criminal proceedings and the transformative potential of law: taking historical experiences...

Criminal Proceedings and The Transformative Potential of Law:

Taking Historical Experiences Seriously Barry Wright, Carleton University

Consideration of counter-hegemonic and transformative strategies should be informed by actual experience with the legal system and by careful attention to the particular features of different types of legal proceedings. Sedition prosecutions, the main encounter organized progressive social movements had with the criminal law in early 19th century Upper Canada, are analysed to demonstrate these points. The patterns found in these proceedings provide clues about the dynamics, as well as the limits and potential, of legal struggles through the criminal law.

INTRODUCTION The consideration of the limits and possibilities of the legal system as

a terrain of progressive social struggle raises both hopes and skepticism. Courts may be an important forum for counter-hegemonic struggles and the rule of law and rights claims may indeed provide one means of checking and even redistributing power in society. However, we must be rigorous and realistic about the institutional obstades and the problems raised by the legal process and the discretionary powers of legal personnel. We must be sensitive to differences between criminal proceedings and civil proceedings or constitutional litigation. Moreover, a critical evaluation of the qimits and possibilities" must have some empirical basis, recognizing, of course, the limits of the various methods available to provide information for concrete and sensible strategy. If legal struggles are informed merely by abstract theorization, the issues risk being reduced to philosophical or theoretical speculation. This in turn may create unsound optimism, little better than the optimism possessed by those who subscribe to uncritical acceptance of the promises and ideals of the law, or rights for the sake of rights. While these matters may be self-evident, much of the Canadian debate on the transformative Potential of the law appears not to place much importance on them (Brickey and Comack, I989; Hunt, 1990). However, it appears that some criminologists and legal scholars have started to address these concerns; as Fudge has noted, "Faith alone is not enough to support a strategy. Rather we need to examine concrete examples in order to discover what limits are imposed upon, and what possibilities are created" (Fudge, 1990: 49; also, see Ellis, 1987: 210-12).

This short paper seeks to elaborate on the basic point that actual experience with the legal system should inform counter-hegemonic and transformative strategies. It does so by exploring the implications of a select set of historical experiences involving criminal trials as a terrain of struggle for progressive social movements. The emphasis is on the empirical usefulness of historical methods and a careful consideration of

8 The Journal of Human Justice, Volume 3, Number 1, Autumn, 1991.

the particular features of criminal proceedings. The selected historical example involves the uses of sedition laws against popular dissent and organized opposition in Upper Canada in the first three decades of the nineteenth century. Concerns about methodology and the utility of this example will be explored shortly. Suffice it to say at this point, the cases do represent particularly graphic encounters between the then social configurations of radical opposition and authority within the basic dynamics of a trial process which has remained largely unchanged. At the very mini- mum, these, and other Canadian experiences of counter-hegemonic struggles within the criminal law, should be part of our historical consciousness, helping to inform our strategic choices.

In sum, the historical record of these particular cases reveals much in terms of official attempts to manage organized manifestations of radical social movements through the criminal law. However, the situation was one of domination rather than control; the criminal courts were an arena of possible struggle involving competing formal legal claims. These claims created the potential for contestability, which not only served as a counter-hegemonic check on the repression, but also opened possibilities for progressive gains. While the reality of the criminal law process invariably placed radical leadership in the position of defensive reactions to coercive initiatives, the tables could be turned through the exploitation of the ideological platform of the proceedings and the securing of acquittals which created considerable official embarrassment and popular consciousness-raising. However, it is also clear that these legal struggles were recognized by the leading oppositional historical actors as secondary to the political struggles around the legislative process.

HISTORICAL METHODS AND CAVEATS Before exploring the sedition proceedings in Upper Canada fur-

ther, it is useful to elaborate some issues, draw some distinctions and admit some qualifications. The call for specificity in the debate, for being informed by ~the concrete experience, is not a matter of naive bourgeois empiricism, nor is it an attack on critical theory. Edward Thompson, in his powerful critique of Althusser, observes that the rejection of "empiricism' and 'historicism" by structuralists (and, one might add, more recent post-modern critiques, despite their many insights) may indeed amount to a renewed idealist rejection of materi- alism, a fundamental inversion of Marx's own method:

Our knowledge (we hope) is not thereby imprisoned within that past. It helps us to know who we are, why we are here, what human possibilities have been disclosed, and as much as we can know of the logic and forms of social process. Some part of that knowledge may be theorised, less as rule than as expectation. And exchanges may and should take place with other knowledge and theories. But that exchange involves vigilance, as the theoretical coin of one discipline is translated into the currency of another. Philosophy ought not to stand on every frontier like a huckster, offering spurious "universal" banknotes

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current in all lands. It might, instead, operate as a watchful bureau de change (Thompson, 1978:47).

Thompson's suggestion that consciousness of historical experience helps us to understand the nature of the system and the possibilities for human transformation is a vigorous defence of the value of historical methods.

There are, of course, limitations to historical research. Serious historians rejected claims about the possibilities of "objective' history at the turn of the century, and extensive debates about methods and theory have taken place within the discipline since (Gardiner, 1974; Bailyn, 1982; Berger, 1976). Quite apart from the problems of formulating questions about one's object of inquiry, the primary data itself is highly limited. Archival records reflect a partial reality; they are largely the product of privileged and literate historical actors, who, in most cases, acted in an official capacity. The experiences of ordinary persons, who left few records of their own, must often be inferred indirectly. The historiographi- cal debate has been much concerned about interpretative filters and explanatory assumptions. To avoid "presentism', we must be careful not to judge past events from modern standards of political pluralism and the rule of law. No historian can seek to offer a neat definitive package of qessons of history', let alone 'historical experience'.

The historical example selected represents the main peace-time con- tact that the radical leadership of social movements had with the criminal law at a particular t ime- - the first three decades of the nineteenth century

and in a particular place in Canada - - Upper Canada. This is a highly selective vignette, based on primary sources which largely reflected the hand of those who governed. It hardly constitutes a complete account of the experience of Canadian social movements with the criminal law.

Although the cases examined represent particularly graphic encounters between the then social configurations of reform and radical opposition and authority, there have been obvious social, political, cultural, and institutional developments in the intervening years. The labour movement, for instance, has given new dimensions to dissent, and while political tolerance of dissent has increased, new and more subtle legal responses to it have emerged, ranging from the administrative processes of collective bargaining to a much more elaborate array of 'national security" measures. Legislative processes are marginally more democratic and much more elaborate, and charter rights now may be pursued and legally enforced in the courts.

Beyond these obvious matters, we must be aware of finer differences in terms of institutional processes, forums of legal struggle and the nature of rule of law or rights claims. Quite apart from a concern about the similarity between the uses of criminal law to deal with popular insurgency and the routine business of the criminal courts, we must be sensitive to changes in the criminal law process and its potential. The criminal law system itself is much more elaborate, especially in the pre-trial and post- trial stages, with the advent of professional policing and the penitentiary,


with corresponding increased modes of repression, as well as sites for contesting this repression. Police complaints bureaucracies and shelters for abused women can serve as influential public platforms for contesting policing policies. Prosecutorial policy can be affected by public pressure through information campaigns, at least if articulated from the point of view of victims. From the perspective of the accused, procedural rights in the trial itself are marginally more elaborate, generating more possibilities for contest'ability.

This caveat represents something more than a warning against "presentism'. It is also important in terms of a rigorous understanding of the present-day array of legal structures and the strategic choices posed by the modern array of legal forums of struggle. Very different processes, dynamics and potential are involved when one is referring to criminal trials as opposed to civil proceedings or Charter of Rights litigation.

A number of questions ma), therefore be raised about the relevance of the historical example selected. At the very least, we must generalize with caution. Nonetheless, the basic elements and dynamics of the criminal trial are similar today to the one faced by radicals in Upper Canada. One can begin with something as basic as how a case is initiated. In Canada, at least from the earliest colonial times, the state monopolized the invocation of the criminal law; the crown has enjoyed a de facto monopoly over the initiation of prosecutions; the private prosecution has always been se- verely limited by the crown's power to take it over or to terminate it. This has meant that when it comes to criminal trial proceedings, progressive movements have been engaged in exclusively defensive actions, rearguard in nature, which, while not precluding counter-hegemonic possibilities, certainly limit them. The invocation of process continues to be authoritarian and largely unaccountable. As we will see the Dowson and Kealey cases graphically demonstrate this. Ongoing questions about judicial independence and jury manipulation reveal that the forum is hardly a "level playing field'. The trial process atomizes collective struggles, and discretion-laden criminal law doctrine is conceptually premised on an individualist model.

These discouraging features of the 'architecture" of the criminal trial do not suggest that the uses of criminal law may be reduced to simple ruling class instrumental manipulation. If this were the case, it would be futile to entertain the possibility of progressive struggle in this forum. The notions of counter-hegemonic and transformative potential assume the possibility of contestability. If we are to take the historical record seriously, such possibilities certainly exist (Hartog, 1985). Although we cannot talk about control, we must talk about domination, and this seriously limits the prospects of progressive struggle.

This point perhaps requires some elaboration. Criminal law can seldom be reduced to a simple "politics' by another means' because part of the calculated advantage of resorting to the criminal law rather than brute coercive force is the attempt to legitimate official actions. The fact

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that resorting to law may lend legitimacy to official actions also means that the formal claims of the law (that it is above politics, that it applies equally to all) have to have popular ideological engagement. The law can only be stretched so far, constrained by popular expectations concerning its formal claims. The formal daims surrounding the 'rule of law" lie at the root of the "possibilities for contestability'. Thompson makes this point in a forceful fashion:

For what we have observed is something more than the law as a pliant medium to be twisted this way and that by whichever interests already possess effective power.. . Over and above its pliant, instrumental functions it existed in its own right, as ideology; as an ideology which not only served, in most respects, but also legitimized class power... If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class's hegem- ony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. It cannot seem to be so without upholding its own logic and criteria of equity; indeed, on occasion, by actually being just (Thompson, 1977: 462-3).

Historically, the ideological claims of the criminal law have been exploited by leaders of popular resistance to hold the authorities to account. Formal legal daims, whether based on rule of law arguments or rights, can indeed check repression. This counter-hegemonic potential may be exploited in such a way as to transform the political situation. However, we can only be realistic about the limits and possibilities if we refer to actual experience. The trials for sedition constituted the main encounter that organized progressive social movements had with the criminal law in the province in the first three decades of the nineteenth century. This particular form of repression was experienced not only in times of popular insurgency, but also in periods of relative calm in civil society. The record of these cases provides a rich source of insight into contested legality in early Canadian criminal law. But the experience has more than intrinsic historical interest. The fact that the authorities may have favoured other types of repressive legal measures in subsequent years does not make this experience irrelevant, nor does it detract from its utility as an example of the nature of struggle within the criminal trial process.

AN ACCOUNT AND ANALYSIS OF THE SEDITION CASES The best documented and most revealing legal engagements of organ-

ized opposition groups in Upper Canada involved prosecutions for the political offences of sedition and treason. Conflict over privilege and abuse of power certainly extended to civil proceedings and the ongoing routine business of the criminal courts in this period. Some research has been done on the political uses of civil proceedings to f inandally ruin opposition leaders (Romney, 1986,1989). Much more work is required to fully explore the social meanings of the operation of the Upper Canadian


criminal courts. My own approach has been to begin with proceedings that most clearly reflect the conflict between progressive social movements and the ruling elite. Political prosecutions in this most direct sense involved the offences of treason and sedition. Numerous civilian treason proceedings in the regular criminal courts were initiated during the War of 1812-14 and the Rebellion of 1837-38. These cases have been explored in detail elsewhere, where I stress the ideological dimensions of law and examine the ambitious attempt to influence and shape the climate of popular thought (Wright, 1989).

By virtue of the degree of disruption of provincial civil society through conditions of war and popular insurrection, the treason cases may be considered to a certain degree exceptional, although the ideological elements explored there arguably pervade the routine administration of criminal law. No such concerns about exceptional extremes of popular insurgency applies in the case of the sedition prosecutions. The archival records indicate thirty-four prosecutions for common law sedition offences throughout the first three decades of the nineteenth-century. ~ This number, which excludes an as yet undetermined number of deportations by summary proceeding under local sedition legislation, exceeds per capita rates observed in studies of political trials in Britain during roughly the same period (Proschaska, 1972; Emsley, 1981). Sedition prosecutions were a pervasive part of provincial opposition experience, not confined to the extremes of popular insurgency, but initiated whenever there was the appearance of organized political opposition as a manifestation of popular dissent.

Some background to the social and legal terrains involved is helpful in order to understand the proceedings. Socially, the first three decades of the nineteenth century have been identified as involving the dynamics of a 'pre-labour problem' social conflict (Crowley, 1983; Penfland, 1982; Rudd, 1964, Thompson, 1971). In Upper Canada, popular grievances and protest largely involved small-hold farmers, a good portion of whom were of recent American background, disenfrancished and mistrusted by the loyalist ruling elite. Their economic interests were subordinate to mercantile priorities. Radical leadership was largely provided by those of recent British or Irish backgrounds, highly-educated and experienced in reform or radicalism in their home countries. Ranged against this configuration was a conservative governing elite of office holders with patrician aspira- tions, which became known by the 1820s as the Family Compact (Erring- ton, 1988). The Compact was in tentative alliance with regional elites of administrators and merchants, the latter representing the main economic power in the province.

Legally, the proceedings examined here largely involved the common law offence of seditious libel, although an indigenous legislation also figured prominently. The received English common law offences of sedition were largely developed in the post-Revolution Settlement era to limit civil liberties. Treason was blunt and had become politically conten-

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tious after the 1690s. Its ready availability was further limited by legislated procedural rights given to those accused of the offence as a result of the settlement. Other legal means of controlling dissent, such as censorship, proved technologically and politically unfeasible. Sedition merely involved criticism which brought authorities in disesteem and no proof of overt acts of insurgency was required. The English courts concentrated on the development of the doctrine of seditious libel, with the press seen as the most formidable threat in terms of oppositional organization and radical consciousness-raising. This doctrine acquired a curious manipulation of the fact/law distinction; the sole matter for the jury to decide was the fact of publication, the remainder, .including the seditious quality of the statement was deemed a question of law for the judge to decide (Ham- burger, 1985).

The repressive utility of seditious libel is readily apparent and the development of the doctrine was not without controversy. It became a focal point of contentious constitutional issues, not only in terms of freedom of expression and political criticism, but also in terms of specific legal questions about executive influence over the judiciary and jury, as well as the exercise of prosecutorial authority. These issues were played out in the famous Wilkes cases and the celebrated battles between the English Chief Justice Lord Mansfield and the defence lawyer Thomas Erskine. After long battle, reformers achieved a partial victory with the passage of Fox's Libel Act in 1792 which vindicated the right of the jury to deliver a general verdict on the issues. Nonetheless, during the French revolutionary scares and Prime Minister William Pitt's repressive terror through the mid and late 1790s, seditious libel continued to be an important weapon against popular unrest through exercise of the Attorney General's special prerogative prosecutorial powers, aided by the continued inclusion of judges in cabinet and other executive deliberations (Emsley, 1981). Pitt's 'terror" and a further series of repressive prosecutions during the second decade of the nineteenth century to deal with the new threat of labour radicalism stood as an immediate example to the government in Upper Canada.

Yet the Compact-controlled government in Upper Canada appears to have gone much further. Not only were there more prosecutions (when the small population of the province is taken into consideration), local legislation supplemented the adopted common law and the colonial structure of the Upper Canadian state enhanced executive influence over the administration of these laws. Interestingly, although the received package of English law in Upper Canada included the offence of seditious libel, the law was thought to be unreformed by Fox's Libel Act (passed one year after the province received its constitution). 2 Of the indigenous Upper Canadian legislation which supplemented the received English law, the "Canadian content', so to speak, most notable was the Sedition Act (in effect from 1804-1829) which went further than precedents in British temporary emergency legislation or similar measures passed in Lower Canada. ~ As in Lower Canada, the local authorities passed security


legislation in reaction to reputed American and French revolutionary intrigues on British rule in North America. However, a close look at the legislative history of Upper Canada's Sedition Act also reveals local concerns about 'undesirable' American immigrants and the influx of Irish and British radicals. The Act suspended habeas corpus for those charged with violating the offence. The burden of proof was shifted in a summary hearing to determine whether the accused was indeed a 'seditious alien' and refusal to obey a deportation order was punishable by death. The act was invoked to secure a large, but as yet undetermined, number of deportations during the war of 1812-14, but appears to have been contested in only one criminal trial which will be examined shortly. In retrospect, security concerns around politically suspect immigrants and 'aliens' appears to be a recurring Canadian theme, expressed in this century through the uses of sections 41 and 42 of the Immigration Act in conjunction with the notorious section 98 of the Criminal Code to suppress labour radicalism and to deport hundreds of labour organizers between the Winnipeg General Strike and the end of the Depression.

Another interesting feature of the Act was its permanence as an executive-enabling measure. Like the War Measures Act and the current Emergencies Act, it was not temporary emergency legislation but rather permanent, requiring explicit legislative repeal to eliminate its availability to the government. The struggle to repeal the act in the 1820s, with majority bills in the Assembly struck down by the upper house, was an important element in the battle for responsible government. 4

A more detailed analysis of these laws and of how they were actually administered in the provincial courts may be found elsewhere (Wright, 1992). Only a brief overview of the cases can be offered here. As noted earlier, the archival record of thirty-four sedition prosecutions in the Upper Canadian courts excludes the summary deportation procedures taken under the Sedition Act. It also excludes, it should be noted, a handful of parliamentary privilege proceedings (Joseph Willcocks, Charles Durand, Hugh Thompson and William Lyon Mackenzie), where parliament itself acted as a court, a procedure made famous in its uses against Wilkes. Of the prosecutions in the criminal courts, there is some variation in degree and relative importance. Excluding the war-time cases, the most important and contentious proceedings fell into roughly ten-year intervals 1807- 1808 - - the Willcocks affair, 1818-19 - - the Gourlay affair, and 1826-1828 - - the Collins affair. They reflected the culmination of periods of organized opposition and an active independent press. The historical record reveals particularly intense political conflict surrounding these cases. Another indicator of the importance of these cases is the heaviness of the penalties imposed. The record of 'sentences" in the proceedings appears to fall into three rough categories; minor fines for seditious utterances, more serious cases where the pillory is resorted to, and finally, in the proceedings focussed upon here, lengthy terms of imprisonment and ruinous fines, s As for the other sedition proceedings, it is difficult to discern whether they were isolated cases where the authorities sought to

Barry Wright 15

make examples, or part of the attempt to suppress more collective struggles, s

Provincial concern about dissent and organized political opposition appears to have been first manifested in 1797, when a temporary capital measure called the Enemy A//ens Act, a sort of prelude to the Sedition Act, was passed and in effect for some months to deal with reported French revolutionary intrigues. During these same months, the only printer in the province, the American-born Gideon Tiffany, was placed under close surveillance, and eventually lost his license as the King's printer upon a conviction for blasphemy. He and his brother were later frustrated in their attempts to establish the province's first independent newspaper. 7

By 1804 the province's first political opposition movement came into being, finding an institutional voice in the provincial Assembly in the session following the one which had passed the Sedition Act (Guest, 1962). As the autumn session commenced, James Campbell was convicted for seditious words which resulted in two sessions in the pillory and six months imprisonment. These unpromising measures did not deter the radical barrister and former United Irishman William Weekes in the Assembly, where he drew strong parallels between colonial rule in Ire- land, which had recently led to rebellion and bloody repression, and popular grievances in Upper Canada. The opposition's popular platform was enhanced by the establishment of the province's first opposition newspaper, edited by Joseph Willcocks. a Most of the opposition leadership figures were removed from the scene by informal strategies master- minded by Lieutenant Governor Gore and the Executive Council. Weekes was killed in a duel after criticizing a judge during a case he litigated. A sympathetic judge, Robert Thorpe, was removed from the court of King's Bench. Willcocks proved more difficult, and he was ultimately prosecuted for seditious libel. Before the trial however, Willcocks was elected to the Assembly, and managed to get the trial venue switched to his constituency in Niagara. Fearing the embarrassment of a jury acquittal, the authorities delayed the case and proceeded by Parliamentary privilege. He was convicted and sentenced to imprisonment for the duration of session. 9

The period between 1817-1818 saw provincial grievances and popular discontent organized under the formidable leadership of Robert Gourlay, whose repression reflects the range of sedition laws in the province (Wright, 1992; Milani, 1971; Cruikshank, 1936; Riddell, 1916.) I~ A col- league of Cobbett and Hunt, Gourlay left for Upper Canada shortly after the Spa Field riots and before a spate of political prosecutions in England. He set about a statistical accounting for the purposes of provincial im- provement, and soon came under official suspicion when he organized township meetings to collect local grievances. The unresponsiveness of Parliament to the grievances, and its arbitrary proroguing by the Lieuten- ant Governor, led Gourlay to organize delegates for a political convention in York (Toronto). The authorities feared the emergence of popular revolutionary councils, and Gourlay was placed under close surveillance as they pondered their response. The first step involved two prosecutions


for seditious libel (for writings in a new opposition newspaper, the Niagara Spectator, edited by Bartemus Ferguson). Gourlay was acquitted both times, and his trial in Kingston in particular, drawing heavily on Erskine's arguments, provided an important platform for the reform position and caused considerable official embarrassment. The second step began with the suppression of constitutional meetings through 'seditious meetings' legislation. Gourlay's public response to the legislation in the Niagara Spectator, resulted in summary proceedings against him under the Sedition Act and a hanging threat of prosecution for seditious libel against the editor Ferguson. Armed with a judicial interpretation that the legislation applied to Gourlay, the commission ordered him deported, and his refusal to leave resulted in several months of harsh imprisonment without the benefit of habeas corpus. Gourlay was eventually tried and ordered out of the province within a day on pain of death. At the same assize, the authorities also made good on their threat to prosecute Fer- guson, who was convicted and sentenced to a combination of imprisonment and fines which effectively ruined his paper.

Gouflay's mistreatment was a temporary setback for the opposition cause. Further discriminatory policies against recent American settlers, intimidation of the press (parliamentary privilege proceedings against Hugh Thomson, editor of the Upper Canada Herald, the destruction of Mackenzie's Colonial Advocate press by young Tory hooligans), other forms of legal and extra-legal intimidation, and attempts to preclude various opposition figures from sitting as elected members of the Assem- bly based on spurious disqualifications, all fueled a resurgent opposition movement. Events culminated in an Assembly Committee of Inquiry into abuses of public prosecutorial power examining the Attorney General's refusal to prosecute government wrongdoers and prohibition of private prosecutions (Romney, 1986). The government responded by resorting to the sedition laws. Francis Collins, editor of the Upper Canadian Freeman, was originally indicted in April, 1828, but before the, trials commenced at the assize, Collins, with the permission of the presiding judge, John Walpole Willis, expressed concerns about the partiality of the Attorney General as a prosecutor, and went on to lay private informations about criminal activities committed by supporters of the government. Attorney General Robinson was obliged to withdraw the indictment against Collins until the next assize in October, which resulted in an acquittal. In the meantime, Willis was removed from the bench, amidst much con~oversy. A new prosecution on different evidence was brought at the end of October, with the authorities finally securing a conviction through the manipulation of the judges and the jury. Collins was convicted and sentenced to imprisonment and ruinous fines, a sentence which British law officers later declared at least twice as severe as comparable English decisions."

Sedition prosecutions, therefore, figure prominent ly in the government's attempt to manage the opposition. They were an imperfect repressive device however. Courts were not used after 1828 precisely

Barry Wright 17

because of the government's fear of the opposition's counter-hegemonic successes. Public prosecutorial authority was seriously discredited, and there was little confidence in obtaining compliant juries. Willcocks forced the process into the legislative sphere. Although Gourlay and Collins were ultimately defeated, this required considerable manipulation of process and extra-legal measures. Their initial success in checking the repression considerably embarrassed the authorities and fueled opposition consciousness. These patterns deserve a closer look because they reveal not only the repressive limits of the criminal law, but also the counter- hegemonic potential of the formal claims surrounding the criminal law.

This is not to underplay the repression that did occur. For the authorities, perhaps the most ominous indicator of the organization and influence of the opposition was the emergence of an opposition press. The independent qibertine' press created a connection between political radicals and the discontented, and created the danger of consciousness-raising and mobilization of revolutionary mass movements. The very dear object of the government in these proceedings was to marginalize opposition leaders, silence the means of propagating radical thought, and to authori- tatively portray criticism as disloyalty for the contemplation of the belea- guered majority in the province.

Yet there was no absolute control over the process to implement the repressive measures. A careful historical evaluation reveals that matters cannot be reduced to a simple conspiratorial instrumentalism. The government truly dominated the process, and it had available to it an impres- sive array of repressive laws. This did not constitute control, however, and the limits became evident after 1828. In explaining this, one important point is that the ruling elite alliance itself was significantly fragmented. Family Compact members disagreed over repressive strategies and their shifting alliances with the mercantile capitalists, and regional administrators made concerted action difficult. Moreover, there was also 'accountability from above" involving imperial politics. The Colonial Office was not particularly concerned about political freedoms, but it was developing bureaucratic imperatives which caused concern about how local elite abuses would fuel colonial instability and multiply administrative problems. The most important factor explaining why the criminal law was not easily amenable to over manipulation entails what may be described as "accountability from below'. This involved popular expectations towards the formal daims of the law. While the resort to the criminal law could help to legitimate official actions, if its uses were stretched too far, the popular ideological effectiveness of the law would be jeopardized.

The discourse of the formal legal claims coming out of these cases is rich and remarkably sophisticated. Those subject to proceedings argued their positions in terms of the rule of law and rights, not, of course, in a modern Diceyian sense or in terms of modern legally enforceable rights, but nonetheless in a manner that forcefully called into question the legality and fairness of official actions. They drew upon a deep understanding of legal and constitutional rights, much of it derived from Revolution Settle-


ment rhetoric. This discourse had, in many respects, even greater reso- nance in the Upper Canadian context because of the colonial structure of government, which enhanced executive influence over institutional processes and exacerbated the legal/constitutional issues. A close look at the discourse of contested legality deriving from these cases reveals a rich array of formal claims in action m claims which, in particular, challenged executive influence over prosecutorial authority, the jury and the judiciary.

The fact that the government controlled the initiation of criminal proceedings was both politically and legally controversial. The de facto monopoly over criminal prosecutions by the Attorney General in the province flew in the face of English constitutional concerns about private prosecutions as an important guarantee of civil liberties and check on an oppressive state. Public prosecutions were seen as a legacy of the Star Chamber. In England, until the rise of the professional police after 1829, public prosecutions were very rare, with the Crown's prerogative power of ex off/c/o informations and the limitation of nolle prosequi associated with political cases or with stays of private prosecutions embarrassing to authorities (Hay, 1983). Yet from the outset, prosecutions were over- whelmingly public in the Canadas, a marked departure from the English model of criminal law and process, which was otherwise slavishly fol- lowed after 1774, and a direct reflection of the heavily executive nature of colonial government. One illustration of the advantages of this control over prosecutions, which became an issue during the Gourlay affair, is that, if the Attorney General or Solicitor General personally conducted the prosecutions, the Crown gained the right to the often crucial last address to the jury. This control not only affected regular prosecutions by indictment. It also facilitated the comparatively much more frequent resort to the Crown's special powers by ex off/c/o informations which provided the government with a wide array of procedural advantages, including control over the timing of the cases and enhanced powers of jury packing (Riddell, 1921; Hay, 1983). The Willcocks and the Ferguson prosecutions were proceeded upon in this manner, with little evidence of contestation. However, by the 1820s radical leaders clearly understood and invoked the English constitutional rhetoric about prosecutorial authority. Departures from English practice and the partisan exercise of prosecutorial authority became significant political issues, highlighted by the remarkable events surrounding the trials of Collins.

Even more powerful claims entailed rights surrounding the jury. Despite its legitimizing power, the jury has long been an unpredictable element in the administration of criminal law. The jury's power on the verdict, and how it has historically functioned to frustrate oppressive laws and unjust prosecutions was well-understood in Upper Canada. Rights claims involving the jury had two aspects. The first concerned challenges to the Crown's ability to pack juries through the local, executively- controlled, sheriff's power over the selection of jurors. The executive's control over sheriffs was a colonial departure and again reflected the

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nature of provincial government structure. Along with the repeal of the Seditions Act, 1804, reform to the jury selection processes was a contentious matter in the Upper Canada Legislature in the 1820s (WiUcocks actually initiated the first of these in 1811), when bills passed by majorities in the Assembly were repeatedly thrown out by the upper houses. The issue of packing also involved the relative ease by which the Crown could switch venues to sympathetic districts when the Crown proceeded through ex off/c/o informations CRomney, 1989).

The second element of jury rights involved the freedom of the jury's verdict. The right of the jury to decide without fear of punishment was well-established in Bushell's Case, 1670. The right to a jury trial and the rights of the jury on the freedom of their verdict were celebrated parts of constitutional rights thinking following from the Revolution Settlement. They were rights the Family Compact were seen as riding rough-shod over by precluding trial by jury under the summary proceedings set out in the Sedition Act. Moreover, Gouflay's trials for seditious libel resurrected Erskine's famous arguments on the jury's right to deliver a general verdict.

A third group of formal legal claims centered on the issue of judicial independence. Formally this had two facets: security of tenure and the separation of powers. These first came to the fore constitutionally with the battles between Coke and Bacon concerning the balance to be struck between deference to the executive and preserving the integrity of law. The Revolution Settlement attempted to resolve matters by stressing security of judicial tenure by shifting it from "royal pleasure" to "good behavior'. However, this resolved little, as became apparent with Lord Mansfield's role in the sedition cases. Reform demands for greater formal separation of powers was only achieved in practice following the controversy of Lord Ellenborough's inclusion in Pitt's 'Ministry of All Talents' in 1803-4. These issues came to the forefront in the Upper Canadian sedition cases. Again, the colonial structure of government accentuated matters. For ease of imperial administration, colonial judges had their tenure based on "royal pleasure', meaning that they were maintained at executive pleasure. On this basis, troublemakers such as Thorpe and Willis could easily be removed once the Lieutenant Governor and Executive Council perceived them to be unsound. More importantly, this ensured a unity of action between the executive and senior judges. Judges of the King's Bench in Upper Canada were routinely made Executive Councillors. The implications of the lack of separation of powers was less apparent in the Willcock's case (where an application to change venue was decided in his favour), but was abundantly clear in the Gourlay affair and in the Collins prosecutions. When Robinson became Chief Justice shortly after the Collins affair, he remained an Executive Councillor and also Speaker of the Legislative Council. By 1830, in the fallout of the Collins trials, direct rep- resentations by provincial reformers in Britain induced James Stephen in the Colonial Office to prohibit Executive Council appointments of the judiciary. Robinson blatantly disregarded the spirit of the Colonial Office prohibition by remaining as Speaker of the Legislative Council, and up to


the treason proceedings of 1838, he himself drafted the oppressive legislation that he and his colleagues were to interpret and apply (Wright, 1989).

These are some of the contested legal elements, the discourse of formal claims, which gave those subject to the proceedings the means to call into question the manner in which the government acted. Not only did they constitute formidable checks on the coercive initiatives of the state; they helped to discredit the way in which the government acted and legitimate the reform cause. The constitutional rights at stake were resonant with popular meanings.

SOME OBSERVATIONS AND CONCLUSIONS The social meanings of these proceedings are significant. They not

only say important things about historical experiences involving the role of law in political struggles, they also provide us with clues about the potential and limits of legal struggles. The intentions that lay behind the repressive uses of the sedition laws are not difficult to discern. The clear object of the ruling elite was to construct criticism as disloyalty, to divide and marginalize opposition leaders and to silence the means of propagating radical thought, heading off the mobilization of popular discontent. Careful historical research tells us that the picture is more complex than these 'intentions of the elite', especia]ly as we try to explore what the proceedings meant to those subject to them. As far as the accused and the larger social movements they represented were concerned, the struggles in the criminal courts were defensive rearguard actions; reactions, since the process was always initiated by the state. Nonetheless, the fact that the authorities resorted to the criminal law presented significant possibilities; they could challenge coercive initiatives by their claims on contestable notions of legality and constitutional rights.

The contestability of these legal elements raises, of course, the pros- pect of the affirmative or transformative potential of the proceedings for those subject to them and the social movements they represented. The historical evidence strongly suggests that the proceedings had limited affirmative potential. The rights claims could constrain authorities but those making the claims were acting defensively, fighting off the coercive initiatives undertaken by the authorities. And it is evident that the claims themselves were very slender things in practice when the Compact dominated legal institutions and processes. The radical vanguard, and the few lawyers who assisted them, clearly knew that the real struggles had to take place in the political sphere - - in the Legislature and Assembly--and if not there, in popular "constitutional meetings' of the kind organized by Gourlay. Oppressive official policy and practices, oppressive laws and the obstacles to their repeal, could not be effectively battled in the courts. The legal battles were sideline skirmishes and rearguard actions. Opposition legal victories in the form of acquittals did indeed check the repression and achieved considerable public embarrassment of the governing elite in a more positive sense. The counter,hegemonic successes arguably discour-

Barry Wright 21

aged the government's use of sedition law after 1830s. The legal struggles were of utility even in such an unpromising setting. However, the rule of taw claims and legal fights discourse were merely a way of legitimating or delegitimating political positions. Concrete affirmative progress on democratic and popular policy could only be secured through the legislative sphere by a vigilant popularly elected body and responsible government. This ultimately was the institutional focus of social struggle in Upper Canada; again, the battles in court were sidelines on the way of achieving responsible government.

Nonetheless, the legal struggles should not be posed in too negative a light. They form an important part of early Canadian experience which historians have rather neglected. The fall-out from the proceedings did help to fuel the political process. For this reason, the legal battles had utility in terms of condemning official positions and fostering consciousness for a positive agenda of political action. The repeated defeats of bills passed by majorities in the Assembly throughout the 1820s, on the jury and the repeal of the Sedition Act, played an important role in the struggles for legislative reforms and a cabinet accountable to the elected Assembly.

And what of the broader significance of the proceedings? One must be very careful of presentism, not to extrapolate too far, avoid seeing "lessons' in history. Nonetheless, there appear to be recurring patterns in terms of experience with the administration of criminal law when applied to radical social movements. Responsible government did not resolve the social causes of discontent, and coercive state measures through the criminal law against dissent did not end with the treason trials of Riel and his cohorts, or the sedition trials of the First World War and the Winnipeg General Strike. Quite apart from a criminal law system that reaches deeper into society and is capable of processing far greater numbers, new "national security" measures have emerged (the War Measures Act - - recently replaced by the more sweeping Emergencies Act, and the Official Secrets Act) which supplement political provisions in the Criminal Code. Assisted by more elaborate mechanisms of surveillance through police and national security agencies (the RCMP, CSIS, and the shadowy Communications Security Establishmen0, these Acts bring progressive social movements within the administration of criminal law.

As noted earlier, both the nature of contested claims and the forums for legal struggle are rather more elaborate in the present-day. The ideological potential of the theatre of various legal proceedings is formidable. However, despite this enhanced contestability, we should be aware that the basic architecture and dynamics of the criminal trial is largely unchanged. In most cases, because of the Crown's prosecutorial monopoly, the party engaged in the struggle is placed in the position of the accused. Success requires an acquittal, and the accused requires the skill and resources to play by the "rules of the game' better than the authorities. One can only remain skeptical given our degree of dependence on costly professional expertise. Professional legal education and professional


regulation certainly do not encourage engagement with the concerns of grass roots social movements. Rarely, proceedings may be used to put the authorities on the defensive. One recent example of the attempt to exploit the platform of criminal proceedings has been Glen Kealey's efforts to prosecute members of the federal government, the Progressive Conserva- tive Party and the RCMP. Kealey brought a private prosecution involving charges of fraud, conspiring to commit fraud and conspiring to obstruct justice. However, the Crown has intervened to take over the proceedings and has recently stayed (dropped) most of the charges without spelling out the reasons. This is not surprising; the Dowson case (Dowson v. the Queen, 1983, 7 C.C.C., 3d, 527) challenged the Crown's stay of a private prosecution for some of the RCMP's "dirty tricks' committed against radicals in the 1970s. In this most recent authoritative judgment on the rights of private prosecutors, the Supreme Court of Canada upheld the Crown's largely unaccountable discretionary powers, limited only by an individual's right to have an information "heard and considered' before a Justice of the Peace in a preliminary proceeding. The state's prosecutorial monopoly continues to frustrate the counter-hegemonic use of criminal law.

We may look to numerous other examples which tie the historical experiences with present-day issues. The jury, although reduced to being involved in a small minority of cases, continues to be relevant in many politicaUy-charged ones. Official hostility to the use of jury verdicts to protest oppressive laws and prosecutions continues unabated as seen in judicial response to that issue in the last Morgentaler appeal to the Supreme Court (Morgentaler, Stooling and Scott v. The Queen, 1988, 37 C.C.C., 3d, 449; see also Thompson, 1986 on the British context and Northern Ireland). Canada has acquired the full array of 'formal guaran- tees of judicial independence" in terms of separation of powers and security of tenure, backed up by modern elaborations such as the Judge's Act and the Canadian Judicial Council. These by no means guarantee the "rule of law" nor preclude the indirect "'politics' of the judiciary'. Aside from politics of appointment, judges' social background and values shape the vast discretionary power they exercise.

The contestable legal elements in criminal proceedings and the counter- hegemonic or transformative possibilities of legal sla, uggles raise serious and difficult issues for those interested in civil liberties and the oppressed. Reviewing historical experiences certainly cannot answer these difficult questions. Nonetheless, realist debate and strategy should be informed by what these experiences have been. The examples reviewed here suggest that while we cannot reject the utility of struggles in the terrain of criminal proceedings, such struggles have highly uncertain prospects, and best form a subordinate element within a broader front of political action.

Barry Wright 23

ENDNOTES 1. As a political misdemeanour, sedition was invariably tried before the

Court of King's Bench and my research has been directed to the collec- tion of official records of the court located at the Public Archives of Ontar io- - See Public Archives of Ontario (PAO), RG 22 "Court of King's Bench Termbook." It should be noted that even these official records are often incomplete and sometimes show evidence of being tampered with. (See especially the proceedings against Robert Gourlay). The cases were not published in the form of reported cases in the modern sense of an official record being made available to the public. The cases must be reconstructed from the archival summary records referred to and confi- dential official correspondence, as well as contemporary newspaper accounts and pamphlets. It might be added that this historical research base actually provides a more complete picture than traditional legal methods based on reported cases. The archival record provides insight into official deliberations and strategies accompanying the technical record of the cases. Contemporary newspapers and pamphlets provide a glimpse of public views and responses.

2. See National Archives of Canada (NAC), RG 1: Address to the Jury, at the Kingston Assizes, in the Case of the King v. Robert Gourlay (King- ston, August, 1818) (a pamphlet printed by the Kingston Gazette imme- diately following Robert Gourlay's first trial for seditious libel, including reference to the need to pass legislation similar to Fox's Act in the province). Formal reception is the adoption of the entire corpus of law up to the date the constitution is received or reception legislation is passed; thereafter, the local government is free to amend or elaborate the law, subject to final imperial approval. Technically, contemporary understandings were erroneous, perhaps based on the understanding that the date English criminal law was formally received was the date of the provincial constitution act - - 1791. In fact, the provincial criminal law reception statute passed in 1800 set the reception date as Sept. 1792, months after Fox's Act was proclaimed.

3. See "An Act for the better securing of this Province against all Seditious Attempts or Designs to disturb the Tranquility thereof" (1804) 44 Geo.III c. 1 U.C.; British precedents (1793) 33 Geo.III c. 27 G.B., (1794) 34 Geo.III c. 54 G.B. designed to stop correspondence and political activity with France. The Quebec legislation was (1794) 34 Geo.III c.5 L.C. Other Upper Canadian security legislation (excluding emergency measures passed during the war and the rebellion) included a temporary security measure passed in 1797 called the Enemy Aliens Act, a precursor to the Sedition Act, which was only in effect for the duration of the parliamentary session. One further indigenous measure, the Seditious Meetings Act, was in effect from 1818-1821; it was similar to its contemporary, the Six Acts passed in Britain. See "An Act to prevent certain Meetings in the Province of Upper Canada" (1818) 58 Geo.III c. 11 U.C. Its purpose was to cover a lacuna in the laws of sedition by prohibiting the extra- legislative constitutional meetings and collective petitioning organized by Robert Gourlay. Although it was never invoked, it deterred assem- blies and Gourlay's criticism of the legislation provided the specific pretext for proceedings against him under the Sedition Act.

2 4 The Journal of Human Justice, Volume 3, Number 1, Autumn, 1991.

4.

5.

6.

7.

Alien was defined in a curious way to mean lacking lengthy and established habitancy in the province, and therefore, it could be extended to British subjects. This was done with an eye to Irish whigs and radicals who were immigrating in large numbers in the aftermath of the Irish Rebellion. See PAO RG 22. In many cases there was a combination of penalties. The fines and imprisonment in the most serious sedition cases were of sufficient magnitude to prove financially ruinous. The authorities do not appear to have contemplated the pillory as punishment in the most serious cases, perhaps out of fear of public sympathy for the convicted offenders, as the severity of the pillory depended upon the sense of community vengeance, and indeed the punishment could backfire and prove embarrassing for the government. See Springstein, 1794, Niagara (convicted and fined); Swayze, 1795 (who ironically, in 1818, served as an informant for the Crown in the prosecutions of Robert Gouriay and his publisher, Bartemus Ferguson) York (convicted and fined); Graham, 1803 Kingston (not guilty); Brown, 1805, Cornwall (n.g.); Cutlet, 1808, Kingston (n.g.); Cole, 1810, Sandwich (n.g.). During the war an as yet undetermined number of deportation proceedings took place under the Seditious Aliens Act, affecting a large number of American immigrants who had failed or refused to take the oath of allegiance. Local commissions set up by order of the Executive Council in February 24,1812 and boards operated in York, Niagara and Kingston to systematically investigate and deport, though magistrates in other areas were also instructed to vigilantly enforce the Act. Com- mon law sedition prosecutions included Lazatere, Niagara, August 1812 (n.g.); Willcocks, Bemer-London, September, 1812 (indicted but not tried); Bentley, York, June, 1813 (convicted-imprisoned for six months and sureties for good behaviour for five years); indicted again in York, Oyer and Terminer, October, 1813 and convicted in March, 1814 (sentenced to one month, two hundred pound fine and extensive sureties); Clarke, Kingston, September, 1813 (convicted --sentenced to two hours in the pillory, one month's imprisonment, fine of five hundred pounds and sureties for good behaviour); Cody, Mulat, Patterson, Terry, York, October, 1813 (traversed to York Assizes with Bentley in March, 1814, but not proceeded against); CoUver, Harming, Sprague, August, 1814, Ancaster (convicted - - sentenced to one hour in the pillory, imprisonment, and a five pound fine); Gerow, August, 1814, Kingston (convicted - - sentenced to one hour in the pillory, one month's imprisonment and a five pound fine); Cody and Dalterton, October, 1814, York (convicted

sentenced to one month's imprisonment and twenty pounds fine each). After the war, Orton, March, 1815, York (convicted-- sentenced to two hours in the pillory, one month's imprisonment and a five pound fine); McGee, August, 1816, Newcastle (convicted - - fined twenty pounds and a week in prison). Crompton was prosecuted for sedition on 24 October, 1828, but not taken to trial, and this, with Collins' conviction at that time, appears to close the book on sedition proceedings in the province; see AO RG 22. See PAO Court of King's Bench Term Book, RG 22,15. Gideon Tiffany attempted to publish the Canadian Constitution at the turn of the

Barry Wright 2 5

.

9.

10.

11.

century and his brother Silvester attempted to publish the Niagara Herald the next year. Upper Canada Guardian or Freeman's Journal. The paper was published out of Niagara from 1807. It was set up initially because the government newspaper, The Upper Canada Gazette, refused to publish opposition election addresses or rebuttals to critical submissions made by government supporters. See Wright (1992) and NAC, Report of the Public Archives, 1892 (Ot- tawa, 1893) (includes official correspondence relating to political state of the province); AO, Sixth and Eighth Reports of the Bureau of Archives for the Province of Ontario (Toronto, 1911,1912) (includes Journals of the House of Assembly and Provincial State Papers, 1803-5 and 1805-11). A prolific writer, Gourlay left a wealth of material, most notably, StatisticalAccount of Upper Canada (2 vols.), (London, 1822, reprinted Toronto, 1867). On the legal proceedings, Gourlay's most useful work is The Banished Briton and Neptunian (Boston, 1843) available in NAC. See also NAC CO 42 (Colonial Office) and RG 1,5.7 (Provincial State Papers). See Wright (1992); NAC, "Documents Relating to the Constitutional History of Canada, 1819-28" Vols. 1-3 (Ottawa, 1914-35); CO 42 "Papers Relating to the Removal of the Honourable John Walpole Willis from the Office of One of His Majesty's Judges of the Court of King's Bench of Upper Canada."

REFERENCES Bailyn, B. '`The Challenge of Modern Historiography" American Historical

Rev/ew, 87, 1982: 1-27. Berger, C. The Writing of Canadian History: Aspects of English Canadian

Historical Writing1900-1970. Toronto: Oxford University Press, 1976. Brickey, S. and E. Comack '`The Role of Law in Social Transformation: Is a

Jurisprudence of Insurgency Possible?" T. C. Caputo, M. Kennedy, C. E. Reasons, and A. Brannigan (eds.). Law and Society: A Critical Perspec- tive. Toronto: Harcourt, Brace, Jovanovich, 1989.

Crowley, T. '`Thunder Gusts: Popular Disturbances in Early French Canada" M.S. Cross and G. Kealey (eds.). Economy and Society During the French Regime, to 1759. Toronto: McCleUand and Stewart, 1983.

Cruikshank, E. A. '`The Government of Upper Canada and Robert Gourlay" Ontario History, XXXIII, 1936: 65-177.

Ellis, D. The Wrong Stuff. Don Mills: Collier, MacMillan, 1987. Emsley, C. "An Aspect of Pitt's 'Terror': Prosecutions for Sedition During the

1790s" Social History, 6, 1981: 155-175. Errington, J. The Lion, the Eagle, and Upper Canada: A Developing Colonial

Ideology. Kingston/Montreal: McGill-Queen's Press, 1988. Fudge, J. "`The Violence of Abstraction: What Do We Mean by Law and Social

Transformation?" Canadian Journal of Law and Society, 5,1990: 47-69. Gardiner, P. (ed.) The Philosophy of History. Oxford: Oxford UniversityPress,

1974.


Glasbeek, H. and M. Mandet "The Legalization of Politics in Advanced Capitalism" Social Studies, 2, 1984: 84-109.

Guest, H. "Upper Canada's First Political Party" Ontario History, LIV, 1962: 275-296.

Hamburger, P. "The Development of the Law of Seditious Libel and the Control of the Press" Stanford Law Review, 37, 1985: 661-767.

Hartog, H. "Pigs and Positivism" Wisconsin Law Review, 1985: 899-935. Hay, D. "Controlling the English Prosecutor" Osgoode Hall Law Journal, 21,

1983: 165-186. Hunt, A. "Rights and Social Movements: Counter-Hegemonic Strategies"

Journal of Law and Society, 17(3), 1990:1. Johnson, R. "I'hompson, Genovese, and Socialist-Humanist History" History

Workshop: A Journal of Socialist Historians, 6,1978: 79-100. Marquis, G. "Doing Justice to British Justice" W. W. Pue and B. Wright (eds.).

Canadian Perspectives on Law and Society: Issues in Legal History. Ottawa: Carleton University Press, 1988.

Milani, L. Darroch Robert Gourlay, Gadfly. Toronto: Ampersand, 1971. Pentland, H. C. Labour and Capital in Canada, 1650-1860. Toronto: McClel-

land and Stewart, 1982. Proschaska, L. "English State Trials in the 1790s" Journal of British Studies,

1972: 27-82. Riddell, W.R. "Robert (Fleming) Gourlay as Shown by his Records" Ontario

History, XIV, 1916: 1-133. Riddell, W. R. "1"he Information Ex Officio in Upper Canada" Canadian Law

Times, 41, 1921: 87-103. Romney, P. Mr. Attorney: The Attorney General for Ontario in Court, Cabinet

and Legislature, 1791-1899 Toronto: The Osgoode Society, 1986. Romney, P. "From Constitutionalism to Legalism: Trial by Jury and the Rule

of Law in Nineteenth Century Ontario" Law and History Review, 7, 1989: 121-176.

Rude, G. The Crowd in History: A Study of Popular Disturbances in France and England, 1730-1848 New York: Pantheon, 1964.

Thompson, E.P. "I'he Moral Economy of the English Crowd in the Eighteenth Century" Past and Present, 50, 1971: 76-136.

Thompson, E.P. Whigs and Hunters: The Origins of the Black Act Harmond- sworth: Penguin, 1977.

Thompson, E. P. "I'he Poverty of Theory" ~ Poverty of Theory and Other Essays London: Monthly Rev. Press, 1978.

Thompson, E.P. "Subduing the Jury" London Review of Books, December, 1986.

Wright, B. "The Ideological Dimensions of Law in Upper Canada: The Treason Proceedings of 1838" Criminal Justice History: An International Annual, 10, 1989: 131-178.

Wright, B. "I'he Sedition Proceedings in Upper Canada and Contested Legal Elements" Labour/Le Travail, 29, 1992 (forthcoming).