Raw Life. J. Patrick Boyer

      The Court: Canadian JPs by the Late Nineteenth Century

      Bracebridge was a political hotbed. Dominion and provincial elections were frequent, council elections rolled around every New Year’s Day, and townsfolk voted on contentious plebiscite questions frequently: all helped stoke the fires of political intensity. Rare was the Muskokan who hesitated to state his opinions on anything, from the fence-sitting leaders of the country to the location of his neighbour’s line fence. Nobody could escape taking sides, in this era before the secret ballot, when each man’s vote was openly cast amidst spirited townsfolk thronging at public polling stations, where the voter’s spoken declaration was, in fact, usually a proud or defiant shout, naming his chosen candidate. Everybody knew where a fellow stood, and whom he supported.

      Fitting in so as not to stand out, James Boyer identified himself as “an Independent Liberal” shortly after arriving in the district. He was not an active partisan. His position as town clerk restrained him from being outspoken, and conducting municipal elections and plebiscites required him to be neutral. He used this as a shield, content to be a quiet Liberal bystander to controversy. James still feared that partisan animosity could trigger closer scrutiny by adversaries and betray his identity. As a participant-observer (someone directly engaged in the affairs of his community through a variety of roles, who simultaneously had to stand apart from them as recording secretary, municipal clerk, or newspaperman, etc.), he exuded a balanced quality; he was a calmly reticent man whose nature suggested to others he could keep confidences. Many consulted James for his informed view on things, and he steadily rose in local stature because he was not seen as a threat to anyone.

      Someone who frequently sought him out was Alexander Cockburn, the first Muskokan James encountered — the two had shared the same rough coach ride into the district in September 1869. The influential steamboat owner and timber entrepreneur had run in federal and provincial elections, was a catalyst in district politics, and by 1878 was the Liberal MP representing Muskoka. Cockburn kept interested in Boyer’s career, partly for sentiment as the man who “introduced” him to Muskoka when they crossed the Severn River together, but also out of shrewdness because his rising political career required good relations with someone who, at turns a newspaper editor, school teacher, municipal clerk, and officer of more than a half-dozen church, fraternal, loyalist, and agricultural societies, could influence so many others. The two men enjoyed booting about information and ideas, since both shared a wily outlook about the workings of government and politics. Although both were Liberals, each was also his own man. James voted for Conservative candidates if he agreed with their stands more, while Alexander voted with the Conservatives in Parliament or the legislature if it helped install locks on the Indian River for his steamboats, get Crown timber concessions to log Muskoka’s forests, or win government grants for his pioneering steamboat program.

      Cockburn would be of great help to James in his bid to become a justice of the peace. Boyer was unable to practise law because becoming a member of The Law Society of Upper Canada would mean establishing his professional qualifications, which in turn meant reference to New York, where he was known by a different name, was an American citizen, and had left a wife and daughter behind. But he was still in love with the law. Boyer’s lack of standing as a lawyer, however, was the very qualification needed to make him a candidate for justice of the peace in Muskoka. The rules, Cockburn noted to him, stipulated that a JP could not be a lawyer. All the same, the provincial government liked to appoint a person of standing in the community, and James, after a decade in Muskoka, clearly had achieved that. If the prospective nominee was steeped in the law, but not active in its practise, even better. If a Liberal, even an “Independent” one, better still.

      Cockburn could recommend, but the decision would be made by Oliver Mowat, provincial Liberal leader and head of Ontario’s government as premier and attorney general. This wily, mutton-chopped premier with poor eyesight and thick glasses would remain in office a record number of years until 1896, only departing Queen’s Park in order to become Canada’s minister of justice in the new Laurier government in Ottawa. Premier Mowat’s long-running success was underpinned by his continuous attention to political patronage, including whom he appointed as local magistrates. In 1878 he named his fellow Liberal “James Isaac Boyer” of Bracebridge as Magistrate for Muskoka District.

      In early Ontario justices of the peace held courts designed to meet the minimum standards of justice, rough-hewn for a rough land. They lacked the firm foundation upon which the English system of JPs was based, and became increasingly ineffective in the face of the developing complexities of Canadian life. By the 1870s James Boyer found himself occupying a judicial office so evolved in Canada that it only loosely approximated the English original.

      He’d become familiar as a boy with the role of county magistrates in his Moreton-in-Marsh village, where effective local government was principally in their hands, then in Stratford-upon-Avon, through his years law-clerking there. In that English setting, he could never have imagined himself in such a role, given the social standing of British JPs. But he was now in the New World, where everything was possible for those looking to get ahead.

      Not only did men change in Canada, but so did institutions. James’s new front-line judicial office in 1878 was certainly not the model originally exported with Britain’s imperial extension of the Old World into the New.

      In fact, it had been a long stretch of seven centuries since King Richard I first gave knights power “to preserve the peace in specified areas.” The JP’s role had grown and changed dramatically in England even before reaching the stage of development exported to Britain’s North American colonies in the 1700s.

      In the mid-1300s, for instance, several statutes clarified and expanded the powers of JPs. A 1327 act provided that “good men and lawful” should be appointed “for the better maintaining and keeping of the peace” in each English county. In 1344 these keepers of the peace were granted extended authority, jointly “with others wise and learned in the law,” to hear and determine felonies and trespasses. After a while these “keepers” of the peace commonly became known as “justices” of the peace, and this popular way of referring to them was officially adopted in a 1361 statute that specifically formalized their powers over the restraint, pursuit, arrest, and punishment of offenders. Under this act, Parliament assigned to every county in England “one Lord and with him three or four of the most worthy in the county with some learning in the law” to keep the peace, arrest and imprison offenders, and hear and determine felonies and trespasses. The following year, these “most worthy” persons became justices of the peace in their own right, when another statute established that commissions of the peace would meet four times a year, eventually giving rise to what became known as “Quarter Sessions.” This enactment also provided that JPs, independently of others learned in the law but with a jury, could try criminal offenders.

      Successive statutes then extended the criminal jurisdiction of the Court of General Quarter Sessions, beginning in the fifteenth century when JPs were empowered to try certain offences outside of quarter sessions, without a jury. These proceedings, conducted by JPs exercising their summary offence jurisdiction, became known as “Petit Sessions,” a term continued in England until 1949, when they were renamed “Magistrate’s Courts.”

      However, it was their non-judicial duties that increasingly made justices of the peace a central part of local government. Today, when judicial functions and government operations are distinctly separate, it is hard to imagine the two combined; however, in 1890s Bracebridge James Boyer was justice of the peace and town clerk at the same time, a combination consistent with the role played by JPs in England, where they had steadily acquired substantial administrative powers in local government in addition to their judicial duties. During the 1400s, for example, justices of the peace in England gained so many regulatory and supervisory duties that soon their responsibilities, notes legal historian James Wilson, “blurred the fine distinction between judicial and administrative duties or criminal and civil jurisdictions.” This “double jurisdiction allowed the justices to confirm themselves as more or less self-contained local oligarchies which doled out administrative and judicial pronouncements with almost absolute and unfettered control.”

      After four centuries of piecemeal development, a new 1590