Canadian State Trials, Vol. 2: Rebellion and Invasion in the Canadas, 1837-1839

Christopher English is a professor of history at Memorial University of
Newfoundland and the author of A Cautious Beginning: The Emergence of
Newfoundland’s Supreme Court of Judicature in 1791–92.

A collection of essays by 13 collaborators on a common theme—in this
case, the rebellions of 1837–39 in Upper and Lower Canada—presents
critical challenges to editors who commission contributions and decide
on the order in which the essays are to appear. They must avoid
repetition, so how to do justice to the separate analyses without
forcing them into one narrative? Constructions are likely to differ, but
what if they clash? And how to accommodate the reader who reads
selectively or out of sequence? The solution adopted here is to offer
signposts to topics, events, and problems already discussed or deferred
for later discussion. Where interpretations clash they are presented
without editorial comment, as with regard to the two rebellions in Lower
Canada: did Lieutenant Governor Sir George Arthur act legally in
ordering the transportation to New South Wales of 58 patriots found
guilty of treason, or were females complicit in the outbreaks? A
contributor takes issue with a previous published essay by one of the
editors, evidence that the historiography of contentious historical
events is continually under review.

These essayists are clearly expert in the history of the rebellions and
informed on the relevant archival sources. The collection is coherent
without being uniform in methodology or assumptions. Analysis is often
trenchant. The actors and the acted-upon—civilian or military
officials, the bourgeois, and peasant farmers and their
families—remain front and centre, none immune to questioning. But the
authors’ most important contribution is to illuminate the legal
context of and the legal issues arising from these events. Was a
putative amnesty offered the insurgents by Governor Sir Francis Bond
Head in December 1837 mistakenly interpreted as such by the insurgents,
or did it offer an “unconditional pardon”? How fair to an accused
was a Pardoning Act (1838) that required an admission of guilt before a
petition for a pardon could be entertained? Contemporary common-law
courts favored the prosecution over the accused; and officials’ resort
to courts martial in both Upper and Lower Canada further eroded defence
rights in a forum where neither the accused nor their legal advisors
understood the format, procedures, or sentencing options of military
justice. And what was the legal status of the Lawless Aggressions Act
(1838), under which accused people were tried and sentenced, but which
was pronounced illegal by law officers of the Crown in London and never
repealed? The answers are sometimes diverse, and each position is argued
persuasively. This second volume maintains the high standards of the
first (1996) in what is proving an impressive series.