"FOR THE MORE EASY RECOVERY OF DEBTS IN HIS MAJESTY'S PLANTATIONS": CREDIT AND CONFLICT IN UPPER CANADA, 1788-1809 by KAREN PEARLSTON LL.B., York University, 1996 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA April 1999 © Karen Pearlston, 1999 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada DE-6 (2/88) 11 ABSTRACT This thesis is concerned with the relationship between creditor/debtor law and broader political, economic, and social relations in Upper Canada before 1812. The research reviews the history of credit relations in early Upper Canada through a critical reassessment of both the historiographic debates and available primary legal and archival sources. Recent historical writing, in seeking out the community based nature of creditor/debtor relations has often tended to overlook the extent to which social, political, and economic conflicts were also played out in the arena of credit and debt. In early Upper Canada, matters relating to credit and debt were not infrequently the focus of conflicts about constitutionalism and the rights of colonial subjects. The thesis argues for a re-framing of the study of creditor/debtor relations to take account of the overall context of economic inequality. Feminist historical and theoretical work is drawn upon to expand conventional understandings of the economic, and to argue that local or communal based relations are not always consensual. The thesis draws a connection between social inequality, political repression, constitutional politics and the private law of property, credit, and debt. It asserts that early Upper Canadian creditor/ debtor relations were expressive of the struggle over the kinds of institutions that would represent the new polity, and of a sensibility among at least some portion of the population that the rule of law should apply to a wider range of people than those who made up the elite. It is found that the role of certain financial instruments and the contents of certain court records has been misunderstood. These findings change our understanding of the 1794 court reforms in Upper Canada, which established an English-style Court of King's Bench. It is also found that debtor/creditor law, in particular the seizure of land for debt in Upper Canada (a remedy that was not available in England) impacted upon the constitutional politics of the time. Ill TABLE OF CONTENTS Abstract ii Table of Contents iii Acknowledgments v Chapter One INTRODUCTION 1 Writing Canadian Business Law History 1 Credit, Informality, and Private Law 7 Respectability, Kinship, and Patronage 10 Credit and Conflict in Community 14 Credit and 'Moral Economy' 22 Economic Man, and the Family 26 Chapter Two UPPER CANADA LAW AND SOCIETY 1788-1809 33 Early Settlement 33 Who Were the Loyalists? 36 Loyalist Ideology 40 Upper Canada and the Quebec Act 42 Upper Canada's Early Constitution 45 District Officers: Power, Privilege, and Patronage 48 Loyalists, Late Loyalists, and Land Policy 51 Elite Fears and the Repression of Dissent 54 Chapter Three ALL BAD OR ALL GOOD?: MERCHANTS AND THE CREDIT SYSTEM IN EARLY UPPER CANADA 61 The Staples Thesis, and its Critics 61 Local Merchants in Upper Canada: Two Views 64 Upper Canada Merchants: Large and Small 70 Merchant Debt and Long Credit 74 Development or Dependency? 76 Chapter Four LAW AND FINANCE IN EARLY UPPER CANADA 80 Commercial Finance 81 Legally Recognized Commercial Paper: Bills of Exchange and Promissory Notes 84 Accounting and Exchange 87 Merchants, Banking Functions, and the Bon 89 The Judicature Bill of 1794 94 iv Evidence For Use of The Bon: 99 At the Court of Common Pleas 99 At the Courts of Request 100 Other Evidence for the Bon? 104 The Provisioning Contract, and Simcoe's Feud with Hamilton and Cartwright 105 Wider Anti-Merchant Sentiment 110 Credit, Dependency, and Legal Doctrine 113 Chapter Five LAND SEIZURE AND LEGAL IDEOLOGY 117 Legal Basis and Political Background to Land Seizure 117 The Importance of 'English Law' in Early Upper Canada 120 King's Bench Litigation 124 Henry Allcock: English Judges and Constitutional Politics 129 Upper Canada's Early Opposition 136 Opposition to Land Policy 141 The Link to Creditor/Debtor Relations 143 Chapter Six FRAMEWORKS FOR THE STUDY OF CREDIT 147 Problematizing the Terms of the Debate 149 Gendering the History of Law and the Economy 153 New Questions for Legal Theory and Legal History 158 Bibliography 162 V ACKNOWLEDGMENTS Great thanks are due to my thesis supervisors, Professors Susan B. Boyd and W. Wesley Pue, for shepherding this thesis through its several drafts and for their academic and personal support and unfailing good humour, and to Lillian Ong at the Graduate Program in Law at the University of British Columbia for her much valued administrative support. Thanks are also due to Professor Douglas Hay of York University for providing timely research tips and a listening ear, and to Professors Angela Redish of the University of British Columbia and Douglas McCalla of Trent University for their generosity in taking time to discuss the Bon with me. Responsibility for any errors or omissions in this thesis rests with me. My year at the University of British Columbia was a difficult one, and I would not have made it through without the support of Wes, Susan, and Lillian, as well as Professor Dianne Newell in the Department of History and my colleagues in the Graduate Program in Law and at Green College. Special thanks to Jacqueline Jago, Mehera San Roque, Michael Thorns and Margaret Blenkhorn. Finally, none of this would have been possible without Joan Headley. My father, Harvey Irwin Pearlston, died in October of 1997, soon after I traveled from Toronto to Vancouver and began the course work for my LL.M. Dad wanted to study history, but there were few academic or teaching jobs for Jews in Canada in the nineteen- fifties. He became a pharmacist instead. This work is for him. 1 Chapter One INTRODUCTION This thesis is about credit and conflict during the earliest years of European settlement in Upper Canada. By focusing on conflict, it deliberately tries to undermine recent work on early modern credit relations that emphasizes credit as consensual, because it was pervasive and facilitative. I argue that because credit relations took place in a context of economic and social inequality, they were of necessity conflict ridden, even though there were also consensual elements to the system. The contrary view can be sustained only if credit relations are artificially hived off from the social, economic, and legal context and the associated power relations in which they operated. Although often extra-judicial in the sense that credit arrangements were private agreements in which disputes could often be settled without recourse to the courts, credit relations were also "subject to certain conditions, structures of rights and duties within the coercive framework of the law."1 Moreover, power relations associated with credit cannot be defined only with reference to the courts. In early Upper Canada, social and economic inequality and perceived lack of legal fairness between debtor and creditor provided a site for struggle over constitutional politics, posing the question of whether British justice would be sacrificed to the interest of elite groups. Upper Canada before 1812 therefore provides a useful microcosm for examining the role of conflict in the history of credit relations. At the same time, the focus on conflict in early Upper Canada challenges conventional ideas about consensus in Canadian history. Writing Canadian Business Law History Until relatively recently, much of Canadian history was written from a perspective that intrinsically assumed a Canadian past consisting mainly of a consensus-building 'David Sugarman and G.R. Rubin, "Towards A New History of Law and Material Society in England 1750-1914," in Law. Economy and Society. 1750-1914: Essays in the History of English Law, ed. David Sugarman and G.R. Rubin (Abingdon, England: Professional Books, 1984), 10. 2 exercise regarding the values and priorities of the kinds of people by and about whom most of the histories were written.2 This tendency has been particularly strong in historical writing about Upper Canada which, along with Lower Canada, constituted the central- Canadian cradle of what was "commonly designated the two founding nations until such Eurocentrism was challenged by aboriginal claims to 'First Nations' status in the 1980s."3 Conventional histories of Upper Canada have minimized dissent, focusing instead on the loyalty, love of order, and deference to authority that is a real part - but only part - of the story.4 As Paul Romney wrote in regard to historical writing on post-1812 Upper Canada, "the underlying pattern of social inequity and political repression...has vanished from historical consciousness."5 This phenomena is at least as marked for histories of the earliest years of the colony, when the institutions and ideologies that became and sustained the Family Compact were being created. As discussed in chapter five of this thesis, the vocal dissenters of the pre-1812 period have usually been dismissed as opportunists or worse.