THE COURT STRUCTURE OF QUEBEC AND LOWER CANADA, 1764 TO 1860
Table of contents     Title page     E-mail author

COURT PROFILES

COURTS MARTIAL

In normal times, Courts Martial were administrative tribunals whose jurisdiction was limited to members of the regular army or the active militia, and as such are not considered in this guide. However, in times of martial law, Courts Martial had jurisdiction over the civilian population as well. Martial law was declared in Quebec and Lower Canada a number of times; however, only the declarations following the 1837-38 rebellions led to specific colonial legislation allowing for the holding of Courts Martial, and are thus discussed here. Information about Courts Martial during other times of martial law, such as the American invasion of 1775-1776, must thus be drawn from sources other than the legislation.

Establishment and Jurisdiction

With the outbreak of the first rebellion in December 1837, the acting administrator of the province, Sir John Colborne, issued a proclamation declaring martial law in the District of Montreal. Noting the rebel activity, and that "the Courts of Justice ... have virtually ceased, from the impossibility of executing any legal process or warrant of arrest therein," the proclamation allowed officers of the regular forces to arrest and punish rebels according to martial law. These powers were continued by a proclamation in February 1838, and not revoked until after the rebellion was fully suppressed, in April 1839.

On the resumption of the rebellion in November 1838, Colborne once again issued a proclamation declaring martial law in the District of Montreal, using similar language to that in the 1837 proclamation. This was quickly followed by an ordinance which allowed for the establishment of Courts Martial in the District of Montreal and any other district the governor saw fit, with jurisdiction over all matters relative to rebellious acts committed in the district or districts since November 1, 1838. Martial law was also extended to the District of St. Francis by a proclamation later in November. It remained in effect in the latter district until April 1839, and in the District of Montreal until August 1839.

Composition and Sessions

The Courts Martial were held by commanding officers of the regular army. The Courts had such sessions as were determined by order of the Governor.

Revision

Judgements of the Courts could not be appealed.

Legislation

Proclamation December 5, 1837
Declaring Martial Law in the District of Montreal.

Proclamation 27 February, 1838
Continuing Martial Law in the District of Montreal.

Proclamation 27 April, 1838
Revoking Martial Law in the District of Montreal.

Proclamation November 4, 1838
Declaring martial law in the District of Montreal.

2 Victoria (2) c.3 (1838) (in force 1838-1839)
Allowing for the establishment of Courts Martial in the District of Montreal and other districts.

Proclamation November 16, 1838
Declaring martial law in the District of St. Francis.

Proclamation April 16, 1839
Revoking martial law in the District of St. Francis.

Proclamation August 24, 1839
Revoking martial law in the District of Montreal.

Other Sources

W.F. Finlayson, A Treatise on Martial Law ... (London, 1866)



Donald Fyson, with the assistance of Evelyn Kolish and Virginia Schweitzer, The Court Structure of Quebec and Lower Canada, 1764-1830 (Montreal: Montreal History Group, 1994/1997/2012). http://www.profs.hst.ulaval.ca/dfyson/courtstr/

Page updated 2004-02-18