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
