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...

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...

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...

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...

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...

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...

‘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...

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...

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...

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...

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...

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...