Crime and Punishment in Upper Canada. Janice Nickerson

and dis–orderly was by far the most common moral offence.⁵² Moral order crimes represented 12 to 13 percent of the total arrests in the Niagara District.⁵³

      In one case reported in Toronto’s Colonial Advocate in 1834, a woman named Ellen Halfpenny appeared in Police Court for the third time in six weeks, charged with being drunk and dis–orderly. After having sentenced her to brief gaol stays the first two instances (just a few days), the third time the police report reads: “Ellen Halfpenny, a common scold, drunken and disor–derly, set in the stocks and ordered to clean prison cells.”⁵⁴

       Regulatory Offences

      Regulatory offences included such things as selling liquor with–out a licence or refusing to perform statute labour. These gen–erally brought summary convictions (i.e., they didn’t require a jury trial). Magistrates weren’t required to record their summary convictions before 1834, so there are few records of these.⁵⁵

      A newspaper report of the Toronto Police Court activities for early June 1834, recorded two regulatory offences: James Sloan of New Street was fined £20 for selling spirituous liquors without a licence; and Wellington G. Armstrong was fined 6s. and 3d. for refusing to assist a constable in the execution of his duty.⁵⁶

       Political Crimes

      Upper Canada cases suggest that the administration of crimi–nal law was repressive, even by contemporary British standards of constitutionalism and legality.⁵⁷ Sedition proceedings were used to suppress political dissent several times between 1804 and 1828, including proceedings against Joseph Willcocks, the editor of the province’s first firmly established independent newspapers, Robert Gourlay, and Francis Collins another newspaper editor.⁵⁸

      Francis Collins began his newspaper career as a composi–tor for the King’s printer, the Upper Canada Gazette. By early 1821, he was reporting on the debates in the House of Assembly, providing much more information than any newspaper had pre–viously. However, he sympathized with the reform cause and gave more coverage to the reformers’ point of view than to the Tories. For that, he aroused the ire of the establishment. When the publisher of the Gazette retired late in 1821, Collins hoped to take over, but was refused because he was not “a gentleman.” In July 1825 he founded his own newspaper, the Canadian Freeman, which he used to attack the government and its Tory connec–tions. In 1828 he was charged with four counts of libel. When the judge allowed him to make a statement in court (having appeared without counsel), he took the opportunity to attack the Attorney General (who was prosecuting Collins’ case) for dereliction of duty in not prosecuting the rioters who had destroyed William Lyon Mackenzie’s press a couple of years previously. Three of the four charges were withdrawn and he was acquitted of the fourth, but the Attorney General then laid two new charges: one for a libel on himself and the other for a disrespectful reference to a judge. The jury convicted Collins on the first charge and the judge sentenced Collins to one year in gaol, a fine of £50, and sureties of £600 for good behaviour for three years — a sentence widely condemned as out of all proportion to the offence.⁵⁹

       Records Relating to Criminal Law

      For British law (which applied in Upper Canada unless explic–itly revoked by an Upper Canadian statute), your best source is Blackstone’s Commentaries:

      Blackstone, Sir William. Commentaries on the Laws of England, 4 Volumes, First Edition. Oxford: Clarendon Press, 1765–1769. This is available online in several places, my preference being: avalon.law.yale.edu/subject_menus/blackstone.asp

      For Upper Canadian law (modifications to British law) see:

      The Statutes of the Province of Upper Canada [1792–1831]:Together With Such British Statutes, Ordinances of Quebec, and Proclamations, as Relate to the Said Province. Revised and printed for, and published by Hugh C. Thomson and James Macfarlane. Revised by James Nickalls, Jr. Kingston: Printed by Francis M. Hill, 1831 (privately printed, but taking the place of an autho–rized publication).

      The Statutes of Upper Canada, to the Time of the Union. Revised and published by authority. Toronto: Robert Stanton, Printer to the Queen’s Most Excellent Majesty, [c. 1843].

      Harrison, Robert A. A Digest of Reports of all Cases Determined in the Queen’s Bench and Practice Courts for Upper Canada from 1823 to 1851 Inclusive [microform]: Being From the Commencement of Taylor’s Reports to the End of Vol. VII Upper Canada Reports, [Cameron’s digests included]: With an Appendix Containing the Digests of Cases Reported in Vol. VIII Upper Canada reports 1852. H. Rowsell (Canadian Institute of Historical Microreproductions (CIHM), fiche 10817).

      For municipal laws, see the minutes of council and published by-laws of the relevant town/city, usually held in local archives.

CHAPTER TWO Law Enforcement and Investigation

       Law Enforcement

      For most of the Upper Canada period, law enforcement was primitive.The population was sparse and there was neither a need, nor sufficient funds for a professional police force.As was the case in eighteenth-century England, the role of keeping the peace and enforcing the law fell upon local magistrates. See Chapter Six for a full discussion of the role of magistrates.¹

      From its founding, Upper Canada was divided into admin–istrative districts, and each district operated with a great deal of autonomy. In 1788 there were four districts. As the population grew new districts were created. By 1841, there were twenty.² Each district had a Clerk of the Peace, a sheriff, and several magistrates.

      Magistrates (formally known as Justices of the Peace) had both administrative and judicial functions. They were, in effect, the local (district or county) government. They set tax rates, appointed local officials, paid salaries, enforced local regulations, held court, and generally maintained public order.³

      The magistrates were assisted in these duties by the sher–iff⁴and civilian part-time constables⁵ appointed for duty on an annual basis see( Chapter Six for a full discussion of the roles of the magistrate, sheriff, and constable). Other than inspecting roads, bridges, and chimneys for safety purposes, the sheriff and his constables did not actively go looking for criminal activity, as we expect our police to do now. The sheriff’s job was to enforce the will of the court by summoning jurors for jury duty, mak–ing arrests, looking after the gaol, and maintaining order in the courthouse.⁶ Constables followed orders received from mag–istrates, generally including executing search warrants, making arrests, delivering prisoners to gaol or court, and serving subpoe–nas on witnesses.⁷

      Expenses for the administration of justice were covered by taxes and fines. For example, the inhabitants of the Town of York were divided into income classes for taxes. In 1798 there were 112 taxpayers in ten classes. The lowest class paid 1s. 3d. per year (twenty-six people), the highest class paid 18s. 6d. (three people).⁸

       Investigation

      Most minor crimes were probably never reported due to the inconvenience involved and the fact that many Christian com–munities, especially evangelical denominations, forbade their members from using secular courts to settle conflicts between members. They were supposed to try to work it out between themselves, and if that failed get help from the church. In the case of Presbyterians, the minister and church elders were in charge of disciplining members. In Baptist churches all church members shared the responsibility to oversee each others’ behaviour and to help settle disputes. We do not know as much about Methodist disciplinary procedures, as they didn’t keep records of their disci–plinary proceedings.⁹

      Lynn Marks’ study of church disciplinary records provides the following example:

      The records of Norwich Baptist church include a lengthy discussion of the case of William G., who was accused of treating his wife very badly. Both