next noteworthy development for the province’s justices of the peace came in 1800 when Upper Canada’s legislature adopted in its entirety the criminal law of England as it stood in 1792. This established that JPs in the province possessed the same extensive powers as their English counterparts. Several decades of developments in the colony were thus now confirmed and clarified by statutory authority and renewed legitimacy. That, at least, was the theory.
In practice, a chronic shortage of justices of the peace had been hobbling the province for years. This fact, long ignored in the relevant historical literature, came to light in the early 1950s when James Aitchison, researching his doctoral thesis, “The Development of Local Government in Upper Canada, 1783–1850,” uncovered the rawer realities of the province’s pioneer communities. He discovered what settlers in Upper Canada knew only too well: the local JPs wielded great power and were part of the colonial province’s problems, not its solutions. Many men named in the Commission of the Peace did not take their qualifying oath. Others, once qualified, refused to act. These problems were compounded because the government was reluctant to replace justices of the peace who had died or been removed from their districts. On top of that, Aitchison found, many townships were simply not represented at the district Quarter Sessions, or even at the township level. Public administration in the province was, in a word, chaotic.
If justices of the peace had been peripheral officials with little responsibility, their contribution to the chaos would have been negligible. But such a staggering array of responsibilities fell to them that their failure to perform created bottlenecks in local governance. First, there was policing. Before the rise of professional police forces, JPs worked alongside local constables enforcing the law. For anybody wanting to start legal proceedings against a person, a justice of the peace was the first point of contact. Because a victim had to swear out a complaint before a JP to start a prosecution, it was required that he or she name the offender. If the identity of the offender was unknown, for instance, in the case of a thief who’d disappeared, it became the victim’s responsibility to do the detective work needed to produce a name. Given the harshness of this requirement in some circumstances, justices of the peace would sometimes shoulder this responsibility themselves, bending the rules and doing, as legal historian Susan Lewthwaite put it in 2001, “what they could to help the victim track down the offender.”
Secondly, in the routine course of their duties, as Lewthwaite summarized, justices of the peace “took depositions of witnesses, examined defendants, issued warrants and summonses, bailed or jailed defendants, bound witnesses in recognizance to attend trial, and organized the paperwork for trials.”
A third responsibility arose in the absence of a local coroner, when a justice of the peace would preside at the inquest. As legal historian David Murray noted in 2002, JPs occasionally even had a direct role in examining the body. For an 1840 inquest in Chippewa, the justice of the peace later recounted how “the body was in such a state of decomposition I could scarcely get a person to touch it and it was 11 o’clock at night before we got it into the coffin.”
Fourth, justices of the peace had courtroom roles deciding cases. A JP could try a number of minor offences summarily, meaning without a jury, in the same manner as a lower court judge. When it came time for more serious offences, district magistrates would sit with JPs on the bench at Quarter Sessions, an intermediate level of courts. “Only the most serious cases,” as Lewthwaite notes, went to the Court of King’s Bench at the assizes.
In hearing cases, JPs sometimes acted alone, in other cases not. As Murray reminds us, ancient English law “empowered justices of the peace to act alone on some issues, to act with one or more fellow magistrates on others, and to act collectively as the Court of General Quarter Sessions on still others.” This was also the situation in Upper Canada. In practice, this system was rough and ready. The Court of Quarter Sessions met four times a year, more frequently in special sessions if necessary, but the number of JPs who attended varied because with distance and weather not everyone always showed up.
Fifth, justices of the peace exercised extensive powers of government, integrating matters of public administration with their duties in the administration of justice. The Court of Quarter Sessions’s jurisdiction extended far beyond civil and criminal matters for its district to include responsibility for local administration. In fact, prior to creation of municipal corporations in 1832, as Aitchison stresses, “this court was in complete charge of district finance.” Upper Canada justices of the peace prepared spending estimates of the district for the year ahead, determined local taxation levels needed to raise that amount of money, raised loans for courthouses and jails, oversaw their construction, appointed the district treasurer, approved all non-statutory expenditures, examined the treasurer’s books, could remove the treasurer at will, and heard assessment appeals. Yet, that was hardly the end of it. They also regulated ferries, had responsibility for roads and bridges, determined who got liquor licences, and exercised numerous powers with respect to township officers. In short, until 1832, with no municipal corporations and without any town meetings in surveyed townships, the Court of Quarter Sessions “received all the authority granted by the legislature to deal with the special needs of villages and towns.”
Sixth, because the act of governing requires interpretation and enforcement of laws, justices of the peace shouldered numerous additional duties of adjudication in their governance role, as Aitchison itemized. They imposed penalties for infractions of laws, and heard civil actions for small debt recovery. They exercised these powers either alone or in pairs, depending on the seriousness of the infraction. Acting alone, JPs could order overseers to do roadwork within their districts, receive overseers’ books, lay out commutation money, and administer oaths to township officials to perform their duties. Acting in pairs, they could consider and allow tax assessors’ returns, issue warrants to debt collectors, and approve the apprenticeship of orphaned children by a town warden.
Seventh, King George III’s proclamation in 1763 handed JPs a further, even higher, responsibility: they were expected to uphold and enforce a Christian moral order. The king directed Governor Murray and his justices of the peace to “cause all laws already made against blasphemy, profaneness, adultery, fornication, polygamy, incest, profanation of the Lord’s Day, swearing, and drunkenness, to be vigorously put in execution in every part of your government,” taking “due care for the Punishment of these, and every other Vice and Immorality.” This “morality movement” drew its strength from England, where by the late eighteenth century a resurgence of Christian moral values, particularly from Methodist and Anglican quarters, spread out to the colonies through directives to those in the highest levels of government. This duty to enforce morality among the people posed a problem for justices of the peace operating in a setting and culture different from that of England. In Niagara District, at the time the most populated section of the province, the views of many did not align with the moralistic pattern being urged on the colonials. Niagara magistrates faced conflicting pressures enforcing a Christian moral order in a district, as Murray noted, “where some inhabitants were not shy in demanding they do just that, while others were equally determined to lead their own lives, free of unwelcome judicial interference.”
JPs became real players in the province’s opening decades, even if they played their roles overseeing local administrative, financial, and basic judicial services unevenly. As historian Frederick Armstrong aptly notes, justices of the peace had emerged as “the hinge between the people and the provincial government.”
With so many roles, and with a shortage of justices of the peace to carry them out, the cascading consequences of neglect meant many vital aspects of local government went unaddressed, raising the rebellious ire of townsfolk, villagers, and rural settlers, who, during the 1830s, had a growing list of other unheeded complaints, too, from arbitrary government to impassable roads.
What townspeople demanded, Aitchison explains, were efficient and zealous magistrates who would attend to their duties within the township. “Consequently we find them complaining that for want of magistrates town meetings were not held, township
