Vol. 14 No.10 (October 2004), pp.754-756
COLONIAL JUSTICE: JUSTICE, MORALITY AND CRIME IN THE NIAGARA DISTRICT, 1791-1849, by David Murray. Toronto: University of Toronto Press, 2003. 297pp. Cloth CDN$55.00 / US$55.00 / £35.00. ISBN: 0-8020-3749-6. Paper CDN$27.95 / US$27.95 / £18.00. ISBN 0-8020-8688-8
Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky. Email: POL140@uky.edu
This is a study of criminal justice in the early 19th century in the Ontario peninsula area west of Niagara Falls. The period covers the creation of the Upper Canada colony until it morphed into the Province of Ontario in mid-century. Most Niagara district records are still extant, and David Murray has used them to paint a portrait of how the Upper Canada legal system worked, one which also casts some reflection on life in the rural and marginally prosperous district.
COLONIAL JUSTICE has three parts. The first examines the structure and personnel of the court system. Structure came from England – numerous justices of the peace who heard minor cases individually, the quarter session court composed of several JPs (magistrates) who heard appeals as well as more serious misdemeanor charges, and the annual (biannual after 1837) assizes (the equivalent of circuit courts in most American states) hearing felony cases. JPs were seldom lawyers; the assize judges were, but they came to the district from the capital, York (Toronto). The magistrates were appointed by the governor and were generally farmers or merchants who were reasonably well off and sympathetic to the status quo. Sheriffs and constables were also carefully chosen.
Part II looks at various social policies related to criminal justice. One chapter discusses the enforcement of Christian morality, mostly involving cases of unlicensed or after-hours tavern keeping, drunkenness and brawling, and work on Sunday. Support for paupers was a constant problem, with widows and children being reduced to extreme circumstances upon the death of their bread-winning husbands and men becoming invalids due to old age, injury or war wounds. Distress victims became so numerous by around 1830 that the district magistrates discontinued the automatic pauper’s list and began voting on petitions individually. Despite several local grand jury recommendations, taxpayer sentiment rejected construction of both a poor house and an insane asylum. Jail conditions were miserable, although this was more the fault of overcrowding (stemming from long waits for the assizes) than the condition of the jail per se.
The third part assesses crime, offering statistics and examples attesting to a high amount of frontier violence and theft. One chapter looks at two particular victims of crimes, beaten wives and blacks. Courts were reluctant to consider domestic violence cases, although occasionally violent husbands were required to post peace bonds. [*755] Blacks were nominally equal, but convictions were less likely or sentences less intrusive when they were the victims, especially for less severe crimes. Blacks were almost always struck from grand and petit juries.
For less severe felonies punishment could take the form of “transportation.” However, offenders were not shipped off to far away Australia, but they were simply required to leave Canada. There was, of course, only one nearby country available for the impecunious criminal – the United States. Presumably, many a trouble maker on the American frontier was of Upper Canadian origin. Niagara’s proximity to the border also brought escaped slave cases to its courts. The British Empire did not recognize slavery after 1833, but owners sought extradition by charging the slaves with crimes involved in the escape, such as horse theft. Magistrates and professional judges initially split in their reaction to such charges, although by mid-century sentiment ran strongly against returning slaves for any reason.
COLONIAL JUSTICE has an annoying problem, at least for the non-Canadian reader, in that Murray provides virtually no historical background to his study. Most bothersome, he refers throughout the book to the Rebellion of 1837 although the reader has not a clue about what motivated it, who participated, where it occurred, and what, if anything, resulted. Indeed, Murray sometimes writes about a second Rebellion in 1837. So I looked the rebellion up on a search engine and clicked on the first site listed. It said “Site Closed Due to Lack of Interest.” Perhaps Canadians don’t know too much about this (or these) rebellion(s) either. Also frustrating is the absence of information about governmental institutions and political change. Often Murray writes about Upper Canada and Lower Canada, but sometimes he discusses East and West Canada without telling us anything about how the latter areas differed or overlapped with the former. Eventually, I found an up-and-running site on the Rebellion that indicated that the Upper and Lower Canada colonies were combined in the 1840s, but without explanation of the whys and wherefores.
Murray is an historian, and he is doing history here. I am not in a position to evaluate COLONIAL JUSTICE’s contribution as such. It does not make a direct contribution to the political science or criminal justice literature, although the data and examples may be useful to others advancing themes or theories in these fields. However, what struck me most is that, except for a few citations to statistics in studies of contemporary courts in Nova Scotia or other areas of Upper Canada, the book hardly connects with scholarship about either colonial justice elsewhere or even justice on the American frontier. The Upper Canadian court structures did not differ much from those in the U.S. Indeed, as late as the 1970s Kentucky had a system of county magistrates, quarter sessions and circuit judges. For that matter, the recruitment of judicial personnel in the U.S. was quite similar until Jacksonian democratization of the judiciary in the 1830s and1840s that made judges and sheriffs more accountable to voters (and which did not much affect eastern states such as New York). And certainly policy questions like destitution, insanity, wife beating, [*756] and treatment of blacks in non-slave states were equally problematic in many American states as in the Niagara district. I am left to wonder whether there are no other studies of colonial or frontier justice (making Murray a pioneer) or whether such studies exist but the author does not see them as relevant to explaining early 19th century justice in Upper Canada.
*****************************************************
© Copyright 2004 by the author, Bradley C. Canon.