Colonial Justice Justice, Morality, and Crime In the Niagara District, 1791-1849
by David Murray
Toronto: Osgoode Hall. 2002
The Osgoode Society for Canadian Legal History has enjoyed significant, if not signal, success in publishing works of demonstrable merit including biographies, notably of judges1 , thematic overviews2 , and historical studies touching upon crime and society.3 Professor Murray's recent book enhances the value of this collection by drawing attention to numerous questions of interest to criminologists. Without being exhaustive, Colonial Justice Justice, Morality, and Crime in the Niagara District, 1791-1849 provides insights into the social background to wrongdoing, the relationship between social status of judicial officers and access to justice, the inequality of resources assigned to victims of crimes based on their gender or race and the influence of the dominant religious group in enforcing morality through coercive enforcement of the criminal law.
Prior to describing in detail the themes discussed in the book by Professor and the theories he advanced, it may be of assistance to set out in broad strokes the organization of the materials.
Colonial Justice is divided into three parts, following an interesting introduction and an initial chapter that taken together provide a scholarly (and rigorously followed) exposition of the themes to be examined. Part One is titled "Justice", and examines in Chapter 2 the "Courts, District Rulers and Crown Servants" while Chapter 3 is devoted to a study of "Servants of the Court."
The three chapters that constitute Part Two: "Morality" serve to heighten our understanding of the means by which the administration of criminal justice in the Niagara area sought to enforce a Christian moral order. Attention is next drawn to those that Professor Murray has described as "Intruders upon the Precincts of Crime", chiefly those suffering from mental disorders. The concluding chapter, "The Cold Hand of Charity", underscores the invidious role sought to be played by the courts in "trying" applications for what amounts to social assistance.
The last part is entitled "Crime". The first of the four concluding chapters touches upon crimes and punishments and is followed by three thematic discussions, each of which is highly illuminating. Chapter 8 examines the situation of women and persons of colour as victims of violence. Thereafter, Chapter 9 provides an insightful look at the importance of the Niagara as a border location, and how it has served the purposes of law enforcement on occasion, such as instances of banishment, while undermining the reach of law and order in situations of smuggling, among other examples. The last chapter is devoted to the legal and social concerns surrounding the issue of returning escaped slaves to the United States.
It is necessary, however, to examine the book in greater detail in order to make plain how well Professor Murray has succeeded in melding court records, contemporary documents such as "presentments" and abundant secondary material to produce an authoritative account of justice, morality and crime in the Niagara District for the period of 1791-1849. As will be seen, this book should serve as a template for further critical examination of these three related themes, whether on a regional basis or otherwise.
Turning then to the introductory pages, we learn how the period and the region were marked by severe religious observance, and we begin to understand the significance of the administration of justice at the local level, including the curious intermingling of administrative and judicial powers. The author highlights time and again how the majority of judicial officers were not trained in the Law. Indeed, we are told to pay attention to the presence of what might be described as "other imperatives", be they land holdings, the wish to promotion, advancement in the political world, that might interfere with the normal attributes of judging, at least as understood in this period. Fundamentally, we are led to scrutinize the actions of the judicial officers and their auxiliaries to evaluate the role that corruption might have played in certain claims of injustice.
Chapter 1, "The Paradise of Upper Canada", serves to delineate the geographical, political, social, religious and racial factors that make this district so worthy of study. What is most remarkable is the author's savant recitation of passages from contemporary commentators who all seemed to have found whatever they wished to find and thus, to contradict what others similarly situated found. The importance of this cannot be overlooked: much of our legal historiography is based on pre-existing beliefs, it is suggested, and these must be evaluated in order to test their validity. The author's adroit framing of this fundamental issue results in focusing our attention on what is truly to be found in the extant records, as opposed to what we think may be disclosed.
I will now draw attention to Part One: Justice. It opens with a comprehensive description of the structure of the courts, and of the typical judicial officer: a loyal British male who had sufficient wealth and leisure time to devote to the business of justice. This local elite was characterized by ties and associations embracing family, finances and faith, and tended to remain in place for quite some time. Perhaps the most interesting element discussed surrounds the use of what we now describe as "mediation" to either forestall prosecutions or to temper the severity of what might be the anticipated sentence. In this respect, the powerful standing of the magistracy no doubt influenced the success they enjoyed. A great deal of discretion also appears to have been exercised, and it is supposed that this served the common wealth. What is more problematic is the potential for injustice for the indigent, or women, of persons of colour, or defendants whose religious, linguistic or ethnic origin differed from that of the Bench. It is not obvious that they were the subject of favourable interventions, as a general rule.
The next chapter "Servants of the Crown", provides valuable instruction on the part played by juries and constables in the operation of a system of justice that was heavily reliant upon local men. The learned author paints a convincing picture of the importance of both types of juries, the grand and the petit or trial jury. A demonstration is made that is quite convincing to the effect that the jury system was an integral element of local government and served to make the general population quite aware of the law and of legal responsibilities. And, it is suggested, contributed to the somewhat lenient sentences described, possibly by reason of the impact that was played by opprobrium in the life of an offender in a society in which the stock was still in evidence.
An additional element in the dynamic leading to justice in criminal matters was the common intervention of private victims of crime in initiating prosecutions. Professor Murray is quite skilled at explaining the daily workings, and shortcomings, of this system and recounts with a deft hand a representative number of accounts to permit us to get a "feel" for the behind the scenes work leading to a trial. Once again, one is left with the belief that intercession must have occurred typically to influence law enforcement officials at that primary level, possibly to the detriment of certain classes. Nevertheless, the clear picture that emerges is that justice was meted out as a regular feature of the process, and not solely as an accident or exception.
The two chapters forming Part One are followed and further explained and developed, by the three chapters of Part Two: Morality. Once again, we are in Professor Murray's debt for the skill shown in continuing to introduce and incorporate new elements and players that add to the original theme. Stated otherwise, justice depended on morality and was heavily influenced by the question of crime, the three themes of Colonial Justice. In this vein, "Enforcing a Christian Moral Order", the subject of chapter 4, is perhaps the most accomplished of the book by reason of the excellence of the writing and the significance of the themes that are discussed. In effect, law and order emanated from the street level and if sobriety, piety and charity could be encouraged, the community would prosper. Obviously the potential for injustice would be made greater depending on the reputation for piety that a defendant might enjoy. What is of prime importance is the issue of the Sabbath and drinking, an issue that continued to bedevil the Courts for a century, if not longer.4 At all events, we are warned that private disputes could be litigated easily under the guise of the enforcement of a Christian moral order.
The next chapters, "Intruders Upon the Precincts of Crime" and "The Cold Hand of Charity" guide us ably into the underworld of the mentally disordered and the impoverished and imprisoned individual. In this respect, it will suffice to quote from page 109: "By subsuming poor relief under the criminal process, Upper Canadians helped to reinforce the image of the pauper as little different from the criminal." Indeed, trials of sorts were held to adjudicate upon the entitlement of claimants to some form of assistance! In this respect, the discussion of Houses of Industry is remarkable for its precision. Once again, discretion played a role but "The jurors found it much easier to deal with criminals than with the poor." Refer to page 130.
For those whose interest in criminology is great, the four-chapter part entitled "Crime" is well worth reading, and re-reading. Chapter 7, "Crimes and Punishments" sets out in exhaustive detail, but without impairing the ease with which the words are aligned, the available information on crime rates, the level of violence, the incident of personal violence versus crimes against property, the motivation for certain prosecutions, etc. More to the point, the possibility of greater or harsher prosecutions is not ignored, nor is the reliance on novel means to bring about justice, as in the case of a sexual assault prosecuted as a lesser offence to increase the likelihood of a conviction. See page 139 in particular. One of the most revealing passages is the discussion of the jail as a leading example of architecture for the entire province! Leaving that aside, the discrimination between men and women is discussed, as is the concern that prison was a school for crime for youths. In this respect, refer in particular to pages 151-153.
"Criminal victims" is the title of the next chapter and it provides a tour de force study of the many facets of criminal justice from the eyes of the victim, be it a beaten spouse or a child. Not only is the established regime of official justice studied at length, the involvement of private justice is not neglected. Notable as well is the discussion surrounding the use of peace bonds, especially at pages 160-161 and 166.
The plight of the African Canadian victim is not neglected in this far-reaching albeit brief study. The question of disparate treatment and discrimination is approached without bias, and the conclusion that the system may have been just as fair as today's system is thought provoking.
The next chapter, "Criminal Boundaries", juxtaposes two elements of the border that assisted in law-enforcement, the ready recourse to banishment and the possibility of extradition, with a brace of negative factors: the ease with which deserters might leave the district and in particular the facility for smuggling. Refer in particular to the excellent conclusion drawn at page 195.
The last chapter, "Hands Across the Border" outlines the background to the first race riot in Upper Canada. Once again, Professor Murray succeeds in knitting together the various elements introduced throughout the book, be they religious beliefs or mercantile interests to name but two examples, to provide a background to the precise issue and to the broader questions of the day. Put otherwise, the litigation surrounding one escaped slave casts a major shadow over the region's political, religious and social life while revealing the undergirding values that no justice system can lack if it is to be considered progressive.
Au demeurant, Colonial Justice Justice, Morality, and Crime In the Niagara District, 1791-1849 captures the legal (and thus the social, political and religious) engines of a precise period. We are enriched by a well written book, and made to gain a thorough understanding of those who were branded criminals, of their crimes, and of those who branded them as such, and of their motivations.
GILLES RENAUD
Ontario Court of Justice |
1. By way of limited example, see the author's review of A Passion for Justice: The Legacy of James Chalmers McRuer, by Patrick Boyer [Toronto: Osgoode Society, 1994] in 22 Revue générale de droit 173-175 (March 1995).
2. A notable example is the evocative and moving text, Casual Slaughters and Accidental Judgments Canadian War Crimes Prosecutions, 1944-1948 by Patrick Brode [Toronto: Osgoode Society, 1997]. See the comment by Randy Steele in (1999), 62 Sask. L. Rev. 349-350.
3. The most recent title is "Canadian State Trials Volume II Rebellion and Invasion in the Canadas, 1937-1839", edited By F. Murray Greenwood and Barry Wright [Toronto: Osgoode Society, 2002].
4. Noteworthy are the comments of David Ricardo Williams in Duff A Life in the Law [Vancouver: UBC Press, 1984], with reference to the Lord's Day Alliance v. A.G. of Manitoba, [1925] A.C. 384 (P.C.) at page 131:
It may seem astonishing that such an innocuous matter could occupy the time of many highly paid lawyers and demand the attention of several courts, but Sunday observance in Canada has always been a contentious patchwork quilt, created with little apparent design. It is a curious fact that a significant portion of the constitutional law of Canada has resulted from people asserting the right to unrestricted Sabbath behaviour against the opposition of religious zealots who have viewed such horrors as the work of the Devil, and those asserting the right to consume liquor in the face of opposition by temperance societies. [emphasis added] |
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