1. Beckett, Gilbert Abbott à, The Comic Blackstone (London, 1885), 187–88Google Scholar.

2. Brebner, J. B., North Atlantic Triangle: The Interplay of Canada, the United States, and Great Britain (New Haven, 1945).Google Scholar

3. Grant, George, Lament for a Nation: The Defeat of Canadian Nationalism (1965; Library, Carleton ed., Ottawa, 1986), 65Google Scholar.

4. Hartz, Louis, The Founding of New Societies: Studies in the History of the United States, Latin America, South Africa, Canada, and Australia (New York, 1964)Google Scholar; Horowitz, Gad, “Conservatism, Liberalism and Socialism in Canada: An Interpretation,” Canadian Journal of Economics and Political Science 32 (1966)CrossRefGoogle Scholar; Wise, S. F., “Liberal Consensus or Ideological Battleground: Some Reflections on the Hartz Thesis,” in Canadian Historical Association, Historical Papers, 1974 (Ottawa, 1975)Google Scholar; Careless, J. M. S., “‘Limited Identities’ in Canada,” Canadian Historical Review 50 (1969)CrossRefGoogle Scholar; Aitken, H. G. J., “Defensive Expansion: The State and Economic Growth in Canada,” in The State and Economic Growth, ed. Aitken, H. G. J. (New York, 1959)Google Scholar; Cook, Terry, “The Canadian Conservative Tradition: An Historical Perspective,” Journal of Canadian Studies 8, no. 4 (1973)CrossRefGoogle Scholar; Dewar, Kenneth C., “Toryism and Public Ownership in Canada: A Comment,” Canadian Historical Review 64 (1983)Google Scholar. The earlier literature is synthesized in Lipset, Seymour Martin, “Revolution and Counter-Revolution: The United States and Canada,” in The Revolutionary Theme in Contemporary America, ed. Ford, Thomas R. (Lexington, 1965), 21–64Google Scholar. My critique of the approach common to this literature is elaborated in Romney, Paul, “From the Rule of Law to Responsible Government: Ontario Political Culture and the Roots of Canadian Statism,” in Canadian Historical Association, Historical Papers, 1988 (Ottawa, 1989)Google Scholar.

5. Hansen, Marcus Lee, The Mingling of the American and Canadian Peoples (New Haven, 1940), 89–90Google Scholar.

6. At first, the term “responsible government” had a more general significance, but this meaning subsequently came to monopolize it: Patterson, Graeme H., “An Enduring Canadian Myth: Responsible Government and the Family Compact,” Journal of Canadian Studies 12, no. 2 (1977)CrossRefGoogle Scholar.

7. Canada Act (“Constitutional Act”) 1791, 31 Geo. III, c. 31. The standard account of the constitution of Upper Canada is in Craig, Gerald M., Upper Canada: The Formative Years, 1784–1841 (Toronto, 1963)Google Scholar.

8. Quoted in ibid. at 29.

9. Parliamentary Register (London, 1791), 29: 69–77Google Scholar.

10. 37 Geo. III, c. 13; Baker, G. Blaine, “Legal Education in Upper Canada 1785–1889: The Law Society as Educator,” in Essays in the History of Canadian Law, ed. Flaherty, David H., 2 vols. (Toronto, 1981–1983) 2: 49–142Google Scholar.

11. Wise, S. F., “God's Peculiar Peoples,” in The Shield of Achilles, ed. Morton, W. L. (Toronto, 1968)Google Scholar; Cook, Terry, “John Beverley Robinson and the Conservative Blueprint for the Upper Canadian Community,” Ontario History 64 (1972)Google Scholar, reprinted in Historical Essays on Upper Canada, ed. Johnson, J. K. (Toronto, 1975)Google Scholar; Howes, David, “Property, God and Nature in the Thought of Sir John Beverley Robinson,” McGill Law Journal 30 (1985)Google Scholar; Baker, G. Blaine, “The Juvenile Advocate Society, 1821–1826: Self-Proclaimed Schoolroom for Upper Canada's Governing Class,” in Canadian Historical Association, Historical Papers, 1985 (Ottawa, 1986)Google Scholar; Fraser, Robert L., “Like Eden in Her Summer Dress: Gentry, Economy and Society, Upper Canada 1812–1840” (Unpublished thesis, Toronto, 1979)Google Scholar.

12. (Sometimes cited as Doe v. Acklam), 2 B. and C. 779, 107 Eng. Rep. 572.

13. Craig, Upper Canada, 114–23; Romney, Paul, “Reinventing Upper Canada: American Immigrants, Upper Canadian History, English Law and the Alien Question,” in Patterns of the Past: Interpreting Ontario's History, ed. Hall, Roger, Westfall, William, and Macdowell, Laurel Sefton (Toronto, 1988)Google Scholar; Kettner, James H., “Subjects or Citizens? A Note on British Views Respecting the Legal Effects of American Independence,” Virginia Law Review 62 (1976): 945–67CrossRefGoogle Scholar.

14. Colonial Advocate (Toronto), Mar. 27, 1827.Google Scholar

15. Romney, , “Reinventing Upper Canada”; Romney, Paul, Mr. Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 (Toronto, 1986), 82–104Google Scholar.

16. Romney, Mr. Attorney, 153–57.

17. Careless, J. M. S., The Union of the Canadas: The Growth of Canadian Institutions, 1841–185 7 (Toronto, 1967)Google Scholar; Monet, Jacques, The Last Cannon-Shot: A Study of French-Canadian Nationalism, 1837–1850 (Toronto, 1969)Google Scholar; Buckner, Phillip A., The Transition to Responsible Government: British Policy in North America, 1815–1850 (Westport, Conn., 1985)Google Scholar.

18. Cornell, Paul G., The Alignment of Political Groups in Canada, 1841–1867 (Toronto, 1962)CrossRefGoogle Scholar; Careless, J. M. S., Brown of the Globe, 2 vols. (Toronto, 1959–1963)Google Scholar.

19. Wilson, G. Alan, The Clergy Reserves of Upper Canada, 1791–1854 (Toronto, 1968)Google Scholar.

20. British North America Act 1867, 30 and 31 Viet., c. 3.

21. Quebec Act 1774, 14 Geo. III, c. 83.

22. 32 Geo. III (1792), cc. 1, 2.

23. Wylie, William N. T., “Instruments of Commerce and Authority: The Civil Courts in Upper Canada, 1789–1812,” in Essays in the History of Canadian Law, ed. Flaherty, , 2:3–16Google Scholar; Wilson, Bruce G., The Enterprises of Robert Hamilton: A Study of Wealth and Influence in Early Upper Canada, 1776–1812 (Ottawa, 1983) 52–57, 116–18Google Scholar.

24. Colonial Advocate, July 1, 1824; Romney, Mr. Attorney, 107, 113, 114, 291–96.

25. Vaughan 135; 124 Eng. Rep. 1006.

26. Green, Thomas Andrew, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago, 1985), 236–49CrossRefGoogle Scholar.

27. Blackstone, William, Commentaries on the Laws of England, 4 vols. (Oxford, 1765–69), 3: 402–5Google Scholar.

28. Beattie, J. M., Crime and the Courts in England, 1660–1800 (Princeton, 1986), 378–89, 408Google Scholar; Hay, Douglas, “The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century,” in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. Cockburn, James S. and Green, Thomas A. (Princeton, 1988), 305–57Google Scholar; Langbein, John H., “The Criminal Trial before the Lawyers,” University of Chicago Law Review 45 (1978): 284–300CrossRefGoogle Scholar.

29. Wylie, “Instruments of Commerce and Authority,” 25–28; Romney, Mr. Attorney, 76–78.

30. 34 Geo. III, c. 2.

31. The next three paragraphs are a partial summary of the richly documented thesis of Green, Verdict According to Conscience.

32. See also Veall, Donald, The Popular Movement for Law Reform, 1640–1660 (Oxford, 1970), 97–109Google Scholar, and Hill, Christopher, The World Turned Upside Down: Radical Ideas during the English Revolution (Harmondsworth, 1975), 271–73Google Scholar.

33. Unreported. The source for this case is Colonial Advocate, June 1, 1826; for the other, see ibid, Nov. 4, 1824.

34. The Canadian's Right the Same as the Englishman's (York, U.C. [Toronto], 1823)Google Scholar; Green, Verdict According to Conscience, 255–58; Romney, Paul, “A Man Out of Place: The Life of Charles Fothergill, Naturalist, Businessman, Journalist, Politician, 1782–1840” (Unpublished thesis, Toronto, 1981), 313–16Google Scholar. On antilegal sentiment in Upper Canada, see also Romney, Paul, “From the Types Riot to the Rebellion: Elite Ideology, Anti-legal Sentiment, Political Violence and the Rule of Law in Upper Canada,” Ontario History 79 (1987): 113–44Google Scholar.

35. Blackstone, Commentaries 4:361.

36. Ibid. 3: 387.

37. Unreported. The following account is based on Romney, Mr. Attorney, 65–72.

38. Archives of Ontario (Toronto), Mackenzie-Lindsey Papers, A-4–1, draft, Randal to [?], Dec. 1, 1819. The context of the assertion, the draft of a private letter to someone in the United States, offers no reason for supposing it to be a lie.

39. R. v. Randal (1825): unreported. See Collins, Francis, A Faithful Report of the Trial and Acquittal of Robert Randall, Esq., a Member of the Commons House of Assembly in Upper Canada, Accused of Perjury, and Tried at Niagara, on Wednesday the 7th of September, 1825 (York, U.C. [Toronto], 1825)Google Scholar.

40. Colonial Advocate, Mar. 27, 1825.

41. Romney, Mr. Attorney, 85–87; Milani, Louis Darroch, Robert Gourlay, Gadfly (Thornhill, Ont., 1971)Google Scholar; Dictionary of Canadian Biography 4: 330–36. A second trial resulted in the conviction for seditious libel of the newspaperman who had published Gourlay's propaganda.

42. Collins, A Faithful Report; Romney, Mr. Attorney, 72, 81–82.

43. Riddell, William Renwick, “The First Attorney General of Upper Canada: John White (1792–1800),” Ontario Historical Society Papers and Records 23 (1926), 418–19, 428Google Scholar n. 32. My discussion supports Langbein's notion (“The Criminal Trial,” 300, 314) that the increasing use of counsel for the defense promoted jury law-finding. See Thompson, E. P., Whigs and Hunters: The Origin of the Black Act (New York, 1975), 187Google Scholar, for a case where defense counsel evidently had this effect.

44. Dent, John Charles, The Story of the Upper Canadian Rebellion, 2 vols. (Toronto, 1885) 1:157n.Google Scholar; Romney, Mr. Attorney, 115–21.

45. Correspondent and Advocate (Toronto), September 24, 1835.

46. Archives of Ontario, Mackenzie-Lindsey Papers, A-4–1, Randal to A. Cuvillier, Mar. 7, 1808.

47. The highway commissioners, assessors, tax collector, and town clerk. The real power in local government was exercised, as in England, by an appointed magistracy.

48. Proceedings of the Legislative Council of Upper Canada on the Bill sent up from the House of Assembly, entitled, An Act to Amend the Jury Laws of this Province (Toronto, 1836)Google Scholar, quotations at 4, 5, and 31. This pamphlet includes the text of the bill and of the jury statutes in force at the time. The Upper Canadian jury law differed from the English in providing for all assize trial juries to be chosen by lot: 34 Geo. III (1794), c. 1, s. 6. The English act of 1730 made this provision only for civil trials, and in 1825 it was extended to special juries at criminal trials: Hay, “Class Composition,” 353 and passim.

49. Riddell, William Renwick, “The Ancaster ‘Bloody Assize’ of 1814,” Ontario Historical Society Papers and Records 20 (1923), 107–25Google Scholar; E. A. Cruikshank, “John Beverley Robinson and the Trials for Treason in 1814,” ibid. 25 (1929), 191–219; Brode, Patrick, Sir John Beverley Robinson: Bone and Sinew of the Compact (Toronto, 1984), 21–25CrossRefGoogle Scholar; U.C. stat. 54 Geo. III, c. 11.

50. 58 Geo. III, c. 10; Hudson's Bay Company Archives (Winnipeg), A.38/41, Hudson's Bay Company v. Legislature of Upper Canada (1819–20). I am grateful for the latter reference to Hamar Foster. The legislation was precipitated by armed clashes north of Lake Superior between retainers of the North-West Company and those of the Scottish philanthropist, the Earl of Selkirk, after agents of the Montreal-based furtrading company had massacred members of an agricultural settlement set up by Selkirk near modern Winnipeg. The York elite sympathized with the North-West Company, and John Beverley Robinson justified the legislation by the precedent of the notorious Black Act. Yet while Robinson was willing to shift the venue from the Western to the Home District after the Western District grand jury had refused to indict Selkirk and his agents, he refused as oppressive a request to proceed against them by ex officio information, a legal but extraordinary proceeding which would have circumvented the grand jury and shifted the venue simultaneously. Gray, John Morgan, Lord Selkirk of Red River (Toronto, 1963)Google Scholar; Romney, Mr. Attorney, 329, 330. On the early use and subsequent desuetude of the ex officio information in Upper Canada, see Riddell, William Renwick, “The Information Ex-Officio in Upper Canada” in Upper Canada Sketches: Incidents in the Early Times of the Province (Toronto, 1922), 85–100Google Scholar; on the information ex officio as an incident of the office of attorney-general, see Edwards, John L. J., The Law Officers of the Crown: A Study of the Offices of Attorney-General and Solicitor-General of England with an Account of the Office of Director of Public Prosecutions of England (London, 1964), 262–67Google Scholar.

51. 13 and 14 Viet. (1850), c. 55.

52. Upper Canada Law Journal 2 (1856): 173–75Google Scholar; ibid. 3 (1857): 96–99; ibid. 4 (1858): 75–78.

53. 22 Vict. (1858), c. 100, ss. 2, 6, 51; County Attorneys Act 1857, 20 Vict., c. 59; Margaret A. Banks, “The Evolution of the Ontario Courts, 1788–1981,” in Essays in the History of Canadian Law, ed. Flaherty 2: 510.

54. Ont. stat. 26 Vict. (1863), c. 44, s. 5; Law Reform Act 1868, 32 Vict., c. 6; Ont. stat. 36 Vict. (1873), c. 8; Can. stat. 32 and 33 Vict. (1869), c. 32; Romney, Mr. Attorney, 283, 297–98. In the process of legislation the dominion measure was extended to Quebec.

55. Canada Sessional Papers (1891) no. 66 at 7–22 passim; Romney, Mr. Attorney, 298–309.

56. Romney, Mr. Attorney, 309–11; Criminal Code 1892, 55 Vict., c. 29, ss. 43–46; Buono, Vincent M. Del, “The Right to Appeal in Indictable Cases: A Legislative History,” Alberta Law Review 16 (1978): 452–54Google Scholar; MacLeod, R. C., “The Shaping of the Canadian Criminal Law, 1892 to 1902,” in Canadian Historical Association, Historical Papers, 1978 (Ottawa, 1979), 64–66Google Scholar. Annotations to the printed version of the bill show that the introduction of appeal against acquittal had first been proposed in a bill of 1880: Canada, Criminal Law Bill, 1891, part LIII.

57. (In the Supreme Court of Canada) 30 C.R.N.S. 209; 23–25 Eliz. II (1974–76), c. 93, s. 75; Del Buono, “The Right to Appeal,” 459, 460–62. Morgentaler's two cases are the leading recent Canadian cases on the issues of jury nullification and abortion. For the later case (1988) see infra at n.136.

58. Sugarman, David, “The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science,” Modern Law Review 46 (1983): 107–8Google Scholar; Gordon, Robert W., “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,” in Professions and Professional Ideologies in America, ed. Geison, Gerald L. (Chapel Hill, 1983), 87–97Google Scholar.

59. Blackstone, Commentaries 2: 36–37; Romney, Mr. Attorney, 36–55, 178–79, 188–92, 225–28.

60. Blackstone, Commentaries 4: 350. Blackstone's targets were the unpopular game and excise laws, which provided for summary enforcement by justice of the peace and excise commissioners respectively, and the courts of requests, which summarily dealt with small claims according to the perceived dictates of equity and conscience rather than the dictates of the common law: see Hay, Douglas, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-century England (New York, 1975), 59Google Scholar; Hay, “Poaching and the Game Laws on Cannock Chase,” in ibid., 211–12; Munsche, P. B., Gentlemen and Poachers: The English Game Laws, 1671–1831 (Cambridge, 1981), 117–19, 121Google Scholar; Arthurs, H. W., “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto, 1985), 26–34Google Scholar.

61. Frank Armstrong, “Guilty in Law—Guilty in Fact,” 30 C.R.N.S. 287.

62. Orpen v. Attorney General for Ontario (1924), 56 O.L.R. 327 at 335.

63. Ontario, Royal Commission of Inquiry into Civil Rights, Report No. 1 (Toronto, 1968), 942–47, 952–55Google Scholar; Rev. Stat. Nfld. 1952, c. 9, s. 9(b); Rev. Stat. Ont. 1980, c. 271, s. 5(b).

64. This is still effectively the case in Canada, despite the recent incorporation of a so-called Charter of Rights and Freedoms into the constitution, see infra at n.140.

65. See e.g., Shklar, Judith N., Legalism (Cambridge, Mass., 1964)Google Scholar; Mcllwain, Charles Howard, Constitutionalism Ancient and Modern (Ithaca, 1940)Google Scholar; Vile, M. J. C., Constitutionalism and the Separation of Powers (Oxford, 1967)Google Scholar; Pennock, J. Roland and Chapman, John W., eds., Constitutionalism (New York, 1979)Google Scholar.

66. Dicey, A. V., Introduction to the Study of the Law of the Constitution, ed. Wade, E. C. S., 10th ed. (London, 1960), 183–205Google Scholar.

67. Ibid., 39–137.

68. Ibid., 417–38.

69. Arthurs, H. W., “Rethinking Administrative Law: A Slightly Dicey Business,” Osgoode Hall Law Journal 17 (1979): 3–14Google Scholar; Sir Jennings, Ivor, The Law and the Constitution 5th ed. (London, 1959), 54–79, 305–17Google Scholar.

70. Harvey, W. Burnett, “The Rule of Law in Historical Perspective,” Michigan Law Review 59 (1961): 487CrossRefGoogle Scholar; Cosgrove, Richard A., The Rule of Law: Albert Venn Dicey, Victorian Jurist (Chapel Hill, 1980), 84–87CrossRefGoogle Scholar.

71. Gough, J. W., Fundamental Law in English Constitutional History (Oxford, 1955)Google Scholar; Pocock, J. G. A., The Ancient Constitution and the Feudal Law (Cambridge, 1957)Google Scholar; Nenner, Howard, By Colour of Law: Legal Culture and Constitutional Politics in England, 1660–1689 (Chicago, 1977), 13–23Google Scholar.

72. 8 Co. Rep. 114a at 118a; 77 Eng. Rep. 646 at 652.

73. Plucknett, T. F. T., “Bonham's Case and Judicial Review,” Harvard Law Review 40 (1926): 30CrossRefGoogle Scholar; Thorne, S. E., “Dr. Bonham's Case,” Law Quarterly Review 54 (1938), 543Google Scholar; Gough, Fundamental Law, 31–38; Berger, Raoul, “Dr. Bonham's Case: Statutory Construction or Constitutional Theory?” University of Pennsylvania Law Review 117 (1969): 521CrossRefGoogle Scholar.

74. Gough, Fundamental Law, 109–16; Nenner, By Colour of Law, 103–13 (Hale quoted at pp. 104, 110); Hill, Christopher, “The Norman Yoke,” in Hill, , Puritanism and Revolution: Studies in Interpretation of the English Revolution of the 17th Century (London, 1958)Google Scholar.

75. Nenner, By Colour of Law, 40–48, 191–94.

76. Ibid., 155–96.

77. Gough, Fundamental Law, 174–213.

78. Pocock, J. G. A., “The Varieties of Whiggism from Exclusion to Reform: A History of Ideology and Discourse,” in Pocock, , Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (Cambridge, 1985), 231CrossRefGoogle Scholar and passim.

79. Gough, Fundamental Law, 188–91.

80. Brewer, John, “The Wilkites and the Law, 1763–74: A Study of Radical Notions of Governance,” in An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries, ed. Brewer, John and Styles, John (New Brunswick, N.J., 1980)Google Scholar; Green, Verdict According to Conscience, 318–55; Hay, Douglas, “Contempt by Scandalizing the Court: The Political History of the First Hundred Years,” Osgoode Hall Law Journal 25 (1987)Google Scholar.

81. 2 Wils. K. B. 275 at 283, 285, 292; 95 Eng. Rep. 807 at 812, 813–14, 818.

82. Parliamentary History of England, 16: 177–80; ibid., 168–70; Kennedy, W. P. M., Some Aspects of the Theories and Workings of Constitutional Law (New York, 1932), 49–50Google Scholar.

83. 2 Wils. K. B. at 282; 95 Eng. Rep. at 812; Dicey, Introduction to the Study of the Law, 267, 268; Pocock, Ancient Constitution, 30–55.

84. Dicey, Introduction to the Study of the Law, 406; Tulloch, H. A., “Changing British Attitudes towards the United States in the 1880s,” Historical Journal 20 (1977): 834CrossRefGoogle Scholar; and see infra at n. 118.

85. Dicey described legal relations between the individual and the state as a whole as though they were identical to the relations that had become established, in the course of the preceding two centuries, between the individual and the executive; that is, he portrayed the law's effect as though the British constitution subjected the legislative power as well as the executive to judicial review.

86. Neeson, J. M., “The Opponents of Enclosure in Eighteenth-Century Northamptonshire,” Past and Present 105 (1984)CrossRefGoogle Scholar; Martin, J. M., “Members of Parliament and Enclosure: A Reconsideration,” Agricultural History Review 27 (1979)Google Scholar; Thompson, Whigs and Hunters.

87. See, supra at n.34.

88. Brewer, “Wilkites and the Law,” 154–57, 162–63. Bushell's jury nullified a recent statute. So, in effect, did the jury in R. v. Randal.

89. Hay, “Class Composition of the Palladium of Liberty.”

90. Some writers have challenged the idea that the ideology of the rule of law was authoritative in Upper Canada, but their challenge has not withstood close scrutiny: see Romney, Paul, “Very Late Loyalist Fantasies: Nostalgic Tory ‘History’ and the Rule of Law in Upper Canada,” in Canadian Perspectives on Law and Society: Issues in Legal History, ed. Pue, W. Wesley and Wright, Barry (Ottawa, 1988)Google Scholar.

91. See, supra at n.8.

92. See, supra at nn.29–30.

93. “Every branch of our civil polity supports and is supported, regulates and is regulated, by the rest … Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by themselves [sic], would have done; but at the same time in a direction partaking of each, and formed out of all.” Blackstone, Commentaries 1:155. For criticism of the Upper Canadian constitution along these lines, see Romney, Paul, “A Conservative Reformer in Upper Canada: Charles Fothergill, Responsible Government and the ‘British Party,’ 1824–1840,” in Canadian Historical Association, Historical Papers, 1984 (Ottawa, 1985), 42–62Google Scholar.

94. Concerning the Sedition Act, see, supra at n.41.

95. Thereupon a third member, Barnabas Bidwell, a former Jeffersonian congressman and attorney general of Massachusetts, explained that it was binding in a court of law, yet unconstitutional in the sense of being “repugnant to the constitution”: Kingston (Ontario) Chronicle, Dec. 21, 1821. On Bidwell, see Dictionary of American Biography; Dictionary of Canadian Biography, 4: 54–59.

96. In England, throughout most of the nineteenth century, the prosecution of crime was a local and private matter except for offenses against the state, which were normally prosecuted by the attorney general or the solicitor general. Demands for the establishment of state supervision of criminal prosecutions came to a climax at mid-century, but Parliament drew back. Only in 1879 was a modest measure of supervision introduced, in the form of the office of Director of Public Prosecutions: Edwards, Law Officers of the Crown, 349–66; Hay, Douglas, “Controlling the English Prosecutor,” Osgoode Hall Law Journal 21 (1983): 165–86Google Scholar; Hay, Douglas and Snyder, Francis, “Introduction: Using the Criminal Law, 1750–1850,” in Policing and Prosecution in Britain, 1750–1850, ed. Hay, Douglas and Snyder, Francis (Oxford, 1989)Google Scholar. In Upper Canada, by contrast, it was normal from the first for prosecutions at the assizes (where the more serious crimes were tried) to be conducted by a crown prosecutor: usually, at first, the attorney general or the solicitor general, later almost invariably an ad hoc appointee of the attorney general. In 1857, supervision was extended to the quarter sessions when the office of county attorney (a government appointment) was established by statute: Romney, Mr. Attorney, 122–39, 216–31.

97. Romney, Mr. Attorney, 104–39; Romney, “Very Late Loyalist Fantasies,” 130–33.

98. Mackay, R. A., “The Political Ideas of William Lyon Mackenzie,” Canadian Journal of Economics and Political Science 2 (1937): 1–22CrossRefGoogle Scholar; Gates, Lillian F., “The Decided Policy of William Lyon Mackenzie,” Canadian Historical Review 48 (1967): 323–45Google Scholar; Rea, J. E., “William Lyon Mackenzie—Jacksonian?” Mid-America 50 (1968): 223–35Google Scholar; and see generally Craig, Gerald M., “The American Impact on the Upper Canadian Reform Movement before 1837,” Canadian Historical Review 29 (1948): 333–52CrossRefGoogle Scholar, reprinted in Johnson, ed., Historical Essays on Upper Canada.

99. Romney, “Conservative Reformer”; Patterson, “Enduring Canadian Myth”; Foord, Archibald S., His Majesty's Opposition (Oxford, 1964)Google Scholar.

100. Blackstone, Commentaries 1: 100–102, 108.

101. Romney, “Conservative Reformer,” 54–57; Patterson, Graeme, “Whiggery, Nationality, and the Upper Canadian Reform Tradition,” Canadian Historical Review 56 (1975): 34CrossRefGoogle Scholar.

102. Kingston Chronicle, Mar. 26, 1823. Baldwin quoted book 1, cap. 3, sees. 32–34 of Vattel's Le Droit des Gens. As a lawyer, he was as familiar with Calvin's Case as with Blackstone (see Romney, “Reinventing Upper Canada,” 89, 93), but clearly he accepted neither as authority for British legislative sovereignty over Ireland. See also Black, Barbara A., “The Constitution of Empire: The Case for the Colonies,” University of Pennsylvania Law Review 124 (1976): 1175–91CrossRefGoogle Scholar.

103. Craig, Upper Canada, 188–225.

104. Romney, “Conservative Reformer,” 47–54; Romney, Mr. Attorney, 141–53, 169–71; Buckner, Transition to Responsible Government.

105. Jones, Elwood H., “Localism and Federalism in Upper Canada to 1865,” in Federalism in Canada and Australia: The Early Years, ed. Hodgins, Bruce W., Wright, Don, and Heick, W. H. (Waterloo, Ont., 1978), 19–41Google Scholar.

106. On William Baldwin, see Dictionary of Canadian Biography 7 (forthcoming); on Robert Baldwin, see ibid. 8: 44–59.

107. I have already documented agrarian anti-legal and anti-commercial sentiment: see, supra, at nn.24–46 passim. Robert Baldwin's second administration (1848–51) saw an upsurge of populist anti-professionalism, which found expression in anti-patronage agitation and demands for the deregulation of the legal and medical professions and the abolition of the Court of Chancery: Romney, Mr. Attorney, 188–92; Riddell, William Renwick, The Bar of the Province of Upper Canada, or Ontario (Toronto, 1928), 96Google Scholar.

108. Careless, Union of the Canadas.

109. Daily Globe (Toronto), Jan. 4, 1883Google Scholar; Ontario Elections, 1883. Pamphlet No. 1: Legislative and Territorial Rights [Toronto, 1883] 8–9Google Scholar; Beaven, B. P. N., “The Last Hurrah: A Study of Liberal Party Development and Ideology in Ontario, 1878–1893” (unpublished dissertation, Toronto, 1981), 338–52Google Scholar.

110. See, supra at n.54.

111. Blackstone, Commentaries 1: 155.

112. The Oxford English Dictionary cites, inter alia, Smith, Goldwin, Lectures on Modern History (Oxford, 1861), 24Google Scholar, a reference which illustrates the priority of the physiological meaning and its application to social analysis. Of course, the very notion of consensus, as an ingredient in bourgeois-democratic ideology, is suspect for its normative connotations, but it is important to recognize the social authority of those norms in actual historical situations.

113. Wallace, Elisabeth, Goldwin Smith, Victorian Liberal (Toronto, 1958)Google Scholar.

114. Tulloch, “Changing British Attitudes.”

115. Smith, Goldwin, Canada and the Canadian Question, intro. by Berger, Carl (Toronto, 1971), 119Google Scholar.

116. Ibid., 143; see also ibid., 129–34, 149.

117. See, supra at nn.86–87.

118. Sugarman, “The Legal Boundaries of Liberty,” 106–11; Atiyah, P. S., The Rise and Fall of Freedom of Contract (Oxford, 1979), 231–37Google Scholar; Jennings, Law and the Constitution, 305–17 and passim. Sugarman characterizes Dicey's account of the constitution as an attempt “to create a new procedural natural law or Bill of Rights which could be used to ensure that legal change was slow and conservative.” I take this to be a suggestion that Dicey hoped to achieve by ideological means what the Federalists tried to achieve by institutional means—the United States Constitution— after independence had so lamentably failed to foster the evolution of a natural aristocracy and a deferential democracy: Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill, 1969)Google Scholar; Pocock, J. G. A., The Machiavellian Moment: Florentine Political Thought and the Republican Atlantic Tradition (Princeton, 1975), 513–26Google Scholar.

119. Risk, R. C. B., “Lawyers, Courts, and the Rise of the Regulatory State,” Dalhousie Law Journal 9 (1984–1985): 31Google Scholar.

120. 9 Edw. VII, c. 19, s. 8.

121. Nelles, H. V., The Politics of Development: Forests, Mines and Hydroelectric Power in Ontario, 1849–1941 (Toronto, 1974), 215–306Google Scholar and passim; Humphries, Charles W., Honest Enough to Be Bold: The Life and Times of Sir James Pliny Whitney (Toronto, 1985), 139–41, 151–56, 163–68Google Scholar; Armstrong, Christopher, The Politics of Federalism: Ontario's Relations with the Federal Government, 1867–1942 (Toronto, 1981), 54–67CrossRefGoogle Scholar; Risk, R. C. B., “Sir William R. Meredith, C. J. O.: The Search for Authority,” Dalhousie Law Journal 7 (1983)Google Scholar.

122. Nelles, Politics of Development, 296–300; Armstrong, Politics of Federalism, 57–63.

123. Forest, Gerald V. La, Disallowance and Reservation of Provincial Legislation (Ottawa, 1955)Google Scholar; Vipond, Robert Charles, “Federalism and the Problem of Sovereignty: Constitutional Politics and the Rise of the Provincial Rights Movement in Canada” (unpublished dissertation, Harvard, 1983), 174–98Google Scholar (this is the best account of the provincial rights controversy in general); Ont. stat. 34 Viet., c. 99; Smith, Canada and the Canadian Question, 143. The matter of the will was one instance when a normally complaisant judiciary did the Diceian thing, refusing to enforce the act on a technicality: Re Goodhue [in Appeal] (1872) 19 Grant's Chanc. Rep. 366.

124. Armstrong, Politics of Federalism, 25–27; Jamie Benidickson, “Private Rights and Public Purposes in the Lakes, Rivers, and Streams of Ontario, 1870–1930,” in Essays in the History of Canadian Law, ed. Flaherty 2:371–74; Vipond, “Federalism and the Problem of Sovereignty” 199–208; Vipond, Robert C., “Constitutional Politics and the Legacy of the Provincial Rights Movement in Canada,” Canadian Journal of Political Science 18 (1985): 275–88CrossRefGoogle Scholar.

125. Stanley, G. F. G., “Act or Pact? Another Look at Confederation,” in Canadian Historical Association, Report and Historical Papers, 1956 (Ottawa, 1957)Google Scholar; Cook, Ramsay, Provincial Autonomy, Minority Rights and the Compact Theory, 1867–1921 (Ottawa, 1969)Google Scholar; Romney, Mr. Attorney, 243–48, 252–54; and see supra at n.102.

126. Banks, Margaret A., Edward Blake, Irish Nationalist: A Canadian Statesman in Irish Politics, 1892–1907 (Toronto, 1957), 30–31, 60–62Google Scholar. Blake was premier of Ontario in 1871–72, intermittently a federal cabinet minister in 1873–78, and leader of the Liberal opposition at Ottawa in 1880–87.

127. This parallel is briefly elaborated in Romney, “Very Late Loyalist Fantasies,” 125–26, 129–30.

128. See, supra at nn.60–63.

129. Dicey, Introduction to the Study of the Law of the Constitution, 40.

130. Smith, Canada and the Canadian Question, 149. Smith continues: “A written Constitution strictly limiting everyone's powers appears to be an exigency of democracy with which the British democracy itself will have some day to comply.” Only two years later, in 1893, Smith described Britain as possessing “the most unbridled democracy in the world": Wallace, Goldwin Smith, 138.

131. Manchester, A. H., A Modern Legal History of England and Wales (London, 1980), 94–99Google Scholar; Friedland, Martin L., Double Jeopardy (Oxford, 1969)Google Scholar; Sigler, Jay A., Double Jeopardy: The Development of a Legal and Social Policy (Ithaca, 1969)Google Scholar; Thompson, E. P., Writing by Candlelight (London, 1980), 99–111, 224–36Google Scholar; Thompson, “Subduing the Jury,” London Review of Books, Dec. 4 and 18, 1986.

132. 30 and 31 Viet., c. 3, ss. 91(27), 92(14).

133. See, supra at n.57.

134. Vipond, “Constitutional Politics,” 288–94; Vipond, “Federalism and the Problem of Sovereignty,” 258–93.

135. 30 C.R.N.S. 209; 23–25 Eliz. II (1974–76) c. 93, s. 75.

136. [1988] 1 S.C.R. 30.

137. Ibid., 76–79.

138. Re Resolution to Amend the Constitution [1981] 1 S.C.R. 753.

139. McWhinney, Edward, Canada and the Constitution, 1979–1982: Patriation and the Charter of Rights (Toronto, 1982), 84Google Scholar.

140. The Constitution Act, 1982, ss. 1–33.