Colonial Justice

Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791-1849

DAVID MURRAY
Copyright Date: 2002
Pages: 298
https://www.jstor.org/stable/10.3138/j.ctt1287t44
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  • Book Info
    Colonial Justice
    Book Description:

    This new study of early Canadian law delves into the court records of the Niagara District, one of the richest sets of records surviving from Upper Canada, to analyze the criminal justice system in the district during the first half of the 19th century.

    eISBN: 978-1-4426-2340-8
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Foreword
    (pp. ix-x)
    R. Roy McMurtry and Peter N. Oliver

    In many ways, the acquisition of historical knowledge is a cumulative process and one scholar moves forward from the building blocks provided by another. Although recent years have seen the publication of several good books and articles on the legal history of Upper Canada, these works in some ways are premature in that they offer overviews and interpretations before attempting to assess how the courts and legal structures actually functioned ‘on the ground.’

    Fortunately there does exist for early Ontario a relatively rich archival heritage which historians are beginning to tap into to create local studies which will allow us...

  4. Acknowledgments
    (pp. xi-2)
    DAVID MURRAY
  5. Introduction
    (pp. 3-8)

    From its creation as a separate colony in 1791, Upper Canada maintained the English system of law, law-making, and law enforcement. The first legislation passed by the newly elected Assembly introduced English laws and established trial by jury as the right of every colonist. Upper Canada’s first lieutenant governor, John Graves Simcoe, had a clear vision of the British colony he wanted to see created in the western half of what had been Quebec. The colony was to demonstrate the superiority of British institutions, especially to the Americans. As his biographer characterized it, Upper Canada was to be ‘a model...

  6. 1 The Paradise of Upper Canada
    (pp. 9-22)

    The Niagara peninsula has always been both a land bridge between British North America (and later Canada) and the United States, and a water crossing point or portage between Lake Erie and Lake Ontario. It developed as a conjunction of land and water routes, and as a gateway for settlers leaving the United States for British North America following the American Revolution. Bisected by the Niagara escarpment, the early Niagara peninsula was noteworthy for its agricultural potential, especially in the area bordering Lake Ontario and the Niagara river. The immediately available water power was another attraction for early settlers, allowing...

  7. Part One: Justice
    • [Part One: Introduction]
      (pp. 23-24)

      Upper Canada’s legal structure was specifically designed to incorporate all English law as of 17 September 1792, the date of the opening of the first Legislature of Upper Canada, as the law of Upper Canada. That law would thereafter be modified by laws passed by the Legislature. But English legal and moral principles were to guide the Upper Canadians as they implemented the English legal code.

      The key officials of the justice system, the judges, sheriffs, and magistrates, were appointed directly by the lieutenant governor and held office at the pleasure of the Crown. They were in every sense royal...

    • 2 Courts, District Rulers, and Crown Servants
      (pp. 25-51)

      Courts of General Sessions of the Peace and a Court of King’s Bench had been created in Quebec following the Conquest, which made their extension to Upper Canada both logical and natural even before the Constitutional Act formally divided the Canadas in 1791. Simcoe modelled the justice system in Upper Canada upon the English one and had his chief justice create a bill designating a Court of King’s Bench as a superior court of civil and criminal jurisdiction. The resultant Act was passed in 1794.¹ The trials in this court occurred at assizes held in the capital of each district...

    • 3 Servants of the Court
      (pp. 52-72)

      The transplantation of the English criminal law system to British North American colonies ensured that the jury trial would play the same central role in colonial justice as it did within England. The second Act passed by the Upper Canadian Legislature in 1792 established trial by jury throughout the new colony and proclaimed jury trials as ‘one of the chief benefits to be attained by a free Constitution.’¹ Two years later the Legislature passed another Act to impose fines upon any clerk of the peace who did not turn over to sheriffs a list of men from the assessment roles...

  8. Part Two: Morality
    • [Part Two: Introduction]
      (pp. 73-74)

      When Upper Canada was created as a separate colony, John Graves Simcoe, its first lieutenant governor, had emphasized that piety and morality were the foundation of a lawful society, just as Christianity was the unquestioned basis of morality within the English system of law that Upper Canada inherited. The handbook of law W.C. Keele compiled in 1835 for the use of the magistrates in Upper Canada stated, ‘the Christian religion, according to high authority, is part and parcel of the law of England. To reproach or blaspheme it, therefore, is to speak in subversion of the law.’¹ In this sense...

    • 4 Enforcing a Christian Moral Order
      (pp. 75-89)

      Niagara district magistrate Bartholomew Tench was strolling along the bank of the Welland Canal early in the afternoon of Sunday, 14 November 1833, heading towards Gravelly Bay (Port Colborne) when, as he later recalled, he observed several men, five at least, employed in shingling a home belonging to a person named Smith. At roughly the same moment his attention was called to the men at work by one Jenner, a miller. The subsequent exchange was recorded in a deposition made by the magistrate.

      ‘Have you not seen the King’s Proclamation to prevent such work on the Sabbath?’ To which deponent...

    • 5 Intruders Upon the Precincts of Crime
      (pp. 90-106)

      When he spoke at the ceremony to lay the cornerstone for the Provincial Lunatic Asylum in 1846, Chief Justice Robinson emphasized the need for this new state facility, which would remove ‘the mere helpless and unwelcome intruders upon the precincts of crime’ from the district jails and permit them to be treated medically, perhaps in some cases with the hope of a cure.¹ Who were these intruders and how had they ended up in the local jails, ‘the precincts of crime,’ in nineteenth-century Upper Canada? There is no simple answer to this question. But in the minds of contemporary legal...

    • 6 The Cold Hand of Charity
      (pp. 107-130)

      ‘The Canadians,’ wrote Susannah Moodie inRoughing it in the Bush, ‘are a truly charitable people; no person in distress is driven with harsh and cruel language from their doors.’¹ As individuals, the inhabitants of Upper Canada undoubtedly deserved this accolade. Voluntary charity was a virtual necessity for community existence among the Upper Canadian pioneers, even if many were so poor they could offer little in the way of practical help. But did individual charity extend to public charity in a colony which had consciously rejected the English poor law in 1792?

      New Brunswick was the last of the British...

  9. Part Three: Crime
    • [Part Three: Introduction]
      (pp. 131-134)

      How much crime was there in the Niagara district during the early colonial period? Was the moral order of society being threatened by criminal activity? These questions preoccupied the colonial population far more immediately than they do legal historians. One interesting way of answering them is to turn to the judges who tried criminal cases. These judges saw only cases in which arrests had been made, indictments returned, and trials had been arranged. Since many criminal offences were never prosecuted, the judges may not be able to provide final answers. Nevertheless, the collective opinion of Upper Canada’s three judges of...

    • 7 Crimes and Punishments
      (pp. 135-153)

      Crimes against the person, especially assaults, were the most common crime dealt with by the court of quarter sessions in the Niagara district. The Niagara court of quarter sessions records contain 372 cases of assault (including assault and battery and aggravated assault) from 1828 to 1846. In this period, in contrast to earlier times, more serious cases began to appear before the court of quarter sessions. Reporting business in the court of quarter sessions which sat in January 1823,The Niagara Gleanerclaimed that many of the cases ‘were of a trifling nature.’¹ By the 1830s, that was no longer...

    • 8 Criminal Victims
      (pp. 154-174)

      Historians have traditionally been more concerned with the perpetrators of crime than with its victims. In colonial Niagara two groups of people stand out because of the treatment they received at the hands of the law: women who had been subject to spousal abuse and African Canadians subjected to racial persecution within the justice system as well as without. One group was victimized because of gender, and the other because of race. When a woman or a member of the African Canadian community was a victim of crime, she or he faced double jeopardy in seeking justice.

      Peter Ward has...

    • 9 Criminal Boundaries
      (pp. 175-195)

      Magistrates and sheriffs in the Niagara district often viewed the United States as a source of criminality of all kinds. Prostitutes were suspected of regularly coming over the border from Buffalo; horse thieves were thought to cross the frontier and then flee back again riding their stolen animals; coiners and forgers might attempt to free their fellow gang members from the Niagara jail. In the aftermath of the War of 1812, and again following the Mackenzie Rebellion, the British government and its colonial officials reinforced garrisons along the frontier to ward off further violence. Both military officers and civilian magistrates...

    • 10 Hands Across the Border
      (pp. 196-216)

      Four years after the abolition of slavery within the British Empire in 1833, the government of Upper Canada authorized the return of Solomon Moseby, a fugitive slave, to Kentucky. Moseby had stolen his master’s horse and ridden to Buffalo, where he had then crossed the frontier into Upper Canada and, as he believed, to freedom. Alexander McLeod, the deputy sheriff of the Niagara district, took Moseby into custody and confined him in the Niagara jail, waiting for orders to deliver Moseby into the hands of his former American master, who had journeyed to Upper Canada to reclaim him. But the...

  10. Conclusion
    (pp. 217-224)

    When Anna Jameson first visited Niagara in the winter of 1837, she wrote poetically about the snow-covered land. She was struck by ‘the deep, monotonous tranquillity which prevailed on every side,’ and how the country appeared ‘so exquisitely pure and vestal-like.’ This made the tales she had heard even more unlikely. She could hardly ‘believe that this whole frontier district is not only remarkable for the prevalence of vice, but of dark and desperate crime.’¹ Jameson’s romanticism may have heightened the contrast, but she does emphasize that in colonial Niagara both vice and crime were to be found in abundance....

  11. Notes
    (pp. 225-268)
  12. Index
    (pp. 269-282)
  13. Back Matter
    (pp. 283-285)