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
