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'SO ELEGANT A WEB':

G. Blaine Baker*

PROVIDENTIAL ORDER AND THE RULE

OF SECULAR LAW IN EARLY NINETEENTHCENTURY UPPER CANADAt
I take as my starting-point aJune 1826 episode of semi-ritualistic derision
perpetrated by members of the Juvenile Advocate Society, a voluntary
gentlemen's club of young Upper Canadian lawyers and law students
active in the provincial capital between 1821 and 1826. The antic in
question was the charivari, perpetrated by a small crowd that included two
of York's leading junior barristers and five legal apprentices serving the
attorney general or the solicitor general of Upper Canada, of a printingshop belonging to the populist editor of the ColonialAdvocate and future
rebel leader, William Lyon Mackenzie.' This event, the 'types riot', has
often been characterized by political historians as the first in a series of
'abuses of civil rights' by local statesmen which lead to the Rebellions of
1837. 2 It will be reconsidered here with a view to introducing discussion of
the self-images of early Upper Canadian lawyers, especially their develop3
ing conceptions of responsibility, order, normativity, and destiny.
The choice of the types riot as a nominal starting-point for a discussion
of this sort is not meant to suggest that there is any apparent uniqueness in
* Faculty of Law, McGill University
f Versions of this paper were presented to the 1986 meeting of the American Society for
Legal History and to the 1987 seminar in modern legal history at the University of
Western Ontario.
I Basic biographical information about Mackenzie can be found in Armstrong and
Stagg, William Lyon Mackenzie, in 9 Dictionary ofCanadianBiography (hereinafter DCB)
(1976) 496. The group of law students included Samuel Peters Jarvis, Charles
Richardson, Henry Sherwood, Charles Baby, Raymond Baby, James King, and John
Lyons. James Buchanan Macaulay played an indirect role in the proceedings. A
detailed contemporary account of this incident can be found in Mackenzie The History of
the Destructionof the ColonialAdvocate Pressby Officers ofthe ProvincialGovernment of Upper
Canadaand Law Students of the Attorney and Solicitor General (1827).
2 For indications of this historiographical orientation, see, for example, Romney Mr
Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature 1791-1 899
(1986) 105-37; Flint William Lyon Mackenzie: Rebel Against Authority ( 197 1) 4o-6; and
Dunham PoliticalUnrest in Upper Canada, 18 15- 183 6 (1927) 10 7-8. Compare Bernard

Les ribellions de 1837-38: Les patriotes du Bas-Canadadans ta mdmoire collective et chez les
historiens (1983).
3 For more ambitious examples of this genre, see, for example, Darnton The Great Cat
Massacre and Other Episodes in French Cultural History (1984). For discussion of the
methodological implications of inquiring in this manner into such semi-autonomous
social or cultural fields as lawyers or law, see Moore Law as Process: An Anthropological
Approach (1978).

(1988), 38

UNIVERSITY OF TORONTO LAW JOURNAL

184

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

185

this episode for the purposes of the study proposed. Any number of other
Upper Canadian causes cglbresof the day might have donejust as well. But
one intriguing feature of the types riot is that it occurred in the context of
a self-conscious process of 'professional' formation of young lawyerstatesmen about which much is known.4 Another is that it was, in part,
triggered by anti-lawyer sentiment in the fledgling provincial press:
sentiment and modes of expression which, according to thirty-three-yearold types rioter Samuel Peters Jarvis, exposed gaps between the British
radicalism or American egalitarianism of certain recent immigrants to the
colony, and the older local mentalitd of members of the ruling legaladministrative 61ite who had 'been born and brought up in Upper
Canada. 5
The destruction of Mackenzie's printing-shop by the students-at-law,
and especially the events that immediately followed, has been said to have
been permeated with an utter disregard for the rule of law by the
province's most outspoken and committed proponents of privileged
status for a highly selective legal fraternity. 6 By self-proclamation, the
profession was to be animated by classical notions of public virtue, and
populated by Upper Canada's 'most worthy, intelligent, loyal and opulent
inhabitants ... [gentlemen] of high character, of large property, and of
superior information.' 7 For their role in promoting, viewing, officially
condoning, and financially underwriting vandalism, theft, and riotous
conduct at Mackenzie's shop by the province's favourite 'young men of
eminence,' its 'potential rulers of the next generation,' and later for
4 See Baker, The Juvenile Advocate Society, 1821-1826: Self-proclaimed schoolroom
for Upper Canada's governingclass, inJohnson (ed.) HistoricalPapers 1985 (1986) 74,
92.

5 Statement of facts relating to the trespass on the printing press in the possession of Mr.
William Lyon Mackenzie inJune 1826' (1827) 78-9; a copy can be found in c-o. 42, vol.
385, at 52-68. For a survey of relevant immigration patterns see Macdonald Canada,
1763-1841:Immigration andSettlement (1939). On the principal point, namely ideologi-

cal strife, compare Craig, The American impact on the Upper Canadian reform
movement before 1837 (1948) 29 C.H.R. 333; Senior, The Genesis of Canadian
Orangeism (1968) 6o Ont. Hist. 13; and Mathews, Susanna Moodie, pink Toryism, and
nineteenth-century ideas of Canadian identity (1975) 1o J. of Can. Studies 3.
6 A current and carefully constructed version of this thesis can be found in Romney,
From the types riot to the rebellion: Elite ideology, anti-legal sentiment, political
violence, and the rule of law in Upper Canada (1987) 79 Ont. Hist. 113. Similar
interpretive treatments of Upper Canada's treason trials of 1814 and 1838, and of
Lower Canada's famous Guibord affair, can be found in Wright, The ideological
dimensions of law in Upper Canada: The treason trials of 1814 and 1838, in 1 Papers
Presentedat the 1987 CanadianLaw in History Conference (1987) 373, and Anon. Historyof
the Guibord Case: Ultramontanismversus Law and Human Rights (1875).
7 J.B. Robinson Canadaandthe CanadaBill,BeinganExaminationoftheProposedMeasurefor
the FutureGovernment of Canada(1840) 144-5. See generally Baker, Legal education in
Upper Canada 1785- 1889: The law society as educator, in Flaherty (ed.) 2 Essays in the
History of CanadianLaw (1983) 49, and Baker, supra note 4.

186

UNIVERSITY OF TORONTO LAW JOURNAL

ignoring the 'criminal' quality of these acts, the senior bar have been
accused of exposing the essentially self-serving and rhetorical character
of their repeated public and private pledges of allegiance to 'the gentle
code,' their claims to guardianship of social
order, and especially their
8
commitment to the provincial constitution.
At least two premises underlie this critical characterization. A first is
that the historical subjects of these accusations had a concept of the rule of
law that included the abstract juridical equality of the subjects of formulaic, statist conventional law, notions of due process, and the ideal of an
independent judiciary. A second premise is that the state in issue was
widely perceived to have had a relative monopoly with respect to
ordering, organization, power, and normativity in its community. Such
assertions about the centrality and importance of statist law to the society
of which it is part do not sit comfortably in the emergent law-and-society
literature. 9 Nor do they resonate with the developing scholarship that has
taken late eighteenth- and early nineteenth-century normative pluralism
as its subject matter.' 0 As an ideal, as ideology, as metaphor, and as a social
construct, the rule of law maxim's normative content appears to have
varied dramatically over the last three or four centuries. The problem of
discerning its perceived content, and by implication the place and limits of
state action, in early nineteenth-century Upper Canada is therefore
complicated by the risk that the rule of law category of other places or
times will overwhelm a local provincial past. The exposure of ethical gaps
between 6lite normative commitments and behaviour, like that said to
have separated the rhetoric of the types rioters and their mentors from
their actions, is admittedly one of two or three emergent themes in
Canadian legal historiography." But the project of revealing such gaps
8 For general discussion of the 6lite posture of Upper Canadian lawyers and administrators see Fraser, Like Eden in her summer dress: Gentry, economy, and society; Upper
Canada, 1812-

1840 (PH.D. thesis, University of Toronto 1979) and Burns, God's

chosen people: The origins of Toronto society, 1793-1818, in Gillis (ed.) Historical
Papers 1973 (1973) 213.

9 Compare Friedman, The law and society movement (1986) 38 Stan L. R. 763;
Gallanter, Justice in many rooms: Courts, private ordering, and indigenous law (198 1)
19 J. of Leg. Pluralism (1981) 1; Macaulay, Non-contractual relations in business: A
preliminary study (1963) 28 Am. Soc. Rev. 55.
io Compare Arthurs 'Without the Law': Administrative Justice and Legal Pluralism in
Nineteenth-CenturyEngland (1985); ignatieff, State, civil society, and total institution: A
critique of recent social histories of punishment, in Sugarman (ed.) Legality, Ideology,
and the State (1983) 183; Hartog, Pigs and positivism (1985) Wis. L. R. 899; Hindus
Prison and Plantation:Crime, Justice, and Authority in Massachusetts and South Carolina,
1767-i878(198o).
i

See, for example, Neatby The Administration of Justice under the Quebec Act (1973);
Bindon, Hudson's Bay Company law: Adam Thom and the institution of order in
Rupert's Land 1839-54, in Flaherty (ed.) 1 Essays in the History of CanadianLaw (1981)
43; and Marquis, A machine of oppression under the guise of the law: The SaintJohn
police establishment, i86o- 1890 (1986) 16 Acadiesis 73.

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

187

has proceeded in this case, as in others, from the atavistic and etic
attribution of a utilitarian or 'constitutional' conception of the normative
precision of law as revealed in judicial decisions to Upper Canadian
statesmen who do not appear to have pretended to live by the conventional limits upon human action promoted by such juristic popularizers of
'liberal' thought as 2 Jeremy Bentham, Albert Venn Dicey, or James
Chalmers McRuer.
Assuming that all postures in the world are, in some measure,
self-interested, it is not apparent that labelling the beliefs and actions of
Upper Canada's legal-administrative aristocracy of the 182os as selfserving reveals much about how its members conceived of themselves,
how they understood the roles they were filling, what theories of order
they embraced, or how they portrayed the common law and the
judiciary's role in enforcing it. As has been emphasized with respect to the
recurrence by late nineteenth-century Anglo-American lawyers to concepts like objectivity, Darwinian science, and logic in their efforts to
revitalize the profession's status, one of the tasks of the intellectual
historian is to understand what is distinctive and coherent about
particular constellations of thought, blatantly self-interested or otherwise,
and to describe apparent sources of the vocabulary in which they are
expressed. 1
A primary goal of this essay is therefore to contrast, in a tentative and
heuristic way, 61ite Upper Canadian notions of order, normativity, and
appropriate public censure with Benthamite, Diceyesque, and McRuerlike conceptions of the rule of law. A secondary goal is to canvass ways in
which the rhetorical aspects of liberal theory seem to have coloured the
ability of reform-minded social critics of the day, and that of most
twentieth-century commentators, to document the internal coherence of
an older, local system of values, or to take it seriously on its own terms. 14
The Law Society of Upper Canada received a statutory monopoly with
12 See, for example, Bentham An Introduction to the Principles of Morals and Legislation,
Principlesof the Civil Code, Principlesofthe PenalLaw (1843); Dicey Introduction to the Study
of the Law of the Constitution(1885); and McRuer Royal Commission Inquiry into Civil Rights
(1968-7 1).

13 See generally Vovelle ldiologies et mentalitis (1982); Duby, Histoire des mentalit6s, in
Samaran (ed.) L'histoire et ses mithodes (1961) 937; Godelier, The ideal in the real, in
Samuel andJones (eds) Culture, Ideology, and Politics:Essaysfor Eric Hobsbawm (1982) 12.
The literature treating the late nineteenth-century transformation of professional
ideology is developing rapidly; representative entries in the legal field are Gordon,
Legal thought and legal practice in the age of American enterprise 1870-1920, in
Geison (ed.) Professions and ProfessionalIdeologies in America (1983) 70; Sugarman, Legal
theory, the common-law mind, and the making of the textbook tradition, in Twining
(ed.) Legal Theory and Common Law (1986) 26; and Gordon, Holmes' Common Law as
legal and social science (1982) 1o Hofstra L.R. 719.

14 Compare Grant English-SpeakingJustice(2d ed. 1985); Maclntyre After Virtue: A Study in

Moral Theory (2d ed. 1984); Murdoch, The Sovereignty of Good (1970).

188

UNIVERSITY OF TORONTO LAW JOURNAL

respect to the practice of law, and virtually exclusive control over

admission to the provincial profession in 1797.15 This political anointment of a group of twelve or fifteen 'backwoods' lawyers as a discrete,
self-regulating body was the result of a congeries of influences and
ambitions, not least of which were the desire of a number of late
eighteenth-century colonial civil servants to encourage the rapid emergence of an anti-democratic and non-egalitarian provincial aristocracy,
and the desire of committed Loyalists to replicate the prestigious North
American seaboard legal professions of England's First Empire. 16 The
society's 6lite-building tendencies of the early nineteenth century also
were spurred by its legislative description as a 'learned and honourable
body' whose members' chief responsibility was 'to assist their fellow
subjects as occasion may require and to support and maintain the
constitution of the said Province.' Understood in early provincial parlance, 'the constitution of the said province' was not the set of explicit rules
that defined its formal organs of government, but rather the unwritten,
and often unspoken, spiritual and social premises upon which this
Loyalist community was to be based. 17 As a perennial treasurer of the law
society confided to the attorney general of Upper Canada in the
aftermath of the types riot, 'there is in the object of [the Law Society Act]
not merely legal wisdom, but a religious obligation from morality ...
[which means that persons] insensible to those impressions must be
unworthy of the Calling.' 1 8 A distinction between culture and constitution, or providence and government, was dimly drawn at best.
Expressed more bluntly, a major premise of this essay is that Upper
15 An Act for Better Regulating the Practice of the Law (1797) 37 Geo. ni, c. 8 (u.c.),
'Confirmed and made perpetual' by the Law Society Amendment Act (1822) 2 Geo. iv,
c.5 (u.c.) See generally Riddell The Bar and the Courts of Upper Canadaor Ontario- Pt i,
the bar(1928) 34- 57, 79-8o; and Riddell The LegalProfessionin Upper Canadain its Early
Periods (1916) 9-20, 133-42.
16 See Tousignant, Problbmatique pour une nouvelle approche de la constitution de 1791
(1973) 27 Revue d'histoire de l'Amiriquefrancaise (hereinafter R.H.A.F.) 181; Mealing,
The enthusiasms ofJohn Graves Simcoe in AnnualReport of the CanadianHistoricalAssociation (1958) 5o; Firth, The Administration of Peter Russell, 1796-1799 (1956) 48 Ont.
Hist. 163. On the colonial American legal professions, see, for example, Roeber Faithful
Magistratesand Republican Lawyers: Creatorsof VirginiaLegal Culture, 161 o- r 81o (1981);
Klein, From community to status: The development of the legal profession in colonial
New York (1979) 6o New York Hist. 136; and Gawalt The Promise of Power: The Legal
Profession in Massachusetts 176o z84 o (1979).
17 Law Society Act, supra note 15, ss 1,5. Compare Mann, Law, legalism, and community
before the American revolution (1986) 84 Mich. L. R. 1415; Konig, The theory and
practice ofconstitutionalism in pre-revolutionary Massachusetts Bay: James Otis on the
writs of assistance, 1761 (1984) 8 DalhousieL.J. 25.
18 William Warren Baldwin to John Beverley Robinson, 31 May 1828, W.W. Baldwin
Papers, Metropolitan Toronto Public Library, box B103. See also C.W. Robinson Life of
Sir.]ohnBeverley Robinson 0904) 236, 350, 400.

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

189

Canadian spiritual, governmental, and social order were regarded as

indissociable and that one cannot consider the presence or absence of a
discrete concept like the rule of secular law when the isolation of such a
concept would not have commended itself to the relevant actors.' 9 This
unity of Upper Canadian conceptions of order found expression, in
diverse public settings, in a potent provincial normative vernacular which
transcended formal, statist, and secular rule of law rhetoric latterly
deployed as a standard for human conduct by English and American
whig constitutionalists. William Blackstone's Commentaries on the Laws of
England, published in the 176os, have routinely been cited by many
modern legal historians as definitive authority for the proposition that
late eighteenth-century English constitutionalism was premised on notions of equality before the law and widespread popular acknowledgment
of the omnipotence, certainty, and pervasive relevance of formal,
state-sanctioned normativity Yet rigorous, detailed studies of the
contours of late eighteenth-century British justice are remarkably few
and far between. None the less, this slim secondary literature can be
summarized by stating that the centrality and importance of conventional
law to that culture should not be exaggerated. Scholarship is insufficiently
advanced to warrant the assumption that the rule of consensual, statist,
formulaic law was a cornerstone of British constitutionalism in theory or
fact, or to justify the measurement of colonial justice against such a
benchmark. 2 ' The challenge, therefore, is to undertake emic reconstructions of Upper Canada's normative vernacular that are informed but not
overwhelmed by a nascent metropolitan historiography.
Typical of the early attitudes and practices of Upper Canadian lawyers
19 Compare Howes, Property, God, and nature in the thought of Sir John Beverley

Robinson (1985) 30 McGilL.J. 365; de Villiers-Westfall, The dominion of the Lord: An

introduction to the cultural history of Protestant Ontario in the Victorian period (1976)
83 Queen's Q. 47; Wise, God's peculiar peoples, in Morton (ed.) The Shield of Achilles:
Aspects of Canadain the Victorian Age (1968) 36.
2o For internal or doctrinal critiques of the Commentaries' place in, and significance for,
Anglo-American constitutional thought of the day see, for example, Kennedy, The
structure of Blackstone's Commentaries (1978) 28 Buff. L.R. 2o5; Nolan, Sir William
Blackstone and the new American republic: A study of intellectual impact (1976) 51
N.Y.U.L.R. 731; and Cairns, Blackstone, an English institutist: Legal literature and the
rise of the nation state, 4 OxfordJ. of Legal Studies (1984) 318.
21 Compare Thompson Whigs and Hunters:The Origin of the Black Act (1975) 258-69; Hay,
Controlling the English prosecutor (1983) 21 Osgoode Hall L.J. 165; Brewer, The
Wilkites and the law, 1763-74: A study of radical notions of governance, in Brewer and
Styles (eds) An Ungovernable People: The English and Their Law in the Seventeenth and
Eighteenth Centuries (g8o) 128. For indications that neither the rulers nor the ruled of
late eighteenth- and early nineteenth-century Britain were so enamoured of, or
inhibited by, state law as Thompson, Brewer, or Hay has concluded, see, for example,
Ignatieff, supra note to; Green Verdict According to Conscience: Perspectiveson the English
Criminal TrialJury, 1200-18oo (1985) 267-383; and Arthurs, supra note io.

190

UNIVERSITY OF TORONTO LAW JOURNAL

"to which their profession's gestation gave rise were Attorney General
William Firth's and Solicitor General D'Arcy Boulton's 181o objections to
the English prime minister, Lord Liverpool, that a provincial statute
regulating barristers' fees would undercut the status of the bar by making
it subject to the casual mandate of a popular assembly. Such affronts were
alleged to flow from 'an invidious spirit of republicanism, which seeks to
reduce all orders of Men to a level, and to put the man of Science on a
footing with the labourer.' 22 The relevant general conclusion to be drawn
from these and diverse similar assertions is that the Upper Canadian bar
was originally and explicitly conceived of as a guardian of the theistic,
closely knit, ordered, content, and secure community that the province's
early governors hoped would follow from the introduction of a graduated
social structure, the discouragement of democratic tendencies, and
the
23
promotion of strong internal communications and civil authority.
The ground upon which these constitutional seeds were sown proved
fertile. Innumerable early nineteenth-century observers commented that
commercial opportunities in the new colony were few or unreliable, and
that land was an 'inferior good.' Since neither land ownership nor
commerce could provide a sufficient basis for power or gentility, a
provincial bureaucracy supplied and supported by the legal profession
was widely affirmed on material as well as ideological and spiritual
grounds as the most suitable keystone for the province's social pyramid.2 4
By the third decade of the nineteenth century most lawyers were
office-holders of one kind or another, and most office-holders in the
provincial capital were lawyers. 25 Neither the governmental, the legal, the
22 Attorney General William Firth and Solicitor General D'Arcy Boulton to Lord
Liverpool, io April 181o, reproduced in Romney, supra note 2, at 45-6. See also
Mandamus in re Lapenotisre(1848) 4 u.c.Q.B. (N.s.) 492 (per Robinson c.j.); Journalof the
Proceedingsof the Convocationof Benchersof the Law Society of Upper Canadavol. 1, i 19, Law

Society of Upper Canada Archives (hereinafter Proceedings).

23 See generally Cook, John Beverley Robinson and the conservative blueprint for the
Upper Canadian community (1972) 64 Ont. Hist. 79; Wise, Upper Canada and the
conservative tradition, in Firth (ed.) Profilesof a Province:Studies in the History of Ontario
(1967) 2o; and Hartz The Foundingof New Societies (1964) 3-23, 234-47.
24 See, for example, Fidler Observations on Professions, Literature,Manners,and Emigrationin
the United States and Canada (1833) 333-8; Moodie Roughing It in the Bush; or, Life in
Canada (1852) 14o; and Traill The Backwoods of Canada;Being Lettersfrom the Wife of an
Emigrant Officer, Illustrative of the Domestic Economy of British America (1836) 3-4, 81-2.
See generally Wilson The Enterprisesof Robert Hamilton:A Study of Wealth and Influence in
Early Upper Canada(1983); Johnson, The settlement of Western District 1749-1850, in
Armstrong, Stevenson, and Wilson (eds.) Aspects of Nineteenth-Century Ontario: Essays
Presented to James J. Talman (974) 19; Teeple, Land, labour, and capital in preConfederation Canada, in Teeple (ed.) Capitalism and the NationalQuestion in Canada
(1972) 48.

25 Compare Armstrong Handbook of Upper CanadianChronology (rev. ed. 1985); Keele The
ProvincialJustice (1835) v-vii, appendix 3-1 o; and R. Baldwin The Rules of the Law
Society of Upper Canada (1833) appendix.

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

191

ecclesiastical, nor the lay mind seems to have dissociated (or cared to
dissociate) the professional qualification of advocate from the status of
landed proprietor, man of business, governor, or colonial official.
According to the archdeacon of York and de facto prime minister of the
province, for example, 'Lawyers must, from the very nature of our
political institutions - from there being no great landed proprietors - no
privileged orders - become the most powerful profession, and must in
time possess more influence and authority than any other. They are
emphatically our men of business, and will gradually engross all the
colonial offices of profit and honour.' 26 The fact that this exhortation and
others like it could have been penned in late eighteenth-century Britain
by William Blackstone or in early nineteenth-century America by Alexis
de Tocqueville highlights the power of the transatlantic image of the
landed gentleman as a general aspiration for lawyers. 2 7 But since there
was little to conserve in the 'boundless wood' of early nineteenth-century
Upper Canada, an important material responsibility of this emergent
(and not resurrected) aristocracy was to preside 'patriotically' over
measured, centralized, and administratively planned development. 28 In
short, public and private 29spheres of activity or influence appear to have
been entirely congruent.
The Juvenile Advocate Society, to which most of the young bloods who
participated in the types riot belonged, was the first in a series of
organized efforts by York lawyers or their senior students to socialize
initiates to the legal profession en bloc, and thus to reproduce the bar and
26 Archdeacon John Strachan to Lieutenant-Governor Sir Peregrine Maitland, io March
1826, reproduced in Alexander (ed.) The University of Toronto and Its Colleges 182 7-19o6
(19o6) 149-50. Compare Gagan, Property and 'interest': Some preliminary evidence
of land speculation by the 'Family Compact' in Upper Canada, 1820-1840 (1978) 70
Ont. Hist. 63; Wise, supra note 23; Baskerville, Entrepreneurship and the Family
Compact: York-Toronto, 1822-1855 (1981) 9 Urban Hist. Rev. 15.
27 Compare Blackstone i Commentaries on the Laws of England (1765-9) 3-37; de
Tocqueville i Democracy in America (1945) 272-8o. See generally Thompson English
Landed Society in the Nineteenth Century ( 971); and Spring (ed.) EuropeanLanded Elites in
the Nineteenth Century (1977).

28 On the community service of Upper Canadian lawyers and their pursuit of local
development through the promotion of such public improvements as canals, roads,
harbours, and bridges, see, for example, Armstrong, Toronto's first railway venture,
1834- 1838 (1966) 58 Ont. Hist. 21 Aitken, The Family Compact and the Welland
Canal Company (1952) 18 Can. J. of Econ. & Pol. Sci 63; and Johnson, John A.
Macdonald and the Kingston business community, in Tulchinsky (ed.) To Preserveand
Defend: Essays on Kingston in the Nineteenth Century (1976) 141.
29 Compare Hannah Arendt The Human Condition (1958) 22- 78. For explicit treatments
of this Upper Canadian unity of functions see, for example, Gundy, The Family
Compact at work: The second Heir and Devisee Commission of Upper Canada, 18o 5 1841 (1974) 66 Ont. Hist. 129; Aitchison, The development of local government in
Upper Canada, 1783- 1850 (PH.D. thesis, University ofToronto 1953); and George and

Sworden, The courts and the development of trade in Upper Canada, 1830-186o
(1986) 6o Bus. Hist. Rev. 258.

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UNIVERSITY OF TORONTO LAW JOURNAL

*ultimately the provincial administrative lite in the image of prototypical

local statesmen. It was explicitly and self-consciously a context for the
cultivation of a particular ethos, and a procreator of 61itism for dissemination across Upper Canada. The society was composed exclusively of
student members of the Law Society of Upper Canada, persons already
'properly known' to senior members of the bar whose 'habits of conduct
and character' and 'particulars of family residence and connections' had
withstood the scrutiny of the law society's 'necessary inquiries' and
'objections' at the moment of the candidates' admission to the profession
as students-at-law. 3 0 Weekly meetings of the Juvenile Advocates, which
occurred under the direct patronage of luminaries of the local bar, were
conducted with ponderous ceremony according to the rules of practice of
the Court of King's Bench and the procedures of the Upper Canadian
government. This informal schoolroom for the colony's self-proclaimed
meritocracy therefore provided a setting in which the providentially
inspired assumptions and structure of the provincial administration were
inculcated methodically
in new recruits through study, discussion, advice,
31
and role-modelling.
Most important to this five-year process of professional formation or
refinement, which complemented time spent apprenticing in the offices
of leading members of the profession, was its exclusive and patrician
character. Members of the Juvenile Advocate Society were repeatedly
told that 'principles, education, and habits of life' distinguished the Upper
Canadian statesman. A strict regard to 'decorum and gentlemanly and
forbearing conduct' was mandated in all aspects of the Juvenile Advocates' activities. 3 2 Revealingly, in response to suggestions that membership
in this debating club be extended to persons other than law students, its
members were uniformly counselled by their mentors that the differences
inherent in a divinely ordained vertical social mosaic were the essence of
the provincial constitution, that equality might prevail as between men of
the same rank but that egalitarianism was anathema to the social fabric,
and that rigorous maintenance in all aspects of life of the boundaries

30 Proceedings supra note 22, 133, 207-9, 227. Compare Vachon Histoire du notariat
canadien 1621-196o (1962) 79-132; Bernard, Linteau, and Robert, La structure

professionnelle de Montrhal en 1825 (1976) 30 R.H.A.F. 383; Bell, The transformation

of the New Brunswick bar 1785-1830: From family connexion to peer control, in
Papers, supra note 6, vol. 1, 240.

31 See Baker, supra note 4, passim. Compare Armstrong, John Strachan, schoolmaster,
and the evolution of the Mite in Upper Canada/Ontario, in Wilson (ed.) An Imperfect
Past: Education and Society in Canadian History (1984) 154; Brauer The Education of a

Gentleman: Theories of Gentlemanly Education in England, 166o-1 775 (1959).

32 Baker, supra note 7, 69-71; Baker, supra note 4, 93.

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

193

33
between diverse classes was crucial to natural and thus social balance.
Lawyers' claims to superior civility were to be derived from an imbibed
professional culture and moral knowledge rather than from privileged
birth or upbringing.
To the extent that they were relevant to the Juvenile Advocates'
formation, or to general patterns of professional activity, abstracted
statements of 'legal' rules capable of expression in a coherent form were
only one among many 'codes' for the description and perpetuation of
providential distributions of responsibility and power in the great chain of
being. According to a prominent member of the York bar and long-time
treasurer of the law society, for example, 'the science of the law is the
science of human nature, not in the abstract but in all the diversities of
active life ... [S]ociety is formed of so elegant a web that every violence
done [its patterns of order] makes a breach which however repaired will
long remain a blemish. In all [life's] rich tapestry distinction is necessary;
this is nature or more properly speaking, the order of providence.'3 4 It
bears emphasizing that early nineteenth-century Upper Canada was a
time and place in which the 'finger of God' was thought to be visible
everywhere, animating all manner of disparate worldly events.3 5
Similarly concerned about the intimacy of social distinction and natural
order, and the threat posed to cultural stability by a disregard of limits and
castes, Chief Justice Robinson cautioned that

when we behold an indifference to the observance of the Laws and a restless

diligence to evade them - a want of reverence to Magistrates & Superiors a
disrespect to stations, offices, ranks, and orders of persons ... we may consider
these as symptoms fatal to the liberty of that country ... Everyone carves out his
own method of redress, and prosecutes his designs by the dictates of his own
33 See, for example,James Buchanan Macaulay to Richard Cartwright Robison, 15 March
1823; Henry John Boulton to Richard Cartwright Robison, 21 March 1823; George
Ridout to Richard Cartwright Robison, 18 March 1823; and Simon Washburn to
Richard Cartwright Robison, 17 March 1823Journalsof the Advocate Society vol. 9, 64-7,
77-82, 83-6 Law Society of Upper Canada Archives (hereinafterJournals). Compare
Dumont Homo Hierarchicus:An Essay on the Caste System (1970).
34 William Warren Baldwin to Richard Cartwright Robison, 23 March 1823, 9Journals,
67-74. Although they are widely regarded as moderate reformers, the Baldwins'
attitudes towards the provincial legal profession of which they were part, and towards
larger issues of social class, were remarkably consistent with those of their ostensible
Family Compact antagonists. For an elaboration on this theme from slightly different
perspectives, see Patterson, Whiggery, nationality, and the Upper Canadian reform
tradition (1975) 56 C.H.R. 25 and Careless, Robert Baldwin, in Careless (ed.) The
Pre-ConfederationPremiers:Ontario Government Leaders, 1841-1867 (198o) 89.
35 Compare Westfall, Order and experience: Patterns of religious metaphor in early
nineteenth-Century Upper Canada (1985) 20J. of Can. Studies 5; Berger Science, God,
and Nature in VictorianCanada (1983); McKillop A DisciplinedIntelligence: Criticallnquiry
and CanadianThought in the Victorian Era (1979) 1-93.

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UNIVERSITY OF TORONTO LAW JOURNAL

corrupt will - To prevent these evils a love of Order becomes necessary by which
we are induced to conform to the Laws and to promote the welfare of the
36
community.
'The Laws,' generically, seem to have been thought to comprehend such
diverse encapsulations of the principles of a superior order as the
imperatives of sacred scripture, the patterns inherent in natural history,
the gentle code of virtue, the implicit norms of constitutional stability, and
distillations of the statements of judicial authorities. They also framed a
conception of the good rather than of rights: a love of order, difference,
and interdependence, and a revulsion towards sameness, equality, and
independence. This conception of the good is the antithesis of modern
and radical concepts of egalitarianism embedded in democratic political
theory.
Studying the deployment of the common law writs was therefore one
process among many of discovering the immanent order of reality and
linking it to patterns of human experience.3 7 But this opportunity for
revelation did not follow from the study of legal doctrine or processes in
themselves. It was said to exist by virtue of the fact that applying and
reapplying the forms of action in particular instances were the 'discretionary' prerogatives of a rank of virtuous men who would necessarily leave a
judicial distillation (for which they were accountable to themselves, to
more virtuous men, and to their Maker) of the divine order of things.
Contemplation and reflection by students upon this record were understood and promoted as activities likely to lead to comprehension of the
natural rather than consensual limits of human action.3 8 In any case, a
capacity for genteel conversation and action had to be refined through
consideration of something; the common law, parliamentary usage,
constitutional norms, international relations, and political or topical
issues were commended to aspiring lawyers as equally suitable vehicles for
36 John Beverley Robinson to the Grand Jury of the Western District, 1836, reproduced
in Brode Sir John Beverley Robinson: Bone and Sinew of the Compact (1984) 176. See also
Lewis The Youth's Guard againstCrime (1844) ix.
37 For discussion of the cultural contingency ofconceptions of private law in other corners
of the North Atlantic world, see Hoeflich, Law and geometry: Legal science from
Leibniz to Langdell (1986) 3o Am. J. of Legal History 95; Kelley Historiansand the Law in
Post-RevolutionaryFrance( 1984); and Boorstin The Mysterious Science of the Law: An Essay
on Blackstone's CommentariesShowing How B lackstone, Employing Eighteenth-CenturyIdeas of
Science, Religion, History, Aesthetics and Philosophy, Made of the Law at Once a Conservative
and Mysterious Science ( 94 i).
38 Compare White, The working life of the Marshall court (1984) 70 Va. L. R. 1;
Bloomfield, David Hoffman and the shaping of a republican legal culture (1979) 38
Maryland L. R. 673; Newmyer, Harvard Law School, New England legal culture, and
the antebellum origins of American jurisprudence (1987) 74J. of Am. Hist.

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

195

formative personal instruction. 3 9 Indeed, much more time seems to have

been spent by the bar in explicit cultivation of students' 'principles and
habits of life' than in honing the skills of legal drafting, conveyancing, and
pleading. Law students were bound to govern, and governing required
morally knowledgeable and ambidextrous persons rather than trained
specialists. In this connection it bears repeating that no notion of the
separation of governmental powers had yet taken root in the province,
and that the law courts were more or less incidental to the broad-ranging
activities of most members of the local legal-administrative 6lite. Even as
chiefjustice, J.B. Robinson (1829-62) sometimes combined the activities
of president of the Executive Council, speaker of the Legislative Council,
Visitor of the Law Society of Upper Canada, university administrator,
county registrar, foreign ambassador, pamphleteer, heir and devisee
commissioner, legislative draftsman, and potent political lobbyist.4"
Intended to govern in all aspects of secular life, men like Robinson do not
fit modern conceptions of independent and neutral legal professionals.
In view of their professional formation according to the values and
modes of discourse imbibed by the Juvenile Advocates, what is one to
make of their participation in vandalism, theft, and riots in June of 1826?
And how is one to understand the fact that none save one of their mentors
made recorded public or private mention of discomfort, disapproval, or
disappointment with respect to the students' actions? Moreover, what is
one to make of the fact that most of the types rioters were quickly
incorporated into the select ranks of the provincial 6lite? 4 1 When
reconsidered from the perspective of their self-perceptions, the behaviour of the types rioters and their mentors does not appear to contradict
principles of professional commitment in the way that it might when
measured against external standards.
Much has been written about the amorphous governing clique for
39 See Baker, supra note 4, 92-7; Baker, supra note 7, 91- 119; Bucknall, Baldwin, and
Lakin, Pedants, practitioners, and prophets: Legal education at Osgoode Hall to 1957
(1968) 6 Osgoode Hall L.J. 137, 141-59.
40 Prior to 1831, each chief justice of Upper Canada united all three branches of the
provincial administration by assuming simultaneously and as of right the speakership
of the Legislative Council and the presidency of the Executive Council. See Riddell,
Judges in the executive council of Upper Canada (1921-2) 20 Mich. L. R. 716; Riddell,
Judges in the Parliament of Upper Canada (1918-19) 3 Minn. L. Rev. 244. See also
Saunders, Sir John Beverley Robinson, 9 D.C.B. 668; Read The Lives of the Judges of
Upper Canadaand Ontario,from 1791 to the Present Time (1888) 86-95; and Riddell The
Life of William Dummer Powell, FirstJudge at Detroit and Fifth ChiefJusticeof Upper Canada
(1924).

41 On the career paths of the types rioters see, for example, Leighton and Burns, Samuel
Peters Jarvis, 8 D.C.B. 430; Beer, Henry Sherwood, 8 D.C.B. 796; Armstrong, The
oligarchy of the Western District of Upper Canada, in Historical Papers 1977 (1977)
86; and Dobbs, SirJames Buchanan Macaulay, 8 D.C.B. 51 1.

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UNIVERSITY OF TORONTO LAW JOURNAL

which provincial law students were bound, but, although qualified by

twentieth-century historians, Lord Durham's pithy thumbnail sketch of
the late 183os remains suggestive of the contours of one important aspect
of this caste:
Upper Canada ... has long been governed by a party, commonly designated
throughout the province as the Family Compact ... The Bench, the magistracy, the
highest offices of the Episcopal Church, and a great part of the legal profession
are filled by adherents of this party: by grant or purchase they have acquired
nearly the whole of the waste lands of the Province: they are all-powerful in the
shared among themselves almost exclusively all
chartered banks, and till lately,
42
offices of trust and profit.
Composed largely (but not exclusively) of colonial Loyalists or expatriate
Britons of high tory orientation, the 61ite in issue extended beyond the
Family Compact and succeeded not only in dominating the province's
'established' church, its judiciary, its bureaucracy, its legal profession, and
its mixed enterprises, but also in publicizing a myth or structure of
assumptions that came to underpin much local culture: 'The form of the
Loyalist myth suggests a Christian typos of suffering (the Revolution),
redemption (the acquisition of Canada), and ultimate vindication (success
in 1812, material growth), all in the service of a covenant (fealty to crown
and British institutions brings national survival under imperial aegis).'4 3
This set of beliefs amounts to a sort of cultural law of survival of
the moralist. The prescriptions of the province's oracular lawyeradministrators for the Upper Canadian church, state, and community
were often conceived of as part of a providential mission of preservation
in a provincial outpost or garrison of grace on a continent where
American democracy and non-episcopal faith were posing 'a gross and
blasphemous affront' to the necessary order of things. The local
aristocracy and the colony of which it was a part were, in effect, regarded
as crucial instruments of the divine. Theistic imperatives of provincial
patriotism thus reinforced the notion that virtuous and intelligent men,
rather than humanly negotiated laws, were fated to rule. To call into
Lord Durham The Report and Despatches of the Earl of Durham, Her Majestys High
Commissionerand Governor-GeneralofBritish NorthAmerica (1839) 105. See also Saunders,
What was the Family Compact? (1957) 49 Ont. Hist. 16 5 ;Johnson, The U.C. Club and
the Upper Canadian 6lite, 1837-40 (1977)69 Ont. Hist. 151; Patterson, An enduring
Canadian myth: Responsible government and the Family Compact (1977) 12J. of Can.
Studies 3.
43 Duffy, Gardens, Covenants,Exiles: Loyalism in the Literatureof Upper Canada/Ontario(1982)
93. See also Fellow, The Loyalist myth in Canada, in Atherton, Heisler, and Monet (eds.)
HistoricalPapers 1971 (1971) 94; Bell, The Loyalist tradition in Canada (1970) 5 . of
Can. Studies 22; Smith, Old Ontario and the emergence of a national frame of mind, in
Aspects, supra note 24, 194.
42

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

197

question the destiny of such men to govern was therefore to subvert the
providential order of things, to breach the covenant, and to invite
transformation of'the Upper Canadian garden' into a secular and unduly
entrepreneurial wasteland.4 4
In the three weeks preceding the types riot, Mackenzie had been
publishing a stream of invective directed towards the conduct of
particular members of Upper Canada's bar, the governing pretensions of
its bureaucracy, and the vanity of the entire ilite.4 5j.B. Robinson was said,
for example, to be descended from thieves, prostitutes, and incorrigible
vagabonds; 'stink-pot' executive councillor and law society bencherJames
Buchanan Macaulay's peg-shaped nose was attributed to a childhood
spent pounding into shape patent medicines like 'hysteric pills' for old
women; Archdeacon John Strachan was described as a 'diminutive,
paltry, insignificant Scotch turn coat'; and Chairman William Allan of the
Bank of Upper Canada was alleged to have begun his 'professional' life as
a boot-black. Judges were accused of bullying juries, lawyers in general
were described as the scourges of provincial society 'rioting upon the
ruins of the farmer and mechanic,' and the attorney general in particular
was likened to a biblical figure who attempted to destroy all theJews in the
Persian empire. 4 6 The diatribes of which these snippets were part have
been characterized variously as an 'orgy of slander and scurrility,'
'vulgarities [that] were the essence of political satire and ... cogent political
47
criticism,' and 'gross and mindless abuse.'
The key point, however, is that the icons Mackenzie was attacking were
men rather than institutions, policies, or acts. And those men were
ostensibly virtuous, propertied, well informed, intelligent, and opulent.
By calling into question the local aristocracy's virtue, Mackenzie was
44 See Wise, supra note i9; Smith, American culture and the concept of mission in
nineteenth-century English Canada, in HistoricalPapers 1971 (1971) 169; and Aitken,
Defensive expansionism: The state and economic growth in Canada, in Aitken (ed.)
The State and Economic Growth (1959) 79.
45 For similar instances of publicly censured behaviour of the early nineteenth-century
Canadian press, see Gardner, When the 'Plain Speaker's' type was pied (1923) 20 Ont.
Hist. Soc. Papers & Rec. 84; Herity, Journalism in Belleville (1937) 27 Ont. Hist. Soc.
Papers& Rec. 400; and Marion, La libert6 de la presse canadienne-franqaise au debut du
xixe si4cle (1942) 3 Culture 183, 331.

46 See, for example, ColonialAdvocate York, 18 May 1826,25 May 1826, and 8June 1826.
See also Fairley (ed.) The Selected Writings of William Lyon Mackenzie, 1824-1837 (1q6o).
Compare Ferguson Law and Letters in American Culture (1984); Marquis, Anti-lawyer
sentiment in mid-Victorian New Brunswick (1987) 36 U.N.B.L.J. 163; and Careless,
Mid-Victorian liberalism in central Canadian newspapers, 185o-67 (1950) 31 C.H.R.
221.

47 Le Sueur William Lyon Mackenzie: A Reinterpretation(ed. McKillop 1979) 97-8; Romney,

supra note 6, 115; Brode, supra note 35, 133. For a detailed description of the events
that preceded Mackenzie's remarks, see Romney, supra note 6,-at 115- 17.

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UNIVERSITY OF TORONTO LAW JOURNAL

challenging nothing less than providence, a divinely inspired theory of

government, the gentle code, the provincial constitution, and the
predestined existence of Upper Canada itself. In a world where the habits
of thought and action of honourable men rule as primary instruments of
fate, attacks on the personalities of such men are precisely attacks on 'the
Laws,' the social order, the constitution, and the government.
That many talented local lawyers and office-holders had been recruited
from intellectually or materially unprivileged backgrounds, as Mackenzie
pointed out, was irrelevant. In the language of the day, their virtue and
subsidiary personal qualities destined them to rule and justified their
claims to superior ability. Unlike the aristocracy of natural leaders craved
by England's early nineteenth-century romantic or radical tories, Upper
Canada's inaugural patriotic 61ite had to be one of talent rather than birth,
erected on the basis of moral knowledge and professional culture in the
future rather than resurrected in a reactionary manner from a chivalrous
past.48 By the same token, a belief that public and private realms are
personified in oneself and the 6lite of which one is part might be said to
invite what would today be characterized as ad hominem commentary.
Admittedly, as the nineteenth century waned, persons would be
separated from their destined positions, from their innate capacity to fill
the roles assigned to them by providence, and from the way that they
acquired their statuses. 4 9 But this modern progression would have
seemed incoherent to the pre-liberal Upper Canadian 'legal' mind. In that
older world, virtue was neither 'scientific' nor objective, and certainly
could not be acquired through technical education. Nor could it be
evaluated by any other than those who possessed it.5
Obviously, there are elements of rhetoric, false consciousness, mystification, self-interest, and tautology in this seemingly extravagant set of
truth-claims. But one distinctive feature of rhetoric is that people do come
to believe their own, especially young and impressionable people. And
how is the quality of belief to be appraised, except according to the
sincerity with which values are embraced and practised, their internal
48 Compare Disraeli The Young Duke (1905); Kranmick Bolingbroke and His Circle: The
Politics of Nostalgia in the Age of Walpole (1968); and Pocock The MachiavellianMoment:
Florentine PoliticalThought and the Atlantic Republican Tradition(1975).
49 Compare Cole, A learned and honourable body: The professionalization of the law in
Ontario, 1870-1930 (PH.D. thesis, University of Western Ontario 1987); Sennet The
Fall of PublicMan (1977); and Larson The Rise of Professionalism:A SociologicalAnalysis
(1977).
50 See generally Pocock Virtue, Commerce, and History:Essays on PoliticalThought and History
Chiefly in the Eighteenth Century (1985) 37-50, 157-91; Mansfield Statesmanshipand Party
Government: A Study of Burke and Bolingbroke (1965); and Ignatieff and Hont (eds.)
Wealth and Virtue: The Shaping of PoliticalEconomy in the Scottish Enlightenment (1983).

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

199

coherence, or their culturally contingent capacity to persuade? 5 1 For

present purposes, the most relevant feature of the mentalitd imbibed by
the types rioters in such settings as meetings of the Juvenile Advocate
Society is that its processes of constitution and legitimation did not
promote the exclusivity or even the primacy of formulaic, conventional
law and its rule.
Whether rhetoric or truth, the discourse of the professional culture
inculcated in the Juvenile Advocates revolved around their ordained
social pre-eminence and their ability to discern and enforce boundaries
through the application of moral knowledge. It was said that as a result of
knowing God - and, of course, the province's 6lite were in a privileged
position to do so - virtuous men could know what was in other men's
hearts and therefore discern all others' appropriate places in the world.
Society, in turn, was not thought to be a structure capable of management
or manipulation through the application of acquired sociological expertise or technical skills, but was, in Chief Justice Robinson's words, a
divinely mandated order self-evidently worthy of comprehension, appreciation, and replication: 'By those who are sufficiently humble to believe
in the existence of a superior intelligence, it is very frequently remarked,
as they pass through life, how much better matters have been ordered for
them by Providence than they would have been ordered by themselves, if
their wishes had availed them.' 52 All of this must have been heady stuff to
sixteen- and eighteen-year-old aspiring patricians who, surrounded by
affirmations that they were destined to judge and govern as personifications of fate almost everywhere, presumably had few doubts about their
assessment of Mackenzie's affronts to their government, families, legal
principals, and especially to their professional identity. Nor did they
hesitate in deciding his appropriate fate. They did, after all, have the
examples of their role models' ostracism of social commentator Robert
Gourlay and King's Printer Charles Fothergill from which to work. And
the attorney general himself had routinely referred privately to Mackenzie as a 'malignant ... uneasy spirit,' 'another reptile of the Gourlay
51 Compare Gordon, The ideal and the actual in law: Fantasies and practices of New York
City lawyers, 1870-1910, in Gawalt (ed.) The New High Priests:Lawyers in Post-Civil War
America (1984) 51; Kennedy, supra note 2o; and Grey, Langdell's orthodoxy (1983) 45
U. Pitt. L. R. i.
52 J.B. Robinson, supra note 7, 13. This particular observation, while typical of others by

Upper Canadian lawyers of the day, was responsive to Lord Durham's legal
instrumentalism or Benthamite orientation. See also Fallis, The idea of progress in the
Province of Canada: A study in the history of ideas, in The Shield ofAchilles, supra note
19, 176-81; Wise, Sermon literature and Canadian intellectual history, in Bumsted
(ed.) CanadianHistory Before Confederation: Essays and Interpretations (1979) 249; Cross
and Fraser, 'The Waste That Lies Before Me': The Public and Private Worlds of Robert
Baldwin, in Johnson and Lacelle (eds) HistoricalPapers 1983 (1983) 164.

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UNIVERSITY OF TORONTO LAW JOURNAL

species,' and 'a conceited red-haired fellow' who was 'too contemptible an
adventurer to notice.' 5 3 How, precisely, did the situation look to the future
types rioters through these eyes?
Mackenzie's liberty-of-the-press-behaviour and rights-based, secular,
rule of law assertions were a direct attack on a system of government and a
subversion of the community's cultural underpinnings, all expressed in
a foreign ethical language.5 4 They were also aspects of a point of view that
was routinely castigated in its American and British incarnations by many
senior members of the provincial patriciate as blasphemous and infidel.5 5
A repertoire of tory, whig, reform, and Loyalist discourses did coexist in
Upper Canadian political debate, but, in the realms of ethics and
metaphysics, legal, bureaucratic, ecclesiastical, and high social discourse
were fused into one dominant, anti-egalitarian, and genteel mode. 56 In
view of the absence of such visible badges of birthright or status as
hereditary titles and settled estates from Upper Canada, it is perhaps not
surprising that the emergent 6lite in issue was particularly sensitive to
perceived assaults upon those few and ephemeral qualities such as
principles, habits of life, and especially shared languages of ethical
discourse which signalled its members' station in the world.
Mackenzie had also shown himself to be in 'base, ungentlemanly
breach' of the gentle code; his public journalistic affronts had 'offended
grievously' against propriety and honour. Most important, he had
confused and therefore compromised the natural order of things. Far
beyond the limits of acceptable good sense or docile and grateful
53 Reproduced in Craig Upper Canada:The FormativeYears 1 784-1841 (1963) 111-12. See

generally Milani Robert Gourlay, Gadfly: The Biography of Robert (Fleming) Gourlay,
1778-1863, Forerunner of the Rebellion in Upper Canada (1971); Baillie, Charles
Fothergill 1782-1840 (1944) 25 C.H.R. 376.

54 On Mackenzie's intellectual orientation and its apparent sources, see Gates, The
decided policy of William Lyon Mackenzie (1959) 40 C.H.R. 185; MacKay, Political
ideas of William Lyon Mackenzie (1937) 3 Can. J. of Econ. & Pol. Sci. i; and Rhea,
William Lyon Mackenzie -Jacksonian? (1968) 50 Mid-America 223. See also Hamil, The
reform movement in Upper Canada, in Profiles, supra note 23, 9.
55 See generally Love, Anti-American ideology and education reform in 19th-century
Upper Canada, in An Imperfect Past, supra note 31, 170; Wise, Colonial attitudes from
the era of the War of 1812 to the Rebellions of 1837, in Wise and Brown (eds) Canada
Views the United States: Nineteenth-Century PoliticalAttitudes (1967) 16; and Nelson The
American Tory (1961) 153-69.

56 Compare Read, The London District oligarchy in the Rebellion era (1980) 72 Ont. Hist.
195; Richards, The Joneses of Brockville and the Family Compact (1968) 6o Ont. Hist.
169; and Nelles, Loyalism and local power: The District of Niagara, 1792- 1837 (1966)
58 Ont. Hist. 99. On the beginnings of fragmentation of this more or less monolithic
Upper Canadian 6lite discourse, see, for example, Wilton-Siegel, Administrative
reform: A conservative alternative to responsible government (1986) 78 Ont. Hist. 105;
Romney, The Spanish freeholder imbroglio of 1824: Inter-6lite and intra-6lite rivalry
in Upper Canada (1984) 76 Ont. Hist. 32; and Wise, Tory factionalism: Kingston
elections and Upper Canadian politics, 1820-1836 (1965) 57 Ont. Hist. 205.

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

201

57
yeomanry, Mackenzie himself was 'dirt,' completely out of place.
Moreover, he had transgressed the boundaries of his rank and station, at
least in the assessment of the natural leaders whose role it was to divine,
police, and affirm such limits. On one level, Mackenzie's calvinistic,
anti-lawyer, and anti-bureaucratic rantings therefore merited public
ridicule and humiliation. On another, they represented an unprecedented and dangerous incursion of cultural otherness that needed to be put
in its place. On a third plane, they demonstrated that the reward for which
their author was suited was something like excommunication or banishment. Thus, nine young presumptive patricians masquerading as Indians
paraded through the streets of York in the customary form of a
charivari and reduced the Colonial Advocate press to wreckage on the
evening of 8 June 1826. Such ritualistic forms of derision, practised by
members of 6lite and popular classes, were not otherwise unknown in
Upper Canada. 58 This kind of extra-state redress of libellous statements
appears to have been the rule rather than the exception in several
quarters of the early nineteenth-century North Atlantic world. 5 9 In any
case, Mackenzie was relegated to journalistic
silence and impotent
60
resentment, at least in the short term.
The harshest collegial assessment of the Juvenile Advocates' execution
of their judgment of William Lyon Mackenzie was that of the reform
leader, Dr Baldwin. It is revealing in the extreme that Baldwin regarded

57 7 Journalssupra note 33, 23-4. See generally Douglas Purity and Danger:An Analysis of
Concepts of Pollutionand Taboo (1969).
58 For indications of the currency of such ritulatistic forms of derision in early
nineteenth-century Upper Canada, see Gourlay 1 StatisticalAccount of Upper Canada
(1822) 254-5; McTaggart i Three Years in Canada, 1826-1828 (1829) 41-2; and

Moodie, supra note 23, 144-9. See generally Massicotte, Le charivari au Canada (1926)
32 Bull. des Recherches Historiques 712; Palmer, Discordant music: Charivaris and
whitecapping in nineteenth-century North America (1978) 3 Labour/Le travailleur 5,
at 24-39; Reid, In a defensive rage: The uses of the mob, the justification in law, and
the coming of the American Revolution (1974) 49 N.Y.U.L.R. 1043.
59 Compare Rosenberg Protecting the Best Men: An Interpretive History of the Law of Libel
(1986); Nelson Dispute and Conflict Resolution in Plymouth County, Massachusetts, 17251825 (1981) 24, 31-3, 35; Green and Helmholz (eds)Juries, Libel, andJustice:The Role of
EnglishJuries in Seventeenth- and Eighteenth-Century Trialsfor Libel and Slander (1984).
6o Five months later Mackenzie recovered 625 in damages for his losses in a civil action
against several scions of the Family Compact (which was collected for the defendants by
way of an anonymous subscription) but no public or private criminal prosecution was
ever brought against the types rioters, and public opinion about the event was swayed
decisively-in Mackenzie's favour only through partisan historiographical advocacy
much later in the nineteenth century. Indeed, the attorney general had his riotous
student-at-law Charles Richardson admitted to the bar a mere ten days after the
Colonial Advocate press debacle. For evidence of late nineteenth-century attempts to
vindicate Mackenzie, see, for example, Dent i The Story of the Upper CanadianRebellion
(1885) 122-43; Lindsey s The Life and Times of William Lyon Mackenzie (1862) 78-107;
and Kingsford so The History of Canada (1887-98) 240-4.

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the episode as an outrage, largely because the types rioters had behaved in
a manner 'quite unbecoming gentlemen and still more unbecoming them
as Students at Law ... In England [this deed] could be done only by mere
rabble or hired bullies, [and is thus] little calculated to claim from the
People that respect and confidence which the Law Society should cherish
on their highest honour.' 6 1 The essence of Baldwin's criticism was that the
Juvenile Advocates' actions were self-contradictory (and therefore unprofessional), but not by virtue of the students' failure to act in accordance
with a set of conventional, formulaic norms to which they purported to
subscribe and which they called on all other men to obey. Rather,
Baldwin's censure rebuked them for failing to be the kind of men they
were obliged to aspire to be.6 2 To the extent that Baldwin thought the
senior bar should have publicly censured the type rioters' behaviour, that
belief proceeded from a similar world view: allegiance to a vision of a
particular kind of man filling a divinely mandated role, rather than to an
ideal of neutral legal icons, was the animating premise. Liberal appraisals
of the alleged gap between 6lite Upper Canadian pretensions and
behaviour fail to understand the early nineteenth-century system of
values sought by lawyer-administrators to be affirmed in the province
precisely because they miss the significance of critiques like Baldwin's.
Legitimation, for political actors, is a process of appealing to a set of
absolute norms to justify the actors' right to exercise power. If persons in
political authority do not recur to principles that claim to bind, and have
the effect of binding, members of the relevant polity, the exercise fails. By
the last decades of the nineteenth century, Ontarian public figures were
appealing to secular education, acquired ability, technical knowledge,
objectivity, inductive science, and especially the monolithic rule of
consensual law to justify their exercises of power. 6 3 Indeed, a prolonged
61 William Warren Baldwin toJohn Beverley Robinson, supra note 18. For Dr Baldwin's
response to a similar, but plebeian, incident a generation earlier, see Ely Playter's diary,
in Firth (ed.) The Town of York, 1793-1815: A Collection of Documents of Early Toronto
(1962) 247-8. For indications of 6lite provincial attitudes towards criminality at large,
compare Cruikshank,John Beverley Robinson and the trials for treason in 1814 (1929)
25 Ont. Hist. Soc. Papers& Rec. 191; Weaver, Crime, public order, and repression: The
Gore District in upheaval, 1832-1851 (1986) 78 Ont. Hist. 175; and Blackwell, Crime in
the London District, 1828-1837: A case study of the effect of the 1833 reform in Upper
Canadian penal law (1981) 6 Queen's L.J. 528.
62 Compare MacIntyre, supra note 14; Villey Le droit et les droits de l'homme (1983); and
Anscombe, Modern moral philosophy (958) 33 J. Royal Inst. Phil. i. "
63 See Baker, The reconstitution of Upper Canadian legal thought in the late Victorian
empire (1985) 3 Law & Hist. Rev. 219; Cole, 'A hand to shake the tree of knowledge':
Legal education in Ontario, 1871 - 1889 (1986) 17 Interchange: Q. Rev. of Educ. 15; and
Risk, Sir William R. Meredith C.J.O.: The search for authority (1983) 7 Dalhousie L.J.
713. Compare Naylor, Rural protest and medical professionalism in turn-of-thecentury Ontario (1986) 21 J. of Can. Studies 5; Stieb, Edward Buckingham Shuttle-

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

203"

search for secular ideals to hold the Upper Canadian community together
and preserve the status of existing lites had begun as early as the first
years of union. The 184os and 185os were characterized by the
preoccupation of provincial administrators with agencies of local, positive
law. Sweeping reforms of court structures, insistence upon the achievement of an independentjudiciary, an unprecedented interest in systematizing the 'binding' sources of law, and the institutional decentralization of
political structures in that period are all manifestations of the attenuated
substitution of a secular normative language for an increasingly impotent
providential one. 64 But neither these concepts nor this substitution would
have made much sense to Upper Canada's precocious law students of the
182os. Obviously, something changed. Indeed, it later was routinely
alleged that the older order had been 'authoritarian' and therefore had to
65
change.

Scholarship or strategies designed to expose false consciousnesses must

do so from a standpoint that is true. The beauty of Dr Baldwin's collegial
rebuke of the types rioters is that it was true by virtue of the fact that he
appealed to his contemporaries on their own terms. Presumably, he could
not help doing so. Criticism of Upper Canada's early legal-administrative
Mite from the standpoint of eighteenth-century English radicalism,
Benthamite utilitarianism, late Victorian constitutionalism, or modern
legal liberalism not only castigates a set of beliefs before it has been
authentically reconstructed, but does so with the metaphors and selfinterest of other places and times. It may be that 'rule of law' rhetoric is
worth, 1842-1934 (1970) 19 Bull. Ont. Coll. Pharmacy 69, (1971) 20 Bull. Ont. Coll.
Pharmacy 1; and Linteau, Quelques rHflexions sur la bourgeoisie quhbhcoise, 1850-1914

(1976) 30 R.H.A.F. 55.

64 On the reform of court structures in this period see Banks, The evolution of the
Ontario courts 1788-1981, in 2 Essays, supra note 7, 492, and 511- 18, Blackwell, William
Hume Blake and the Judicature Acts of 1849: The process of legal reform at
mid-century in Upper Canada, in i Essays, supra note 7, 132. On the independence of
the judiciary, see Brode, Of courts and politics: The growth of an independent
judiciary in Upper Canada (1978) 12 L.S..U.C. Gaz. 264 and Lederman, The
independence of thejudiciary (1956) 34 Can. Bar. Rev. 1139. On systematizing sources
of law, see Banks, An annotated bibliography of statutes and related publications:
Upper Canada, the Province of Canada, and Ontario 1792-198o, in 1 Essays, supra

note 7, 358, and Baker, supra note 63. On the decentralization of institutions, see
Whebell, Robert Baldwin and decentralization 1841-49, in Aspects, supra note 24, 48.
For a helpful complementary study of the contemporaneous shift to secular normativity in Lower Canada, see Johnson, Perceptions, language, and practice: The
reconstitution of property relations in mid-nineteenth-century Quebec (s.j.o. thesis,
University of Wisconsin 1988), especially chapter 5.
65 On the reformed intellectual outlook of late nineteenth-century Ontarians at large, see
Cook The Regenerators: Social Criticism in Late Victorian English Canada (1985); Armour
and Trott The Faces of Reason: An Essay on Philosophy and Culture in English Canada
185o- 1950 (1981); and Shortt The Searchforan Ideal: Six CanadianIntellectualsand Their
Convictions in an Age of Transition 189o-1 930 (1976).

204

UNIVERSITY OF TORONTO LAW JOURNAL

true or necessary from the standpoint of democratic assumptions, but

there is little that is immutable or apodictically universal about it. And in
spite of the formal blandishments of modern legal and ethical positivists,
the most significant popular and 6lite human actions continue to occur,
even in democratic polities, according to inferential, non-formulaic
norms. The irony is that contemporary democratic rhetoric has tended to
blind us to the incompleteness of secular and positive law as a code of
conduct, and thus to discourage critical inquiry into its customary place
among diverse species of explicit and implicit normativity. 66
An important strand in modern English legal historiography has taken
as its subject the late nineteenth-century efforts of such members of a new
generation of professional jurists as Thomas Erskine Holland, A.V.
Dicey, William Anson, and Frederick Pollock to reformulate that country's legal order 'so that it rationalized and sustained the individualistic ...
liberalism associated philosophically, with [John Stuart] Mill's On Liberty.'
Provisional conclusions in this literature suggest that while the aims of
these academic lawyers included annexing prestigious contemporary
scientific paradigms to law, the achievement of a comprehensive account
of English principles for export to the colonies and upgrading legal
education, their most profound and complex goal was to find a way of
using the common law to achieve for regimes of popular sovereignty the
stability and permanence theretofore associated with monarchical or
aristocratic states. 67 The late Victorian rule of law, as such an unentrenched bill of rights, coincidentally retained for lawyers a place at the
centre of political power without overtly threatening to usurp that of an
elected and 'sovereign' legislature.
The rhetorical paradox revealed by this cursory placement of late
nineteenth-century English cultural imperatives in juxtaposition with
those of Upper Canadian legal aristocrats is striking. For the provincial
patricians in issue, a providentially inspired and explicitly articulated
hierarchy was the only possible guarantee of ordered, ascriptive liberty.
For common law liberals of the late nineteenth century, recurrence to
concepts such as abstract and formal equality, a free and naturally
occurring market, political democracy, and the universal rule of consen66 Compare Detmold The Unity of Law and Morality: A Refutation of Legal Positivism (1984);
Macdonald, Pour la reconnaissance d'une normativit6 implicite et inf6rentielle (1986)
18 Sociologie et socidts 47; and Fuller Anatomy of the Law (1968).

67 Sugarman, The legal boundaries of liberty: Dicey, liberalism, and legal science (1983)
46 Mod. L. R. 102. See generally Abel-Smith and Stevens Lawyers and the Courts: A
Sociological Study of the English Legal System 175o-1965 (1967) 63-76, 165-86; Pue,
Exorcising professional demons: Charles Rann Kennedy and the transition to the
modern bar (1987) 4 Law & Hist. Rev. 135; and Cocks Foundationsof the Modern Bar
(1983).

PROVIDENTIAL ORDER AND THE RULE OF LAW IN UPPER CANADA

205

68
sual law had become an acceptable way of legitimating covert hierarchy.
Upper Canada's early nineteenth-century bar had a dramatically different conception of the relationship of rulers to those they ruled from that
embraced by late nineteenth-century common-law liberals. A crucial
dimension of that older, providentially mandated world view was that
attacks on the personages of divinely selected rulers constituted assaults
upon the most fundamental principles of the community in which they
ruled. Comprehension of this mentaliti is not likely to be furthered by
judgmental recurrence to theories of governance that evolved or came to
prevail in other times and places.
A more rigorous and emic examination of the particular beliefs,
vernaculars, and habits of action of successive central Canadian legaladministrative lites than prevailing historiographical traditions have
allowed could shed considerable light upon the processes by which the
nineteenth-century Anglo-Canadian palace guards alluded to in the
preceding paragraph changed.6 9 Such efforts also would help to disturb
the contemporary neo-colonial mythology that permits silence to describe
the intellectual foundations ofjustice in Canadian culture as if that silence
were speech.

68 The modern rule of law literature (both pro and anti) is abundant and rich, if somewhat
polemical. The essays contained in Hutchinson and Monahan (eds) The Rule of Law:
Ideal or Ideology? (1986) are as good an introduction to this field of inquiry and its themes
as any. Of particular relevance to the types riot is Stanley Diamond's classic, The rule of
law versus the order of custom, in Diamond (ed.) In Search of the Primitive:A Critiqueof
Civilization (1974) 255-

69 Compare Prest, Why the history of the professions is not written, in Rubin and
Sugarman (eds) Law, Economy, and Society, 17 5 0 - 1 9 14 : Essays in the History ofEnglish Law
(1984) 300; Kettler, The question of'legal conservatism' in Canada: A review of Essays
in the History of CanadianLaw (1984) 18J. of Can. Studies 136, 0984) 19J. of Can. Studies
15o; Hartog, Distancing oneself from the eighteenth century: A commentary on
changing pictures of American legal history, in Hartog (ed.) Law in the American
Revolution and the Revolution in the Law (1981) 229.