Raw Life. J. Patrick Boyer
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that justices of the peace could “proceed in three separate ways according to the matter at hand: they could sit alone, they could sit jointly with one or more of their fellow justices, or they could sit collectively as they had been doing since the 1360s as a general sessions of the whole county.” Through the next century, notes Wilson, most civil administration in the counties came to be performed by these Courts of Quarter Sessions. In addition to resolving disputes and meting out punishments to lawbreakers, JPs were increasingly confirmed in statutes as administrators conducting local government. The cumulative effect was staggering. By 1689 a JP’s government administrative duties ran the gamut from overseeing bridge repairs and the building and maintaining of jails, to issuing alcohol licences, and sanctioning taxes for parish needs. These were tasks that, in time, with pressure for more accountability and democratic control, would become the responsibility of elected municipal councils. Until that happened, however, this steadily growing roster of administrative powers meant that, as scholar David Phillips observes, “for most people, the justices, rather than the central government, represented public authority as they would experience it in their daily lives.”
Because they wielded such significant powers, the qualifications of justices of the peace mattered. One of those 1300s statutes required that justices of the peace be “the most sufficient knights, esquires, and gentlemen of the land.” Fifty years later a 1439 act stipulated that JPs must own land valued at twenty pounds a year, meaning they had to be to a modest extent members of England’s propertied class. Despite the power JPs wielded, and perhaps to some degree because of it, finding qualified men willing to perform the role was difficult. The time consumed and the potential to make enemies tended to repel men possessing the requisite social and economic standing. Still, those prominent men who did agree to become JPs were often landed gentry. Throughout England’s countryside these propertied and educated individuals often played a catalyst’s role in public affairs. Their independence neither required, nor much tolerated, directions from a distant, all-powerful authority.
The English jurist Maitland wryly observed, in an 1888 essay entitled “The Shallows and Silences of Real Life,” how the most learned stipendiary magistrates “will find it hard to get so high a reputation among country folk for speaking with the voice of the law, as that which has been enjoyed by many a country squire whose only juristic attainment was the possession of a clerk who could find the appropriate page in Burn’s Justice.” Canadian jurist and law reformer James C. McRuer added that England’s justices of the peace were “persons who felt the responsibilities of their position, who acted out of a deeply developed sense of stewardship, and who were respected and relied on by their poorer neighbours, to whom they were the embodiment of ‘the law.’”
In short, respect for JPs had steadily grown as a consequence of who they were socially, how effectively they functioned in office, their growing powers in local governance, and their independence. Increases in their statutory powers propelled them into ever-greater prominence, right into modern times when the vast majority of criminal prosecutions in England are disposed of by justices of the peace in the exercise of their summary jurisdiction. They proved indispensable in resolving petty local frictions that were neither so trivial they could be ignored, not so severe as to land a culprit in a higher court on a heavy criminal charge.
As created in England, this institution represented ground floor, walk-in justice. The fact JPs had emerged from the solid foundations of an existing social order, one they both understood and helped to perpetuate, would be one of countless differences when the office of JP was exported to fledgling colonies.
The practice of introducing this institution into the rudimentary social order in overseas territories began in North America with England’s first overseas colony, Newfoundland, continued in new colonies like Virginia and Nova Scotia along the coast of New England, and in 1760 extended to New France, once Britain gained these colonies. Three years after Quebec’s capitulation, King George III issued a royal proclamation giving Governor Murray, among other things, full authority to constitute justices of the peace and appoint men of his choosing to the positions. So began the process that would eventually produce justices of the peace in Ontario, and, specifically, in Muskoka, a century later.
It was one thing to have the authority to create JPs, quite another to have the right handle on how to do so. After all, the JP’s functions in England had developed over time as a distinctive component of a most particular society, evolving to suit English needs in ways appropriate for English conditions, in ways only possible within that setting. Such uniqueness meant replicating justices of the peace, in short order and in a different society, was difficult.
The quest to adapt British institutions and practices within North America’s fledgling communities took unexpected turns. It seemed probable that grafting English laws and judicial procedures onto an existing French society, in the wake of centuries of French–English warfare and mutual hatred, would create a toxic reaction leading to rejection of the transplant. Yet, the relationship between magistrates, police, and people in Quebec and Lower Canada did not seem overly difficult. With evidence from Quebec records following 1764, historian Donald Fyson has now corrected many earlier misinterpretations about this “British” institution in a largely French-speaking community, documenting, from “banal cases involving no particularly interesting judicial principles,” substantial continuity between the old French regime and the new British order that replaced it. The transplant was taking root, at least where JPs were appointed in the established communities of Quebec.
Reaching beyond those established Quebec settlements, however, the situation was quite different as the colony expanded into the unsettled territory to the west that would in time become Ontario. The year after Murray created the first justices of the peace in 1764, new districts were created in Quebec’s sprawling regions of wilderness. “Provisions for administration at the local level were provided for each of the newly created districts at this time by the granting of commissions as justices of the peace,” explains Wilson, “with three justices empowered to hold quarter sessions in each of their appointed districts.” The principal problem with these districts serving as the primary judicial units was that their much larger size and sparsely settled population, compared to their corresponding county unit in England, made it hard to find qualified men to serve as JPs. The problem was further exacerbated because Roman Catholics were now barred by law from being appointed and few Protestants lived in Quebec.
The result was predictable. Relationships of power and authority became strained, laws went unenforced, procedures remained unfamiliar, and the different outlooks of English-speaking and French-speaking colonists clouded the picture — problems that were compounded by the fact that the vast areas of the new districts made control and administration difficult and slow. Dissatisfaction was mounting. Inhabitants, demanding a say in government, agitated in part because of the problems that arose from an administrative and legal system operated by justices of the peace. The British government responded with a new constitution, embodied in the Quebec Act of 1774. Despite other changes, it maintained the institution of a local magistrate in the French-speaking territories and extended this judicial-administrative position to settlements in the inland territory that would, in time, become Ontario.
After the 1770s this inland Quebec territory began filling in with settlers. In just a decade and a half, colonial development in this sector advanced so much that it required its own local structure for governance, rather than depending on its distant capital down the St. Lawrence. A separate government system soon became necessary for this westerly region because its new settlers, unlike those in old Quebec, were mostly English-speaking, non-Catholic, and, also, were militant supporters of the British Crown. Many had fought on the losing side in the American Revolution, when thirteen of England’s colonies had rebelled against the Crown and fought to create a new republic, the United States of America. Those on the losing side, fleeing with their lives from torched homes and confiscated farms, were dubbed “United Empire Loyalists.” They started life anew in the remaining British North American territories, some settling in Nova Scotia, others crossing into this empty inland territory to live on the north shore of Lake Ontario and in the Niagara Peninsula. They brought with them loyalty to the Crown, an aggrieved sense of injustice that would long endure in Ontario’s political culture as anti-Americanism, and familiarity with such British institutions as the local justice of the peace as