Читать книгу Crime and Punishment in Upper Canada - Janice Nickerson - Страница 10
ОглавлениеA person accused of a crime in Upper Canada was presumed innocent until proven guilty. This was true regardless of the type or severity of the offence. However, there were different types of adjudication. Very minor offences, often called regulatory offences or by-law infractions, such as failing to perform stat–ute labour, being drunk and disorderly, and prostitution, did not require the attention of a court and could be dealt with “sum–marily” (i.e., without trial by jury) by one or two magistrates. Minor crimes that were not punishable by capital punishment or penitentiary terms were tried at the lower-level criminal courts, called Quarter Sessions. Capital crimes were tried only by the high court, popularly called the Assizes.
Summary Justice
Before 1834, certain minor infractions could be handled infor–mally by local magistrates. A long history of statutes (based on English law, and continuing with Quebec laws prior to the founding of Upper Canada in 1791), stipulated which offences could be decided by a single magistrate, which ones required two magistrates, which required three magistrates, and which had to go before the courts.When two or three magistrates sat together out–side the courts, their sessions were called “Petty Sessions.” Those sessions did not require a jury. This was called “Summary Justice.”1
After 1834, magistrates gained a great deal of authority, so a single Justice of the Peace could hear a wide range of minor cases without a jury.These included simple assault, willful or malicious damage to real or personal property, and willful disturbance of a religious congregation by rude and indecent behaviour or noise.2
The 1833 Act to Provide for the Summary Punishment of Petty Trespasses and Other Offences, 4 William IV (1834), c.4 also laid down formal regulations for how summary prosecutions were handled. First, the prosecution had to take place within three months of the alleged offence. The accused had to be sum–moned to appear by a Justice of the Peace. If the accused didn’t appear, the magistrate could proceed without his or her presence (ex parte). He summoned witnesses, heard all the evidence, and then discharged or levied a fine, forfeiture, or penalty up to £5. He could also decide to refer the case to the Court of Quarter Sessions and commit the accused for trial with or without bail.3
If there was a conviction, but either the accused or the pros–ecutor (generally the victim) felt that justice had not been served, he or she could appeal to next general Quarter Session, giving notice to the other party in writing within three days of sum–mary conviction and seven days before the session.4
The legislative change also required magistrates to regis–ter their summary convictions with the next Quarter Sessions, including the records of money gathered from fines, forfeitures, or penalties. As a result, we have a great deal more evidence of their activities for the later period.5
Another set of regulations required Justices of the Peace who wanted to send a case to trial at the Quarter Sessions to take down the complainant’s testimony in writing, show it to the accused, and let him or her cross-examine the complainant. The magistrates could then determine if bail should be granted. One magistrate could commit the accused to jail if there was “positive and credible evidence of a felony having been committed” but it required two magistrates to determine bail.6
Many magistrates also likely helped people settle disputes without formal charges, sometimes using formal arbitration bonds or other legal documents.7 Indeed, this seems to have been encouraged. Attorney General Henry Boulton replied to a ques–tion about the amount of discretion available to magistrates in 1830, saying, “Magistrates may exercise their discretion in allow–ing persons to compromise trifling misdemeanours where the interest of the public do not require an example to be made … by discouraging the prosecution of petty offences not affecting the public, I conceive they will best discharge their duty and serve the public interests.”8
Also, many offences that ought to have been considered serious and go before the Quarter Sessions or Assizes were actually given lesser charges and tried summarily by Justices of the Peace.This was done to avoid disrupting community relations and because it was quicker and more convenient. Both victims and magistrates had a great deal of discretion in deciding how to pursue a case.9
Police Villages and Boards of Police
As villages and towns got larger some acquired police powers, which meant some degree of additional jurisdiction, such as to enact by-laws concerning local safety issues (mostly for fire prevention) and market regulations. Village or town magistrates could convict by-law offenders summarily, imposing small fines as punishment.
City Police Report, the Advocate, 12 June 1834, 3.
In the town of York, for example, a police office was formed in 1826, where a magistrate would be on duty every day to hear and deal with minor complaints. The most common offences were public drunkenness, disorderly conduct, and selling spirits without a licence. The summary jurisdiction of the police office continued, even after Toronto became a city with its own Mayor’s Court, even though the mayor automatically became the police office magistrate as well as presiding over the Mayor’s Court (Mayor’s Court). Unfortunately, there was no requirement to keep records of summary convictions made by the police magistrates, so no known official records have survived. Our main sources of information about the Police Court are newspaper reports.10
Incorporated towns acquired elected governing structures, called boards of police, headed by a mayor. Within the town lim–its, the board of police had special jurisdiction to decide minor cases without a jury. In addition to the members of the board, the only people who attended the court were a bailiff or consta–ble, the prosecutor/victim, defendant, and witnesses brought by them.11 The first town to become incorporated in Upper Canada was Brockville in 1832. Other towns soon followed, including Hamilton in 1833; Belleville, Cornwall, Port Hope, and Prescott in 1834; Cobourg and Picton in 1837.12 More extensive powers were granted to cities and towns incorporated by special acts of legislation: Toronto (city) in 1834, Kingston (town) in 1838.13
Based on the records of the Prescott board of police, it seems that in the early years the poor and working class residents of towns made ample use of this low-level court to air disputes with their neighbours. Women were frequently represented in the records as both plaintiffs/prosecutors and defendants, even married women, who in theory were not supposed to act as independent persons under the law. In fact, the minutes even record one case of a married woman successfully prosecuting her husband for disturbing the peace by striking her.14 The board of police was less expensive and met far more frequently than the Quarter Sessions, so justice was both accessible and swift. It seems, however, that because of this very openness, townspeople of “means” did not avail themselves of this avenue of justice.15
To be eligible to serve on the board of police, a man had to own property of assessed value of at least £60. That meant most board members were merchants or manufacturers.They were elected by male residents who were British subjects and owned a dwelling house and a plot of land or who paid rent of at least £5 a year.16
In her study of the Prescott Board of Police records, McKenna found what appeared to be almost verbatim transcripts of the testimony heard before the court, including many examples of verbal insults exchanged by quarrelling women of the town. For example, Catherine Kelleaugher, neighbour of Mary Greneau, who was accused of running a “disorderly house,” reported that one evening two women, Bridget Savage and Margaret Doneghan, engaged in a shouting match on the street outside Mary Greneau’s house, calling each other “bitch,” “whore,” and “bastard.”17
Convictions by police magistrates and board of police could be appealed to the Quarter Sessions of the district, similar to summary convictions by district magistrates.
Pre-Trial Events
If the case had to go to court the first step was for the magistrate to forward the evidence he had gathered to the Clerk of the Peace for record keeping. The magistrate then decided whether to take the case to the Quarter Sessions or the Assizes. Often, a serious case would first go to the Quarter Sessions where all the magis–trates could jointly decide whether it needed to be moved to the higher court. The magistrate then selected the necessary witnesses, and prepared summonses and sent them to the sheriff to be served.
The sheriff assigned the summons to whichever constable was available for the township where the witness lived and the constable delivered it. This had to be done well before the scheduled date of the trial, so the witnesses could prepare to attend. In some cases, witnesses (even victims who were pros–ecuting) were required to sign recognizances to guarantee that they would appear on court day.
Grand jury summons to Thomas Carfrae, Home District Assize, Spring 1835, Ephemera Collection, Baldwin Room,Toronto Public Library.
A bill of indictment then had to be prepared describing the offence for which the accused would be tried and summarizing the prosecution’s evidence. In cases of murder or manslaughter, the bill of indictment was drawn up by the coroner. In other cases, the bill of indictment was drawn up by two Justices of the Peace.
Shortly before the court was due to sit, the sheriff drew up two lists of eligible jurors, called panels. Each list had to contain the full names and addresses of at least thirty-two and no more than forty-eight residents of the district.18 Members of the panels were summoned to appear in court on the first day of the session.
Trial Procedures
Just prior to each court session, a grand jury of at least twelve and up to twenty-four men was selected (the actual number varied from session to session).The presiding judge or magistrate would read the charge to the jury, summarizing the cases for the ses–sion, often commenting on the general state of the district. For example, at the spring session of the Mayor’s Court in Toronto, Anna Jameson tells us that the mayor took the opportunity of the charge to the grand jury to complain “of the increase of crime, and of poverty, wretchedness, and disease … within the bounds of the city, and particularly of the increase of street beggars and juvenile depredators, and he recommends the erection of a house of industry on a large scale.”19
William Dummer Powell’s charge to the grand jury in Cornwall, 9 August 1825, reads:
The charges in the Kalendar [sic] for the district are limited to one case of rape and two of pey–ing. The former a crime of peculiar atrocity in as much as it consists of force and violence. To the weaker sex universaly [sic] admitted to be the disgrace and shame of mankind — [illegible word - cnclime? evilime?] of the civil violation of the law of nature and society.The injury to the immediate feelings of the patient and the sort of disgrace which is absurdly permitted to attach to the innocent sufferer. Juries are called upon by consideration for their own security, happiness and honor to leave no opportunity for a renewal of the offence by the same [illigible word - p???]. In as much however as this crime is odious in itself and obnoxious to society it behoves [sic] us to be cautious in applying the charge. It is of a nature readily to be invented and of dif–ficult proof. The evidence is commonly limited to the party making the charge and must gener–ally be supported on her evidence; you cannot be too careful in ascertaining that the crime has been committed and that the person of the corp [illegible word, carried?] has been violated. The other [two illegible words] evidence of the fact is of the province of the petty jury, who will decide upon the evidence of the accumulation by most minute examination.20
“Exterior of a Court-house in the Backwoods of Canada,” “A Jury in the Back–woods of Canada Retiring to Deliberate,” and “Interior of a Court-House in the Backwoods of Canada),” Illustrated London News, Supplement, 17 February 1855, 161.
Some judges were known for their extremely verbose charges. Assize judge James B. Macaulay’s charges, for example, typically took up a dozen pages in his notebooks.
After attending to their other duties (such as inspecting the gaol), the grand jury would meet in a private room separate from the open court. Not all early courthouses were large enough to have a separate room, so the grand jury would meet somewhere else first. The jury was then presented with bills of indictment for each case in the docket. They considered the evidence provided by the prosecution and for each case decided whether the Crown had sufficient evidence for the case to proceed to trial. If twelve grand jurors agreed, they wrote “true bill.” If the grand jury con–sidered the charges groundless, then the indictment was deemed “not a true bill” or “not found” and the accused was released.21
Once the accused was indicted, the case was tried before the petit jury. A unique group of twelve petit jurors was chosen for each trial. The Act for the Regulation of Juries spelled out the proce–dure for choosing these juries. The names of the member of the jury panel were taken from the sheriff’s list, written on separate slips of paper, and put in a box.When the court began, an impar–tial officer of the court was to draw one name at a time, call–ing out each name three times, until there were twelve selected. Sometimes this might require drawing more than twelve names, as some potential jurors might not have appeared in court (they would be fined), or might have their impartiality challenged by either the prosecution or defence.
Bill of Indictment, Barney Woolman, for assault, 1833, Lincoln County Court of General Sessions of the Peace Records, Archives of Ontario, RG 22-372, Box 16, Folder 55.
Most prosecutions were initiated by the victims (or their relatives) of a crime.22 At the Quarter Sessions, victims gathered their own witnesses and presented their cases in court.23 If the prosecutor didn’t appear, the defendant was released.
It seems that many cases at the Quarter Sessions were dis–missed due to the lack of prosecution, as one particularly quar–relsome woman discovered and used to her advantage. Mary Moodey was charged with assault and battery by three different people between October 1801 and October 1805. The first time, Mary didn’t show up on the day of her trial, but she appeared the next day saying she wasn’t ready yet and asked for the case to be held over until the next session. The magistrates agreed, requiring her recognizance of £20 (and that of her sureties,Walter Moodey and Daniel Tiers, who pledged £10 each) to be extended to the next session. When the case came up again in January, Esther Dunham, her prosecutor (presumably the victim of the alleged assault) didn’t show up, so the case against Mary was dismissed. There’s a note in the minutes pointing out that Esther hadn’t been bound in recognizance to prosecute, so they couldn’t fine her for wasting the court’s time. The clerk was probably making a point to the magistrates!
In October 1805, Mary was charged again with assault and battery in two seemingly separate cases: first by Peter Whitney and second by Jane Mitchell. For the case prosecuted by Peter Whitney, Mary again said she was not ready to defend herself and asked for the case to be put off until the next session. The mag–istrates agreed and bound her on her recognizance of £20 (her sureties John McBride and Adam Everson pledged £10 each). For the case prosecuted by Jane Mitchell the trial went forward. Twelve jurors were sworn in and the prosecution called four wit–nesses: Jane Mitchell, Peter Whitney, William Jackson, and George Bond. Mary called four witnesses for her defence: James Kendrick, William Washer, Walter Moodey Junr [junior], and Walter Moodey Senr [senior]. The jury brought forth a verdict of not guilty. The first case kept getting put off (by the magistrates this time) until finally it was due to be heard in January 1806. But Peter Whitney didn’t show up, so the case against Mary was dismissed again!24
During the Upper Canada period the prosecution of cases at the Quarter Sessions was not officially supervised by anyone. The victim, or whoever was taking the role of prosecutor, could hire a lawyer, if he or she chose (or more importantly, had the funds). If not, the magistrate simply examined the witnesses him–self. Local magistrates generally prepared the cases for the Assizes with help from the Clerks of the Peace. If the case concerned a capital offence, the Attorney General or Solicitor General would conduct the actual prosecution.25
List of Witnesses, R. vs. Samuel Farensworth, Lincoln County Court of General Sessions of the Peace Records, Archives of Ontario, RG 22-372, Box 25, Folder 22.
If the defendant had the means, he could hire an attorney to represent him, but that was rare in the nineteenth century. Generally, only people accused of capital offences hired defence counsel.
Witnesses for the prosecution were heard first, followed by those for the accused. Some of the witnesses might not have any specific information about the events of the crime, but were there to testify to the accused’s “character” and life circumstances.26
After all the witnesses were called and evidence presented, the judge or magistrate might have made a short speech instruct–ing the jury on their duties. These statements were often full of hyperbole concerning the moral depravity of the offence and commenting on the behaviour of the accused, witnesses, and lawyers. Sometimes the judges explicitly told the jury what ver–dict they ought to return.27 The jury then considered the verdict. In most cases all of this took place on the same day. Few nine–teenth-century trials took longer than a few hours.
Although the function of the jury was strictly to consider the facts presented to them and decide whether or not the pros–ecution had proven the guilt of the accused, they often disre–garded the evidence when they believed the prosecution was unjust, or if the penalties were too repugnant. Juries were espe–cially reluctant to convict on serious offences at the Assizes (it is generally believed that this was because they felt the legal punishments were too harsh). For example, in Niagara District, of eleven cases of assault on a constable tried between 1837 and 1850, only five resulted in convictions, despite credible wit–nesses to the assaults.28
Following the reading of the verdict by the jury, convicted criminals were taken into custody by the sheriff and his gaoler to await the end of the Quarter Sessions or Assizes (usually a mat–ter of a few days at most), at which time they would be brought back to court to hear the court pronounce the sentences for all the cases in sequence.
Quarter Sessions
Minor offences that were not dealt with by summary justice were tried by the Courts of General Quarter Sessions of the Peace for each District. They were called Quarter Sessions for short because they met four times a year.These courts were presided over by three local Justices of the Peace. During each session, the court travelled throughout the district, sitting for a few days in each major town so that jurors and witnesses wouldn’t have to travel great distances.
In addition to trying minor criminal and civil cases, the Court of Quarter Sessions were responsible for a wide range of administrative duties, such as appointing district officials, issuing licences of all kinds, administering the swearing of oaths, autho–rizing the building and repair of roads and bridges, and attending to social welfare.29
R vs. Charles Ragan, 15 January 1835, Minutes, Western District/Essex County Court of General Quarter Sessions of the Peace, Archives of Ontario, RG 22-103, Volume 2.
The trial of Charles Ragan, of Chatham, for larceny is a typical example. The minutes tell us that Charles Ragan was indicted for larceny on 14 January 1835, the case was heard on the following day, six witnesses testified (Francis Drake, John Jones, Almira Akerly, Carson Mosier, Caleb Akerly, and William Spakman), Ragan was found guilty and sentenced to gaol for six months.30
The case files provide a great deal more information. First, from the information of Carson Mosier we learn that early on the evening in question, Mr. Jones had given him a half dollar, some silver change, and a few coppers. These had gone missing and he suspected Charles Ragan of stealing them.31
