote ¹⁵³

No writers discussed adopting overtly discriminatory legislation, and, in general, they disapproved of plainly discriminatory American practices. No articles directly criticized efforts to desegregate the United States, although there was certainly skepticism about how smooth that process would be. Rising tensions over the extension of the reach of the slave power in the United States from 1850 onward produced indignation and concern, alongside displays of racism.

It is clear that these journals were concerned about racial strife in the United States and hoped for its abatement. In the 1860s, the articles about the United States tended to be reprinted from American sources, so that the Canadian editors' views of the rightness or wrongness of the events they recounted was not made explicit. Later, the Canadian writers were more forthcoming. The articles about American legal practices tended to take note of American legal institutions either opening up to African Americans and combatting social prejudice (e.g., by insisting that a common carrier carry all, without discrimination)Footnote ¹⁵⁴ or making blatantly racist rulings.Footnote ¹⁵⁵ The Canadian law journals also printed snippets that depicted African Americans using their newfound rights in ways that the journals evidently thought would cause their readers to shake their heads in disbelief, although the journals tended not to say whether the wonder of the matter was that Americans had accepted the justice of African Americans being, for example, admitted to the bar on the character reference of an ex-slaveholder; or that it was simply that African Americans might, indeed, be lawyers.Footnote ¹⁵⁶ Sometimes these short pieces also presented stereotypes that mocked African American speech or mannerisms.Footnote ¹⁵⁷ One journal printed a long, angry tirade that suggested that black fugitives had an unfair edge over whites in resisting extradition efforts because they could “get up a cry of slave hunters, slave hounds, &c.” that would garner them undue favor in England: all criminals were equal.Footnote ¹⁵⁸ The same journal, however, heartily approved of Justice Archibald McLean's reasoning in the Anderson extradition case, and the journal quoted his ringing language of freedom under British law.Footnote ¹⁵⁹

The Canadian journals also printed articles that they seem to have thought would interest their readers through their displays of American juristic illogic in dealing with African Americans.Footnote ¹⁶⁰ Sometimes the law journals found these cases amusing, despite their often dire consequences for those involved; but others were viewed as outrages.Footnote ¹⁶¹ Lynching was deplored.Footnote ¹⁶² The law journals in the decades immediately after Confederation, therefore, although lacking deep concern about the progress of equal rights for freed people in the United States, also show no sign of a belief that it would be appropriate to apply law differently to African-descended people in Ontario.

On the whole, given the evidence of the nature of Upper Canadian legislation, the attestations of African-descended people about their understandings of the legal system, vernacular and elite writing about African-descended people, deep suspicions of “class-based” distinctions, legal writers' attitudes toward the American legal system, and the evidence of how judges acted when faced with racial difference, it seems that the claims made in subsequent decades that British justice assured all of formal equality had a basis in legal tradition in Canada and may justly be said to have been a thread in Upper Canadian constitutionalism. Historians' observations that the law provided formal equality appear well founded and grounded in normative commitments rather than just historical accident. None of this is to say that discrimination did not take place; it did. As the protests of African Canadians made clear, the understanding that statutes and legal institutions must be neutral on their face left much room for individuals to behave as they wished. Officials could exercise their discretion to treat members of different groups differently. However, African-descended people's claims about the nature of British justice in this regard do seem to have struck a chord and held fast in Upper Canadian legal thought by the Confederation period.

At mid-century, however, the tide of practice was turning, as the school legislation suggests. The legal class “minor” was expanding to make room for aboriginal people. Claims in the tradition of British justice—to specific, historic, local rights and privileges regarding resources, language and religion—lost their effectiveness in the face of liberal claims about the fundamental equality of all, with exceptions made for those deemed to lack capacity.Footnote ¹⁶³ With land as the goal and responsible government in place, legislators addressed the possibility that the number of “Indians” would increase—rather than decrease as it had been expected to do—by using law to define “Indians.” “Blood” and familial and cultural markers of affiliation marked Indianness in the 1850 Act for the Better Protection of the Lands and Property of Indians in Lower Canada . Footnote ¹⁶⁴ In 1869, federal annuity payments were barred to anyone who was “‘of less than one-fourth Indian blood.’”Footnote ¹⁶⁵ By 1876, principles of patrineal descent determined who belonged to the “race” “Indian.”Footnote ¹⁶⁶ Law was used to inscribe and reify the racial classification “Indian,” even though the avowed hope and underlying assumption of the legislation was that if culture were stripped from the aboriginal person, she or he–now a reconstituted liberal subject–might find a role in mainstream society.

British Columbia's Anti-Chinese Cases

By the 1920s, the sense that Canadian law could not draw distinctions on racial grounds seems to have disappeared in legal circles, although disadvantaged groups continued to protest that such distinctions were inconsistent with British justice. The habit of using law to define race had spread from “Indians” to other groups. The words “Chinese” and “Chinaman” had come, since the mid-nineteenth century, to imply a racial designation rather than a nation of origin.Footnote ¹⁶⁷ Renisa Mawani observes, “These classifications implicitly and explicitly evoked a set of moral, physical, and mental qualities that distinguished these foreigners from whites and Indians. . . . Although Chineseness was not often clearly defined, its categorization naturalized a population that was thought to manifest certain racial characteristics and dispositions, ones that were corporeally visible and others that were hidden deep inside.”Footnote ¹⁶⁸

British Columbia's anti-Chinese legislation provided the context for officially legitimizing “class” legislation. British Columbia joined Canadian Confederation in 1871. In a noteworthy set of cases previously examined by John McLaren, the judiciary of this newly constituted province struck down legislation intended to make life intolerable for Chinese immigrants by imposing harsh taxes and occupational disabilities on them and, later, by disfranchising them, which made them ineligible for public office, jury service and voting in federal elections.Footnote ¹⁶⁹ This legislation began to appear shortly after British Columbia joined Confederation and eventually caught Japanese and Indian immigrants as well.Footnote ¹⁷⁰ The 1899 Union Colliery decision of the Judicial Committee of the Privy Council gave the green light to such efforts and rendered nugatory any attempt to argue that older constitutional principles captured by the phrase “British justice” rendered this kind of legislation impermissible.

The first Chinese immigrants to arrive in British Columbia, in the 1850s and earlier 1860s, were protected by the policies of James Douglas (governor of the British Columbia and Vancouver Island colonies) and Matthew Baillie Begbie, who was appointed in 1858 as the first professional judge in the mainland colony.Footnote ¹⁷¹ McLaren observes, “These were men committed to British notions of law and order and equal treatment by the law of all who lived under the British flag. They both made it clear that they would not stand for discrimination against the Chinese.”Footnote ¹⁷² The early British Columbia judges, likewise, attempted to interpret the new British North America Act (BNA Act Footnote ¹⁷³) in a way that prohibited explicit statutory discrimination on the basis of race.

Upper Canadian judicial independence had grown since the 1830s. In 1830, the chief justice was excluded from Upper Canada's Executive Council on London's orders, and in 1834, Upper Canadian judges began to sit during “good behaviour” rather than “at pleasure,” subject to removal by a joint address by the legislature, from whose decision they could appeal to the Privy Council.Footnote ¹⁷⁴ They may also have come to understand themselves as having a greater role in maintaining the principles that undergirded the Empire. By the late 1840s, the Colonial Office took the view that colonial judges had the power of disallowance over colonial legislation.Footnote ¹⁷⁵ By the 1860s, therefore, judges in most of British North America had acquired very substantial independence, with colonial judges retaining the duty of reviewing colonial laws in the light of imperial ones.Footnote ¹⁷⁶

Begbie had experienced this independence. He and another judge of the early British Columbia Supreme Court, Henry Pering Pellew Crease (previously attorney general), were wary of the wisdom of the new constitutional order, with the increased power it gave to local legislatures.Footnote ¹⁷⁷ They and their judicial colleagues disliked the British Columbia legislature's discriminatory statutes, and struck them down on the grounds that they offended the BNA Act.Footnote ¹⁷⁸ Similar legislation had been passed in California and Oregon, and the British Columbia judges turned to the judgments of Justices Stephen J. Field and Lorenzo Sawyer of the Ninth Circuit, Ogden Hoffman Jr. from California, and Matthew Deady from Oregon for guidance. Despite the American judges' considerable racism, they, too, disliked this type of legislation and struck it down on a number of grounds, including its constraining of big business, its interference with workers' power to sell their labor, and its trenching on the powers of the federal government over interstate commerce and international immigration. Sometimes concerns about the lives of Chinese immigrants came through as well. The American judges' concerns about the excesses of democracy that contributed to anti-Chinese sentiment resonated for the British Columbia judges, who were less autonomous within the Confederation and who objected to the populism to which they were now subject.Footnote ¹⁷⁹

McLaren asserts that the British Columbia judges “believed that there were within the Canadian constitutional order elements of a fundamental law which operated as a legitimate curb on the excesses of provincial legislatures. This position took its formal inspiration from Diceyan notions of the ‘rule of law’ and the long-standing belief of Whig constitutionalists that there existed a body of fundamental legal principles against which positive law could and should be judged, and discarded, if found wanting.”Footnote ¹⁸⁰ McLaren argues that the British Columbia judges turned to American law and experience “to provide the substantive content of the principles underlying the Canadian Constitution. What resulted was a peculiar and, as it turned out shortlived, hybrid constitutional order which sought to repose significant power in the hands of the judges.”Footnote ¹⁸¹

I would add here that although both the American and Canadian federal governments were given power over trade that crossed state or provincial borders, the British Columbia judges, in applying principles drawn from natural law, international law, and Fourteenth Amendment jurisprudence, were attempting to root in British Columbia and Canadian law principles regarding law's treatment of race that at times had little if any basis in the BNA Act. The judges seem to have sought a legal foundation for principles to which they were already committed and which they were dismayed to see the British Columbia legislature overriding. In fact, some legislators themselves had doubts about this legislation in the 1870s. In April 1875, the attorney general proposed to use a separate statute to enact provisions that prohibited “the name of any Chinaman or Indian” from being on a provincial voters' list; he voiced concern that if such provisions were put into a general bill on voter qualifications, the ensuing statute would be disallowed.Footnote ¹⁸²

The BNA Act gave the federal government power over “the Regulation of Trade and Commerce” and over “Naturalization and Aliens.” The provinces received the power of “Direct taxation within the Province in order to the [sic] raising of a Revenue for Provincial Purposes” and over “Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the [sic] raising of a Revenue for Provincial, Local, or Municipal Purposes.”Footnote ¹⁸³ Analyses based on the division of powers were central to these cases. In Tai Sing v. Maguire, in 1878, Justice John Hamilton Gray used the two federal heads of power to declare unconstitutional a statute that required every Chinese person over the age of twelve to take out a licence every three months, for the price of ten dollars, or face a fine or imprisonment, which fate could also befall that person's employer. Gray referred to the California case of Lin Sing v. Washburn in making this determination, holding that a province could not, through taxation, interfere with the federal government's immigration agenda.Footnote ¹⁸⁴ The province's encroachment on the federal powers over trade and commerce and over naturalization and aliens was also the foundation of Justice Henry Pering Pellew Crease's indignant analysis in R. v. Wing Chong, in 1885, which concerned a ten dollar head tax on every Chinese person over the age of fourteen, along with severe enforcement mechanisms.Footnote ¹⁸⁵ In R. v. Mee Wah, Chief Justice Matthew Baillie Begbie considered the provincial powers over “direct” taxes and over shops, saloons, taverns, auctioneers and “other licenses.” He held that the provincial law that authorized the Victoria bylaw in question, which required those operating laundries and wash houses to pay a license fee every six months, did not authorize a direct tax intended to provide revenue for provincial purposes (because the money went to the municipality and the amount might vary from municipality to municipality) and that “other licenses” did not cover laundries. He also held, with respect to the purpose of the tax, that the license fee was intended not to raise revenue but to harass the Chinese. He cited a Circuit Court's ruling that an Oregon law that prohibited the employment of Chinese laborers in certain occupations conflicted with a treaty between China and the United States.Footnote ¹⁸⁶ The interpretation of the division of powers was, therefore, one of the grounds for ruling the legislation ultra vires the province.Footnote ¹⁸⁷

The judges also took other approaches to strike down the British Columbia legislation, mostly to support their division of powers analyses. Two main subsidiary approaches were to look to principles of natural law about how foreigners had to be treated and to refer to James Kent's Commentaries regarding the legality of applying different taxes to different kinds of property. In Tai Sing, Justice Gray cited Vattel for the proposition that if the “Lord of the Territory” permitted foreigners to enter the domain, “‘[h]e ought not to grant an entrance into his state for the purpose of drawing foreigners into a snare; as soon as he admits them, he engaged to protect them as his own subjects, and to afford them perfect security, as far as depends on him.’”Footnote ¹⁸⁸ Gray cited Kent for the proposition that all citizens were entitled to fair and equal taxation in proportion to the value of their property, adding that “no one class of individuals and no one species of property may be unequally or unduly assessed.”Footnote ¹⁸⁹ Crease, in Wing Chong, also cited this proposition, in order to support his analysis of the tax's likely effect on commerce.Footnote ¹⁹⁰ The approaches of Gray and Crease did not establish that a discriminatory purpose could invalidate legislation.Footnote ¹⁹¹

The fourth basis for striking down anti-Chinese legislation was articulated by Chief Justice Begbie in Mee Wah. The provincial powers in question referred to the legislature's purpose, which was central to Begbie's analysis. Begbie referred to the body of law that had emerged south of the border, which included two Fourteenth Amendment cases. In the first, Ho Ah Kow v. Nunan, Justice Stephen J. Field interpreted that Amendment's equal protection clause as requiring states to provide the protection of the law equally to everyone within their boundaries—not only citizens—and to impose burdens and penalties equally as well. The plaintiff in the case had had his queue cut off by the sheriff, under the authority of a San Francisco ordinance that, purportedly for reasons of health and sanitation, required all male prisoners to have their hair cut to within one inch of the scalp as soon as they were imprisoned in the county jail.Footnote ¹⁹² The plaintiff had been sent to jail when he did not (and probably could not) pay a ten dollar fine for living in accommodations that gave him less than five hundred cubic feet for himself, as required by state law. Justice Field held the hair cutting to amount to a degrading and cruel punishment for a particular class of person, which contravened the equal protection clause.Footnote ¹⁹³ The equal protection clause was also one of the bases under which Justice Lorenzo Sawyer held a ban on companies hiring Chinese labor to be unconstitutional in In re Tiburcio Parrott.Footnote ¹⁹⁴ Justice Begbie cited that case as well. He concluded that these American cases—Lin Sing, Baker v. Portland, Tiburcio Parrott and Ho Ah Kow v. Nunan—“all confirm this, that a State, or Provincial law imposing special disabilities or unequal burdens on Chinamen is unconstitutional and void. In British Columbia such a law if it impose a tax labours under the additional infirmity that a license tax for any other purpose with any other object, than merely raising a revenue is beyond the power of the Provincial Legislature to impose.”Footnote ¹⁹⁵ Even though the BNA Act contained no parallel to the equal protection clause, Begbie folded its logic into his reasoning, concluding,

The general conclusions arrived at are these: (1.) It seems probable that laundries are not taxable within Subsection 9 of Section 92 B.N.A. Act. (2.) Any clause in a Provincial Statute or Municipal By-Law, which, though general in its terms, operates, or is intended to operate only upon one sect, race or class, is liable to be declared unconstitutional and void. (3.) The object of a statute is to be ascertained not only from its title or preamble, but mainly from its enactments. (4.) That a by-law, even if founded upon a valid statute must be reasonable, i.e., not necessarily equal but proportionate, and not such as to defeat the object of the lawFootnote ¹⁹⁶ [my emphasis].

Adding that the statute had not been passed for the bona fide sole or even the main purpose of raising revenue, Begbie concluded that the statute was void and set aside the conviction.

Chief Justice Begbie, therefore, would have incorporated a requirement of a nondiscriminatory purpose and application into the interpretation of all of the provincial powers. The other early judges who were sympathetic to the plight of Chinese workers in British Columbia adopted a more literal approach to the division of powers. Undoubtedly, many factors contributed to the judges' attitudes. Sympathy for those it targeted was combined with concerns about business interests such as those of the Canadian Pacific Railway, and suspicions of the masses who had so much influence in British Columbia's populist politics. As McLaren describes, these judges do seem to have had an understanding of their own role as upholders of the rule of law. This understanding seems to have included the view that statute law should not make formal distinctions on the basis of physical characteristics. This view is most obvious in Begbie, but it also seems to have been held by Gray and Crease.

Formalism and Federalism in the Late Nineteenth Century

By the last years of nineteenth century, the British government had given up on any kind of insistence that the colonial laws it oversaw be nondiscriminatory in spirit; it was enough if they were nondiscriminatory on their face.Footnote ¹⁹⁷ The turn to responsible government, and concerns about the legitimacy of imperial interference with legislation enacted by elected assemblies, were partially responsible. During the same time period, the Privy Council moved into a formalist mode in which its judges were indisposed to expend much energy considering policy or understanding pre-Confederation legal realities or Canadian circumstances. They were inclined to interpret the BNA Act as just another statute.Footnote ¹⁹⁸

Analyzing the shifting dynamics in Canadian federalism between 1867 and 1920, Richard Risk observes that despite Canadian legal scholars' awareness of newer American thinking about the nature of law and its relationship to society, Canadian writers followed English models, which have been called by various labels, such as black letter and rule of law. Risk writes,

Whatever its name, its basic elements were the equality and autonomy of individuals (or, more abstractly, legal entities, including the state), a division between the public and private realms, and a pervasive perception of legal relations as spheres of powers separated by sharp, bright lines. In this thinking, the courts and the common law were paramount, and the work of courts in deciding individual cases was objective and apolitical–determining facts and applying the general principles of the common law or the words of a statute.Footnote ¹⁹⁹

Statutory interpretation involved working out ambiguities against a set of principles that excluded “context, values, and needs.”Footnote ²⁰⁰ Risk says, “The settled doctrine ... was firm: the only kinds of history that could be considered were the common law and earlier statutes. Social and economic history, and evidences of the plans and intentions of the legislators, were utterly inadmissible, a limitation that made interpretation seem apolitical and supported the power of the courts, by preferring the common law presumptions to the evidence of legislative intention.”Footnote ²⁰¹ Judges explicating the common law were engaged in a scientific process. The common law was autonomous and not contingent on social values and conditions.Footnote ²⁰² Moreover, the possibility that legislatures would trample on individual rights was not a large concern; threats to individual rights were understood to come from the executive branch of government—as they had in centuries past—and, therefore, to be protected by legislatures through responsible government, not courts.Footnote ²⁰³ The motives of a legislature were not to be examined; only its jurisdiction mattered.Footnote ²⁰⁴

At the highest judicial level, then, politics and tradition were excluded from consideration. The BNA Act was essentially silent about discrimination; federalism and the structure of government were its dominant concerns.Footnote ²⁰⁵ Risk writes that legal scholars of the period typically expressed faith that the British constitution protected rights through parliamentary government, and they disdained the American constitution “and the enterprise of protecting rights by judicial review and limitations on legislative powers.”Footnote ²⁰⁶ It did not take long before the concerns of the early British Columbia judges were pushed aside in the constitutional interpretations delivered by its ultimate arbiters. One of the key texts Risk discusses, A.H.F. Lefroy's Law of Legislative Power in Canada, explicitly doubted the correctness of various aspects of the older British Columbian Chinese exclusion cases. Lefroy, whose focus was fully on the division of powers and not at all on the impact of laws on people, argued that these cases were wrong in holding that Canadian governments were bound to respect imperial treaties. In the course of that argument, Lefroy doubted that Canadian legislatures had to follow James Kent in not imposing differential taxes on different classes of people.Footnote ²⁰⁷ Elsewhere, in a footnote, Lefroy accepted Begbie's reasoning that a laundry was not a tavern within the licensing provision (s. 92(9)), but added that “there would seem no doubt of the provincial power to prohibit Chinese laundries.”Footnote ²⁰⁸ Elsewhere, citing Tai Sing as an example, Lefroy observed that the object of a statute was to be determined from what it in fact did, and that the legislature's motives in passing it were irrelevant.Footnote ²⁰⁹ Certain principles from these cases survived Lefroy's scrutiny, therefore, but their concern for individual rights had no place in Lefroy's text.

The path was clear. In 1899, in Union Colliery, the Judicial Committee of the Privy Council held that British Columbia's ban on “Chinamen of full age” working in underground mines was unconstitutional, as it interfered with the federal power over naturalization and aliens; in the course of this judgment, however, Lord Watson commented that he was ruling strictly on the question of provincial and federal power and would disregard evidence about the character—reasonable or otherwise—of the legislation: “In so far as they possess legislative jurisdiction, the discretion committed to the parliaments, whether of the Dominion or of the provinces, is unfettered. It is the proper function of a court of law to determine what are the limits of the jurisdiction committed to them; but, when that point has been settled, courts of law have no right whatever to inquire whether their jurisdiction has been exercised wisely or not.”Footnote ²¹⁰ Policy and tradition clearly were not to have much weight. Three years later, the Privy Council changed course on its sense of the broader meaning of naturalization and held that British Columbia's disfranchisement of naturalized as well as unnaturalized persons of the Japanese, Chinese and Indian “races” was constitutional, being within the jurisdiction of the province.Footnote ²¹¹ Immigration and naturalization were federal, but the rights given by naturalization were questions for the province. This judgment overturned lower court judgments that had held that British Columbia was trenching on the federal domain. A few years later, in Quong-Wing v. R., Justice Sir Louis Henry Davies of the Supreme Court of Canada (and once premier of Prince Edward Island), upholding Saskatchewan legislation that banned “Chinese” from employing white women, could remark:

There is nothing in the “British North America Act” which says that such legislation may not be class legislation. Once it is decided that the subject-matter of the employment of white women is within the exclusive powers of the provincial legislature and does not infringe upon any of the enumerated subject-matters assigned to the Dominion, then such provincial powers are plenary.

What objects or motives may have controlled or induced the passage of the legislation in question I do not know. Once I find the subject-matter is not within the power of the Dominion Parliament and is within that of the provincial legislature, I cannot inquire into its policy or justice or into the motives which prompted its passage.Footnote ²¹²

Davies J. also thought the statute was defensible “on the highest grounds” because of its protection of women and girls. The lone dissenter, however, Justice John Idington, thought that the federal power over naturalization and aliens had been too much narrowed. Provinces could determine political rights, but, he suggested, with respect to other kinds of rights, for those who had passed through naturalization, “[i]t may well be argued that the highly prized gifts of equal freedom and equal opportunity before the law, are so characteristic of the tendency of all British modes of thinking and acting in relation thereto, that they are not to be impaired by the whims of a legislature; and that equality taken away unless and until forfeited for causes which civilized men recognize as valid.”Footnote ²¹³ For Idington, the default position of the law was to respect equal freedom and equal opportunity. The mode of thought that produced this legislation, he thought, was similar to the type that “begot and maintained slavery.”Footnote ²¹⁴

The views of the other four judges, however, carried the day. The question was one of governmental powers. The concerns about exercises of democratic power against minorities that the early British Columbia judges had incorporated into the frameworks they applied to constitutional interpretation were not to govern under this new, formalist interpretive regime that focused on the division of power. A similar tension between the majority and minority appeared even later, in the 1939 Supreme Court decision in Christie v. York Corporation.Footnote ²¹⁵ While the nature of the taxation and licensing powers were still open to judicial elaboration, the provinces were given broad scope in their treatment of those within their jurisdiction. Earlier efforts, such as Matthew Baillie Begbie's, to require that constitutional powers be interpreted in a nondiscriminatory way, could now safely be ignored.

The Aftermath

The sense that statutes should not make “class-based,” racializing distinctions and that judges should not be seen to act on racial categories did not disappear, however. Legislatures continued to be cautious about explicitly racializing statutes, and courtroom records still elided markers of race.Footnote ²¹⁶ Those harmed by legalized discrimination—racially-based property covenants and signs barring access to places and services, for example—continued to protest. Even if law could not be impeached for its discriminatory character, a sense that the common law and procedure could not draw distinctions on the basis of race lived on in judicial practice and cultural memory, although its impact is hard to assess. Christopher Moore, in his study of the British Columbia Court of Appeal, has observed that the racism that characterized British Columbia law “existed in the laws and in courtroom behavior more than in the opinions of the appeal judges, who combined deference to laws that dictated unequal treatment with an ‘all must be equal before the law’ ideology.” Moore observes that although “the court consistently found that it had no jurisdiction to review statutes, treaties, and Immigration Board rules that kept Asians out of Canada, it was usually prepared, on the rare occasions when Asians squeezed between cracks in the law, to uphold their rights as citizens and individuals.”Footnote ²¹⁷ John McLaren has concluded that judges were “to some extent responsive to the need of the Chinese for protection from discrimination,” which the legislature, municipal governments, and police were promoting.Footnote ²¹⁸ African-descended people in Canada continued to claim and to be promised “British justice” in Ontario before World War II.

Equality as a fundamental aspect of human rights was finally embedded in Canadian constitutional law through the Canadian Charter of Rights and Freedoms,Footnote ²¹⁹ enacted in 1982. Statutes, procedure and ordinary people's exercises of their rights over their property—which were beyond the scope of inquiry in the British Columbia judges' decisions about the anti-Chinese laws—and to some extent their rights to say what they like and to refuse to associate are all subject to Charter-informed scrutiny. A framework for the equitable treatment of First Nations is still a work in progress. In 1988, Greg Marquis wrote that it was important to pay attention to popular attitudes to law and legality and specifically the content of the claims that workers in the interwar years made to British justice.Footnote ²²⁰ Attending to the rhetoric of British justice invites us to follow a trail that leads back through the early decisions on federalism and into the pre-Confederation period, when people of African descent who had been subjected to discrimination claimed that Canadian law could not—and must not—allow that. A sense that overt displays of racism had no place in statutes or judicial behavior took root in the legal imagination. A popular understanding that a commitment to equality was a principle and promise of Canadian British justice persisted, despite the judicial formalism of the late nineteenth and early twentieth centuries. The tragedy is that the road from Mee Wah to the coming into effect of section 15 of the Charter took ninety-nine years to travel.

Footnotes

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); Mawani, Renisa, Colonial Proximities: Crossracial Encounters and Juridical Truths in British Columbia, 1871–1921 (Vancouver: UBC Press, 2009); 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).

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), 49, 55, 83, 124, 127–28, 134–35, 156. Walker's examples of claims to British justice date from before World War II.

5. Footnote Ibid., 82.

6. Footnote 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.

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), 219.

8. Footnote 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), 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), 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 Perspective” Law and History Review 29 (2011): 621.

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.

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.

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.

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.

18. Footnote Ibid., 69.

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

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.

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).

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

23. Murdoch, Epitome, 1: 49.

24. Footnote Ibid.

25. Mills, David, The Idea of Loyalty in Upper Canada, 1784–1850 (Kingston and Montreal: McGill-Queen's University Press, 1988), 71–72.

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

28. Footnote 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): 179–209; Cahill, Barry, “Slavery and the Judges of Loyalist Nova Scotia,” University of New Brunswick Law Journal 43 (1994): 73–135; Bell, David G., “Slavery and the Judges of Loyalist New Brunswick,” University of New Brunswick Law Journal 31 (1982): 20; and Whitfield, Harvey Amani and Cahill, Barry, “Slave Life and Slave Law in Colonial Prince Edward Island, 1769–1825,” Acadiensis 38 (2009): 45–46.

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 ninetenth” Habeas Corpus: From England to Empire (Cambridge: Belknap Press of Harvard University Press, 2010), 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) 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), 61.

34. Footnote 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.

41. Drew, Benjamin, The Refugee: Narratives of Fugitive Slaves in Canada (Toronto: Dundurn Press, 2008 [1856]), 29–54.

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. Footnote 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).

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): 430–31; and Winks, Robin W., The Blacks in Canada: A History (New Haven: Yale University Press, 1971), 155–56.

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). 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), 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.

72. Swinfen, Imperial Control, 29; Knaplund, Paul, James Stephen and the British Colonial System 1813–1847 (Madison: University of Wisconsin Press, 1953), 3–5, 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.

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.

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), 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. Footnote 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), 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). 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), 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), 93–94; 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); Journal and Proceedings of the House of Assembly of the Province of Nova Scotia (Halifax: R. Nugent, 1836); 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); 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); and Journal of the Legislative Council of the Province of New-Brunswick. From 20th January to 17th March, 1835 [etc.] (Fredericton: John Simpson, 1835). 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), 73–91.

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), 42–43, 118–41. See also Wilton, Popular Politics, 29, 36–54.

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), 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), 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), 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.

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), 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); 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). 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): 39–63.

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), 32–33, 91–99.

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): 617–45, 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). 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), 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.

113. Footnote Ibid., A21–9–14.

114. Footnote Ibid., A21–14–98.

115. Footnote 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), 48–49, 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).

116. Report of the Special Commissioners, A99.

117. Footnote 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).

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. Footnote Ibid., 182.

125. Footnote Ibid., 190.

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

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

128. Footnote 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 1850s” Canadian Journal of Law & Society 28 (2013): 369–86 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): 767; Brode, Patrick, The Odyssey of John Anderson (Toronto: University of Toronto Press, 1989), 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.

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), 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), 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), 193–94. 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), 87–88.

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. Lowry” Local Court & Municipal Gazette 1 (1865): 109–11 and “Obligations of Carriers” Legal News 3 (1880): 386. Articles that exhibited some concern about legal equality for African Americans include “Richard A. Dawson,” Local Court & Municipal Gazette 6 (1870): 189; “General Notes,” Legal News 7 (1884): 48; “A Judicial Reminiscence,” Legal News 7 (1884): 363; and “May, 1872” Canada Law Journal 8 (1872): 101. 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): 44.

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

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): 178; and “The Liability of Innkeepers,” Canada Law Journal 11 (1875): 100–104.

158. “The English Writ of Habeas Corpus,” Upper Canada Law Journal 7 (1861): 53–59. The context was the John Anderson case.

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

160. See, for example, “A Juryman Fined,” Local Court & Municipal Gazette 7 (1871): 80; and “A Negro Jury,” Local Court & Municipal Gazette 2 (1866): 32. 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.

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

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.

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. Footnote Ibid., 142–43.

168. Footnote 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); 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.

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), 188, citing Gough, Barry M., “Keeping British Columbia British: The Law and Order Question on the Gold Mining Frontier” Huntington Library Quarterly 38 (3) (1975): 269–80.

172. Footnote 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), 83–84.

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. Footnote 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. Footnote Ibid., 247.

181. Footnote 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. Footnote Ibid.

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

195. Mee Wah, 186.

196. Footnote 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), 69–75. 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. Footnote Ibid., 55.

201. Footnote Ibid., 56.

202. Risk, “A.H.F. Lefroy,” 70.

203. Footnote 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): 495–526, 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.

208. Footnote Ibid., 726.

209. Footnote 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), 386–422.

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. Footnote 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), 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), 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), 43–69.

Ibid

Article contents

Race, Upper Canadian Constitutionalism and “British Justice”

Extract

Information

Introduction

The Claims of People of African Descent

Constitutional Practices and Beliefs

The Popular Climate

Imperial Policy and the Reformist Thread

Class Legislation

Mid-Century Changes

Judges and Lawyers

British Columbia's Anti-Chinese Cases

Formalism and Federalism in the Late Nineteenth Century

The Aftermath

Footnotes

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