2
Before 1789, petty larceny was defined as larceny of up to 1s.; grand larceny was larceny over 1s. As grand larceny was a capital offence (i.e., punishable by death), an Ordinance of 178946 raised the limit for petty larceny to 20s. in order to keep small thefts from clogging the high courts. Grand larceny was over 20s.
Anyone committed to gaol for petty larceny had to find bail within forty-eight hours (so he could be released on his recognizance to wait for trial at the Quarter Sessions), other–wise three Justices of the Peace could convict of petty larceny in petty sessions (without a jury).47 In the 1820s grand larceny often brought six months in gaol and thirty-nine lashes.48 The distinc–tion between grand and petty larceny was removed in 1837.49
Crimes Against the Moral Order
Moral offences included abusive language, breach of by-laws, drunk and disorderly conduct, gambling, public nuisance, keep–ing a disorderly house, and vagrancy. In the Gore District between 1832 and 1840, the average rate of crimes against public order was thirty-three per 100,000.50
As the districts were very autonomous in the early days, each had its own approach to dealing with moral order offences. In some districts, such as Newcastle, very few such crimes appear in the records, in others, such as London, the authorities were more vigilant. For example, between 1800 and 1820 there were four cases of profane swearing. All were convicted, and sentences ranged from fines of 2s. to 6s. Three men were fined 3s. 4d. each for breaking the Sabbath.51 In the Gore District, drunk 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
