Fyson, Local Judiciary, Local Power and the Local State

LOCAL JUDICIARY, LOCAL POWER, AND THE LOCAL STATE:
THE JUSTICES OF THE PEACE IN MONTREAL, 1764-1830
Donald Fyson, Université Laval
A paper presented to the conference "Canada's Legal History: Past, Present, Future", Winnipeg, October 1997
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On February 10, 1829, a special committee of the House of Assembly of Lower Canada issued its third report into the petitions of grievances presented by various inhabitants of the colony. Produced in the context of bitter battles between the Patriote-controlled House of Assembly and the authoritiarian administration of Governor Dalhousie (though Dalhousie himself had by then been recalled), the report was a frontal attack on the colonial administration, and most especially on its political interference in what were supposedly politically neutral spheres, including the judiciary.⁽¹⁾

One of the examples discussed by the committee in its report concerned the dismissal of four Montreal justices of the peace, Jean-Marie Mondelet, Hugues Heney, Thomas Barron, and François-Antoine Larocque. All canadiens, these magistrates had been dropped from the new commission of the peace in 1828, as part of a more widespread purification of the commission by Dalhousie. The general reason advanced by the committee's witnesses was that, like the many other justices dropped, they were hostile to the Dalhousie administration. However, there was also a more specific reason. In early July 1827, the four had signed a supersedeas, an order annulling another order made a week previously by 22 Montreal justices assembled in Special Sessions, including themselves, which had in turn simply confirmed an earlier order made in Special Sessions in May 1827. The original order was to the Inspector of Roads, Jacques Viger, to pull down a house and fence put up by Stanley Bagg, a Montreal entrepreneur, on land along the St. Lawrence. Bagg claimed to have rented the land from the Grey Nuns, but the magistrates in Special Sessions insisted that it had been laid out as a public street in 1825. Bagg had opposed the order, in part arguing that the Grey Nuns had never been informed of the expropriation of their property, and had apparently succeeded in convincing the four justices of his claims (though they had rejected them only a week previously), for they declared the initial expropriation illegal and forbade Viger from taking any action. The incident resulted in a motion of censure by the other Montreal justices against their four colleagues; criminal charges were laid against Viger by the Attorney General for not carrying out the original order;⁽²⁾ and, ultimately, the four dissenting magistrates were dismissed from the commission.

The Montreal supersedeas incident might well be seen as simply another in those interminable contests between colonial factions that characterized political life in British North America. And indeed, at one level it was clearly part of the Patriote-Tory political struggle, since at the time of the incident, Mondelet, Heney and Larocque, along with Viger the road inspector, had links to the Patriotes; Heney was even a member of the House committee that prepared the report. However, from the classic perspective of high politics, it was a particularly uninteresting incident, thanks to its largely local character, and of note only for its marginal contribution to the rhetorical ammunition of the Patriotes in their struggle against the Dalhousie administration, a struggle that was itself simply a prelude to the Rebellions.⁽³⁾

But this minor incident is also more broadly instructive of the complexity of the relationship between the judiciary, the state and society in Lower Canada, and the place of different elites therein. Beyond its recuperation by the Assembly, the incident also had its roots in localized factional issues that were subsumed once it reached the colonial stage. The four justices represented almost the last vestiges of a group of magistrates--largely but not exclusively francophone, politically mixed--who had long dominated the Montreal magistracy but who had recently been marginalized. This marginalization had accelerated considerably from 1825, when Dalhousie had appointed Samuel Gale, one of his most ardent partisans, to the salaried post at the head of the Montreal magistracy, a post previously held in part by Mondelet; indeed, Gale was one of the prime movers in the censure Mondelet and the other three justices. Another justice present at all the meetings, and who voted against Mondelet and the others, was Thomas Porteous, with whom Mondelet had entered into conflict several years earlier over his refusal to grant Porteous a ferry license and over the digging up of Montreal streets by Porteous' Montreal Waterworks company. Finally, beyond the dissensions internal to the magistracy, Bagg was an American entrepreneur, whereas most of the anglophone justices were connected to the very loyalist Anglo-Scottish merchant community. This was thus as much a local struggle for power between local elites as it was a reflection of the larger political contest.

More broadly, the incident raised the whole question of the independence of the local judiciary vis-à-vis the executive in Quebec City. The four magistrates had proposed that the whole case be decided by the superior courts (in Montreal, headed by the politically neutral Chief Justice, James Reid), whereas Gale, with the backing of most of the other magistrates, had appealed directly to Dalhousie, his patron, to decide the matter, representing himself as a direct representative of the Governor. The four justices condemned this "new mode of procedure, the tendancy of which seems to substitute a recurrence to the Executive, for the ordinary course of law and Tribunals, and to foment a spirit of tale-bearing against fellow officers." Dalhousie, true to his colours, took the autocratic route: rather than revoking the supersedeas (which at any rate he had no legal power to do) he used his executive power to dismiss the four from the commission.

The incident underlines how, below the layer of high politics, struggles centered around the judiciary also flowed from more local power dynamics. As such, it suggests the interest of a re-examination of the links between the judiciary, the state and elite power, taking into account the crucial importance of the local in the shaping this relationship. But before launching into a detailed examination of these workings in Quebec and Lower Canada, we muist first examine how the local has been treated by historians of the judiciary and more generally of the state.

Historians of European societies have long recognized that the judiciary lay at the nexus of a whole series of power relations linking and extending into the relatively autonomous domains of the law, the state, and civil society. Evidently, as its concrete manifestation and its operational arm, the judicial system was key to the social place of the law in such societies. The judicial system was also an integral part of the state; indeed, in societies with relatively weak administrative states, such as Great Britain and the English colonies before the "revolution in government" of the mid-nineteenth century, the judicial system was one of the primary venues of the exercise of state power. As a result of its privileged position between the state and the law, the judicial system in such societies was fundamental to the positioning and power of elites within civil society, since they derived considerable social and political power from their control of the administration of justice and, notably, of the judiciary.⁽⁴⁾

In examining the place of the judiciary within these complex power relations, it is however all too easy to fall into the trap of concentrating only on its upper echelons, and indeed, many studies of the judiciary are imbued with a centralizing bias. In this view, since legal systems are best conceptualized as unified and coherent intellectual constructs, and since it was the highest courts and judges that had the last word in this construction (for example, through appeals and through the reporting of their decisions), it is these courts and judges that are most important in understanding the law. Further, since classic models of the state, whether functionalist, weberian or marxist, conceptualize it as by definition a centralized institution of the collective exercise of power, where better to study the interplay of state and law than at the center, in High Court decisions, in famous treason trials, and the like? Quebec and Lower Canada is a case in point: with few exceptions, virtually all examinations of the judiciary, and indeed of the state in general, have concentrated on their upper echelons.⁽⁵⁾

But a problem arises in the study of societies where elites drew on the law and the state to wield power in empirically demonstrable ways that nonetheless do not fit the general model that equates the law with its theoretical construct and the state with bureaucratic and centralized rule. The classic example is eighteenth- and early nineteenth-century England. Here, despite an apparently incoherent and fragmented legal system, despite a comparatively weak apparatus of central government, local elites drew on notions of legality and governance to exercise considerable power over their local societies. This paradox, between a weak legal system and strong legality, between a weak central state and strong elite governance, was long resolved by downplaying the legal system and the state as concrete venues for the exercise of power by elites and appealing instead to broader notions of legitimacy and hegemony, if not to overt socio-economic domination. In this view, local elites were able to rule largely without needing to appeal to direct and overt judicial and state power; the legal system and the state in general remained important mainly as instruments of last resort.⁽⁶⁾

This de-emphasizing of the concrete institutions and actions of law and state in the study of elite power in historical societies based on the English model has more recently been called into question, in large part through a re-valorisation of the importance of the local institutions and structures through which were manifested the state and the law. For example, recent studies of institutions of government in England before the "revolution in government" have sought to show that the concrete institutions of the state were far more present and powerful than has often been assumed and that elites, indeed, exercised governance not simply through ideology and hegemony, but often through direct administrative control.⁽⁷⁾ To preserve the notion of the state while emphasizing local control, some historians have sought to redefine the state by nuancing the importance of centralization as its fundamental feature, through the adoption of the concept of the local state, first developed in urban studies to explain the administrative power evidently wielded by municipalities and just as evidently not controlled directly by the central government.⁽⁸⁾ An analagous local turn can be observed in the few studies that apply the concept of legal pluralism to official law, as opposed to the many that seek to rehabilitate the legality of folk law or non-European law. Works such as that of Harry Arthurs reveal how a multitude of local, specialized legal institutions and codes gave formal law a much greater place within English civil society than is suggested by only examining central courts and the Common Law.⁽⁹⁾ Overall, these approaches seek to demonstrate the vitality and importance of local institutions and structures while still situating them within overall systems of state and law, albeit fragmented and pluralistic rather than unified and coherent. They thus follow a path midway between older concepts of state and legal power flowing from the center, and foucauldian notions of power relations having no center, being widely diffused throughout society.

How does this local turn apply to the study of the power relations bound up in the judiciary? Taking the local turn necessarily means a shift in focus in studying the judiciary, from its upper to its lower echelons. For example, much work on local state and local law in England has concentrated on the justices of the peace, long maligned as examples of "Old Corruption" but now re-examined as bureaucratic administrators, whose administration was more present and more efficient (and thus more onerous) than had previously been supposed.⁽¹⁰⁾ And this focus on the justices brings us back to our introductory example. The rest of this paper examines the justices of the peace of the city of Montreal in the crucial period between the Conquest and the Rebellions. It shows that focussing our attention on the local judicial system and the local state can lead us to re-evaluate many recevied notions, not only about the nature and presence of the state and the law, but also about the relative power and cohesion of the elites.⁽¹¹⁾

The justices of the peace are, in many ways, ideal subjects for a study of the relationship between the law, the state, and elite power in Quebec and Lower Canada. The justices were key elements of the English legal system transplanted to the colony following the Conquest. They controlled the greater part of the criminal justice system, from performing preliminary judicial functions (such as taking depositions and issuing warrants), through passing summary judgement, to holding the formal courts of Quarter Sessions and Weekly Sessions. Apart from their legal functions, the Montreal justices were also crucial elements of the state in the city. They controlled most of the local administration of the city, from the making of municipal bylaws, through the assessment of rates, to the paving of roads and the organization of the public markets. This role increased in complexity through the last decades of the eighteenth and first decades of the nineteenth centuries; as I have shown elsewhere, by the time of the first incorporation of the city, in the early 1830s, there was already in place the rudiments of a municipal administration, including precursors of a municipal council, a public works service, professional police, and so on.⁽¹²⁾

A complete examination of the Montreal justices is beyond the scope of this paper; instead, I would like to illustrate their importance with two examples. First, I will examine a classic and thorny question in the history of Quebec and Lower Canada: the relative decline of francophone elites in the decades between the Conquest and the Rebellions, seen through their exclusion from judicial power in particular, and state power in general. And secondly, I will show that, as with the example of the supersedeas, a more local focus can reveal complexities in power relations in the colony that are lost with an overly central preoccupation.

One of the most persistent and pregnant subjects in the historiography of Quebec and Lower Canada has been the effects of the Conquest and of the transition from the French to the British régime; and one of the most vigourous debates has turned around the effects of this abrupt transition on the nature of the composition and power of the elites. In the classic view, summed up in the "decapitation thesis", the Conquest resulted in the wholesale replacement of a francophone elite by a new, anglophone one. There were of course nuances to this: on the one hand, the persistance of fragments of the old elite of New France, notably the seigneurs and the curés, who allied themselves with their new masters; and, on the other, the growth, from the beginning of the nineteenth century, of a new fragment of the francophone elites, based on the liberal professions and on small-scale, local merchants. Both these fragments of the elites, however, were subordinated to the dominant British elites; further, both drew their power in large part from rural areas. In the cities of Montreal and Quebec in particular, the relative decline of the francophone elites was particularly striking; the towns were essentially dominated by British government officials and merchants. In this view of the decline of francophone elites, the state in general, and the colonial administration in particular, played a very important part. The colonial administration was controlled by British interests and thus attributed the lion's share of important state positions to anglophones. The francophone elites, assured of English domination of these positions, turned to other sources of political power, notably the Assembly.⁽¹³⁾

The relative decline of the francophone elites, especially in the cities, cannot be questioned, but other studies have sought to nuance the too-schematic view of the replacement of one ethnic elite by another. Thus, for example, on the economic front, the work of Jean-Paul Bernard, Jean-Claude Robert, and Paul-André Linteau in the 1970s demonstrated that even in the 1820s, landholding in Montreal was still significantly in the hands of francophones, giving them a substantial economic base. And even in the heart of "English" territory, namely large-scale commerce, the work of George Bervin on Quebec City has shown a persistent francophone presence, numerically far less significant than anglophones, but just as dynamic.⁽¹⁴⁾ This nuancing of the effects of the Conquest on the composition of the elites, however, is as yet piecemeal and the decapitation thesis still has considerable currency.

The Conquest debate has also been transposed to the arena of legal history, with evaluations of the effects of the change in legal metropolis on the law, the legal profession and the judicial system. In terms of the law, the overall consensus has been one of quite dramatic change, especially in the public law (with French public law replaced wholesale by its English counterpart) but also in the civil law, despite the persistence of pre-Conquest French civil law. In terms of the the legal profession, studies have remarked a generalized exclusion of francophones from the legal profession, apart from among notaries, followed by a slow re-establishment of francophone presence, especially in the first third of the nineteenth century. Finally, on the judiciary, the picture has been even darker: as for the state in general, historians of Quebec and Lower Canada have mostly postulated a generalized exclusion of francophones from positions of judicial power. Historians have thus generally observed that judges tended to be predominately anglophones, with examples such as James Monk, James Reid, and Jonathon Sewell coming easily to mind.⁽¹⁵⁾

What has not been closely examined, however, is the lower ranks of the judiciary and, more broadly, of the state in general. Did anglophone dominance extend to the totality of state offices, large and small? To answer this question, we must turn now to that element of the judiciary at the center of our preoccupations, the justices of the peace. What place did the francophone elite have in this fundamental institution of the local state? What can this tell us about their insertion into the structures of local power?

Insofar as most of the literature is concerned, the justices of the peace were imposed on Quebec and Lower Canadian society by a colonial administration which named them from among its cronies. The very composition of the magistracy thus reflected the fundamental conflict between anglophones and francophones: the former dominated to the exclusion of the latter, and the magistracy was largely made up of men who had little understanding of or sympathy for French-Canadian society. The magistracy, in other words, was no different from the judiciary as a whole.⁽¹⁶⁾

But the situation was in fact much more complex. As Table 1 shows, it is very difficult to talk of domination of the commission by anglophones and exclusion of francophones. The table shows the proportion of francophones among Montreal justices who were on the commission, who were active (in the limited sense of performing at least one judicial action per year, such as peoducing a document or attending a court), who were on the bench of the Quarter Sessions of the Peace, who were in attendance at the meetings of the Special Sessions of the Peace (the regular meetings held from 1796 by which the magistrates administered the city, the administrative equivalent of the later city council), and who produced depositions. By any of these measures, there was a very strong francophone presence throughout much of the period, though not to the extent of their place in the population in the city.

Period

On Commission

Active

In Quarter
Sessions

In Special
Sessions

Signing
Depositions

1764-1769

1770-1774

1777-1793

1794-1799

1800-1809

1810-1819

1820-1824

1825-1830

Source: see Fyson, Criminal Justice; depositions based on five-year sample from 1800 on.

The francophone presence in the magistracy was not, however, uniform, and its variations underscore the complexity of the imposition of British rule and a British colonial state on this largely francophone colony. In the first decade of British civil government following the Conquest, Catholics were excluded from the commission, as they were from all government positions, through the imposition of the Test Act. Even at this point, this did not mean that British magistrates dominated; the presence of a pair of active French Huguenot magistrates in Montreal significantly shifted the linguistic balance, in particular after 1770, when most of the anglophone justices of the city ceased acting, apparently to protest the loss of their civil jurisdiction. With the removal of the disability of Catholics in 1775 under the Quebec Act and the administration's policy of co-opting part of the Canadien elites, up until 1793 francophone justices made up half or more of active justices, reaching a high between 1788 and 1791 when over 70% of active justices were francophones. In the mid-1790s, the tensions between Canadiens and English, described in detail by Murray Greenwood,⁽¹⁷⁾ led to a dramatic decrease in the number of active francophone justices, far below even their proportion on the commission. This trend might have been expected to continue into the first decades of the nineteenth century, marking the lead-up to the political confrontations of the 1820s and 1830s and, eventually, the Rebellions. However, in the first decades of the nineteenth century, a small group of francophone justices took control of the magistracy in Montreal. Comprising the most active even of the active justices, at the beginning of this period they constituted three-quarters of the justices on the bench of the Quarter Sessions and produced over three-quarters of the preliminary documents. This francophone predominance began to wane in the early 1820s, but francophone justices still produced more than half of preliminary documents and composed over half of the bench of the Quarter Sessions and the Special Sessions. It was only from the mid-1820s that the change in the ethnic character of the magistracy became more pronounced: the proportion of active justices who were francophones, which had already been diminishing since about 1820, dropped to 30%, largely due to the sort of active interference by Dalhousie denounced by the Patriotes.

The detail of these changes certainly calls for a re-evaluation of the general thesis of the exclusion of francophones from positions of authority between the Conquest and the Rebellions. At the level of local law and the local state, the British colonial administration seems rather to have alternated between a firm desire to exclude canadiens (evident in the 1760s and especially so in the 1790s and the 1820s) and an equally firm desire to co-opt francophone elites into local administration and everyday justice, whether they be the seigneurial elites of the 1780s or the new francophone middle class of the 1800s and 1810s. Further, we must also recognize that the relative activity of francophones in the magistracy did not entirely depend on the wishes of the colonial administration, but also on the agency of the justices themselves. Up until 1810, with a few exceptions, the magistracy was entirely voluntary, so that magistrates willing to devote the time necessary to hear plaintiffs, issue warrants, sit in the Quarter Sessions and the like could create for themselves a far greater presence than their colleagues who did nothing. This explains, for example, the dominance of francophone justices in the 1800s: they were simply willing to give more of their time to local law and administration. From 1810, the effects of the type of volition on the composition of the active magistracy diminished, since two salaried police magistrates were named in the city, Thomas McCord and Mondelet, who took over much of the daily work of producing preliminary documents such as depositions; the dramatic drop in the number of francophone magistrates signing depositions from 1825 was largely the result of the replacement of McCord and Mondelet in 1824 by Gale, an incident to which we will return below. But even under the dual reign of McCord and Mondelet, francophone justices were more active in the city. Mondelet himself was more active than McCord, especially in the later 1810s; and the magistrates who joined Mondelet and McCord in other venues, such as on the bench of the Quarter Sessions or in the frequent Special Sessions, were more frequently francophone than their place in the commission might suggest. Indeed, in 1810 and 1815, the only magistrates apart from McCord and Mondelet who signed depositions were francophones.

In sum, the colonial administration only fitfully sought to exclude francophones from the magistracy, and francophone elites were able to build on this to make their presence even more strongly felt, at least at this level of the judiciary. The effects of this for the character of local law and local administration were significant. Apart from brief periods, plaintiffs and defendants were more likely to find themselves before francophone than anglophone magistrates, so that the human face of British rule was more than likely to be speaking French. Bilingualism even began to seep into routine legal practices; not only were depositions written in the language of the deponent, but up to the 1820s even printed legal forms, such as recognizances and arrest warrants, were produced in both English and French. Only more formal documents of record, such as indictments and registers, were produced almost entirely in English. This contrasted sharply with the upper levels of the criminal justice system, where the language of practice was almost exclusively English.

If the Montreal magistracy was characterized by heterogeneity at the level of ethnicity, this was far less so in terms of social rank. Indeed, what distinguished justices of the peace above all from their neighbours (apart from the even more obvious fact that they were all men) was not their language or their culture, but their social place and prominence in the colony. It has often been assumed that the justices in Quebec and Lower Canada were generally of lower social status than the justices in England.⁽¹⁸⁾ It is undeniable that the colonial justices could not match the grandeur of the English county commissions, which usually included most of the local nobility and the more substantial gentry. However, the men who acted as magistrates in Montreal were, virtually without exception, drawn from the colony's elites: almost all were merchants, landowners, or professionals, both private and government. As one very rough indicator of the prominence of these men, of the 145 justices named to the commission for Montreal between 1764 and 1830, 94, or 65%, merited full biographies in the Dictionary of Canadian Biography; and this was not simply an artifact of the honorary appointment of local notables, since even among the 62 justices who were highly active, 37, or 60%, merited full biographies. Indeed, some of the very most active justices were clearly at or close to the top of colonial society, such as James McGill.

Without going into greater detail on the social characteristics of the men who were justices of the peace in Montreal, it is clear that class was thus a much more powerful defining feature of the magistracy than language. The justices in Montreal were not marginal individuals, but, as in England, drawn from local elites, both anglophone and francophone. And this brings us back to the decapitation thesis. It is not my intention to deny the very real inequalities of power between francophone and anglophone elites that the Conquest inevitably implied. We must not forget that, as Gilles Paquet and Jean-Pierre Wallot demonstrated long ago, the upper reaches of judiciary, and of the colonial state in general, were dominated by anglophones, not to the complete exclusion of francophones, but at the very least to their significant minorization.⁽¹⁹⁾ But just as in England "Old Corruption" was a far more complex entity than the simple dominance of the state by corrupt Tory elites,⁽²⁰⁾ the situation of francophone elites in the Quebec and Lower Canadian state was more complex in the decades between the Conquest and the Rebellions than their simple exclusion by English place-men. In an area as important for daily life in Montreal as local justice and local administration, indeed, francophone elites had a substantial place.

This same complexity is evident when we turn to the actual exercise of power on a local level by Montreal's magistracy. In the eyes of the House of Assembly committee, steeped in positivist notions of the function of the judiciary, the principal evil of the Dalhousie administration's manipulation of the Commission of the Peace was its undermining of the fundamental objectivity of the justices: "A sense of the obligation under which they lie, a respect for the laws and for the oath they take, should be the only rule of their decisions as of their conduct." Most historians of the judiciary have long since given up these positivist assumptions, seeing the judiciary more clearly as simply another venue for the exercise of power by the elites. However, when historians of Quebec and Lower Canada have examined the judiciary, and more generally the state, they have almost inevitably focussed on how it reflected Quebec and Lower Canadian high politics. This is not surprising, since at its upper levels, the judiciary was the scene of some of the most evident examples of political interference, from the political positioning of the colony's various Chief Justices in the decades following the Conquest, through the use of the courts to suppress democratic tendancies in the 1790s, to the constant battles over the political activity of judges in the decades leading up to the Rebellions.⁽²¹⁾ The judiciary in Quebec and Lower Canada was thus no different from that in other British North American colonies, where the purported independance of the judiciary was largely a sham, given the frequent use of the courts by colonial administrations to impose their will on their political opponents.⁽²²⁾

Very clearly, the Montreal magistracy also reflected these divisions derived from high politics. As we have seen, just as in England, the composition of the magistracy became part of broader political struggles of the day.⁽²³⁾ Thus, in the social turmoil of the late 1790s, the colonial administration unsuccessfully attempted to co-opt two of its more vocal canadien opponents by naming them justices, while at the same time adding a number of hard-line Tories to the magistracy to beef up its authoritarian bent. And during the 1820s, Governor Dalhousie attempted to weed potential Patriote sympathizers from the commission, and more generally, anybody who opposed his autocratic administration. Beyond direct political manipulation of the commission, divisions within the magistracy also reflected broader colonial struggles. For example, in the 1760s, the Montreal justices played an important part in the confrontation between the administration at Quebec and the colony's merchants, from whom the justices were largely drawn. As a result, in 1770, a considerable portion of the justices' civil law powers were removed, ostensibly due to corruption on their part. Likewise, in the early 1820s, the magistracy in Montreal, like the elite from which it was drawn, was split between a largely francophone, largely pro-reform majority, and a smaller number of anglophone Tory justices. This led to regular conflicts between the magistrates, of which the supersedeas incident was but one among many.

Beyond these divisions, what the workings of the Montreal magistracy reveal just as clearly is solidarity between the Montreal elites, whatever their language or political stripe; and it is above all this solidarity that many studies of high politics have downplayed. The most evident example is the close collaboration between Thomas McCord and Jean-Marie Mondelet. Jointly appointed as Montreal's salaried Police Magistrates in 1810, they dominated the magistracy in Montreal for the next fifteen years. McCord and Mondelet were in many ways opposites. McCord was a committed Tory with links to such authoritarian figures as John Richardson; Mondelet was a moderate nationalist who, as we have seen, had links to both the canadien and later the Patriote parties, though he moved away from them at their more radical moments. McCord, from an Irish Protestant merchant family that had moved to Quebec immediately following the Conquest, represented the anglophone merchant class, though he himself was not involved in the trade; Mondelet, a rural notary who had moved to Montreal in the early 1800s, represented the new francophone professional bourgeoisie.⁽²⁴⁾ And yet, instead of crystallizing into the sorts of oppositions that one would have expected, their collaboration was remarkably close. They seem almost always to have agreed on judicial and administrative questions, whether it be the financing and organization of the small Police Office that they ran, recommendations for the nomination of new justices of the peace, or the administrative decisions taken in the Special Sessions.

This agreement extended even to their relationship with the central administration, as a key incident in 1824 demonstrates. In that year, under the joint direction of McCord and Mondelet, the Montreal justices became embroiled in a dispute with the Dalhousie administration over their right to appoint their own chief constable. The justices wanted to appoint Adelphe Delisle, the son of their clerk of the peace; Dalhousie refused to sanction the appointment and attempted to force the justices to appoint his own candidate, a recently immigrated ex-army officer. The choice was clear: local control of a key administrative position, or the imposition by the executive of an outsider, a place-man. The justices, by a majority vote, refused to comply with Dalhousie's wishes, asserting that from the 1790s they had always chosen and supervised the high constable. The desire for local autonomy went beyond party lines: though most of the justices who voted to keep Delisle were francophones, they included McCord himself, Thomas Andrew Turner (the publisher of the Tory Montreal Gazette) and at least one other anglophone Tory, while the only steadfast opponent of the justices' stance was Henry Mackenzie, who seems to have been on close terms with the Dalhousie administration.⁽²⁵⁾ Dalhousie responded first by refusing to pay the salary usually attached to the post and then, a few weeks later, by removing McCord and Mondelet from their positions and appointing Gale in their place.

As this last example suggests, up until the mid-1820s at least, the Montreal magistrates, whatever their language or political stripe, consistentlly asserted their independance vis-à-vis the central administration at Quebec when purely local matters were at stake. This spirit of local autonomy was already present in the 1760s: in 1768, when a fire destroyed a large part of the city, the Montreal justices took it upon themselves to write directly to all the governors on the continent asking for assistance, thereby bypassing the governor in Quebec. More generally, in their administration of the city of Montreal, the justices acted with as much or more autonomy as any city council: within the bounds of the laws that enabled them, they set their own local rates, managed their own property assessment and tax collection, hired most of their own employees, even created their own professional police force (in apparent contradiction of the relevant ordinance); and unlike most other public officers, they rendered no accounts whatsoever of their expenditures to the central administration in Quebec. And yet, unlike a city council, the justices did not see themselves as a private corporation, but rather as servants of the crown and of the public-- formulations that came up again and again in their letters, petitions, and the like. In their conception of the nature of their functions, the justices thus demonstrated an appreciation of the importance of the local state: firmly of the state, but not within the more centralized conception of authority later pushed by Dalhousie, and concretized from the 1840s on by Sydenham and his successors.

Beyond the preservation of local autonomy, control of the local magistracy also served to solidfy the power of the Montreal elites in other ways. For one thing, the magistracy also contributed to the extension of the domination of the urban elites over rural areas. For example, the most important criminal court run by the justices, the Quarter Sessions, had jurisdiction over the entire judicial district of Montreal, essentially covering the western half of the colony, and was open to justices from the entire district. Nevertheless, not only were the court and its officials centralized in Montreal, its bench was dominated almost entirely by urban justices; indeed, by the early 1820s, the court was generally held by only three or four justices, including McCord and Mondelet. This contrasted with England, where Quarter Sessions were usually attended by justices from throughout the county and it was not uncommon to see twenty or thirty justices on the bench.⁽²⁶⁾ This was important for criminal justice, since it meant that urban elites controlled the decision of most formal criminal cases (those that were not decided in Quarter Sessions were decided in the even more exclusively urban King's Bench). But it also had an impact on local administration in the countryside, since the Quarter Sessions regulated such important local matters as roads, ferries, and even, for a period, the municipal bylaws of small rural towns. Likewise, the urban justices used the loosely-defined jurisdiction of their summary courts of Weekly Sessions to send urban constables out into the countryside on what were essentially fishing expeditions for liquor-licensing infractions; this again allowed the city's elites to impinge upon their rural hinterland, permitting urban justices, with no ties to the local community to restrain them, to enforce this unpopular legislation.

Finally, the actions of the magistrates often demonstrated an ardent defense of the interests and values of these elite men. As I have argued elsewhere, the functioning of the criminal justice system cannot be reduced to a simple question of social control and domination by elite men. However, for the justices on the commission, francophone or anglophone, it was very clear that their role was in part one of defending the interests of their class and their gender, and increasingly so into the nineteenth century. For example, from the beginning of the nineteenth century, the moral tone of the municipal regulations made by the justices began to change, with more and more attention paid to regulating spontaneous actions on the part of the populace as a whole which did not fit with the elites' conception of a well-ordered society. For example, in 1799 "idle boys" were prohibited from playing on Sundays in the Place d'Armes, with constables assigned to ensure that they did not; in 1803, balls, assemblies, and dances were banned on Sundays and holidays; from 1806 it became illegal to bathe nude in the Saint Lawrence; from 1817 charivaris were outlawed, along with skating or sliding with a sledge in the city or playing at marbles or cards in the marketplace; from 1821 the prohibitions were extended to throwing snowballs and playing with hoops. There was little to distinguish the attitudes of different justices with regards to this: anglophones or francophones, merchants or professionals, Tories or reformers, they seem equally to have supported these measures and to have aided in their enforcement. There was similarly little debate over other essentially class- and gender- based matters, such as increasingly toughened regulations against beggars, deserting mariners, or prostitutes. Magistrates of all political persuasions participated in the setting up and maintenance of the city's House of Correction, which was in large part destined for the punishment of vagrant women and prostitutes; ironically, this example of elite solidarity was instituted at about the same period as the often-cited "quarrel over prisons" that is used to show the split between anglophone Tory merchants and francophone Canadien landowners.⁽²⁷⁾ And finally, all of the magistrates acted in concert in the suppression of popular disturbances; for example, in June 1823, we find Mondelet, Heney, Larocque, Porteous, and other protagonists from both sides of the supersedeas question acting together in the suppression of a series of riots.⁽²⁸⁾

Without multiplying the examples, all of these suggest the extent to which the standard anglophone/francophone or Tory/reformer splits are insufficient in analyzing how local elites in Montreal used the judiciary and, more broadly, the state to further their own interests. At the very least, to these divisions we must add elite solidarities around local autonomism, town/country relations, and defence of class and gender interests.

This brief paper has examined only two limited examples of how a local turn can lead us to a broader understanding of the role of the judiciary in the structuring of the power of local elites. Starting from a historiography that tends to minimize the francophone presence in the Quebec and Lower Canadian judiciary, and in the colonial state more generally, we have seen that at a local level this was certainly not the case. The magistracy of Montreal, furthermore, was not an isolated example; justices of the peace outside of Montreal were also more generally francophone, and so too were the commissioners of the small-claims courts that proliferated in the Lower-Canadian countryside from about the 1820s. Likewise, from a historiography that tends to reduce power struggles in the colony to contests between political groupings, we have moved to an appreciation of the more complex dimensions of elite power, where local issues and colonial politics were inextricably intermingled.

But these two examples are only the beginning of the interest of a close attention to law and the state on a local level. To return once more to the supersedeas, we can also tease out of it fundamental questions as to the right to property. On the one hand, we have the private rights of the Grey Nuns, a Catholic order devoted to the public good, advanced by Bagg, an American entrepreneur. On the other, the collective rights of the public, though represented not by an elected body but by the judicial system, both the magistrates themselves and also the jury which, following the existing Road Act, had endorsed the expropriation in 1825. We thus have the four canadien justices, along with the Patriotes on the Assembly committee, backing the very liberal supremacy of private property; and in contrast, the Tory elite, represented by anglophone magistrates with strong ties to the large-scale import-export trade, appealing to the broader public good over the right to private property. At this local level, stereotypes are turned on their heads...

1. Journals of the House of Assembly of Lower Canada, volume 38 (1829), Appendix Ee.

2. As the Attorney General, James Stuart, himself had recommended to Dalhousie a month prior to the charges being laid (Stuart to Cochrane, NA RG4 A1, 27 october 1827).

3. The incident itself is mentioned in none of the classic works of political history of the period, from Christie and Garneau to Manning to Ouellet (Robert Christie, A History of the Late Province of Lower Canada... (Québec: T. Cary, 1848-1855); François-Xavier Garneau, Histoire du Canada: depuis sa découverte jusqu'à nos jours (Québec, 1845-1852); Helen Taft Manning, The Revolt of French Canada, 1800-1832: A Chapter in the History of the British Commonwealth (Toronto: Macmillan, 1962); Fernand Ouellet, Le Bas-Canada 1791-1840: changements structuraux et crise (Ottawa: University of Ottawa Press, 1976)).

4. There have been a wealth of studies that have examined how the judiciary crystallized legal, State and elite power. On the United States, see Kermit Hall, The Judiciary in American Life: Major Historical Interpretations (New York: Garland, 1987); on England, classic contributions range from the articles collected in Douglas Hay et al. eds., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (Middlesex: Penguin, 1975) and David Sugarman ed., Legality, Ideology and The State (London: Academic Press, 1983), to focussed studies such as Daniel Duman, The Judicial Bench in England 1727-1875: The Reshaping of a Professional Elite (London: Royal Historical Society, 1982).

5. Apart from my own work, the only notable execptions for the period before the Rebellions have been Douglas Hay's examination of the Quarter Sessions, "The Meanings of the Criminal Law in Quebec, 1764-1774", in Louis A. Knafla ed., Crime and Criminal Justice in Europe and Canada 2nd ed. (Waterloo: Wilfrid Laurier UP, 1985): 77-110, David T. Ruddel's highly flawed examination of municipal administration in Québec City 1765-1832: The evolution of a colonial town (Ottawa: Canadian Museum of Civilization, 1987): 161-197 and Allan Greer's chapter "The Habitant and the State" in The Patriots and the People: The Rebellion of 1837 in Rural Lower Canada (Toronto: UTP, 1993): 87-119. This is in stark contrast to the book-length studies on the upper echelons of the judiciary and the State by Hilda Neatby, Gilles Paquet and Jean-Pierre Wallot, Jean-Marie Fecteau, Murray Greenwood, Evelyn Kolish, Gilles Bernier and Daniel Salée, and others.

6. This is the classic argument made by Douglas Hay's seminal "Property, Authority and the Common Law" in Hay et al., Albion's Fatal Tree: 17-63, and taken up in such works as Philip Corrigan and Derek Sayer, The Great Arch: English State Formation as Cultural Revolution (London: Basil Blackwell, 1985).

7. For example, John Brewer, The Sinews of Power: War, Money and the English State, 1688-1783 (Cambridge, MA: Harvard UP, 1990).

8. For example, Michael Braddick, "State Formation and Social Change in Early Modern England: A Problem Stated and Approaches Suggested", Social History 16(1)(1991), p. 1-17, or Joan R. Kent, "The Centre and the Localities: State Formation and Parish Government in England, circa 1640-1740", Historical Journal 38(2)(1995), p. 363-404; see also Kari Dehli, "Creating A Dense and Intelligent Community: Local State Formation in Early 19th Century Upper Canada", Journal of Historical Sociology 3(2)(1990): 109-132.

9. The best-known example is Harry W. Arthurs, "Without the Law": Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985).

10. For example, Norma Landau, The Justices of the Peace, 1679-1760 (Berkeley: University of California Press, 1984); see also Thomas Skyrme, History of the Justices of the Peace (Chichester: Barry Rose, 1991).

11. The paper is based on my doctoral thesis, "Criminal Justice, Civil Society, and the Local State: The Justices of the Peace in the District of Montreal, 1764-1830", Université de Montréal, 1995; any unreferenced information is drawn from this source.

12. "Les structures étatiques locales à Montréal au début du XIX^e siècle", Cahiers d'histoire 17(1-2)(1997): 55-75.

13. The classic works here are the many writings of Michel Brunet, Fernand Ouellet, and Gilles Paquet and Jean-Pierre Wallot.

14. Paul-André Linteau and Jean-Claude Robert, "Propriété foncière et société à Montréal: une hypothèse", Revue d'histoire de l'Amérique française 28(1)(1974): 45-65; George Bervin, Québec au XIX^e siècle: l'activité économique des grands marchands (Sillery: Septentrion, 1991): 259-261.

15. These views have been advanced by most of the leading legal historians of Quebec and Lower Canada, including André Morel, Douglas Hay, Jean-Marie Fecteau and Evelyn Kolish.

16. The most radical assertion of this nature can be found in Louis A. Knafla and Terry L. Chapman, "Criminal Justice in Canada: A Comparative Study of the Maritimes and Lower Canada, 1760-1812", Osgoode Hall Law Journal 21(2)(1983): 245-274.

17. Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: University of Toronto Press, 1993).

19. Patronage et pouvoir dans le Bas-Canada (1794-1812): un essai d'économie historique (Montreal: Presses de l'Université du Québec, 1973).

20. As shown by Philip Harling, The Waning of "Old Corruption": The Politics of Economical Reform in Britain, 1779-1846 (New York: Oxford University Press, 1996).

21. On the early Chief Justices, see A.L. Burt, The Old Province of Quebec (Toronto: Ryerson, 1933); on the 1790s, Greenwood, Legacies of fear; on the political activity of judges in the early 19th century, Gérald Bernier and Daniel Salée, Entre l'ordre et la liberté. Colonialisme, pouvoir et transition vers le capitalisme dans le Québec du XIX^e siècle (Montréal, Boréal, 1995). One notable exception is Jean-Marie Fecteeau's work, which, while not neglecting the specific political dimension, recognizes the importance of broader class-based notions of state and law (Un nouvel ordre des choses: la pauvreté, le crime, l'Etat au Québec, de la fin du XVIIIe siècle à 1840 (Montréal: VLB, 1989)).

22. As is amply demonstrated by Murray Greenwood and Barry Wright, eds., Canadian State Trials: Law, Politics, and Security Measures, 1608-1837 (Toronto, University of Toronto Press, 1997).

23. On England, see for example Lionel K.J. Glassey, Politics and the Appointment of the Justices of the Peace, 1675-1720 (Oxford: Oxford University Press, 1979).

24. On McCord, see Elinor Kyte Senior, "Thomas McCord", in Dictionary of Canadian Biography VI: 432-434, and Pamela Miller et al., The McCord Family: A Passionate Vision (Montreal: McCord Museum of Canadian History, 1992); on Mondelet, Elizabeth Abbott-Namphy and Margaret MacKinnon, "Jean-Marie Mondelet", in Dictionary of Canadian Biography VII: 621-624.

25. The incident can be followed in the pages of the registers of the Special Sessions of the Peace, Archives de la Ville de Montréal, VM35 (Fonds des juges de paix de Montréal), between March and May 1824. The names of the justices voting for and against opposing Dalhousie's request were not recorded, only the numbers, but the voting lines can be deduced from other sources. Mackenzie's link to Dalhousie is evident from the fact that it was he who set up Gale's appointment in replacement of McCord and Mondelet (Mackenzie to Gale, 8/5/1824, in McCord Museum, Judge Samuel Gale collection).

27. Jean-Pierre Wallot, "La querelle des prisons dans le Bas-Canada (1805-1807)", in Un Québec qui bougeait. Trame socio-politique au tournant du XIX^e siècle (Montréal: Boréal, 1973): 47-105.

28. Registers of the Special Sessions of the Peace, Archives de la Ville de Montréal, VM35 (Fonds des juges de paix de Montréal), June 6 1823.