McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montreal
Volume 30
1985
No 3
Property, God and Nature in the Thought of Sir John
Beverley Robinson
David Howes*
The purpose of this essay is to demonstrate
how the legal thought of Sir John Beverley
Robinson, Chief Justice of Upper Canada from
1829 to 1862, differed both radically and sys-
tematically from that of his American con-
temporaries. Cases which would have gone
one way before, say, a Wisconsin judge, went
“the other way” when they came before Ro-
binson, and this because the respective judges
belonged to cultures which developed in
complementary opposition to each other.
Certain analogies are also traced between the
structure of Robinson’s juristic thought and
the contours of his religious and political be-
liefs in an attempt to elicit the inner form of
the mentality of the Loyalist.
Le pr6sent essai cherche A d~montrer com-
ment la pens6e juridique de Sir John Bever-
ley Robinson, juge en chef du Haut-Canada
de 1829 A 1862, se d6marque de mani~re ra-
dicale et syst6matique de celle de ses contem-
porains amrricains. Pour une meme affaire
qui, devant unjuge du Wisconsin, par exem-
ple, aurait 6t6 jug6e selon une orientation
quelconque, Robinson arrivait A la conclu-
sion oppos~e. Ceci s’explique par le fait que
les magistrats appartenaient A des cultures dif-
fierentes qui avaient 6volu6 dans l’antago-
nisme et la complEmentarit. Uauteur fait aussi
certains rapprochements entre Ia structure de
la pens6e juridique de Robinson et la concep-
tualisation de ses convictions politiques et
religieuses afin d’en extraire le fondement de
la mentalit6 loyaliste.
*B.A. (Toronto), M. Litt. (Oxford), B.C.L., LL.B. (McGill), of the Department of Sociology
and Anthropology, Concordia University. The author would like to thank Professors G. Blaine
Baker and Morton Weinfeld of McGill University and Rebecca Colman and David Turner of
the University of Toronto for having introduced him to many of the questions which he has
attempted to answer in this article. This essay was awarded the Wainwright Essay Prize for
1984-85.
McGill Law Joumal 1985
Revue de droit de McGill
REVUE DE DROIT DE McGILL
[Vol. 30
Synopsis
Introduction
I. Law and the Cultural Construction of Reality
II. Law and the Conservation of Energy
III. The Law of Survival of the Moralist
IV. Law in the Bush Garden
Conclusion
Appendix
A realistic history of law in the United States will be a social history of law,
taking law as man-made, and as the product of both deliberation and drift,
but not of any immanent superior order of reality.
_ James Willard Hurst’
By those who are sufficiently humble to believe in the existence of a superior
intelligence, it is very frequently remarked, as they pass through life, how much
better matters have been ordered for them by Providence than they would
have been ordered by themselves, if their wishes had availed them.
– Sir John Beverley Robinson 2
“‘Legal Elements in United States History” in D. Fleming & B. Bailyn, eds, Law in American
History (1971) 3 at 28.
2Canada and the Canada Bill; Being an Examination of the Proposed Measure for the Future
Government of Canada; With an Introductory Chapter Containing some General Views Re-
specting the British Provinces in North America (1840) at 13 [hereinafter cited as Canada and
the Canada Bill]. This was Robinson’s response to the Earl of Durham’s Report on the Affairs
ofBritish North America of 1839, reprinted in abridged form in G.M. Craig, ed., Lord Durham’s
Report (1963).
1985]
Introduction
PROPERTY, GOD AND NATURE
One of the most distinctive features of Canadian history is the degree
to which the conceptions which have shaped its inscription have been im-
ported.3 This tendency is especially pronounced in the writing of Canadian
legal history, where what has been called a “Hurstian approach” currently
enjoys a certain vogue. 4
James Willard Hurst is an American legal historian whose studies of
land and lumber law in the nineteenth-century state of Wisconsin are in-
formed by the motif of the “release of individual creative energy” as the
dominant value in accordance with which the Wisconsin backwoodsmen
hewed the laws which governed them.5 Common sense would suggest that
the legal systems of Upper Canada (Ontario) and Wisconsin share many
common traits given their similar geographical location, climate, resources
and inheritance of the common law from England.
My argument in this essay, however, is that to take a Hurstian approach
to the writing of Canadian legal history would be to elide many important
cultural differences. 6 It is, in short, only by turning Hurst’s model on its
head, by viewing Upper Canada as the converse of Wisconsin, that we can
arrive at a proper understanding of its laws and legal system. The common
law became increasingly uncommon in the course of its migrations.
The theoretical possibility of taking a deductive approach to Canadian
the idea of arriving at one society’s way of interpreting its history
history –
by inverting all the terms of a neighbouring society’s vision of its past –
3C. Berger, “Introduction” in R. Cook, C. Brown & C. Berger, eds, Approaches to Canadian
History (1967) vii at vii-viii.
4See, e.g., D.H. Flaherty, “Writing Canadian Legal History: An Introduction” in D.H. Flah-
erty, ed., Essays in the History of Canadian Law, vol. 1 (1981) 3 at 25. [hereinafter Essays,
vol. 1]; R.C.B. Risk, “A Prospectus for Canadian Legal History” (1973) 1 Dal. L.J. 228.
5See, e.g., J.W. Hurst, Law and Economic Growth: The Legal History of the Lumber Industry
in Wisconsin 1836-1915 (1964).
6 The comparison of cultures requires not that we reduce them to platitudinous
similarity but that we situate them apart as equally significant, integrated systems
of differences …. A “culture” can materialize only in counterdistinction to another
culture.”
J.A. Boon, Other Tribes, Other Scribes: Symbolic Anthropology in the Comparative Study of
Cultures, Histories, Religions, and Texts (1982) at ix. Alternately put, “one knows there are
two cultures where there are two groups of people who, characteristically and repeatedly, assign
different meanings to the same act or event”. L. Armour & E. Trott, The Faces of Reason: An
Essay on Philosophy and Culture in English Canada, 1850-1950 (1981) at xxiii-xxiv.
McGILL LAW JOURNAL
[Vol. 30
has not so far been entertained (systematically) in Canadian historiography. 7
Yet such an approach readily commends itself experientially. An event such
as the Revolution of 1776 not only meant different things to the Loyalist
and to the Republican; it meant opposition. The primary objective of this
article is to reconstruct those oppositions.
As a preliminary indication of the complementary character of the op-
positions which situated American and British North American culture apart
as “equally significant, integrated systems of differences” for the better part
of the nineteenth century, consider the contrast between Hurst’s and Ro-
binson’s visions of history itself. Whereas the historian views history as
“man-made”, the historical subject saw it as dictated by “Providence”. Ro-
binson, in other words, would have had little difficulty in acknowledging
the role of an “immanent superior order of reality” – or what the structural
anthropologist would call a “cultural logic” –
in shaping the course of
events. By a happy coincidence, then, the subject of this essay has left the
record of his thought and action open to a structural analysis of them as
“the projection or ‘execution’ of the system in place”.8
The system which produced the thought of Sir John Beverley Robinson,
Chief Justice of Upper Canada from 1829 to 1862, was “the Loyalist tra-
dition”. Robinson was the archetype of the Loyalist, one of the few veritable
embodiments of that profoundly Canadian myth. His unswerving devotion
to the promotion of the interests of the Imperial Crown was rewarded (unlike
that of others). He was appointed acting Attorney-General in 1812, Solicitor-
General in 1815, Attorney-General in 1818, and Chief Justice in 1829. The
latter office carried with it the Speakership of the Legislative Council and
the Presidency of the Executive Council of the Government of Upper Canada.
In 1850, he was made a Companion of the Bath, and finally, in 1854, he
was created a Baronet of the United Kingdom, whereby he joined the ranks
of the elect.
This fact – Robinson’s Loyalist cast(e) of mind –
should cause some
hesitation with respect to applying American models to the interpretation
7One notable exception is the work of Robin Winks. See R.W. Winks, The Relevance of
Canadian History: U.S. and Imperial Perspectives (1979). There are other exceptions in other
disciplines: G. Grant, “Have We a Canadian Nation?” (1945) 8 Pub. Aft. 161 (political phi-
losophy); S.M. Lipset, Revolution and Counterrevolution (1970) at 32ff(sociology); D.H. Turner,
Dialectics in Tradition: Myth and Social Structure in Two Hunter-Gatherer Societies (London:
Royal Anthropological Institute of Great Britain and Ireland, 1978) (anthropology).
8M. Sahlins, Historical Metaphors and Mythical Realities: Structure in the Early History of
the Sandwich Islands Kingdom (1981) at 3. See also M. Gaboriau, “Structural Anthropology
and History” in M. Lane, ed., Introduction to Structuralism (1970) 156; P. Bourdieu, Outline
of a Theory of Practice (1977); and, infra, note 134 and accompanying text on Robinson’s
conception of himself as an instrument of Providence.
1985]
PROPERTY, GOD AND NATURE
his legal (political, or religious) thought. As will be shown, a huge gulf
separates Hurst’s instrumental or functionalist conception of the relation-
ship between law and society from Robinson’s conception of himself as an
instrument of “Providence”. This discrepancy or absence of a “meeting of
minds” between historian and subject will in turn be employed to expose
the weaknesses of functional analysis.
Most legal scholars in the United States subscribe to the functionalist
perspective. 9 The two most central axioms of this viewpoint are that legal
systems adapt to changing social “needs” or “interests”, and that all societies
are evolving in the same direction (the direction of the capitalist, liberal
democratic state). The teleology implicit in the functionalist perspective has
come under attack in recent years. A number of attempts have been made
to show that “[i]f there are evolutionary processes in social life, they are
processes whose logic is one of multiplicity, not uniformity of forms.”10 If
it can be demonstrated that similar material conditions produced diametr-
ically opposed world views in nineteenth-century Ontario and Wisconsin,
this would lend credence to the latter tradition.
The most fatal flaw in functionalism, however, is its blindness to the
constitutive role of the categories of legal thought.11 In a very real sense,
the “needs” of society only become accessible to consciousness through the
mediation of a given symbolic scheme or system of categories. Those “needs”
which remain refractory to the operations of classificatory thought simply
9Alongside Hurst one could range, for example, C.A. Beard, An Economic Interpretation of
the Constitution of the United States (1923); H.N. Scheiber, “Property Law, Expropriation and
Resource Allocation by the Government: The United States 1789-1910” (1973) 33 J. Econ.
Hist. 232. See further R.W. Gordon, “Historicism in Legal Scholarship” (1981) 90 Yale L.J.
1017.
10R.W. Gordon, “Critical Legal Histories” (1984) 36 Stan. L. Rev. 57 at 70-1. As Gordon
goes on to argue, “if there is no such single process [as, say, the “process of modernization”],
there can’t be any single set of functional responses to it either”. See also M. Feinman, “The
Role of Ideas in Legal History” (1980) 70 Mich. L. Rev. 722.
Legal thought is, in essence, the process of categorization. The lawyer is taught to
place phenomena into categories such as fact or law, substance or process, public
or private, contract or tort, and forseeable or unforseeable, to name but a few.
Categorizing phenomena determines how they will be treated by the legal sys-
tem. … The task of the legal historian … is to explore the origins and structure
of the categories.
K.J. Vandevelde, “The New Property of the Nineteenth Century: The Development of the
Modern Concept of Property” (1980) 29 Buff. L. Rev. 325 at 327.
REVUE DE DROIT DE McGILL
[Vol. 30
do not exist for all intents and purposes (including those of the functionalist
historian). 12
The perspective adopted in this essay is most akin to the method known
as structuralism in anthropological circles.’ 3 But rather than treat that ap-
proach separately here, the general ideas on history which it imports are
interwoven with the concrete happenings that demonstrate them in the text
which follows. Part I deals with the problem of the reception of English law
in nineteenth-century Ontario and demonstrates that what was transmitted
was not necessarily received. Part II explores the way in which a distinctly
“American spirit” came to inform the English common law in the nine-
teenth-century United States (and offers a critique of the prevailing modes
of ascertaining that “spirit” in the process). Part III concerns the manner
in which Sir John Beverley Robinson embodied that “integrated system of
differences” that was the Loyalist (anti-Republican) tradition by way of
contrast, and Part IV illustrates how those differences received expression
in the context of the cases he decided.
I. Law and the Cultural Construction of Reality
It has been remarked of Robinson that “he was one of the early makers
of a tradition that has become dominant among Canadian judges: deference
to authority, denial of any significant creative power, and denial of any
general attitudes beyond fidelity to statutes and the accumulation of prec-
edent”, the implication being that this disposition somehow differentiated
Robinson’s way of thinking from that of his American counterparts. 4 But
it is actually just as creative to deny oneself any “creative power” and believe
oneself to be applying the “principles” of the English common law to the
12Thus, whereas a functionalist historian would attempt to explain which among various
historical forces “caused” a particular judicial decision, the approach advocated in this essay
attempts to describe the structure of legal thought. The difference lies both in using
a purely descriptive rather than explanatory approach, and in examining the struc-
ture ofan entire conceptual scheme rather than the outcomes of particular decisions.
The effort is not to explain why a particular side won on a given day, but to describe
the conceptual apparatus by which the court justified [or better, arrived at] its
decision.
Ibid. at 326. See also D. Kennedy, “The Structure of Blackstone’s Commentaries” (1979) 28
Buff. L. Rev. 209 and A.B. McKillop, “So Little on the Mind” (1981) 19 Royal Soc’y Can.
Proc. & Transactions 183.
13For an account of how structuralism has displaced functionalism within anthropology, see
R.E McDonnell, “Anthropology and the Study of Religion” in D.H. Turner & G.A. Smith,
eds, Challenging Anthropology: A Critical Introduction to Social and Cultural Anthropology
(1979) 100. For an account of the relevance of structuralism to legal studies in general, see
T.C. Heller, “Structuralism and Critique” (1984) 36 Stan. L. Rev. 127.
14R.C.B. Risk, “The Law and the Economy in Mid-Nineteenth-Century Ontario: A Per-
spective” in Essays, vol. 1, supra, note 4, 88 at 118.
1985]
PROPERTY, GOD AND NATURE
disposition of a particular case (as Robinson did) as it is to imagine oneself
to be boldly departing from that tradition (as the American judges did).15
Both the Canadian and the American judges were engaged in the cultural
construction of reality, but their cultures were different. It is only natural
that their cultures would instill in them different attitudes towards the law.
It must be stressed, however, that I am not suggesting that Robinson
actually did remain faithful to English “principles” throughout, even though
he believed he did. The simple reason for this is that British culture was
not Canadian culture. This raises the problem of reception in the mind of
Robinson and the other Canadian jurists of his time. According to the
prevailing modem version of the “doctrine of reception”:
In 1791 the Constitutional (or Canada) Act, (Imp.) 31 Geo. 3, c. 31 split off
from the colony of Canada the newly-settled English-speaking areas west of
the Ottawa River and constituted them as Upper Canada, a separate colony
with its own legislature. That body by (U.C.) 32 Geo. 3, c. 1 immediately
repealed “Canadian” [that is, French] law and introduced English law “from
and after the passing of this Act” [which Act received assent on October 15,
1792]. … This 1792 Act established English law (excepting bankruptcy and
poor laws, but including the law of evidence) as the rule of decision for all
matters of “property and civil rights”.’ 6
It is misleading as well as naive (symbolically speaking) to assert that (U.C.)
32 Geo. 3, c. 1 “established English law”. That statute established a differ-
ence, the difference between Upper Canada and Lower Canada (Quebec).
Differences are “social facts”.
In the terms employed by structuralists, social facts represent selections from
larger sets of possibilities of which societies keep symbolic track, whether con-
sciously or unconsciously, explicitly or covertly. Societies conceptualize them-
selves as select (in both senses) arrangements, valued against contrary arrangements
that are in some way “objectified”. … Cultures themselves are at base dialectical.’ 7
Transposed into legal terms, what the above quotation imports is that Upper
Canada could have been governed by all the laws of England and all the
laws of France. Instead, explicit symbolic track was kept of English law,
and French law was rejected because the English-speaking settlers “objected”
‘sRobinson’s judicial creativity may be compared to the literary inventiveness of “Pierre
Menard, Author of the Quixote’, who “did not want to compose another Quixote – which
is easy – but the Quixote itself’. J.L. Borges, Labyrinths: Selected Stories and Other Writings
(1964) at 39. It may also be compared to the diagnostic genius of the medical professional.
See M. Taussig, Reification and the Consciousness of the Patient (1980) 14B Soc. Sci. &
Med. 3.
l6J.E. Ct6, “The Reception of English Law” (1977) 15 Alta L. Rev. 29 at 88. See also, E.G.
Brown, “British Statutes in the Emergent Nations of North America: 1606-1949” (1963) 7 Am.
J. Legal Hist. 95.
‘7Boon, supra, note 6 at 52-3.
McGILL LAW JOURNAL
[Vol. 30
to it. Indeed, Upper Canadian society strove to make itself “the image and
transcript” of British society, to use Governor-General Simcoe’s words,’ 8
but it failed to achieve this “objective” according to the terms of the very
act which constituted it by not “receiving” England’s bankruptcy and poor
laws. Therefore, Upper Canada established itself as neither French nor (purely)
British.
Still, rumours or covert symbolic traces of these other cultures persisted.
For example, Robinson himself referred to such French authorities as Po-
thier in a number of his judgments.’ 9 What are we to make of this polyjur-
ality given the prescription that for all matters of property and civil rights
English law was to provide “the rule of decision”? The motivation behind
Robinson’s erudition was “unconscious” in the terms employed by struc-
turalists. Similarly, what are we to make of the statement in the much later
case of Drulard v. Welsh that, “till this day there is much unpatented land
situate in Windsor which is held under a steady continuation of the old
French occupancy”?20 This anomaly stems from the fact that the lands
fronting on the river in the Windsor area, Essex county, were occupied by
a settlement of habitants who held their concessions under a system of
attenuated feudal tenures. The certificates of occupation which attest to the
existence of these concessions all contain the words Cens et Rente and Lods
et Vente, and are on record at Detroit from 1734. The fact that a good
number of these concessions have not yet been commuted into patented
grants in free and common socage is a further example of the degree to
which cultures are dialectical at base.
But there is another more radical sense in which it is illusory to speak
of English law as having been “received” on October 15, 1792. The challenge
and hence the concerns which confronted the Loyalist settler carving out
an existence in the midst of the Canadian wilderness were very different
from those which occupied the English legal system. Nature had not yet
been subdued, and even the relatively rugged area of the Lake District
presented itself as “serene” in comparison with the wilds of Upper Canada
to an observer such as Robinson. Consider the following “Lines on an April
visit to Windermere on a fine evening, immediately after a storm” (hardly
‘8Cited in G.M. Craig, Upper Canada: The Formative Years 1784-1841 (1963) at 29.
19See, e.g., Rochleau v. Bidwell (1831), Draper 345 at 358 (U.C.K.B.); Bank of Upper Canada
v. Boulton (1834), 4 U.C.Q.B. (O.S.) 158 at 163; Doeex dem. Jonesv. Capreol(1835), 4 U.C.Q.B.
(O.S.) 227 at 240. For an alternative account of Robinson’s polyjurality as the expression of
“a well-developed and subtle legal supra-nationalism” or “deliberate and principled borrowing
of ideas” see G.B. Baker, “The Reconstitution of Upper Canadian Legal Thought in the Late-
Victorian Empire” (1985) 3 Law & Hist. Rev. 165.
20(1906), 11 O.L.R. 647 at 652 (Ont. Div. Ct).
1985]
PROPERTY, GOD AND NATURE
a compelling title) which he wrote in 1817 after a “poetical fit” had gripped
him:
The clouds are fled, the storm is o’er,
The winds are hushed that swept thy shore,
‘Tis evening, and thy mountains gleam
Beneath the sun’s departing beam,
The mists the clouds had scattered wide,
Are gilded as they mount their side.
More lovely now each charm appears,
‘Tis beauty smiling through her tears.
Sweet lake, whose bosom clear, serene,
Reflects each feature of the scene,
One who ne’er thought to wander here,
A stranger greets thee, Windermere.
Born in a land where winter reigns
Stem as o’er bleak Siberia’s plains,
Where summer’s bright and genial sky
Might rival that of Italy,
I oft have stray’d where deep’ning wood
Frowns o’er St. Lawrence’ noble flood,
Or where Niagara’s torrents roar –
Sublimest work in nature’s store.
On Abr’ham’s plains where Britain’s pride –
Lamented Wolfe –
But could I hope to wander here,
On thy sweet margin – Windermere? 2′
in victory died.
The contrasts in this poem, sweet versus stem, smiling versus frowning,
serene lake versus roaring falls, and so on, are indicative of the contrasts
between the two environments. But the most illuminating feature of this
poem is the insight it gives us into Robinson’s perception of himself as “a
stranger” who wanders on the “margin” of the lake just as he occupied a
marginal or liminal status with respect to British society in general. This
liminality is reflected in the doctrine he articulated in the case of Doe An-
derson v. Todd: “it would be easy to enumerate a long list of [English]
statutes, all actually capable of being acted upon in this country, but which,
having been passed upon grounds and for purposes peculiar to England and
either wholly or in a great degree foreign to this colony, have never been
21Cited in C.W. Robinson, Life of Sir John Beverley Robinson (1904) at 122. It may be
inferred from the words which accompany this poem that the first verse is an allegorical
description of Emma Walker’s body, the Englishwoman who was to become Robinson’s wife.
REVUE DE DROIT DE McGILL
[Vol. 30
attempted to be enforced here, and have never been taken to apply to us”. 22
One can imagine few more forceful statements of judicial law-unmaking.
What is the point of having a reception statute in the face of pronouncements
like this one? To what extent did Robinson regard himself as free to choose
which law to apply? Did he, for example, evidence the same pragmatic spirit
as his American counterparts in this regard?23
In 1893, Frederick Turner traced the roots of “that practical, inventive
turn of mind, quick to find expedients, … that restless, nervous energy” so
characteristic of the response of the American intellectual to the experience
of life on the frontier.24 Other historians, Willard Hurst among them, have
followed Turner’s lead, treating America’s geography as the key to its men-
tality. The next part of this essay is devoted to describing that mentality
and adducing evidence of how Robinson’s intellect crystallized in opposition
to the frontier.
II. Law and the Conservation of Energy
In Law and the Conditions ofFreedom in the Nineteenth-Century United
States, Willard Hurst attempted to show how a dynamic, instrumentalist
conception of law came to supplant the static, protective conception which
prevailed during the colonial era. Whereas seventeenth- and eighteenth-
century statutes tended to emphasize community security and morality by
legislating against treason, compelling church attendance, restricting the al-
ienation of land, and setting standards of quality and measure to ensure the
reception of locally produced goods in foreign markets, those of the nine-
teenth century were designed to facilitate private initiative. The Revolution
of 1776 marked the turning point –
elevating the value of the individual
over that of the well-ordered community – by abolishing feudal land tenure,
forbidding the granting of any titles of nobility, extending the suffrage, and
entrenching a bill of rights.
But it would be mistaken, Hurst argued, to regard the nineteenth cen-
tury as dominated by a purely negative laissez-faire (or “hands-off’ to the
state) legal and economic policy. It was not “freedom from” the American
22(1845), 2 U.C.Q.B. 82 at 87. The years Robinson passed at Lincoln’s Inn preparing for
admission to the English Bar may be viewed as the liminal stage in this uniquely lawyerly rite
of passage which precedes being “called”. It would have been during this period that the seeds
of the doctrine articulated in Doe Anderson v. Todd, ibid. were sown. See the chapter entitled
“Betwixt and Between: The Liminal Period in Rites of Passage’ in V.W. Turner, The Forest
of Symbols: Aspects of Ndembu Ritual (1967) at 93.
2See M.J. Horwitz, The Transformation of American Law 1780-1860 (1977) at 4-30.
24EJ. Turner, The Frontier in American History (1920) at 37. But see R.W. Winks, The Myth
of the American Frontier: Its Relevance to America, Canada and Australia (1971).
1985]
PROPERTY, GOD AND NATURE
people desired but “freedom to”. They were obsessed with the idea of “pos-
sessing liberty” which, in practice, meant “that law should increase men’s
liberty by enlarging their practical range of options in the face of limiting
circumstance”. 25 The vastness of the continent (read: obstacle to the creation
of state- and nation-wide markets), the dearth of people (read: labour power),
and the scarcity of fluid, mobile capital all seem to have been regarded as
personal affronts. And they were affronts to be taken personally given the
widely disseminated belief that “[h]uman nature is creative, and its meaning
lies largely in the expression of its creative capacity; hence it is socially
desirable that there be broad opportunity for the release of creative human
energy.” 26 Thus, the middle class insisted that government and law help
them (to help themselves) in overcoming “the facts of distance and scarcity
of means relative to opportunities”.27
The years 1800 to 1875 were the years of contract according to Hurst.
The expansion of contract meant “increasing the scope of individual dis-
cretion in the management of resources”, a development consistent with
the “release of energy policy”, and expressive of “the increasing dominance
of the market in social organization”. 28 The policies to which the courts
gave effect in their decisions during this era reflected a pervasive concern
for market-functioning. One such policy was to encourage entrepreneurs by
reducing risks. In order to reduce risks damages had to be restricted, an end
which was accomplished by substituting the courts’ “objective” appreciation
of the terms of a contract or particular course of conduct for that of the
the courts’ “objective” being, of course, to promote economic
parties –
development.
One of the further effects of the rise of contract was the transformation
of land into a commodity. In this regard, it is ironic that we tend to associate
the nineteenth century with the elaboration of the doctrine of vested rights
since, according to Hurst, “[d]ynamic rather than static property, property
in motion or at risk rather than property secure and at rest, engaged our
principal interest.” 29 This preoccupation was manifest in the abolition of
primogeniture and entail, the granting of control over property to married
women, and so on, none of which measures provoked any serious objection
from adherents of the doctrine of vested rights.
25J.W. Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States
(1956) at 6 and 53.
26Ibid. at 5.
27Ibid. at 44. See generally L.B. Hartz, Economic Policy and Democratic Thought: Pennsyl-
vania 1776-1860 (1948); 0. & M. Handlin, Commonwealth: A Study of the Role of Government
in the American Economy: Massachusetts 1744-1861 (1969); H.N. Scheiber, Ohio Canal Era:
A Case Study of Government and the Economy, 1820-1861 (1969).
2 81bid. at 14, 9 and 14.
291bid. at 24.
McGILL LAW JOURNAL
[Vol. 30
However, the subversive kind of interpretation which Hurst has given
to the doctrine of vested rights may itself be subverted. Consider the fol-
lowing passage: “In the field of commercial transactions, especially, absolute
concepts of property rights as a form of individual liberty [or “freedom
from”] yielded to doctrines intended to enforce the security of transactions.
[In this wayJ contract law invoked the compulsive force of the state to set
a framework for dealing”. 30 What this passage implies is that as property
became more fluid (Le. transferable) the law of contract became more fixed.
All that “really” took place historically, then, was the conversion of eight-
eenth-century property law into nineteenth-century contract law. Both the
“objective” theory of contract and the “absolute dominion” theory of prop-
erty (to be discussed shortly) present themselves as immutable, but they are
immutable only in the sense that they are total transformations (inversions)
of each other. The American legal system as constituted (and in the process
of reconstituting itself) did not, therefore, allow for the escape, or release,
of any of its energy. All that can be discerned are the traces of a kind of
suprahistorical (physical) “law for the conservation of energy” operating
through the courts. It is intriguing that Hurst should thus have articulated
the legal equivalent of the first law of thermodynamics, and it would be
interesting to know whether the development of Canadian law reveals the
opposite tendency (contract into property). 31 Suffice it for the moment to
say of the American legal system as Heraclitus said of the universe in general:
“It rests by changing.” 32
In The Transformation ofAmerican Law, 1780-1860, Morton Horwitz’s
concern, like Hurst’s, was to document the shift from a protective, anti-
developmental attitude to an instrumental, procommercial stance on the
part of the courts. Perhaps the best way to gain access to Horwitz’s recon-
struction of American legal thought circa 1820 is to allow it to crystallize
in contradistinction to Chief Justice Robinson’s thought. For example, in
30Ibid. at 15.
31This possibility, which is inspired by inverting Maine’s “law” to the effect that “the move-
ment of the progressive societies has hitherto been a movement from Status to Contract”, is
entertained further, infra, note 99 and accompanying text. See Sir H.S. Maine, Ancient Law
(1917) at 100 in conjunction with Ivi-Strauss’s analogy of the passenger in a train in C. Ievi-
Strauss, StructuralAnthropology, vol. 2, trans. M. Layton (1978) 323 at 339-41. It is significant
in this regard that the Upper Canadian Legislature passed “An Act to Prevent the further
introduction of slaves and to limit the term of Enforced Servitude in this Province” in 1793,
that is, some seventy years before slavery was abolished in the United States. Whatever the
political motives behind this Act might have been, what it marks is the fact that Upper Canadian
society was not status based, but contract and honour based; thus a kind of meritocracy pred-
icated, as we shall see, on strict adherence to the terms of the convenant with the mother
country.
32Cited in A. Wilden, System and Structure: Essays in Communication and Exchange (1972)
at 68. See also the chapter entitled “Beyond the Entropy Principle in Freud”, ibid. at 125ff.
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PROPERTY, GOD AND NATURE
1840 the Gentlemen of the Grand Jury presented Robinson with a paper
for communication to the Lieutenant-Governor. This paper turned out to
be “an expression of opinion upon various subjects of general policy”. The
Chief Justice reacted in the following manner:
I have a strong reluctance as a judge to be made the channel of such a
communication, and from respect to the Grand Jury I will state my reasons.
The business of this Court is to administer justice, and we cannot too
closely confine ourselves to it. His Majesty’s subjects should all feel that they
stand here upon an equal footing. We have to do with rights in this place, and
with opinions only so far as they bear upon those rights. To deviate to the
debatable ground of politics would be departing from our proper sphere.33
It might seem strange for these words to come from one who as Chief Justice
was ex officio Speaker of the Legislative Council and for a time President
of the Executive Council, but for Robinson the separation of law and policy-
making was clear in theory (if not, of course, in reality and, possibly, in
practice).
It could be said that Robinson conceived of the common law in much
the same way as an eighteenth-century American judge would, “as a body
of essentially fixed doctrine to be applied in order to achieve a fair result
between private litigants in individual cases”. 34 He did not regard common
law rules as instruments of social policy, nor did he view himself as effecting
social change (or stasis) by applying them. He regarded the function of his
office as being exhausted by doing justice in the individual case, and did
not labour under the self-conscious delusion that the impact of a decision
extends beyond the individual case to anything like the extent that his
nineteenth-century American counterparts did.
Above all, Robinson was concerned that none would have reason to
fear judicial discretion or, for that matter, the arbitrariness and unpredict-
ability of jury decision-making: “[Y]ou will excuse my stating frankly to
you that opinions on the subjects discussed in this representation would
more properly, as I think, be withheld by you while acting in the capacity
of Grand Jurors. Every man in the community is interested in guarding the
’35
administration of justice from suspicion, misconstruction, or reproach.
It is not as though Robinson were unaware of what was transpiring in
the United States, for he referred to American authorities as often as he did
33Robinson, supra, note 21 at 314.
34Horwitz, supra, note 23 at 1.
35Robinson, supra, note 21 at 315.
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to French authorities. 36 But this polyjurality had its limits because, in the
final analysis, Robinson regarded himself as bound by (U.C.), 32 Geo. 3, c.
1, s. 2 which prescribed that the “rule of decision” in each case was to be
discovered by searching the decisions of the English courts. As he remarked
in Street v. Commercial Bank of the Midland District,
[t]he American courts … find no insuperable difficulty in relieving themselves
from the mere force of English authority, when they think adjudged cases at
variance with general principles. We are clearly bound by such authority, when
we can shew no dispensation from it. … The tribunals of the United States …
have in the decisions of the English courts a pattern which they may work by
…. We have in them a pattern which we must work by, unless where the
legislature has sanctioned a deviation. 37
The allusions to French and American authorities took place, therefore,
within and according to the encompassing framework of the “pattern” that
could be discerned in the decisions of the courts of England. The allusions
were not “deviations” (since it would have been unconstitutional to “de-
viate”) –
they were but further refractions (independent confirmations) of
the “pattern”. At least, this is how Robinson rationalized the unconscious
promptings, the alterities and rumours of other cultures, embedded in the
culture of Upper Canada.
Horwitz aptly sums up the countervailing attitude of the American
judiciary circa 1820 in the following passage: “judges came to think of the
common law as equally responsible with legislation for governing society
and promoting socially desirable conduct. The emphasis on law as an in-
strument of policy encouraged innovation and allowed judges to formulate
legal doctrine with the self-conscious goal of bringing about social change.”’38
36See, e.g., Doe dem. Hill v. Gander (1844), 1 U.C.Q.B. 3; Davidson v. Bartlett (1844), 1
U.C.Q.B. 50;Beckettv. Cornish (1847), 4U.C.Q.B. 138; Wilcocksv. Tinning(1850), 7 U.C.Q.B.
372; Lewis v. Brooks (1851), 8 U.C.Q.B. 576; Marmora Foundry Co. v. Jackson (1852), 9
U.C.Q.B. 509; Sinclair v. Robson (1858), 16 U.C.Q.B. 211; Maulson v. Topping (1858), 17
U.C.Q.B. 183. For the most part, Robinson relied on American treatise writers for authority
in commercial matters. This reflects a lacuna in the English treatise writing of the time as well
as a hiatus in the Chief Justice’s own thinking: “[T]rade and revenue are not all that constitute
the happiness of a people …
. [E]ndangering other objects in the hope of benefiting these [as
the American people had done], we may find that we have purchased even wealth at too high
a price.” Canada and the Canada Bill, supra, note 2 at I 11.
37(1844), 1 Grant 169 at 189 (U.C. Ch. Ct). See also Baldwin v. Roddy (1832), 3 U.C.Q.B.
(O.S.) 166; Doe ex dem. Jones v. Capreol, supra, note 19 at 227; Baldwin v. Montgomery (1843),
1 U.C.Q.B 283; Maulson v. Commercial Bank (1845), 2 U.C.Q.B. 338; Davis v. Barnett (1853),
10 U.C.Q.B. 50.
38Horwitz, supra, note 23 at 30.
1985]
PROPERTY, GOD AND NATURE
Robinson was also preoccupied with “promoting socially desirable con-
duct”, but the conduct he enjoined was of a wholly different sort. 39
One of the most engaging chapters of Horwitz’s book is Chapter 2, “The
Transformation in the Conception of Property”. This chapter documents
how nineteenth-century American judges turned Blackstone’s “absolute do-
minion” conception of the right to property on its head.
“There is nothing which so generally strikes the imagination”, Black-
stone wrote in the Commentaries, “and engages the affections of mankind,
as the right of property; or that sole and despotic dominion which one man
claims and exercises over the external things of the world, in total exclusion
of the right of any other individual in the universe”. 40 In and of itself, this
passage is perfectly ambiguous, but the meaning ascribed to it was dictated
by the agrarian context in which it was written. “Absolute dominion” con-
noted the power to prevent one’s abutters from using their lands in such a
way as to disturb the peaceful enjoyment of one’s own estate. “Natural use”
was the rule and any action which tended to disturb the existing order of
things or “nature’s plan” (such as obstructing the natural flow of a stream)
attracted liability.
But in the early nineteenth-century United States, the “natural use”
doctrine proved to be an impediment to the prevailing conception of ma-
terial progress. The question became one of how to facilitate interference
with the property rights of others in the interests of increased productivity.
Palmer v. Mulligan marked this “shift in premises”. In that case it was
decided that the natural flow of water could be obstructed for milling pur-
poses by an owner of the streambed situated upstream. This implied that
the courts would henceforth protect virtually any enjoyment except for a
peaceful one. All one needed to have on one’s side (or up one’s creek) was
“progress” (if not God or nature as per the older view), and the courts would
see to it that this use was sanctioned.
There was nothing less “absolute” about a land owner’s dominion under
this new dispensation than under Blackstone’s. If anything, his dominion
was extended beyond the boundaries of his own property and over those
of his abutters (providing his was the more productive use). It is precisely
this lack of respect for boundaries, however, which would have troubled a
Blackstone or a Robinson, a point we shall return to later.
391t could be said that while American judges were concerned with maximizing productivity
and the accumulation of capital, Robinson sought to maximize morality. See P. Brode, Sir
John Beverley Robinson: Bone and Sinew of the Compact (1984) at 171-5.
40Commentaries on the Laws of England, vol. 2, 14th ed. by E. Christian (1803) at 2.
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The American judges had to experiment somewhat before they arrived
at the ideal solution to the problem of invading the property of the other
in the interests of maximizing economic welfare. The first doctrine to sup-
plant the “natural use” doctrine was the rule of priority of use (or “first in
time is first in right”). This rule gave at least the first user freedom to develop
his lands as he saw fit. But it also conferred upon him the power to arrest
a future conflicting use which, in the estimation of the judges, might have
proved more productive. The danger in conferring such a monopolistic or
exclusionary right, according to the prevailing judicial opinion, lay in the
fact that “the public, whose advantage is always to be regarded, would be
deprived of the benefit which always attends competition and rivalry”. 41
In order to promote competition and rivalry the right to property had
to be invasionary rather than exclusionary. This policy underlay the de-
velopment and eventual triumph of the “reasonable use” doctrine according
to which the reasonableness of a mill’s interference with the flow of water
determined whether an action would succeed or not. Interference thus be-
came the norm, as opposed to the exception, and the injuriousness of the
use became a question of degree.
The Robinson court was also called upon to decide a series of mill-
dam cases. The most remarkable feature of these judgments is the manner
in which the facts are represented –
as if the intention were to exclude any
suggestion that boundaries had been transgressed. In Brown v. Street, for
example, the party who emerged as the one to have shown the most respect
for existing boundaries was the defendant! Brown brought an action against
Street in 1840 for overflowing his gore lot. The deed to Street’s predecessor
in title, however, showed that Brown had granted the latter a privilege to
as much of the gore lot as might be overflowed by the construction of a
mill-dam. Moreover, “[ilt appeared, that more than twenty years before this
action was brought, boundaries had been placed to mark the height of water
agreed upon, as necessary for the purpose of the proposed mill”, and that
despite an alteration defendant had made to the mill, the water had not
overflowed the boundary marks.42
Robinson acknowledged in his judgment that the deed concerned “may
not operate to pass the estate in the land intended to be overflowed [to the
defendant] … but it may well operate as a license under seal to overflow the
4’Palmer v. Mulligan, 3 Cai. R. 307 (N.Y. Sup. Ct 1805). Cited in Horwitz, supra, note 23
42(1844), 1 U.C.Q.B. 124 at 125.
at 37.
1985]
PROPERTY, GOD AND NATURE
land, or as the grant of an incorporeal hereditament”. 43 As this passage
shows, Robinson remained uncertain as to the exact nature of defendant’s
right, or how exactly it should operate. The tone of his writing also suggests
that he was impatient to see the case resolved. One suspects that the reason
for his impatience lay in the fact that he always strove for precision and
exactness in his judgments. Robinson was not the type to multiply bound-
aries beyond necessity (to paraphrase Ockham),44 yet in this case he was
confronted with two equally valid lines of demarcation: the property line
and the water line. In the end he opted for the boundary line which had
not been blurred, the one which seemed more cut and dried. “It is part of
our human condition to long for hard lines and clear concepts. When we
have them we have to either face the fact that some realities elude them,
or else blind ourselves to the inadequacy of the concepts.” 45
Robinson appears to have felt most at ease in those cases where he was
called upon to apply the doctrine of prescription. This doctrine satisfied his
longing for “hard lines” since, unlike the doctrine of “reasonable use”, that
of prescription did not admit of degrees: a party either acquired a right after
twenty years uninterrupted use, or he did not.46 Robinson’s American coun-
terparts were opposed to the doctrine of prescription because, like the rule
of priority of use, its application tended to produce monopolistic and ex-
clusionary results. Their vision of society as founded upon competition and
rivalry was not shared by Robinson, however, who took a more organic
view: even from the perspective of a plaintiff, “to have a mill built in his
43Ibid. at 125-6. Robinson’s dissenting opinion in Beaver v. Reed (1851), 9 U.C.Q.B. 152
may be interpreted as an extension of the logic in Brown v. Street, supra, note 42, to include
parol licences. A licence of this sort could be used as a shield, but not as a sword: Robinson
v. Fetterly (1852), 8 U.C.Q.B. 340; Canada Company v. Pettis (1852), 9 U.C.Q.B. 669. For the
connection of this estoppel-like doctrine with the doctrine of “natural use” see Adamson v.
McNab (1948), 6 U.C.Q.B. 113. Robinson appears to have drafted a number of these agreements
while at the Bar (which may account for why he was so anxious to have them upheld). See,
e.g., Eastwood v. Hellivell (1835), 4 U.C.Q.B. (O.S.) 38. See also J. Benidickson, “Private
Rights and Public Purposes in the Lakes, Rivers and Streams of Ontario 1970-1930” in D.H.
Flaherty, ed., Essays in the History of Canadian Law, vol. 2 (1983) 39 at 365.
44See, e.g., Doe dem. Hill v. Gander, supra, note 36; Gallagher v. Brown (1846), 3 U.C.Q.B.
350; Shenvood v. Moore (1847), 3 U.C.Q.B. 468; Doe dem. Beckett v. Nightingale (1848), 5
U.C.Q.B. 518.
45M. Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and-Taboo (1978)
at 162.
46See, e.g., McLaren v. Cook (1846), 3 U.C.Q.B. 299; Buell v. Read (1848), 5. U.C.Q.B. 546
(the closest Robinson ever came to formulating a doctrine of “reasonable use”); McNab v.
Adamson (1849), 7 U.C.Q.B. 100; Bowiby v. Woodley (1852), 8 U.C.Q.B. 318; McKechnie v.
McKeyes (1852), 10 U.C.Q.B. 37; Haley v. Ennis (1852), 10 U.C.Q.B. 404.
REVUE DE DROIT DE McGILL
[Vol. 30
neighbourhood … might be a great convenience to himself and tend to
enhance the value of property”. 47
Robinson’s idyllic vision, in fact, simply prevented him from making
a purposive, functional analysis of common law rules with an eye to the
relative efficiency of competing uses. The following passage from Dean v.
McCarty, a hypothetical situation where the Chief Justice considers the
question of who should bear the loss in the event of a fire spreading out of
control, illustrates this point.
For example, a man may have a very valuable mill, and a neighbour having
a small piece of woodland adjoining to it, of trifling value compared to the
mill, in the process of clearing sets fire, which, unfortunately, by a sudden rise
or change of wind, spreads so as to consume the mill in spite of all the exertion
that can be used. It may be said, here is a case in which one of two innocent
men must bear a serious loss, and that the misfortune would more properly
fall upon the one who was a voluntary agent in setting the cause of the injury
in motion, than upon him who had no share whatever in producing it. … Still,
I apprehend, that such a case must go to the jury, like all other cases of the
kind, upon the question of negligence. If the principle is a sound one, it must
be applied throughout. 48
This passage reads like a parody of American judicial reasoning. The
frankness with which Robinson discusses the question of who should bear
the loss is quite modem, but the manner in which he left the question open
would have horrified an American judge. One cannot, therefore, regard Dean
v. McCarty as a case in which older notions of strict liability for nuisance
are being replaced by the more “cost sensitive” regime of negligence. It was
not self-evident to Robinson that it would be more “efficient” or “produc-
tive” to promote one use (milling) over the other (clearing the land), and
one must accept this as an indication of the extent to which standards of
efficiency and the like are culture-bound.
47Beaver v. Reed, supra, note 43 at 157. Robinson’s views on competition were diametrically
opposed to those of his American countemporaries. For example, in a case concerning the
infringement of an exclusive right of ferry between Upper Canada and New York, the Chief
Justice had this to say on the subject of government regulation:
It is quite obvious that if all were left to chance, and no one could be protected in
an inclusive right, it would not be worth the while of any person to make and
maintain such provision for the public accomodation as would enforce dispatch
and safety; competition would at one time reduce the cost of ferrying so low, that
no one would find it for his advantage to keep a sufficient establishment for that
purpose, and when this competition had driven all but one or two from the em-
ployment, then the power to extort would succeed, and there would never be cer-
tainty if the thing were left to regulate itself.
Kerbyv. Lewis(1841), 6 U.C.Q.B. (O.S.) 207 at 210. See also Nelson v. Cook(1854), 12 U.C.Q.B.
22.
48(1846), 2 U.C.Q.B. 448 at 449.
1985]
PROPERTY, GOD AND NATURE
The fact that Robinson did not participate in the same appreciation of
the demands of the hypothetical situation posed in Dean as his American
counterparts is indicative of more than just the non-universality of such
concepts as “efficiency”. It exposes the radical contingency of the function-
alist method in American historiography, a method which must assume the
existence of such concepts in order to proceed. Indeed, one of the major
faults of mainstream American scholarship is that while it provides detailed
accounts of what the American judges said and did, it rarely explicitly ad-
dresses the question of how they were able to say and do the things they
did. Perhaps this is too Kantian a problem for the “Pragmatic Instrumen-
talist” to appreciate as fully as he should, but the point deserves emphasis:
the facts of a case never speak for themselves –
they are recognized, and
this recognition rests on the specific means of discriminating and relating
“facts” peculiar to a given culture and era which must be discovered by the
historian, not presumed.
The reason for the silence at the centre of most functionalist accounts
is simple: the instrumentalist tends to end up sharing the same assumptions
as his subjects. Primary among these assumptions has always (in American
scholarship) been the idea that legal rules may be used as tools to achieve
certain practical ends. But what ends? How did America’s antebellum judges
recognize the ends which the rules they designed were intended to serve?
And which end? How did they choose between these ends when more than
one possible end presented itself to them? 49
To put the matter another way, most American legal reasoning is result-
oriented. What this means in practice is that the reasoning takes place after
the desired result has been determined, not before. It is for this reason that
we find so many policy considerations being invoked in the course of Amer-
ican judgments: they are there to justify the result, but they do not determine
the result, since it is the result (which has already been achieved by other
means) which determines which among them will be invoked. Logically,
then, one ought to read American judgments backwards, but even this tex-
tual strategy will not help to clarify the prior question of how it is that an
American judge recognizes the desired result in the individual case. To
answer this prior question one must examine what is left unsaid.
49 The trouble with the utility standard… is that the relationship between means and
ends on which it relies is very much like a chain whose every end can serve as a
means in some other context. … [I]t gets caught in the unending chain of means
and ends without ever arriving at some principle which could justify the category
of means and end, that is, of utility itself.
H. Arendt, The Human Condition (1958) at 153-4. See also McDonnell, supra, note 13 at 101;
M. Polanyi, Personal Knowledge: Towards a Post-Critical Philosophy (1962) at 286-94; M.
Sahlins, Culture and Practical Reason (1976); G. Grant, English-Speaking Justice (1985) at 83;
D. Sugarman, “Law, Economy and the State in England, 1750-1914: Some Major Issues” in
D. Sugarman, ed., Legality, Ideology and the State (1983) 213; and Gordon, supra, note 9.
McGILL LAW JOURNAL
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The unsaid is that which is taken for granted, the assumptions about
the nature of the world and things in it which are so generally shared that
they do not need stating. It is by virtue of this frame of unquestioned
constructs constituting the background of everyday life that Robinson on
the one hand and his American counterparts on the other were able to
recognize certain “facts” as significant and certain results as following inex-
orably from them. The sources of law are not to be found in cases and
statutes, but in the cultural background of the judicial personage.
III. The Law of Survival of the Moralist
“The form of the Loyalist myth suggests a Christian typos of suffering
(the Revolution), redemption (the acquisition of Canada), and ultimate vin-
dication (success in 1812, material growth), all in the service of a convenant
(fealty to Crown and British institutions brings national survival under
imperial aegis).”’50 What Dennis Duffy identifies as “the form of the Loyalist
myth” in this seminal passage from Gardens, Covenants, Exiles, could also
be called the underlying structure of assumptions of the Loyalist tradition.
There is a causal proposition contained within this nexus of beliefs: Be loyal
and the garden will flourish; disobey the precepts of the covenant and the
garden will be transformed into a barren wasteland overrun by pests and
mired in confusion.
When viewed against the background of the above set of associations,
the doctrine which Robinson articulated in Street v. Commercial Bank takes
on a deeper cultural significance. To “deviate” in one’s reasoning from the
authority of the “pattern” discernible in the English case law would be to
breach the covenant, and so invite confusion and disaster. It was not solely
in the legal doctrines he espoused that Robinson sought to uphold the cov-
enant, however, since every major event in his life and all of his deeds may
be interpreted as conforming to the typos. 5′
John Beverley Robinson was born at Berthier, Lower Canada, in 1791.
His father, Christopher Robinson, was a prominent Loyalist from Virginia
who served in the Queen’s Rangers during the Revolutionary War. The
50D. Duffy, Gardens, Convenants, Exiles: Loyalism in the Literature of Upper Canada/Ontario
(1982) at 93. Duffy’s penetrating analysis of the structure of the Loyalist imagination shares
many of its deepest insights in common with the conclusions arrived at by such anthropologists
as Mary Douglas and Sir Edmund Leach when they turned their attention to the interpretation
of the cosmology of the Israelites. See the chapter entitled “The Abominations of Leviticus”
in M. Douglas, supra, note 45 at 41; and Sir E. Leach, “Genesis as Myth” in J. Middleton,
ed., Myth and Cosmos: Readings in Mythology and Symbolism (1967) at 1.
5’For biographical details, see Robinson, supra, note 21; Brode, supra, note 39; R.E. Saunders,
“Sir John Beverley Robinson” in Dictionary of Canadian Biography, vol. 9 (1970) at 668; and
J. Jarvis, Three Centuries of Robinsons (1953).
1985]
PROPERTY, GOD AND NATURE
father lost more than just the war as a result of his fealty to the Crown, and
he appears never to have recovered from being despoiled of his estate in
Virginia: valued at 64,000 pounds sterling, he received only 17,000 pounds
in compensation from the Commissioners appointed to investigate claims
for losses arising out of the war. As he lamented in a letter to a friend, “I
was born to better prospects.”‘ 52 One wonders in the light of such moroseness
where his son got the idea that United Empire Loyalists were animated by
“a feeling of satisfaction and pride in the exertion and sacrifices by which
their fidelity was proved”. 53
The interval the Robinson family passed at Berthier, Lower Canada,
may be regarded as the period of their exile in the wilderness after the exodus
from the United States. 54 In 1792, they moved to Kingston, Upper Canada
the promised land – where the father took up an appointment as deputy
–
surveyor general of the woods and reserves. The acquisition of Canada by
the Loyalists was no less momentous an event than the entry of the Israelites
into the Land of Canaan, or so it would appear from Robinson’s description
in Canada and the Canada Bill: “[W]hen we turn to Upper Canada, we
find a country of large extent, with a soil unsurpassed in fertility, and a
climate that admits of the cultivation of the very finest wheat; abounding
in valuable timber, and in the most useful minerals, with the advantage of
navigable waters running through it, and around it, in a manner that cannot
be seen without admiring so beautiful an arrangement of nature.” Upper
Canada was paradise regained. Admittedly, the land did not flow with milk
and honey, but there was always the St Lawrence River with “its clear and
wholesome waters … fit for every domestic use”. 55
The Robinsons moved from Kingston to York in 1798, where the father
died suddenly, and young Robinson was sent back to Kingston to live with
the Reverend John Stuart. He was immediately enrolled in a school that
had been opened there by the Anglican priest John Strachan, and quickly
became the latter’s dearest protbg6. In later life, Robinson became as “High”
a Tory as he was an Anglican. This disposition may be attributed to Stra-
chan’s enduring influence. Indeed, so close was the association between the
two that Strachan saw their relationship as persisting after death. In a note
in 1848, the (by then) Bishop of Toronto wrote: “I have caused a tomb
containing two vaults to be erected in the ground I purchased in the cemetery
52Robinson, supra, note 21 at 9.
53Canada and the Canada Bill, supra, note 2 at 25.
540f course, Lower Canada was no less a garden than Upper Canada, since both were pro-
tected by the covenant, but Robinson had serious reservations about those who tended the
garden there. See ibid. at 27, 101, 108, 134-7 and 150.
55Ibid. at 20-1.
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…. As there is, in fact, no choice between the two, I have assigned the west
to you, and the east to myself.”’56
Strachan deliberately instilled in his pupil the public-minded virtues of
a statesman. In view of the latter’s career as an elected member of the House
of Assembly during the 1820’s, the confidence which the priest had in his
prot~g6 becoming a wielder of temporal power appears to have been well
placed. From 1820 to 1829, Robinson was actually the leader of the “Tory
party” (such as it was) and the chief spokesman of government in the As-
sembly.57 Strachan evidently pictured himself as a mediator of spiritual
authority by way of contrast, but this did not prevent him from enjoying
his seat on the Legislative Council (from 1820 to 1841) or his position as
a director of the Bank of Upper Canada. It is little wonder, given his position,
that Strachan viewed the deistic founding fathers of the United States as
having committed a serious error in severing the connection between church
and state. Throughout his life Strachan fought to have the Church of England
recognized as the “established Church” of Upper Canada. The idea of a
“separation of powers” (spiritual/temporal) was totally foreign to his con-
ception of the church-state, or dual sovereignty. 58 In fact, the notion of a
“separation of powers” generally was alien to the original political culture
of Upper Canada since, as will be recalled, Robinson united the executive,
legislative and judicial functions of governance in his person (at least until
1840).59
56Robinson, supra, note 21 at 400. Strachan’s insistence upon the east/west arrangement of
the vaults appears to have been motivated by a long-standing tradition in Christian mortuary
art (and iconography in general) according to which secular figures are symbolically associated
with the west and sacred figures with the east. See R. Needham, Reconnaissances (1980) at
63ff.57See S.E Wise, “Upper Canada and the Conservative Tradition” in E. Firth, ed., Profiles
of a Province: Studies in the History of Ontario (1967) 20.
58 As teacher to a whole generation of political leaders, as churchman, polemicist and
political in-fighter, and as a member of the executive government, John Strachan,
more than any other man was responsible for the framing of Tory policy in church
and state, and for the rationale by which it was defended …
. [Ilt was Strachan’s
belief that the prescriptions he defended in church, state and society were part of
the providential order, that Upper Canada had a special mission to preserve them
in North America, and that any opposition to them was a sign of the grossest and
most blasphemous infidelity, and of a dangerous sympathy for the condemned
revolutionary society of the United States.
S.E Wise, “God’s Peculiar Peoples” in W.L. Morton, ed., The Shield of Achilles: Aspects of
Canada in the Victorian Age (1968) 36 at 56. Robinson inherited the view that “religion [read:
the Anglican Church] is the only secure basis on which civil authority can rest” from Strachan,
and he defended it just as vigourously. ‘See Canada and the Canada Bill, supra, note 2 at 42-
3.
59Although, officially, Robinson relinquished the presidency of the Executive Council in 183 1,
his ability to capture the confidence of succeeding Lieutenant-Governors has led at least one
commentator to remark that “Lord Goderich’s dispatch of 1831 mandating the separation of
the judiciary from the executive might never have been written”. See Brode, supra, note 39
at 203-4.
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PROPERTY, GOD AND NATURE
The notion of a unity or concentration of powers is one of the features
that serves to bring out the contrasts between the polities of Upper Canada
and the United States which it is the purpose of this part and the next to
reconstruct. The Conversion Table (Appendix) summarizes these contrasts
and illustrates how the two polities constituted themselves in opposition to
each other. The notion of a fundamental unity of powers also helps to
account for the existence of the so-called oligarchic rule of the Family Com-
pact (of which Robinson and Strachan constituted the core): power had to
be concentrated, not dispersed. And if power had to be concentrated then
so did land, as we shall see.
Robinson left Strachan’s tutelage at the age of sixteen to article at York
in the office of the Solicitor-General and later the Attorney-General. His
“abilities” were immediately remarked upon by Chief Justice Powell (and
Powell’s daughter, Anne). When war loomed on the southern horizon in
1812, the esteem in which he was held led to his receiving a lieutenant’s
commission in the militia. He distinguished himself in the battle at Queen-
ston where numerous others fell, among them the Attorney-General Mac-
donnell. It was on Powell’s recommendation that Robinson was appointed
acting Attorney-General at the age of 21 without yet having been called to
the Bar.
Robinson’s first task as the public official responsible for the admin-
istration of the civil affairs of the province was to prosecute for treason
those settlers who had aided and even joined the enemy during the war. He
did so methodically: of the nineteen who were brought to trial at Ancaster,
fourteen were convicted and eight of those convicted were executed.60 Ro-
binson’s own convictions about the covenant with the mother country must
have been enhanced by the process of convicting others for their betrayal.
The war, after all, had been a test of that covenant.
The fact that Upper Canada survived the war as a political and cultural
entity “signified the role that morality played in history”. 61 The victory
(however marginal) vindicated Loyalist principles. Survival also generated
a particular mentality, that of the garrison (as opposed to the frontier). Dufiy
has described this mentality as follows: “On the one hand stands a group
of insiders needing to bury any mutual enmities of the past, seeking by
compromise and reconciliation to arrive at a common front against envious
outsiders; on the other dwell the outsiders and their insider allies.”’62
60See E.A. Cruickshank, “John Beverley Robinson and the Trials for Treason in 1814” (1929)
25 Ont. Hist. 191.
61Duffy, supra, note 50 at 8. It is enough, for the moralist, that he survives; it is for the fittest
to evolve. See M. Atwood, Survival: A Thematic Guide to Canadian Literature (1972).
62Ibid. at 8-9.
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Robinson’s attitudes towards “insiders” and “insider allies” reveal two
very different facets of his character. We have already glimpsed his pater-
nalistic, conciliatory attitude towards recalcitrant plaintiffs in the context
of the mill-dam cases. Conversely, it was Attorney-General Robinson who
presented the petition which led to the expulsion of Barnabus Bidwell (one
time member of the Massachusetts State Legislature) from the Upper Canadian
House of Assembly, thus setting the tone for subsequent debates over the
alien question. 63
This act of ritual expurgation was motivated by Robinson’s Loyalist
convictions (and, of course, “the law”), a set of convictions which received
their most eloquent expression in Robinson’s condemnation (as Chief Jus-
tice) of Samuel Lount and Peter Matthews to death by hanging for their
part as rebel leaders in the December uprising of 1837. The Rebellion of
1837 was the third Loyalist war (a repeat of 1812 and 1776), and Robinson
was among those who went down into the streets to join the ranks of the
militia called out to resist MacKenzie’s rebels.
The Chief Justice’s address to the prisoners appears to have been gal-
vanized by this experience, for his language was as much exhortatory of
others as condemnatory of the prisoners. He charged them with “conspiring
to introduce confusion and bloodshed where nothing else should have been
found but contentment and peace”. He traced the cause of their “dreadful
fall” to “your willful forgetfulness of your duty to your creator, and of the
purposes for which life was bestowed on you”, that duty being to be “humbly
thankful to a kind Providence, which had cast your lot in this free, and
prosperous country”, as opposed, interestingly enough, to England, where
they might have had to work in the mines under conditions of abject poverty.
The prisoners had breached their covenant with God; they had “indulged
in a feeling of envy and hatred towards [their] rulers”. Possessing none of
the qualities of the “insider” they were accordingly executed. 64
Of course, treason is a crime against the King, not the “King of Kings”. 65
Robinson’s confusion of the two was no doubt partly for effect, but it was
also motivated by the notion of a fundamental unity of powers remarked
63See Craig, supra, note 18 at 93-100, 114-23 and 188-9. See also the chapter entitled “The
Alien Debates” in Brode, supra, note 39 at 118fT.
“Address of the Honourable Chief Justice Robinson; on passing sentence of death upon
Samuel Lount and Peter Matthews, “Robinson Papers” MS 4, Reel 4, Public Archives of
Ontario. See further A.B. McKillop, A Disciplined Intelligence: Critical Inquiry and Canadian
Thought in the Victorian Era (1979) at 65-73, for there are some intriguing parallels between
Robinson’s views and those of Canada’s first philosopher, James Beaven. The structure of
Beaven’s thought has been described as “rational federalism”, a characterization which is
equally applicable to Robinson’s ratiocination. See Armour & Trott, supra, note 6.
65Pace Romans 13:2.
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PROPERTY, GOD AND NATURE
on earlier. Furthermore, Robinson appears to have conceptualized the re-
lationship between God and colonist and King and colonist in identical
terms: just as one ought to be thankful to “a kind Providence” for one’s lot
in life, so the inhabitants of Upper Canada “dwell” (or ought to dwell) upon
the name of King George III “with veneration and love, such as a child
entertains for a just and indulgent parent”. 66
Imperial relations may be construed in many different ways: master/
slave, parent/child, etc. It is indicative of Robinson’s prejudices as a Loyalist
that the analogy between imperial relations and familial relations figured
most prominently in his mind. Similarly, the Rebellion of 1837 was an
event susceptible of more than one interpretation. To the Loyalist it was an
illegitimate act of treason against God and King. To the Republican it was
a legitimate attempt to throw off the tyranny and oppression of British
colonial rule. The Patriot invasions from the United States in 1838 were
motivated by the second interpretation:
Assuming that the rebellions represented a widespread popular movement that
had been put down by British regulars, and that the provinces still yearned to
be free, Americans instinctively extended their sympathy … to the downtrodden
Canadians. … A mood of Manifest Destiny was seizing the United States, and
one of its aspects was the belief that Americans had a moral obligation to
extend the “area of freedom” throughout the North American continent. 67
Thus, American foreign policy was structured by the same considera-
tions as the domestic policy examined in Part II. It was “creative” and
“invasionary” at base. This tendency may be accounted for by reference to
the following quotation: “[A]s moderm people come to believe themselves
to be the absolute source of themselves, all systems of order and meaning
which appear to human beings as myth become other to them, and so in
the very act of their sovereignty [for example, the declaration of independ-
ence] they experience the world as empty of meaning. ’68 If there is no
meaning “out there”, then meaning must derive from within, and it is in
accordance with this assumption that we have found “the release of indi-
vidual creative energy” to be the dominant motif of American land policy.
For Robinson, however, whose life “acquired significance as an ex-
emplar of ‘Loyalism”, 69 the world was full of meaning: Upper Canada was
a garden, the special covenantal status of which had been confirmed by the
blood spilled in 1812 and again in 1837. Furthermore, Robinson did not
66Canada and the Canada Bill, supra, note 2 at 25. For Robinson’s conception of the family
generally, see Sprague v. Nickerson (1843), 1 U.C.Q.B. 284.
67Craig, supra, note 18 at 249-50.
6SG. Grant, “Value and Technology” in Canadian Conference on Social Welfare, Proceedings
(1964) at 23. See also G. Grant, Lament for a Nation: The Defeat of Canadian Nationalism
(1965).
69Duffy, supra, note 50 at 7.
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regard the people of Upper Canada as the “absolute source of themselves”,
since, “[i]n the minds of the Compact leaders Upper Canada was not a mere
‘possession’ of Great Britain but part of the British nation overseas, where
British subjects had the same rights and obligations as at home.”‘ 70 As Ro-
binson retorted to those who thought the idea of Britain defending Canada
impracticable: would not Great Britain defend the Orkney Islands? “Canada
must be defended from a sense of the national honour, just as an individual
protects his property, at the peril of his life, against a small encroachment
as well as a large one. Nations, like individuals, if they would be respected,
must know no other rule.” 71
The homology Robinson posits between individual and nation in the
above quotation reveals how foreign the idea of a nation state was to his
mode of thought. The equation of nationality with the limits of empire,
moreover, constituted Robinson as a kind of dyadic subject in contradis-
tinction to the monadic subjects of the republic to the south. For Robinson
the interests of the whole had to take precedence over those of the parts.
Gardiner v. Gardiner illustrates this point. In that case, the wording of the
British statute 5 Geo. 2, c. 7, which made real property in the hands of the
executors of an estate liable for the payment of debts in the same manner
as personal property, left open the question of whether the heir had to be
a party to the proceedings between creditor and executor.
Robinson was not blind to the fact that the British Parliament, in pass-
ing the Act, “had in view the single object of advancing trade by securing
the British creditor”. 72 At the same time, he could not conceal his “repug-
nance to the principle of real estate being made chattels for the payment of
debts”, especially in view of “how important it is, that in a province which
70Craig, supra, note 18 at 109.
7″Robinson, supra, note 21 at 245. Given this identification of self with other, one must
question the adequacy of Louis Hartz’s characterization of English Canadian society as liberal
with a “tory touch”. See L.B. Hartz, The Founding of New Societies: Studies in the History of
the United States, Latin America, South Africa, Canada, and Australia (1964) at 32. Hartz, for
all his talk of dialectics, appears to assume that a Whig can be defined as a separate entity and
that the Whig possesses some sort of “essence” which accounts for his reappearance under
slightly different guises in two such contrary societies as Canada and the United States. But it
is pointless to search for “essences” since, when pushed to extremes, as in the case of D.V.J.
Bell, “The Loyalist Tradition in Canada” (1970) 5(2) J. Can. Stud. 22, the conclusion inevitably
dawns that there is none to be found. This non-conclusion (that Canada is a non-nation suffering
from an identity complex) merely proves that what we ought to be focussing on are not essences
but relationships. See P. Watzlawick, J.H. Beavin & D.D. Jackson, Pragmatics of Human
Communication (1967) at 19-47; G. Horowitz, Canadian Labour in Politics (1968) at 3-57; J.
Fellows, “The Loyalist Myth in Canada” in Canadian Historical Association, Historical Papers
(1971) 94; A. Wilden, The Imaginary Canadian: An Examination for Discovery (1980); and
the Conversion Table which appears in the Appendix to the present essay.
72Gardiner v. Gardiner (1832), 2 U.C.Q.B. (O.S.) 554 at 586.
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must be chiefly agricultural, the proprietors of estates should be encouraged
to set a just value and feel a secure confidence in their possessions … but
we must study to prevent any feeling of this kind from influencing our
judgment”.73
Ultimately, the Chief Justice succeeded in repressing his personal feel-
ings towards the interpretation of this statute which denied an heir the right
to be a party to the proceedings. But there could be no denying that the
statute was “in itself a total and absolute departure from the principles and
practice of English law … a block thrown in at random, or rather one that
we are forced to admit into the structure we have erected”. 74 These final
words reflect Robinson’s dual subjectivity: given his nationality he was
subject to two sets of laws – one indigenous, the other imperial –
and the
articulation between these two “structures” was anything but smooth in
those cases where “objects” conflicted.
Whereas local interests could and should be subordinated to those of
empire, they were not to be subjected to those of the neighbouring republic.
Thus, in Genesee Mutual Insurance Company v. Westman, one of the first
cases of an American company attempting (though not empowered) to act
as a multinational corporation, Robinson held that the foreign charter con-
cerned could not be acted upon in the province because “a foreign legis-
lature”, in this case New York, “can make no law creating a lien on legal
estate in Canada”. 75
It is apparent when one compares this case with the preceding one that
extraterritoriality was a function of the “nationality” of the law in question.
The Chief Justice was loathe to see the already permeable boundary with
the United States weakened any further.
Robinson devoted a great deal of energy to the promotion of boundary
strengthening technologies. For example, he was one of the principal sub-
scribers to the Welland Canal Company (which nearly ruined the province’s
treasury). As S.E Wise has remarked, “[t]he Tories, in entering into [public
as well as personal] collaboration with private initiative in the development
of the Welland and other canals, were responding to a general desire for
public improvements, and in particular to the threat posed by the building
73Ibid. at 574 and 598 [emphasis added].
74Ibid. at 602. But see Doe ex dem. Jessup v. Bartlet (1832), 3 U.C.Q.B. (O.S.) 206; Ruggles
v. Beikie (1832), 3 U.C.Q.B. (O.S.) 347.
75(1852), 8 U.C.Q.B. 487 at 497. See also Robinson’s dissenting opinions in Warrener v.
Kingsnill (1852), 8 U.C.Q.B. 407 and Kingsmill and Davis v. Warrener and Wheeler (1852),
13 U.C.Q.B. 18. It is worthy of note that local interests were not to be subjected to those of
the neighbouring province either. See Bank of Montreal v. Bethune (1836), 4 U.C.Q.B. (O.S.)
341.
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of the Erie Canal, which, if not countered, would drain off the commerce
to the south and New York.”‘ 76
The boundary strengthening technique which occupied Robinson the
most, however, was the channeling of emigration from the British Isles.
British emigrants were needed, it was thought, to counterbalance the Amer-
ican presence on both sides of the border. Thus, sponsoring emigration was
part of the general military strategy involving the construction of canals
(such as the Rideau) and the manning of garrisons which has been called
“defensive expansion”. 77
Robinson’s views on emigration were also intimately linked to his la-
bour (as opposed to exchange) theory of the wealth of nations. “If a country,
however governed, desires to grow rich, she must expect to do so by the
patient labour of her people … [whence the] constitution of the individual
will be generally a more material consideration than the constitution of the
state.”‘ 78 The constitution best suited to succeed in Upper Canada, according
to Robinson, was that of
the able bodied labourer, the industrious and sober mechanic, and any person
of whatever class, who, deriving from some source a moderate income, upon
which in [England] they could barely subsist, may enjoy in Upper Canada,
upon the same income, a greater abundance of the comforts of life, and may
with prudence and economy be at the same time gradually forming a property
which, in case of their death, will secure their families against absolute destitution.79
Upper Canada thus constituted a haven for Britain’s unemployed, a place
where “the neglected, heedless and starving pauper … [could] be transformed
into the peaceful, industrious, and respectable yeoman” through the agency
and “enlightened generosity” of those British statesmen, who, like Sir Robert
Wilmot Horton, would take it upon themselves to design and finance schemes
of colonization.80
A marked inversion in attitudes towards the poor had taken place some-
time between 1792 and the date of the above remarks, 1840. It will be
recalled that Upper Canada explicitly rejected the English Poor Law when
it was founded, a measure which appears to have been motivated by “a
76Supra, note 57 at 29. See also H.G.J. Aitken, “The Family Compact and the Welland Canal
Company” in J.K. Johnson, ed. Historical Essays on Upper Canada (1975) 153; and R.E.
Saunders, “What was the Family Compact?” (1957) 49 Ont. Hist. 165.
77H.G.J. Aitken, “Defensive Expansion: The State and Economic Growth in Canada” in
W.T. Easterbrook & M.H. Watkins, eds, Approaches to Canadian Economic History (1978)
183.
78Canada and the Canada Bill, supra, note 2 at 61-62. See also the cases referred to supra,
note 36.
79Canada and the Canada Bill, ibid. at 50-1.
80Ibid.
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PROPERTY, GOD AND NATURE
rigid punitive ethic that saw poverty as a fault to be excluded as vigorously
as possible”.8’ Yet Robinson describes Upper Canada as a colony willing
to receive the mother country’s unemployed with open arms. The idea of
including the poor is the converse of that of excluding poverty. Is this
transformation to be accounted for by reference to some burgeoning spirit
of humanitarianism? Or was it dictated by the slowly percolating notion of
population as a crucial social and economic resource which had to be or-
ganized and made productive, namely, that Britain’s idle poor could become
Canada’s industrious yeomen?
Robinson evidently regarded himself and was regarded as a great hu-
manitarian. He was called upon, for example, to give the address upon tlie
founding of the Toronto Lunatic Asylum in August, 1846. In this address
he noted that the “more pressing wants” for roads, harbours, gaols and
schools had meant that no provision could be made for the insane prior to
1830. But even in the days before 1830 there was a space for the lunatic:
Some few who were wholly destitute, or who were too violent to be controlled,
by such means as can be used in private families, were from necessity received
into the common gaols; and being sheltered there only because they could be
nowhere else – were helpless … intruders upon the precincts of crime –
without any system for their supervision – without any attempt towards their
cure –
left to the chance sympathies of a world from which they were hid,
what desolate years of misery must they in some cases have endured, and what
wretched discomfort must their presence have occasioned others!82
The last line of this address comes as a shock. “The presence of the mad
appears as an injustice, but for others.”‘ 83 The “humane” treatment of the
other, the criminal, called for the separation of the criminal from the insane.
General confinement had been a mistake. It had to be replaced by the more
“humane” and “scientific” specific confinement of the gaol, the penitentiary
and the asylum to permit the rehabilitation of the criminal on the one hand
and the supervision of the lunatic on the other.
It would appear that general confinement only comes to be seen as an
error once population has come to be regarded as a potential component
81J.C. Levy, “The Poor Laws in Upper Canada” in D.J. Bercuson & L.A. Knafla, eds, Law
and Society in Canada in Historical Perspective (1979) 23 at 35.
82Address upon the Founding of the Lunatic Asymlum, 22 August 1846, “Robinson Papers”
83M. Foucault, Madness and Civilization: A History of Insanity in the Age of Reason (1978)
MS 4, Reel 5, Public Archives of Ontario.
at 228.
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of the nation’s wealth. 84 Robinson’s remarks on the impending establish-
ment of a penitentiary to complement the common gaols in 1832 confirm
this point. According to Robinson, “idleness is the parent of most crimes”.
Thus, “mere imprisonment”, which was all that the common gaols could
offer, was not enough. But with the establishment of the penitentiary, “[t]he
effect of imprisonment will be increased considerably if the convict be made
to spend his days in labour, instead of consuming them in profitless and
unwholesome inactivity.” Moreover, finding himself working within the
walls would force upon the convict “the obvious and salutary reflection that
he had much better have been applying the same exertion in gaining an
honest living” without. Last, but by no means least, the specific confinement
of the penitentiary and the work enjoined there would “make their im-
prisonment less burthensome to the community”, since the prisoners would
thereby be “made to contribute, in some degree, to the public good”.85
The effect of imprisonment on the miscreant appears to have differed
little from the effect of the environment on the British emigrant. “To the
unthrifty and heedless”, or those young gentlemen with a “proneness to
idleness and dissipation”, the “experiment” of emigration could mean ruin.86
It would take another quarter century before the harshness of the environ-
ment would be recognized as a positive factor with respect to inculcating
the moral virtues necessary to survial (foresight, thrift, self-reliance, etc.).8 7
Human nature, then, far from being inherently creative (as in Hurst’s Wis-
consin), had to be cultivated: “The diffusion throughout the province of
well-educated and respectable families, and the more general introduction
of those habits and objects which give refinement and interest to life, will
banish the dull weariness which drives so many to vicious indulgences, as
a mere resource for occupying time.” 88 And human energy, rather than being
released, had to be directed: Robinson would admit that “[n]othing can
84This idea was developed by the late Michel Foucault in Madness and Civilization:A History
of Insanity in the Age of Reason, ibid., Discipline and Punish: The Birth of the Prison (1979)
and Power/Knowledge: Selected Interviews and Other Writings (1980). As Robinson’s comments
on the transformation of the starving pauper into the industrious yeoman illustrate, human
needs had come to be seen as the means for the increase of the state’s power. The British
pauper who was willing to work for low wages and consume little had to be included and
disciplined (rather than excluded (or interned) and left to his own devices) for the sake of
increased force and productivity in Upper Canada. The emerging “disciplinary technology” of
the penitentiary would make productive those “idle” bodies which did not respond to the
North American environment in the desired manner.
85Charge to the Grand Jury, 15 October 1832, “Robinson Papers” MS 4, Reel 4, Public
Archives of Ontario.
86Canada and the Canada Bill, supra, note 2 at 33-4.
87C. Berger, “The True North Strong and Free” in P. Russell, ed., Nationalism in Canada
88Canada and the Canada Bill, supra, note 2 at 34.
(1966) 3.
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PROPERTY, GOD AND NATURE
justly deprive the people of the United States of the credit of being a re-
markably energetic, active, and enterprising race”, but he wondered if that
energy was not misdirected given the fact
that Irishmen have dug in America an astonishing number of canals, and made
a prodigious extent of railroads, which Englishmen have paid for [with their
loans]; and when these material ingredients in a public work are allowed for,
namely, the labour of constructing them, and the charge of that labour, the
balance of merit that remains seems pretty much confined to the ingenuity of
the contrivance, and to a vast energy in borrowing.8 9
The energy had been misspent. Those to the south had not attained “the
secret of creating real wealth”, for “under every form of government, wealth
must consist of the gradual accumulation of labour”. 90
The reason for this lack of direction appeared self-evident to Robinson:
the levelling spirit had, negated any counteracting checks. The American
constitution was unbalanced. The system of government Robinson admired
most was, naturally, that of Britain, with its independent upper house to
act as a check on the elected assembly.91 But the British system also had
many other features to commend itself to his reason: “the influence of
ancient and venerable institutions, and the traditionary respect for rank and
family”, “the substantial power of wealth, and the control of numerous
landlords over a grateful tenantry”. 92 The United States possessed none of
these countervailing “influences” which were thought to have the power to
891bid. at 59.
90Ibid. at 59-60. When a neighbouring “race” is more wealthy, powerful and successful than
one’s own, and it is commonly accepted that the possession of such qualities is a mark of
divine favour, “[t]he only recourse is to show this heathen success in a context of demonic
parody, as a short-lived triumph that has all the marks of the real thing except permanence.”
N. Frye, The Great Code: The Bible and Literature (1982) at 140ff.
91The structure of Robinson’s conception of a “balanced” constitution was distinctly hier-
archical. He took as given the idea that “the legislature of this colony is subordinate to the
imperial parliament” and viewed the elected Assembly as but “a branch of the legislature of
this province”, the other branch being the Legislative Council, which was appointed. See M’Nab
v. Bidwell (1830), Draper 144 at 146-52 (U.C.KB.). Though Robinson nowhere explicitly states
that the Legislative Council was hierarchically superior to the Assembly (because it was more
directly linked to the sovereign), this suggestion is difficult to resist. Thus, power was distributed
vertically, not horizontally, and flowed from the top down instead of from the bottom up –
all in marked contrast to the notion of popular sovereignty enshrined in the constitution of
the United States.
92Canada and the Canada Bill, supra, note 2 at 122. Robinson appears to have viewed the
division of society into ranks as so basic to the maintenance of social order that when he
visited France in 1816 he was astonished to find that the post-revolutionary French actually
comported themselves as if they were equals: “I was much struck by the graceful, easy manner
of French men and women of all ranks. You see nowhere any mark of embarassment or
awkwardness, nor is [the French peasant’s] manner at all an imprudent one or an affected
imitation of the higher classes.” Robinson, supra, note 21 at 117-8.
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curtail populist excesses. Neither did Upper Canada. Indeed, with respect
to the latter place “it may almost be said that every farmer is an independent
freeholder, and every male adult a voter”. 93 But was not the possibility of
becoming an independent freeholder precisely the promise that the colony
had extended to the prospective British emigrant?
In fact a shift had occured in land granting policy circa 1825, the point
at which it came to be believed that free gifts of land increased the scarcity
of labour in the market and drove wages up. The new, more restrictive land
granting strategy was the subject of a letter from the Colonial Secretary,
Lord Goderich, to Lord Aylmer, the Governor-General of British North
America, in 1831.
It has been said that by a strict adherence to [a restrictive landgranting] system,
by refusing Land to the poor man whose labour is his only wealth, a most
useful class of settlers will be discouraged. I see no ground for such apprehen-
sion; whatever promotes the prosperity of the Colony will naturally attract
settlers, both of the labouring and of all other classes. … Has it, on the other
hand, been sufficiently considered by those who make this objection, whether
it would conduce to the real prosperity of the Province to encourage every
man who can labour to do so only on his own account, to obtain and cultivate
his allotment of land without giving or receiving assistance from others? With-
out some division of labour, without a class of persons willing to work for
wages, how can society be prevented from falling into a state ofalmost primitive
rudeness, and how are the comforts and refinements of civilized life to be
procured?94
Perhaps this hidden agenda, this idea of creating “a division of labour”
where none yet existed, was “the secret of creating real wealth” which the
Americans had failed to discover. Whether or not this strategy for the cre-
ation of a labour pool was the “secret” Robinson alluded to, one thing is
certain about his thought: the notion of divisions in a society attracted him,
and any initiative which had as its aim the erasure of those divisions re-
pulsed him. The entirety of Robinson’s social and political thought, hori-
zontal and vertical, may be accounted for by reference to the above proposition.
Taking the horizontal dimension first, it is worthy of note that Robinson
entertained a scheme for the confederation of all the provinces of British
North America as early as 1824.95 Confederation perpetuates separateness.
Union, on the other hand, abolishes separations. The reason Robinson so
adamantly opposed Lord Durham’s proposal for a (re)union of the Canadas
93Canada and the Canada Bill, ibid. at 122.
94Cited in L.A. Johnson, “Land Policy, Population Growth and Social Structure in the Home
District” in Johnson, supra, note 76, 32 at 49. See also, B.E Gates, Land Policies of Upper
Canada (1968).
95For Robinson’s “plan” (written together with John Sewell) see J.B. Robinson & J. Sewell,
General Union of All the British Provinces of North America (1824).
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PROPERTY, GOD AND NATURE
was that it violated the whole structure, irrespective of the content, of his
thought. As he stated in Canada and the Canada Bill, referring to the Act
of 1791 which introduced the split, “I believe it to be to that separation
that Upper Canada mainly owes her rapid advancement. 96
As for the vertical dimension, we have already remarked on Robinson’s
admiration for the class structure of Great Britain and his antipathy towards
the levelling spirit displayed in the United States. The absence of an estab-
lished aristocracy in Upper Canada was, accordingly, a source of concern
to him since he assumed that no society could be complete without one.
“To meet this situation, Robinson had to find a kind of aristocracy which,
if resembling the English peers only slightly, might serve the same political
and social functions as did their British counterparts”; and fortunately, at
least with respect to meeting this situation, Robinson “firmly believed in a
meritocracy, an aristocracy based on intellect and merit”. 97 The man se-
lected for its ranks (the seats on the Legislative and Executive Councils,
and other such positions of responsibility) had to be “the most worthy,
intelligent, loyal and opulent inhabitant … a gentleman of high character,
of large property, and of superior information”. 98
It was, perhaps, doubly fortunate that loyalty and being propertied had
gone together since the very inception of the colony:
In 1783 Governor Haldimand had set up a scale of grants for the loyalist
refugees which allowed heads of families to receive 100 acres plus an additional
50 acres for every member of their families. Similarly men who had served
under arms were to receive grants which scaled upward from privates who
received 50 acres to senior officers who received up to 1,000 acres depending
on rank. All these “official” grants, however, were soon increased. In 1787 Lord
Dorchester ordered that an additional 200 acres be given to heads of families
who had already improved their lands. The local land boards apparently took
this to mean that all who had borne arms would be entitled to receive grants
of 300 acres or more, according to their rank, and that other Loyalists should
receive an initial grant of 200 acres. Finally, in 1788, grants of lands to officers
had been raised to a maximum of 5,000 acres depending on rank. 99
The meritorious, in other words, were a rank of people set apart from the
lot of the common immigrant –
the recipients of the “non-official” grants
–
from the outset. But what was the cumulative effect of this land granting
strategy on the structure of Loyalist experience?
96Canada and the Canada Bill, supra, note 2 at 101. For the tale of Upper Canada’s “decline”
see J.M.S. Careless, The Union of the Canadas: The Growth of Canadian Institutions, 1841-
1857 (1967).
97T. Cook, “John Beverley Robinson and the Conservative Blueprint for the Upper Canadian
Community” in Johnson, supra, note 76, 338 at 343.
98Canada and the Canada Bill, supra, note 2 at 144-5.
99Johnson, supra, note 94 at 33-4.
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To begin with, the “march of history” would have presented itself to
them as a progression from contract to property since it was by virtue of
their adherence to the convenant with the mother country that they found
themselves granted estates. What we have called Hurst’s “law for the con-
servation of energy” holds true, therefore, with respect to the interpretation
of the legal history of Upper Canada. It is in perfect accordance with that
“law” or “immanent superior order(ing) of reality” that Hurst discerned a
transformation in the opposite direction (property into contract) taking place
in nineteenth-century Wisconsin.
Secondly, there are few more transparent instances of the idea that
property relations are but reified social relations than the case of Haldi-
mand’s land granting strategies. 0 0 The separation of men according to their
rank in the army (or their service to the empire) was projected onto the
ground and “realized” there in the form of scaled estates. The separations
of rank and of official/non-official grants set up distances between people,
distances which were compounded by the practice, beginning in 1791 of
setting aside two sevenths of the land in each township for the establishment
of Crown and Clergy reserves. This spacing was mirrored and
confirmed by the internal arrangements of a church. Special seats were reserved
for the members of the government and the military. In Anglican churches
worthy guests might be seated in the chancel. In several Presbyterian and
Anglican churches, high box pews (with tables) were owned by the wealthy
while precarious galleries and benches were left for those of lower estate. 101
These land granting and church seating practices gave the social life of
the Loyalist its tone as well as its shape. If put to music, the tone of Loyalist
social life would sound like a funeral march with its long, drawn-out beats
as opposed to a Highland fling with its quick invigorating cadences. “More
spacing means more solemnity”, more formality, more seriousness. 102 And
the Loyalists took themselves very seriously. As has often been remarked,
“[t]he Loyalist vision of Upper Canada … at times substituted manners for
substance, tragic posturing for agonized conviction, and hierarchy for broth-
erhood.”‘ 03 Robinson, for example, “disliked foolish levity, and any want
‘()For the notion of property relations being reified social relations see M. Taussig, “The
Genesis of Capitalism Amongst a South American Peasantry: Devil’s Labour and the Baptism
of Money” (1977) 19 Comp. Stud. in Soc. & Hist. 130.
101W.E. DeVilliers-Westfall, “The Dominion of the Lord: An Introduction to the Cultural
History of Protestant Ontario in the Victorian Era” (1976) 83 Queen’s Q. 47 at 58. Of course,
not all Loyalists were Anglicans and Presbyterians.
102M. Douglas, Implicit Meanings: Essays in Anthropology (1975) at 214.
103Duffy, supra, note 50 at 31.
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PROPERTY, GOD AND NATURE
of decorum in Courts of Justice”. 10 4 In the final analysis, then, Robinson’s
“blueprint for Upper Canada” with all the emphasis it places on techniques
of separation reads like a reprint –
a reprint of his experience of the dis-
tances inscribed at the core of the social life of the Loyalist.
However, the structure of Robinson’s experience of the world was not
representative. For those Upper Canadians whose estates lay all jumbled
together in outlying districts, or whose lot was to remain forever cast in the
labour pool; for those who tended to be more “enthusiastic” than staid in
their religion (the Methodists, Baptists, Dissenters, etc.); and for those who
were not Tory but other, distance was a fact to be overcome, not emphasized.
They “agitated” for responsible government and they called for the abolition
of the Crown and Clergy reserves. Their day came in 1841, when the Canadas
were reunited and the system of government overhauled. The “separation”
had been erased, but the structure of Robinson’s thought persisted unaltered,
or so it will be argued in the next section.
IV. Law in the Bush Garden
Given Robinson’s background, the reason “the law” appealed to him
probably had to do with the way that, throughout the history of western
civilization, laws were conceived of as establishing boundaries and setting
limits to action. (Of course, the law may also be used to facilitate human
action, as the Americans had discovered, but this was quite an innovation.)
The Greek word for law, nomos, was originally identified with the boundary
line or hedge which separated one household from another, and from the
public realm. Without this wall-like law separating the realm of necessity
(the economic life of the household) from the realm of action (the political
life of the city) there could be no political community. We find it difficult
now to appreciate the full significance of this distinction, as Hannah Arendt
has shown in The Human Condition. But to the ancients the idea of an
“economic analysis of law”1 05 would have seemed preposterous, just as “the
104Robinson, supra, note 21 at 319. The ascendancy of manners over substance was also
manifest in Robinson’s attitude towards the forms of action. As Risk has observed, supra, note
14 at 94: “Empty requirements of form were preserved; precendent and abstract logic overcame
the merits of individual claims; and strict and critical interpretations overcame apparent in-
tention.” In a sense, the forms were all that Robinson had to work with. They provided solace
against the “huge, unthinking, menacing and formidable physical setting” that constituted the
backdrop of his experience. See N. Frye, The Bush Garden: Essays on the Canadian Imagination
(1971) at 225, and the second verse of “Lines on an April visit to Windermere”, supra, note
21 and accompanying text.
05R.A. Posner, Economic Analysis of Law, 2d ed. (1977).
McGILL LAW JOURNAL
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very term ‘political economy’ would have been a contradiction in terms:
whatever was ‘economic’, related to the life of the individual and the sur-
vival of the species, was a non-political, household affair by definition”. 106
The law as wall both dictated and sustained that definition.
Though we cannot impute any knowledge of classical civilization be-
yond that contained in Virgil and Horace to the Chief Justice (who carried
their works with him on his circuits) 10 7 our understanding of his views on
“the law and action” may nevertheless be enhanced by comparison with
ancient Greek conceptions.
The fences inclosing private property and insuring the limitations of each
household, the territorial boundaries which protect and make possible the phys-
ical identity of a people, and the laws which protect and make possible its
political existence, are of such great importance to the stability of human affairs
precisely because no such limiting and protecting principles rise out of the
activities going on in the realm of human affairs itself. The limitations of the
law are never entirely reliable safeguards against action from within the body
politic, just as the boundaries of the territory are never entirely reliable safe-
guards against action from without. The boundlessness of action is only the
other side of its tremendous capacity for establishing relationships, that is, its
specific productivity; this is why the old virtue of moderation, of keeping within
bounds, is indeed one of the political virtues par excellence, just as the political
temptation par excellence is indeed hubris.10 8
The idea of moderation, of “keeping within bounds”, is crucial to the
interpretation of Robinson’s thought. As we have seen repeatedly, “the
boundlessness of action” perplexed the Chief Justice, especially action stem-
ming from south of the border. Robinson was all too aware of how the
expanse of the North American continent had created a “new man” in the
republic:
In a boundless field, or rather in a boundless wood, no individual among them
seemed to have a defined and settled position in society; there could be no
castes, or anything approaching to castes, such as the competition and ne-
cessities of the crowded countries of Europe tend, more or less, to create. All
seemed to depend on individual ingenuity and exertion.’0 9
This exertion knew no limits in the United States, as we saw in the context
of the mill-dam cases. But for Robinson, whose “blueprint for society” was
distinctly stratified, the vision of a boundless, undifferentiated wood was
something of a nightmare. Accordingly, and as befits the son of a surveyor
general of the woods and reserves, in his mind’s eye he pictured the Canadian
’06Arendt, supra, note 49 at 29.
’07Robinson, supra, note 21 at 405.
108 Arendt supra, note 49 at 191. See also EM. Comford, From Religion to Philosophy: A
Study in the Origins of Western Speculation (1957) at 30.
‘gCanada and the Canada Bill, supra, note 2 at 57.
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PROPERTY, GOD AND NATURE
wood as already surveyed, laid out in numbered lots and allocated to its
rightful owners. Any action which failed to heed the boundary lines of this
hypostatized survey he viewed as a transgression.
The task of clearing the land and cultivating it was a backbreaking one
in Upper Canada. It called for just as much exertion as in the United States,
but this exertion was wasted if one failed to keep one’s activity within the
bounds of the survey lines and one’s position in the “division of labour”
(which, practically speaking, were one and the same). In Doe dem. Hen-
derson v. Seymour, for example, the plaintiff had purchased some Clergy
Reserve land from a government agent and obtained receipts for partial
payment in 1846. It was on the strength of these receipts that the plaintiff
threatened to bring an action in ejectment against the defendants and their
families, who had been living on the land as squatters since 1840. The
defendants had made many valuable improvements, and the injustice of
depriving them of these was brought to the attention of the government. In
1849, an order in council was made providing that on defendants making
the required payments, which they did, plaintiff’s purchase money should
be returned to him and the sale to him cancelled. The plaintiff brought his
action in ejectment on the plea of prior purchase in 1850, and succeeded.
As Robinson, the last of the moralists, stated:
It has … the appearance of being a perversion of sound principle, and detri-
mental to morality, to afford to wilful trespassers [the squatters] the privilege
of a pre-emption right by reason of their illegal occupation … [even though]
the opposite policy of favouring these intruders has been generally, I believe,
the policy of the government in this province for a long time, if not from the
first.”10
The Crown could not, at its pleasure, change a wrongful occupant into a
rightful occupant, to the prejudice of its own vendee.
This decision is consistent with the structure of Robinson’s thought,
though it would have caused tremendous hardship for the defendants. The
squatters had acted as if they owned the land, that is, outside their proper
sphere or station in life as labourers. The plaintiff could assert a superior
title to the land (incomplete as it was) such that to condone the squatters’
intrusion on the Clergy Reserve lots would have entailed sanctioning a
transgression of boundaries.
110(1851), 9 U.C.Q.B. 47 at 53. See also, Doe Sheriffv. McGillivray (1841), 6 U.C.Q.B. (O.S.)
189, Doe Fitzgerald v. Finn (1844), 1 U.C.Q.B. 70, and Doe dem. Charles v. Cotton (1852), 8
U.C.Q.B. 313. It would seem that what finally took the morality out of property in Canada,
as in the United States, was the rise of the liberal conception of property rights. See E.V.
Mensch, “The Colonial Origins of Liberal Property Rights” (1982) 31 Buffalo L. Rev. 635;
and C.B. Macpherson, “Liberal Democracy and Property” in C.B. Macpherson, ed., Property:
Mainstream and Critical Positions (1978) 199.
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McKinnon v. Burrows is another case in which the exclusive structure
of Robinson’s thought came to the fore. This case concerned the proper
measure of damages for breach of a covenant for title made by a vendor in
a deed. At issue was whether the jury ought to have allowed damages for
improvements made by the plaintiff subsequent to the covenant, or limit
his damages to the purchase money plus interest. If one assumes in ac-
cordance with the prevailing functionalist interpretation of Ontarian legal
history that “the facilitation and encouragement of private initiative” was
the major value of the day, and “the protection of useful, private effort”
was one of the minor values which overlapped it, then the proper measure
of damages ought to have included room for improvements.” ‘ I But Robin-
son, after having found little or nothing in the books on this score, rested
his decision on the analogy of executory contracts for the sale of goods.
According to that case law, “the value supposed to be in the contemplation
of the parties at the time of the agreement should be the measure of the
damages”, and if mere English authority were not enough: “In the civil law
the principle which thus restricts the damages to the price paid, without
suffering them to be enhanced by subsequent events or acts not within the
contemplation of the parties is recognized, subject to some modifications
in peculiar cases, and is explained at large in Pothier on Obligations, pages
91, 97.”112
The whole structure of Robinson’s reasoning is analogical in this case,
and his polyjurality barred him from making a “realistic” assessment of the
demands of the situation. But to say of this case that: “[t]he result seems
to express a belief that individuals should take responsibility for their own
economic fates … [and that] it seems to be a denial of protection for useful,
productive effort, and contrary to results in other kinds of cases” ‘” 3 is mis-
leading and more illustrative of the poverty of empiricism than of any
deficiency in Robinson’s reasoning. The problem here appears to stem from
the functionalist premise that the law must serve a purpose, which entails
importing into the interpretation of this judgment the alien (to Robinson)
suggestion that the law ought to protect useful, productive effort. It may be
that in other kinds of cases this content (or purpose or “belief’), can be
l’Risk, supra, note 14 at 103. Much of the discussion which follows will appear to be critical
of the work of R.C.B. Risk; but, of course, were it not for his pioneering efforts Canadian legal
history would hardly exist –
as a separate field of study. It should also be
noted that Risk’s more recent work indicates that he has largely abandoned the Hurstian,
functionalist perspective. See, e.g., R.C.B. Risk, “Sir William R. Meredith, C.J.O.: The Search
for Authority” (1983) 7 Dal. L.J. 713; and R.C.B. Risk, “Lawyers, Courts and the Rise of the
Regulatory State” (1984) 9 Dal. L.J. 31.
as it does today –
112(1833), 3 U.C.Q.B. (O.S.) 590 at 592-3.
” 3R.C.B. Risk, “The Last Golden Age: Property and the Allocation of Loss in Ontario in
the Nineteenth Century” (1977) 27 U.T.L.J. 199 at 210.
1985]
PROPERTY, GOD AND NATURE
attributed to Robinson’s thought, but not so here because the form of his
thought would not allow it. Content is always determined by form, and in
this case it must be recalled that a third party with a superior title hovered
in the background. The plaintiff had expended energy but not within bound-
aries that he could claim as his own: his action had been “immoderate”.
Had McKinnon v. Burrows taken place in Wisconsin the result would
have been different, which is to say, the reverse of what it was. But McKinnon
took place in Upper Canada, and it was decided in accordance with the
legal system of that province. The legal system of Ontario crystallized in
oppositon to the legal system of Wisconsin, as the Conversion Table (Ap-
pendix) demonstrates. Far from being inconsistent, then, Robinson was
being ruthlessly logical.
While Robinson’s ruthless logic may have proved refractory to func-
tional analysis, his thought is rendered transparent when the techniques of
structural analysis are applied to the interpretation of his judgments. As we
have seen, the inductive-empirical generalizations so characteristic of Canadian
legal historiography to date fail to hold across more than a handful of cases.
This is because they tend to be inspired replications – but not transfor-
mations – of American motifs. The structuralist, by way of contrast, takes
the patterns to be discerned in the American case law, inverts them, and
then tests these converted propositions against the facts. The application of
this transcendental-deductive approach to the interpretation of the facts of
Canadian legal history yields connections which have the merit of being
intrinsic to the phenomena under study.
The same approach may be taken to the interpretation of statutes. In
early nineteenth-century America, a number of states gave expression to the
policy of promoting improvements by enacting statutes which permitted
the purchaser to recover the normally higher value of his estate at the time
of eviction (as opposed to sale). After 1810, the states and the courts reversed
themselves in this regard, but as if so as not to leave the developer at a loss,
they began to enact “good faith possession” statutes almost immediately.
“These statutes enabled a bonafide purchaser of land to recover the value
of his improvements from one who, with superior title, ousted him from
his possession.”‘ 14
No such statutes existed in Upper Canada. As the common law dictated,
anyone who improved another’s land by mistake as to title simply lost the
value of the improvements upon being ousted. The sole exception to this
rule was a statute, enacted in 1818, by means of which the legislature sought
” 4Horwitz, supra, note 23 at 61.
McGILL LAW JOURNAL
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to impose a uniform standard for the determination of the side lines of the
lots in each concession.
Aware of the fact that this new mode of settling boundaries might
disturb some persons in their possessions, the legislature “made the equi-
table provision, that when the boundary thus ascertained should vary from
that which had been assumed, in consequence of an erroneous previous
survey, the person who would lose land by the correction of the error must
be indemnified for any improvements he may have made before he shall
be dispossessed”.” 5 Significantly, the American laws all have to do with
“establishing relationships”, whereas the Ontarian law concerns “inclosing
private property” (Arendt). The former facilitated action by “making more
definite the framework of venture and expectation” (Hurst) whereas the
latter was designed primarily to rectify boundaries between households and
only incidentally did it touch on compensation.
Killichan v. Robertson is a further case pertinent to the discussion of
the (supposed) value of protecting useful, productive effort. In this case, the
intruder at one end of a lot of Crown land which had never been granted
to anyone brought an action in trespass against an intruder at the other end
for planting and harvesting a crop. Here, then, was a plaintiff who “claims
the right of excluding others from doing the same wrong that he had done”. ” 6
It was impossible to ground plaintiff’s right anywhere, and the jury found
for the defendant accordingly. The defendant’s effort, therefore, did receive
protection, but only by default. The “real” problem which this case raised,
however, was that of how to found an exclusive right on the basis of an
invasion of the property of a third party (the Crown). And there could be
no foundation for such a right, no ground for such a claim, given the form
of Robinson’s thought. The same point may be made with respect to the
Chief Justice’s timber licence decisions. Throughout this line of cases, as
R.C.B. Risk has observed, “[t]he established and apparently unquestionable
limits of the forms of action restricted responses and perceptions; for ex-
ample, a licensee, could not assert a claim in trespass, the usual remedy for
1″5Dennison v. Chew (1835), 5 U.C.Q.B. (O.S.) 161 at 164. Note how the unlawful intruder
or “trespasser” in this case gets redefined as a lawful excluder by virtue of the right of entry
up to the newly-established limits which theAct conferred. See also Doe dem. Moulev. Campbell
(1850), 8 U.C.Q.B. 19.
116(1842), 6 U.C.Q.B. (O.S.) 468 at 469. This case, Chestnut v. Day (1843), 6 U.C.Q.B. (O.S.)
637, and Henderson v. McLean (1858), 16 U.C.Q.B. 630 form an indissociable trinity irre-
spective of their separation in time.
1985]
PROPERTY, GOD AND NATURE
interference with an interest in land, because the licence did not give a right
to exclusive possession.”‘ 1 7
as opposed to the form –
If no evidence can be gleaned from Robinson’s judgments to suggest
that he sought to promote improvements or protect productive effort, did
the Chief Justice, then, discourage these things? Again, the question is ill-
phrased because it goes only to the content –
of his thought. The form of Robinson’s thought remained static while the
content varied in accordance with the nature of the cases that arose out of
the human encounter with nature in nineteenth-century Ontario. For ex-
ample, in Dean v. McCarty, the Chief Justice avowed that: “It is not very
long since this country was altogether a wilderness, as by far the greater part
is still. Till the land is cleared, it can produce nothing.”‘ 18 It is difficult to
imagine any more forceful statement of the intrinsic value of economic
development. But at the same time, there were few more staunch nineteenth-
century adherents to the doctrine of the English law of waste than Chief
Justice Robinson. According to this law, “any fundamental alteration by a
tenant of the condition of the land constituted waste for which he was
liable”.’ 19
Robinson was called upon to adjudicate one such reversioner’s claim
against a tenant for life for cutting timber in Weller v. Burnham. The de-
fendant attempted to justify his action by pleading that he had felled the
trees “to and for the purpose of clearing said lands, and improving and
cultivating the same … according to the custom of good husbandry, and the
custom of the country in Upper Canada, and [had] thereby increased and
enhanced the value of the said land”. 120 The plea fell on deaf ears. As the
117Supra, note 113 at 216. See Monahan v. Foley (1947), 4 U.C.Q.B. 129; McLaren v. Rice
(1848), 5 U.C.Q.B. 151; Perry v. Buck (1854), 12 U.C.Q.B. 451. It is not fortuitous that in all
of the cases (except McKinnon) discussed in the main text the reservation of land to the Crown
constituted a barrier to “progress” or “rewarding, useful, productive effort” in functionalist
terms.
The principle of reservation, crown ownership and leasehold tenure which char-
acterized Ontario resource policy stood in bold contrast to their nineteenth-century
American Counterparts. Americans placed a premium upon the rapid transfer of
the public domain, either by outright sale or pre-emption, into unrestricted private
ownership and the retention of property rights by the state for the welfare of the
community became an increasingly unAmerican notion with the passage of time.
The public lands were public only insofar as they were waiting to become private.
H. Nelles, The Politics of Development: Forests, Mines and Hydro-Electric Power in Ontario
1849-1941 (1974) at 39. In structuralist terms, the “negative community” of the Crown pre-
sented itself by means of these reservations. The state as absentee landlord is, perhaps, the
dominant motif in accord with which Robinson decided these cases involving the allocation
of losses.
I ISSupra, note 48 at 450.
” 9Horwitz, supra, note 23 at 54.
120(1853), 11 U.C.Q.B. 90 at 90-1.
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Chief Justice stated: “[S]upposing that it were clearly lawful in this country
for a tenant for life to change the character of the estate wholly or in part,
at his discretion, from woodland to arable land, stripping it of all its timber
… I cannot say I have any doubt that in substance, as well as in form, this
plea is bad.” 12 1
It is instructive to note by way of contrast that had this plea been made
before an American judge it would have been found good. Given that Amer-
ica was a “new unsettled country”, and “the nature of the soil and the
manner of improvement” were different than in England –
it followed
ineluctably that “in this country, such conversions in [land use] as are com-
patible with good husbandry, would not be deemed waste”.1 22 Evidently,
the migration of the law (or myth) of waste from England to America had
reached the “limiting situation” described by LUvi-Strauss in the following
passage:
When a mythical schema is transmitted from one population to another, and
there exists differences of language, social organization or way of life which
makes the myth difficult to communicate, it begins to become impoverished
and confused. But one can find a limiting situation in which instead of being
finally obliterated by losing all its outlines, the myth is inverted and regains
part of its precision. 123
The law of waste retained all of its precision in the process of migrating
from England to Upper Canada, however, at least in the mind of Sir John
Beverley Robinson. It is astonishing that this transposition took place with-
out the least displacement given the vast differences in actual social orga-
nization and way of life of the British and Canadian people. But ideally
there were no differences between the two, not according to Robinson’s
“blueprint” in any event. Thus the reception of the English law of waste
intact may be accounted for by reference to another myth, the mythical
conception of Canada as the New Albion.
The graded scale of Loyalist and retired army officer estates was as
crucial to the foundation of a British North America as the idea of creating
a “division of labour” was to securing the amenities of British civilization.
The law of waste fitted neatly into this schema because it both recognized
and maintained a graded scale of interests and uses with respect to the
disposition of a particular estate. Thus, the hierarchical structure of the well-
balanced society that Robinson envisioned could be “realized” in the con-
text of a single plot of land by virtue of the power conferred on owners of
the fee simple to create limited interests in their holdings. The relationship
’21Ibid. at 91.
122Horwitz, supra, note 23 at 54-5.
123C. Lvi-Strauss, “The Story of Asdiwal” in E. Leach, ed., The Structural Study of Myth
and Totemism (1967) 1 at 42.
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PROPERTY, GOD AND NATURE
between a tenant for life and the owner of the remaining non-possessory
interest was thus a microcosm of the totality of social relationships which
Robinson envisioned in his “blueprint” for the New Albion.
Returning to Weller v. Burnham, it is evident that a tenant who “laid
waste” to an estate was simply wasting his energy so long as the beneficial
interest remained vested in someone else. But while Robinson’s decision
in this case may be explained in a manner consistent with the structure of
his thought as revealed in other sorts of cases, there remains the problem
of accounting for his indignant tone of voice. Perhaps his stance was mo-
tivated by “real terror” at the idea of “the individual feel[ing] himself be-
coming an individual, pulling away from the group”, 124 or, in other words,
“realizing” himself as an autonomous being.
The thought of an individual no longer feeling himself bound by the
covenant and beginning to assert himself as a monadic subject would have
repulsed Robinson because of the threat such action posed to the structure
of the relationship between tenant and landlord, and at a higher (but iso-
morphic) level of abstraction, between colonist and King. Both such rela-
tionships are constitutive of a dyadic subject, a subject conscious of his
position in the “division of labour”, of his interdependence rather than his
independence. The dyadic subject was the ideal subject as far as Robinson
was concerned.
There is one Robinson decision, however, which appears to contradict
much of that which has been said thus far about the structure of his thought,
namely, Dean v. McCarty. Apparently, McCarty set fire to some log-heaps
while in the process of clearing his land. A “high-wind” sprang up and caused
the fire to spread onto his neighbour’s property where it destroyed some
cord wood and rails. The jury found that the defendant had exercised due
care under the circumstances and acquitted him of blame. Robinson upheld
their decision. Therefore, he must have secretly condoned McCarty’s “im-
moderate” behaviour because there is no other way the Chief Justice would
124Frye, supra, note 104 at 226.
[T]he historian examining ideas must necessarily come to grips with the structure
of mind itself, [that is] with relationships of intellection, affection, and will. Here,
ironically, the very term “intellectual history” is somewhat problematic, for it im-
plies a preoccupation with the first of these qualities of mind, possibly at the expense
of others. Yet thought, like conduct, is scarcely the product of intellect alone.
McKillop, supra, note 12 at 192 [emphasis added]. There is considerable authority for the
proposition that the “dominant and pervasive value” expressed in the law about the use and
transfer of land in mid-nineteenth century Ontario “was individual autonomy, and especially
individual power and initiative”. See Risk, supra, note 113 at 213. To the extent that Robinson
recognized this thrust (and there is some doubt that he did) he most certainly repressed it.
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have lent the Court’s sanction to such an invasion of the boundaries of the
other. However, the reasoning in this case is of much greater interest than
the result, and calls for careful scrutiny.
Dean v. McCarty occurred at a time when what had formerly been
recognized as nuisance cases importing a standard of strict liability were
being reclassified as negligence cases which only required that the defendant
act in accordance with a reasonable standard of care. Prior to this era, then,
the allegation of carelessness did not constitute the core of the type of action
brought in Dean v. McCarty (an action on the case for negligence). Indeed,
the “averment of negligence seems to have been mere surplusage”1 25 since
proof of injury could be relied on “as supplying the presumption of negli-
gence … when there might in fact have been no negligence”.126 As these
words of Robinson’s attest, the Chief Justice took the allegation of care-
lessness seriously and as having to be proved independently of the fact of
injury. An instrumentalist would interpret the act of making this distinction
as the first glimmering of the modem doctrine of negligence, which permits
the denial of recovery as a matter of law where there is no proof of negligence.
Such a doctrine evidently enables a court to subsidize economic develop-
ment by shifting the burden of loss onto the shoulders of inactive plaintiffs;
all the defendant need do is prove that he acted diligently under the
circumstances.
It is very tempting to interpret Dean v. McCarty instrumentally. For
example, after identifying the issue as “whether the defendant had used all
due care in setting fire to his clearing, and in guarding against accident”,
the Chief Justice stated: “in a country like this, it is of very great importance
that the rights and liabilities of parties in this particular should be known”. 127
He was sensitive, in other words, to the specific character of defendant’s act
and the context or “necessitous circumstances” in which the act occurred.
One suspects that had the English sources he (mis)read –
as we shall see
– not enabled him to absolve the defendant of fault, Robinson would have
either declared that they had never been applied in Upper Canada (as in
Doe Anderson) or gone the way of Chancellor Blake in O’Keefe v. Taylor.
In O’Keefe it was said that “such circumstances” as the necessity, for ex-
ample, of clearing the land to make it productive, “would not have been
overlooked by English judges, had they existed in that country; to omit the
consideration of them where they do exist, is not to administer English law
upon English principles, but blindly to apply a rule without reference to the
circumstances, upon the consideration of which alone its applicability can
12 5J.G. Fleming, The Law of Torts, 6th ed. (1983) at 320.
126Supra, note 48 at 451.
127Ibid. at 448.
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PROPERTY, GOD AND NATURE
be determined.” 128 The instrumentality of this distinction between English
principle and Canadian circumstances is self-evident, which makes it all the
more puzzling why Robinson did not invoke it.
Instead the Chief Justice took the more difficult tack of reading into
Baron Comyns’s statement of the governing “principle” in his Digest of
English Law a meaning that was in no way intended by the author. The
almost mystical passage which Robinson unintentionally converted reads
as follows: “So an action upon the case lies upon the general custom of the
realm, against the master of a house, if a fire be kindled there and consume
the house or goods of another. So, if a fire be kindled in a yard or close to
burn stubble, and by negligence it burns corn, &c. in an adjoining close.”‘ 129
The phrase “by negligence” in the second proposition meant “by failure”
to keep the fire inclosed, not, as Robinson imputed it to mean, a want of
reasonable care. The shift in the wind in the Dean situation, therefore, also
shifted the loss because “upon the question of negligence … [or] of what
was reasonable care under the circumstances” the jury had found in favour
of the defendant. 30
Robinson evidently felt uncomfortable and a bit uncertain about ap-
plying the emerging doctrine of negligence because he fell back in the end
on the English case of “Tuberville v. Stamp [sic]” which held that a de-
fendant could acquit himself only by showing that the escape of fire was
due either to an act of God or a stranger.131 Strictly speaking, Robinson did
not have to reclassify the “high wind” as “an act of God” in order to absolve
the defendant if the latter had in fact exercised due care. The fact that
Robinson did so recategorize the event calls for some explanation. As will
be recalled:
It is not very long since this country was altogether a wilderness …. Till the
land is cleared, it can produce nothing, and the burning the wood upon the
ground is a necessary part of the operation of clearing. To hold that what is
so indispensable, not merely to individual interests, but to the public good,
must be done wholly at the risk of the party doing it, without allowance for
any casualties which the act of God may occasion, and which no human care
128(1851), 2 Grant 95 at 101 (U.C. Ch. Ct)
129Digest of the English Law, vol. 1 (1822) at 411. Robinson was aware that the first prop-
osition had been altered by act of Parliament: (U.K.), 6 Anne, c. 31; (U.K.), 14 Geo. 3, c. 78,
ss 85-6.
130Supra, note 48 at 449-50. “By negligence” could no longer just mean “by failure” to
Robinson because he was aware of how the common law doctrine of negligence had successively
“revealed” (or, as some would say, “evolved”) itself through the running-down and ship col-
lision cases. See Horwitz, supra, note 23 at 85-99; M.J. Prichard, “Trespass, Case and the Rule
in Williams v. Holland’ [1964] Camb. L. J. 234; P.H. Winfield, “The Myth of Absolute Lia-
bility” (1926) 42 Law Q. Rev. 37.
131(1697), 1 Ld. Raym. 264, 91 E.R. 13.
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could certainly prevent, would be to depart from a principle which, in other
necessary business of mankind [such as taking horses into the highway or
bringing a ship to anchor], is plainly settled, and always upheld. 32
Was it the “public interest”, then, that negatived the plaintiff’s right to claim
damages for the interference the fire had caused to his property? Not ac-
cording to Robinson. The right was negatived by virtue of an “act of God”.
In other words, it was not private initiative but Divine Providence which
had caused the invasion of boundaries and occasioned the loss.
It must be borne in mind that Robinson lived in an age –
so aptly
described by Carl Berger in Science, God and Nature in Victorian Canada
– when “the finger of God” was visible everywhere, directing the most
disparate events. 133 For example, the Chief Justice rationalized his repeated
attacks of gout as afflictions inflicted by Providence “for our good”. 134 He
attributed his long and illustrious career on the Bench not to his prodigious
skills, but to his God-given talents for which he would one day have to
account. “And may God grant”, he said upon stepping down from the
Bench, “that we all may bear in mind the account which we must one day
render of the time and talents committed to our charge.”‘135 There was very
little room for any display of private initiative given the conception that
“[e]ach man’s life was a record of his transactions with God and of God’s
purposes with him –
for those who had the faith-given discernment to read
it.”136 Perhaps the only display of individual autonomy Robinson could
recognize lay in seeking an advantage to oneself at the expense of one’s
neighbour.
By parity of reasoning, the defendant in Dean v. McCarty could not
be held liable upon a “rigourous and indiscriminating application” of the
maxim sic utere tuo ut alienum non laedas. According to this maxim, one
must use one’s own property so as not to injure that of another, but as the
Chief Justice noted:
This maxim is rather to be applied to those cases in which a man, not under
the pressure of any necessity, deliberately, and in view of the consequences,
132Dean v. McCarty, supra, note 48 at 450. See also Phillips v. Redpath and M’Kay (1830),
Draper 68 (U.C.Q.B.) (on the public welfare) and Ham v. McPherson (1842), 6 U.C.Q.B. (O.S.)
360 (not all tempests were necessarily acts of God).
133C. Berger, Science, God and Nature in Victorian Canada (1983) at 31ff.
134Robinson, supra, note 21 at 236.
135Ibid. at 397.
36Wise, supra, note 58 at 40. The display of piety, on the other hand, was central to Ro-
1
binson’s existence: he began each day “by gathering his family for morning prayers”. Brode,
supra, note 39 at 110. As he proclaimed in public at the opening of Trinity College: “Nothing
else we most fondly venerate – not the glorious flag of England, nor the great Charter of our
liberties – has from its antiquity so strong a claim to our devotion as our Church.” Supra,
note 21 at 350.
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PROPERTY, GOD AND NATURE
seeks an advantage to himself at the expense of a certain injury to his neighbour;
as for instance, in the use he makes of a stream of water passing through his
land, which he is at liberty to apply to his own purposes, but he must not so
use it as to diminish the value of the stream to his neighbour, unless he had
a prescriptive right.137
As in the case of naturally flowing waters, so in the case of fire. The
plaintiff’s action failed because the fire was “prescribed”, so to speak, by
God.
One of the most remarkable examples of Robinson’s penchant for nat-
ural theology is the paragraph quoted at the very beginning of this essay.
It is the first paragraph of Canada and the Canada Bill. In that treatise,
Robinson attempted to demonstrate that the Revolutionary War of 1776,
and the massive cession of British territory to the United States at its con-
clusion in 1783, were actually part of the military strategy of divinity. Had
it not been for the divine interference which sparked the war that redefined
the boundaries of empire at a time when the American people were relatively
few in number, Great Britain might have lost all of her possessions in the
New World. After all, had not “the almost boundless territory of the North
American continent” impeded “the exercise of an actual superintendence”?
Was it not “inevitable” that a people “left at liberty to consert schemes of
independence” would do So?138
If only God in his wisdom could alter the political contours of North
America, then, by parity of reasoning, only an act of God could sanction a
transgression of boundaires. McCarty, the defendant, would one day have
to account to God, but evidently not to the plaintiff, Dean.
Conclusion
I have demonstrated that certain parities exist in the legal, political and
religious thought of one of Canada’s most illustrious jurists. I do not claim
that Robinson’s legal or religious thought can be reduced to his political
thought; I merely point to the congruence.139 It was not fortuitous in other
words that the Chief Justice was a High Church Anglican, a Tory, and a
Loyalist. It would have been “immoderate” for him to have been anything
else, for if there is one formula in terms of which the totality of Robinson’s
thought may be expressed it is that fragment (again) from Heraclitus which
reads: “The people should fight for the law as for a wall”. 140
137Supra, note 48 at 449. Compare Brode, supra, note 39 at 238-40.
138Canada and the Canada Bill, supra, note 2 at 14.
139See E.E. Evans-Pritchard, Nuer Religion (1956) at 320.
140Arendt, supra, note 49 at 63 n. 62.
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I have also shown that the common law became increasingly uncom-
mon in the course of its migrations. The differences which emerged in the
process of transmission and reception were not random though. They reveal
a definite pattern. The fact that it is possible to discern a system to the
different ways in which the common law was received and enforced in the
North Atlantic world implies that jurists exercise their “creative power”
subject to certain constraints, namely, the constraints of the “system in
place”. Thus, as we have seen, new law is not invented, it is but inverted
(or otherwise transposed) old law.
The American judges went about “creating new law” deliberately, or
so they thought, by (basically) inverting all the terms of the English law of
property. Robinson also “created new law” as in Dean v. McCarty, but not
intentionally, since all he meant to do in that case was to reiterate the
“principle” articulated in Comyns’s Digest. Thus, in certain circumstances,
even the act of repetition is capable of effecting a conversion.
I have used the term conversion throughout this essay the way both a
logician and a theologian would to refer to an operation of the mind (or
spirit). The Conversion Table (Appendix) illustrates the dynamics of the
conversion process. It is a process by means of which one body of thought
could be said to transpose itself into the terms of another corpus of ideas,
and vice versa. What remains constant is not the terms, obviously, but the
relation between them, a relation which may be characterized as one of
complementary opposition. 141 It is in this sense that cultures (and the legal
systems which they encompass) situate themselves apart, but can only be
grasped in conjunction, as “equally significant, integrated systems of dif-
ferences” from each other.
One would not expect to find any resemblances between the legal sys-
tems of Upper Canada and the United States on the basis of the foregoing
account. But this is, and was, not the case. 142
14″See the chapter entitled “Analogical Classification” in Needham, supra, note 56 at 41.
142For example, writing in 1857, Oliver Mowat remarked:
In Canada we must find advantage and interest in examining [American] decisions
and writings far beyond what is the case in England. Our local circumstances are
more nearly like those of the people of the United States. The classes of cases that
arise more frequently in the United States than in England, are also more frequently
arising with us. … Our legislature has also adopted, and sometimes with little
alteration, many valuable American statutes. The interpretation of these by the
Courts of the States in which they originated or by which they have been adopted
in the same way as by our legislature, is obviously most worthy of our attention.
See 0. Mowat, “Observations on the Use and Value of American Reports in Reference to
Canadian Jurisprudence” (1857) 3 Upper Can. L.J. 3 at 5 and 7. “In structuralist terms any
discourse at some level alludes to the absences it intrinsically sets in abeyance.” Boon, supra,
note 6 at 232. Compare Robinson in Street v. Commercial Bank ofthe Midland District, supra,
note 37.
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PROPERTY, GOD AND NATURE
It is not my concern to provide an inventory of those similarities here.
I allude to them only to point out how problematic they must (henceforth)
appear. For if the comparative study of law (like that of myth) is to achieve
respectability then we must follow Lvi-Strauss’s lead in recognizing that
resemblance has no reality in itself; it is only a particular instance of difference,
that in which difference tends towards zero. But difference is never completely
absent. It follows that critical analysis must take over from the making of
empirical inventories to face the basic problem of those conditions in which
a resemblance can have a wealth of meaning far surpassing what might be
implied by a random coincidence, an effect of convergence or a common or-
igin.143
143C. Levi-Strauss, The Naked Man: Introduction to a Science of Mythology, vol. 4, trans. J.
and D. Weightman (1981) at 38.
414
Appendix
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[Vol. 30
Conversion Table: Contrastive Features of American Republican and
Upper Canadian Loyalist Legal and Political Culture (circa 1830)*
United States
Upper Canada
Republican Democracy
Imperial Monarchy
Separation of powers
Unity of powers
Legislative power flows
from the People up
Legislative power flows
from the Imperial Crown down
Rapid transfer of property
rights to private individuals
Retention of property rights by
Province (e.g. Crown lands)
Creative expansionism
Defensive expansionism
Invasionary
Egalitarian
Monadic subject
Private initiative
Release of individual
creative human energy
Exclusionary
Hierarchical
Dyadic subject
Divine Providence
Cultivation of industrious
habits
Life, liberty and the pursuit
of happiness
Peace, order and good
government
This table is presented with the caveat that
when we advance a theory or description of “the system in place”, we are obliged
to recognize the relative character of our efforts and to acknowledge that what such
a phrase solicits is not “the system” so much as that system which, in contrast to
some ground, figures as less muted, subjacent, inhibited in its influences or restricted
in its manifest expression than others that are, nonetheless, also in place.
R.F. McDonnell, “Symbolic Orientations and Systematic Turmoil: Centring on the Kaska
Symbol of Dene” (1984) 4 Can. J. Anthropology 39 at 41.
