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accommodate this altered reality, the British Parliament again revamped constitutional arrangements, this time in the Constitutional Act of 1790, changing Quebec’s governance structure by dividing the colony, renaming its successor parts Lower Canada and Upper Canada (in relation to their lower and upper elevations on the St. Lawrence River.) Besides dividing and renaming territory, the act also established a constitution for the new Province of Upper Canada.
By this date English-style justices of the peace had already been exercising jurisdiction in this extended segment of Quebec territory, as thinly populated as it had been, for over two decades. Under this 1790 reconstitution, the Court of the General Quarter Sessions of the Peace was left untouched, so the structure of local government remained basically as it had been, with JPs wielding significant roles in local government as well as administering justice. A landmark 1790 development, creation of a legislature, opened colonial life in the province to something more democratic than before. Election of representatives to Upper Canada’s first legislative assembly followed in 1791.
This legislature in the early years of Upper Canada was, as Wilson notes, “confined largely to provincial matters, and the actual maintenance of local affairs and justice in Upper Canada was controlled by the men appointed justices of the peace sitting in the Court of General Quarter Sessions of the Peace for each district.” This arrangement replicated the pattern in England familiar to the MPs at Westminster who debated and enacted the Constitution Act of 1790. It was also favoured by Britain’s Colonial Office, which sought, in as many ways as it could, to control political life in its remaining North American colonies, having just lost many of its most prosperous and populous ones along the Atlantic seaboard. JPs, given pivotal roles in local government across the province, were appointed with the approval of the British governor in Upper Canada.
The British regime was still shaken by the French and American revolutions, and feared “mob rule” and “democracy”; these two were, in fact, identified as the same thing, an apprehension that worked itself into many controls the British instituted in Upper Canada to restrain North America’s yeasty democratic tendencies. Where citizens of the new American republic swore allegiance to the Constitution, Upper Canada’s residents were “British subjects,” whose loyalty was to the Crown. These were two fundamentally different foundations upon which to erect the “rule of law.” The 1791 election of an assembly of representatives in Upper Canada was a timid step in the direction of democracy. This legislative body remained ineffectual because real power still resided with the legislative council, a second chamber with greater powers and whose regime-supporting members were not elected but appointed by the governor.
Within this configuration designed to constrain democratic tendencies, the province’s justices of the peace played major roles, thanks to their powerhouse combination of judicial and governmental functions in local affairs. Until the 1830s, as historian James Aitchison notes, “No town meeting could legally be held without a warrant for the purpose signed by two justices.” In other words, freedom of assembly existed only if the regime, represented by its justices of the peace, approved of who was going to gather, and for what purpose.
The “rule of law” supported the established order by keeping democracy at bay in other ways, too. When a provincial statute in 1793 empowered Upper Canada’s townships to select officials who would handle minor local matters, not only was the authority of these men limited, they were subject to supervision by justices of the peace even in handling their minor tasks. That was not an aberration. It was a local microcosm of the provincial scene itself, where elected representatives in the assembly were severely limited in their roles and subject to being overridden by the appointed legislative council and governor.
The 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