Brendan Gillis

An ear can change history, or at least the way that scholars write about it. On the cold winter night of December 6, 1764, Thomas Walker heard a knock at his door in Montreal. Suspecting that “it was a Number of [French] Canadians” attending “upon Business [with him] as a Justice of Peace, as he had that whole Day had a great many such Applications,” the magistrate “cried out Entrez.” At this, a group of soldiers with faces blackened for disguise stormed into the house, hacking away with knives and swords. In the ensuing fray, an attacker cut off Walker’s right ear, almost certainly in retribution for a recent decision about where to billet men garrisoned in the town. French Montrealers complained that English soldiers demanded bribes in exchange for limiting the number of troops housed in each private dwelling. Walker and other justices intervened to prevent what they considered clear corruption. The magistrate’s appendage thus fell victim to emerging contests between military authorities, Francophone subjects, and the British civil government for Quebec, instituted just weeks earlier.

Severed ears appear surprisingly frequently in the history of the British empire during the middle decades of the eighteenth century. As various newspapers reported in October 1731, an officer in the Spanish guarda costa had apparently cut off the left ear of British merchant Robert Jenkins during a search of his ship off the coast of Florida. According to a commonly repeated (and likely apocryphal) legend, Jenkins may have produced the pickled and preserved remains of his soft tissue when he testified before the House of Commons seven years later in 1738. The merchant’s unique wound gave its name to the Anglo-Spanish war of 1739-1748, often referred to today as the War of Jenkins’ Ear.

I first stumbled across Walker and his missing appendage while conducting research on law enforcement in New England during the American revolutionary crisis. In January 2017, while a postdoctoral fellow at the American Antiquarian Society in Worcester, Massachusetts, I was hard at work on a new chapter for a book, which narrates the global history of a particular form of imperial administration—the British magistrate—from 1690-1835. Colonizers and legislators replicated this style of office-holding in places as diverse and distinctive as Bengal, Scotland, British Honduras, Kentucky, and the Province of Quebec. The local business of law, especially the petty crimes and minor infractions that fell under the jurisdiction of an eighteenth-century justice of the peace (JP), entailed minutiae that can seem inconsequential, intimidating, or bafflingly technical. In sharp contrast, such a bloody and violent challenge to colonial authority—a mob of disguised men, a few ounces of disembodied flesh—seemed almost too colorful to ignore. In Walker’s case, surviving evidence suggests, “the Ear [preserved] in spirits” really did feature prominently in the trial of several men accused of assaulting him. Despite clear material evidence, however, the court returned a verdict of not guilty.

More significantly, Walker’s example runs counter to one deeply entrenched interpretation of the place of Quebec and its laws within the British empire of the 1760s. Walker, a protestant, Anglophone JP made reference to both French and English law as he negotiated the complex social dynamics of a frontier colonial city in the midst of rapid and potentially violent change. As part of the Treaty of Paris signed in 1763, the British government relinquished Guadalupe, Martinique, and other plum colonial possessions conquered during the Seven Years’ War in exchange for control of French Canada. This pleased few in Britain or North America. To placate potentially rowdy Francophone and Catholic subjects, British negotiators agreed that the new government for the colony would allow British judges to apply French law in civil matters. Ever since, it has been common to cite the significant differences between French Canadian and Anglo-American policies as evidence that British conquerors never aspired to fold Quebec into a legally coherent global empire.

And for this, Thomas Jefferson can claim at least partial credit. In Texas, where I teach, the British conquest of Quebec comes up in the classroom most frequently in the context of turbulent events that would take place somewhat further south over the next two decades. When, out of “a decent respect to the opinions of mankind,” colonial representatives met in Philadelphia to draft a Declaration of Independence, they included a pointed reference to new British possessions in Canada. King George III, this document explained, held a significant share of the responsibility “[for] abolishing the free System of English Laws in a neighbouring Province”—meaning Quebec—“establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.” The extension of the borders of this new province clearly galled leaders and speculators in the various other colonies with interests in lands along the Ohio River. The Quebec Act of 1774 confirmed that the new British province included large swathes of what would become the Midwestern United States. This decision left Pennsylvanians, Virginians, and other colonists who claimed portions of this region aggrieved to the point of rebellion.

Accusations of tyranny and lawlessness added a sinister and seemingly disingenuous edge to complaints about colonial boundaries. The British government introduced English criminal law in Quebec. While this allowed courts to refer to French civil law for precedents, it hardly left the province in a state of anarchy. Walker’s story reinforced my suspicions. In an opening statement as part of the trial of Daniel Disney, one of the men who stood accused of assaulting Walker, Attorney General Francis Maseres declared the crime “one of the most outrageous Violations of the public Peace and Order that ever was brought before a Court of Justice.” He accused the defendants of seeking revenge for Walker’s actions as a justice of the peace “in Support, as he thought, at least, of the Laws and Liberties of his Country.” To let such an insult stand would make “our excellent Laws… but a dead Letter, and our boasted Liberties and Properties an empty Sound.” The prosecutor took for granted that the magistrates of Montreal served an English rule of law and an unwritten Constitution that protected the rights and privileges of British subjects. From this perspective, the magistrate’s ear fell victim to an assault on British imperial sovereignty that verged on “High Treason.”

The inhabitants of Quebec, Walker and his lawyer seemed to assume, could access the rights and privileges protected in English law without paying heed to its letter. It does not require much reading to find eighteenth-century legal scholars reaching similar conclusions. Prominent jurist William Blackstone, for example, insisted that English common law did not apply to any “American plantations.” He did not, however, dispute

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Richard Burn, Le Juge a Paix, et Officier de Paroisse, Pour la Province de Quebec, ed. and trans. Jos F. Perrault (Montreal: Chez Fleury Mesplet, 1789). Photograph courtesy of archive.org.

the validity of British claims in the region. When magistrate and jurisprude Richard Burn discussed law enforcement in Scotland, in a 1766 edition of his Justice of the Peace, and Parish Officer (and perhaps with the recent conquest of Quebec on his mind), he insisted that English officials need not worry about the distinctive body of law in North Britain. If allowed time and space to govern, Burn suggested, Scottish JPs would reshape law through practice, meaning that “time shall utterly wear off all distinctions; which at present (if examined) will be found to be chiefly nominal.” Similarly, the East India Company worked tirelessly to reconstruct Hindu and Muslim precedents to be applied in South Asia, operating under the assumption that these laws would be refined and improved through proper administration.

Discussions of law in British Canada focused on justices of the peace as a mechanism for gradual Anglicization. In 1789, Joseph-Francois Perrault published a translation of Burn’s practical handbook for magistrates to communicate “the criminal laws of England” [loix criminelles d’angleterre] to the people of Quebec, “where English is known only to a very small number of its inhabitants” [où la langue Angloise n’est connue que d’un très-petit nobre de ses Habitans]. In his introduction, Perrault praised “these humane criminal laws” [ces loix humainement pénales] for the prospect they provided of transforming this corner of Canada into a more robustly British domain, albeit one in which French laws would also be applied in French proceedings. Burn wrote his book for use in England. Many of the laws it digested applied to specific English towns and localities. Nevertheless, Perrault felt that his words and the laws they catalogued could be a useful tool for “Canadian magistrates” who negotiated a profoundly different legal terrain. In Quebec, then, civil government aimed to apply British style to French substance.

The arguments deployed during an emerging Age of Revolutions have helped to obscure the legal logic that drove British imperial rule. Following a pattern repeated frequently across the empire, the figure of the magistrate quickly became a nexus for debates, proposals, and even violence to determine who would control the reigns of legal and political power. It should come as no surprise then, that those who hoped to shape British rule in Quebec attached great weight to the role of magistrates. When the mob of soldiers attacked Walker, I learned, they hoped to intimidate the civil government and influence its decisions. Simultaneously, crowds of French Canadians saw in Walker a potential ally in a confusing and rapidly changing political landscape. For many eighteenth-century British subjects, this example suggests, empire revolved around forms of administration. As such, Quebec provided a model for the expansion of British law enforcement that could be applied to other conquered territories, notably Bengal, in which British magistrates would apply diverse, non-English laws to populations conversant in a variety of languages.

Sometimes an ear—whether fileted, pickled, or left in place—is just an ear. Given the right circumstances, though, it can provide a window into otherwise unfamiliar ideas and perspectives. In this case, I leant an ear to the archive only to find another, lost long ago in sacrifice to an impossible dream of imperial order.

 

Brendan Gillis is an Assistant Professor of History at Lamar University in Beaumont, Texas, where he teaches courses on colonial North America and the British empire. He is currently working on a book, “Cosmopolitan Parochialism: A Global History of the British Magistrate, 1690-1835,” which describes the role of local law enforcement in shaping British imperial expansion from Honduras to Bengal.


Cover Image: Plate 28, Tim Bobbin (pseudonym for John Collier), The Human Passions Delineated (Manchester: John Heywood, 1773). Image Courtesy of the Lewis Walpole Library.