Fyson (Donald), Magistrates, Police, and People. Everyday Criminal Justice in Quebec and Lower Canada (1764-1837)
Fyson (Donald), Magistrates, Police, and People. Everyday Criminal Justice in Quebec and Lower Canada (1764-1837), Toronto, University of Toronto Press, 2007, 467 pp., ISBN 0 8020 9223 3. Tables, illus., bibliog., index.
- 1 Jean-Marie Fecteau, Un nouvel ordre des choses la pauvreté, le crime, l’État au Québec, de la fin d (...)
1The sub-title of this book describes effectively its contents: a study exclusively of the lower courts of magistrates from the establishment of common law courts in the 1760s down to the revolutionary reform years of the 1840s. Fyson draws his evidence primarily from the manuscript court records themselves. These include the records of the Clerk of the Peace and of the Crown for the Montreal Quarter and Weekly Sessions of the Peace from 1785; the Quebec Quarter, Weekly and Special Sessions from 1802; the partial and scattered records of the Courts of King’s Bench; the calendars and registers of the Montreal and Quebec Houses of Correction primarily from 1810; the administrative records of the City of Montreal from the 1790s and City Council papers from 1833; and the legislative and colonial records. Combined with more than 60 pages of notes and a detailed bibliography of primary sources and secondary works of 28 pages, this is perhaps the most solid research study of the criminal courts and the criminal law in Quebec since the pioneering work of Jean-Marie Fecteau1.
- 2 Donald Fyson, Evelyn Kolish, Virginia, Schweitzer, The Court Structure of Quebec and Lower Canada, (...)
- 3 See in particular, Jerry Bannister, The Rule of the Admirals: Law, Custom and Naval Government in N (...)
2The author is a prolific scholar early in his career who has published ten articles/book chapters in his first decade, and has co-authored the major source-book on the courts of Quebec in this era and beyond2. Fyson has, essentially, rewritten the history of crime, policing, and criminal justice in Quebec at a level that has not been matched for any colony or province in Canada. Drawing from the work of socio-legal historians of Britain, France and the United States, he leaves few stones untouched in his magisterial study. While controversial in places, this is a book that will encourage further research on particular topics and issues, but it will not be rewritten in this generation. It will stand alongside other recent monographs in several Canadian jurisdictions that explore aspects of criminal justice with both detailed examination of the records and wide-ranging, critical interpretation3.
3The work is organized thematically in order to capture the essence of the individual areas of the criminal justice system, with chronological twists and turns appearing as relevant. The first chapter is on the formation of the criminal justice system and its development over the course of the era. This is followed by a chapter on the composition of the commissions of the peace, the selection process, and characterizations of the magistracy. Chapter 3 provides a prosopography of the magistracy, and concludes with their prominence, knowledge and competence. Chapter 4 is on the forerunners of the police (militia and bailiffs), the origins of urban policing (constables and neighbourhood substitutes), police reforms of the 1810s, the watch and rural policing. «The Relevance of Criminal Justice» forms Chapter 5, where Fyson examines complaints and cases in town and country, Anglophone and Francophone, and where and why the system was used and where and why not. Chapter 6 examines the criminal law process from pre-trial proceedings to prosecutorial initiative and discretion, trial proceedings and outcomes, punishments and costs, appeals and pardons. «Social power» forms the nexus of Chapter 7, where subjects such as social domination, vengeance and cupidity, protection and power, negotiation and reparation, and the biases of class, gender and race are explored. The final substantive chapter is on criminal justice and state power, which dissects the «majesty of justice» in the colony and the bureaucratic power of Ancien-Régime justice through its myrid toolbox.
4The author’s theoretical approach is to «see law and justice as fundamentally being areas for the exercise of power, both social power and state power» (p. 5) while maintaining its own relative autonomy. He sees elements in Quebec of both the old ancient regime and the modern bureaucratic state. While an almost ten-fold increase in population transformed both society and the economy in the era, elements such as social regulation, bureaucratization and specialization were present from the early decades and require a more nuanced view of the orthodox Canadien rejection of the British colonial state.
5A number of themes emerge in the area of policing. First, the application of English criminal law was not significantly different than the pre-Conquest French Criminal Code, and the system of policing developed more quickly here than in the rest of British North America (p. 52). Second, while the magistracy continued under executive control, local communities gained influence in their selection and were able to develop «local state formation» (p. 94). Third, the Canadien magistrates became willing representatives of the British colonial state. While some JPs were arbitrary, acting on class interests, the majority were relatively fair-minded men who judged their citizens «impartially» (p. 135). Fourth, «the face of the police» became more Canadien in this period (p. 181), and paid constables in the cities brought policing to a more modern model.
6Examining the working of the criminal law itself, several themes emerge. First, the homicide rate was higher than in England, and violent acts of popular justice continued throughout the nineteenth century. But most instances of «ordinary violence were resolved extrajudicially» (p. 224). With recorded crime at a low level in rural society compared to the urban, property crimes remained low while labour and regulatory offences were predominant. Discretion and uncertainty were daily features of the system, legal process was consistent and punishments were fairly certain. The records evidence suggests that here was «no direct evidence of ethnic or class conflict» or of gender discrimination (p. 309). While the system still functioned on the basis of the private prosecution, the criminal justice system became increasingly an instrument of state power – of the power «of the local judicial bureaucracy» (p. 352).
7Fyson acknowledges that the years of Rebellion and reform in the 1830s brought «large police forces and stipendiary magistrates in both city and countryside» (p. 354), and that local state formation was a continuing process that responded to – and was changed by – social, demographic and economic forces. In spite of the introduction of JPs, private prosecution and jury trials, there was considerable continuity at the «everyday level». The changes of the late 1820s and 1830s were no more prominent than those of the 1760s. The flexibility of the criminal justice system allowed those who had been excluded from the use of its power to be included through the building of new courthouses and prisons, the professionalization of magistrates, the rise of public prosecution, a decrease in public and corporal punishments, and recourse to summary justice and imprisonment. In many areas, however, there was regression – a rise of interpersonal violence and public disorder even though the great majority of the population never participated either as complainant or accused, witness or juror. In the end, there were so many complexities that there was no consensus, conflict, nor marginality «in a system riddled with barriers and biases» (p. 361). The focus on the disorderly and those who were marginalized would arise in the later nineteenth century.
8It is rare that one finds a work of both qualitative and quantitative analysis between the same covers. Hidden in the pages of this book are numerous tables and bar charts that provide graphic descriptions of the contents of the original records, and photographic illustrations of the major players. Given the immense amount of information provided, a detailed index provides useful subject headings that will send the reader to every major topic of crime, the criminal law and its procedures. One can only hope for its sequel.
1 Jean-Marie Fecteau, Un nouvel ordre des choses la pauvreté, le crime, l’État au Québec, de la fin du XVIIIe siècle à 1840, Montréal, VLB, 1989; and La liberté du pauvre sur la régulation du crime et de pauvreté au XIXe siècle québécois, Montréal, VLB, 2004.
2 Donald Fyson, Evelyn Kolish, Virginia, Schweitzer, The Court Structure of Quebec and Lower Canada, 1764 to 1860, Montreal, Montreal history group, 1st ed. 1994; and 2nd rev. ed. 1997), at [www.hst.ulaval.ca/profs/dfyson/courtstr/].
3 See in particular, Jerry Bannister, The Rule of the Admirals: Law, Custom and Naval Government in Newfoundland, 1699-1832, Toronto, The Osgoode Society, 2003; David R. Murray, Colonial Justice: Justice, Morality and Crime in the Niagara District, 1791-1849, Toronto, The Osgoode Society, 2002; Peter Oliver, «‘Terror to Evil-Doers’: Prisons and Punishment in Nineteenth-Century Ontario» (Toronto: The Osgoode Society, 1998); and Jim Phillips, «The Criminal trial in Nova Scotia, 1749-1815», in Blaine Baker and Jim Phillips (Eds), Essays in the history of Canadian law, Volume VIII: In Honour of R.C.B. Risk, Toronto, The Osgoode Society, 1999, pp. 469-511 – which has no peer for the study of the criminal trial in Canada; and the fascinating recent study of Constance Backhouse, Carnal Crimes: Sexual Assault Law in Canada, 1900-1975, Toronto, Irwin Law, 2008.Haut de page
Pour citer cet article
Louis S. Knafla, « Fyson (Donald), Magistrates, Police, and People. Everyday Criminal Justice in Quebec and Lower Canada (1764-1837) », Crime, Histoire & Sociétés / Crime, History & Societies, Vol. 13, n°2 | 2009, 153-155.
Louis S. Knafla, « Fyson (Donald), Magistrates, Police, and People. Everyday Criminal Justice in Quebec and Lower Canada (1764-1837) », Crime, Histoire & Sociétés / Crime, History & Societies [En ligne], Vol. 13, n°2 | 2009, mis en ligne le 22 septembre 2009, consulté le 26 avril 2017. URL : http://chs.revues.org/1128Haut de page
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