Crime and Punishment in Upper Canada. Janice Nickerson
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in. Caleb ? [Wood, I think] and Jeremiah Young were also sworn in as witnesses. Then there is a note, “Prisoner Ann Best not Guilty,” and the court was adjourned until the next day.
On the 14th, John Best, Dota Best, and Cosper Best were arraigned again and plead not guilty. Another jury of twelve men (only five of whom were on the previous day’s jury) was sworn in, Caleb Wood, Joseph Kitchen, and Matthew Tisdale were sworn in as witnesses for the prosecution; Jeremiah Young and Ann Best were sworn in as witnesses for the defence. The jury found the prisoners guilty. John Best was fined £1 10s.; Mrs Best was fined 15s. and Cosper Best was fined 5s. They were ordered to be imprisoned until they paid their fines, but they paid them promptly to the sheriff. 33
It should be noted that even the most prominent citizens appeared in the Quarter Session records convicted of assault. It didn’t seem to affect their reputations or success in life.34
More serious crimes were another matter. Between 1827 and 1846 there were twenty cases of murder brought before the Niagara District Assizes. In seven cases, the accused were con–victed, in ten cases they were acquitted, two cases weren’t heard, and one of the accused was judged insane and therefore unable to stand trial. Of the twenty accused, three were women. Of these, two were acquitted and one was found guilty of a lesser charge (concealing the birth of a child).35
Only eight cases of rape were brought before the Niagara Assizes in the same period (as rape was a capital offence, it was not eligible to be tried at the Quarter Sessions). Six of the eight were acquitted. Very likely the low number of cases is due to the low conviction rate. The conviction rate rose dramatically after 1842, when legislation allowed conviction for “assault with intent to rape.”36
In some cases, magistrates decided to prosecute for assault instead of rape. This allowed them to take the case to the Quarter Sessions (which was less intimidating and quicker) instead of the Assizes, and to increase the likelihood of conviction.
For example, in October 1836, Samuel Hathaway Farensworth of St. Catharines, yeoman, was charged with “assault with intent to carnally know a child under ten years of age.” The victim was a seven-year-old girl who had been liv–ing with Farensworth for a few weeks in the summer. The girl’s father prosecuted the case, bringing fourteen witnesses, includ–ing three doctors.The doctors all agreed that the child had been assaulted, which appears to have been rare. In all, twenty-nine witnesses and three constables testified at the lengthy trial. The jury convicted Farensworth and he received a sentence of three months in gaol and a fine of £25 and court costs, which would have been in the order of £20 (the fine would be equivalent to about seventy days work for a skilled labourer, perhaps $13,000 now37). He complained bitterly about the costs, saying that sev–eral of the witnesses were either not necessary or didn’t need to attend court for more than one day (witnesses were paid 2s. 6d. per day in court, plus mileage).38
R. vs. Samuel Farensworth, Cover Page of Bill of Indictment, October 1836, Lincoln County Court of General Quarter Sessions of the Peace Records, Ar–chives of Ontario, RG 22-372 Box 25 Folder 22.
Age was a significant factor, as carnal knowledge of a girl under ten was a capital offence (punishable by execution),39 while carnal knowledge of a girl over ten but under twelve was still considered a misdemeanor.40
There were very few prosecutions for wife beating. Women almost never asked for the protection of the law unless they believed their lives were threatened. Even then, there were few convictions for assault, mostly because the wives wouldn’t pros–ecute or no witness could be found. Instead, the magistrates resorted to the use of peace bonds. A single magistrate could require a man to sign a recognizance (legal obligation to pay a certain amount to the Crown) on condition of keeping the peace with his wife (or whoever the victim was) for a period of time, usually one year, and to find two sureties who would sign with him. A typical recognizance for keeping the peace was £50, with each of the sureties bound for half that amount.41
Crimes Against Property
Crimes against property were the most common offences tried at the Assizes. This includes such offences as theft, larceny, steal–ing, burglary, destruction of property, receiving stolen prop–erty, and fraud. Theft and larceny were the most common.43 Between 1828 and 1841 in the Niagara District, there were 234 prosecutions for larceny at the Quarter Sessions and 77 at the Assizes.44 According to the Gore District gaol records, between 1832 and 1840, the average rate of crimes against property was 107 per 100,000.45
Crimes Against Property Prosecuted in the Niagara District 42
| Larceny Quarter Sessions | Larceny at Assizes | |
| 1828 | 6 | 6 |
| 1829 | 14 | 2 |
| 1830 | 18 | 6 |
| 1831 | 16 | 5 |
| 1832 | 10 | 3 |
| 1833 | 17 | 2 |
| 1834 | 15 | 5 |
| 1835 | 20 | 8 |
| 1836 | 17 | 4 |
| 1837 | 36 | 6 |
| 1838 | 10 | 11 |
| 1839 | 16 | 7 |
| 1840 | 29 | 5 |
| 1841 | 10 | 7 |
Before 1789, petty larceny was defined as larceny of up to 1s.; grand larceny was larceny over 1s. As grand larceny was a capital offence (i.e., punishable by death), an Ordinance of 178946 raised the limit for petty larceny to 20s. in order to keep small thefts from clogging the high courts. Grand larceny was over 20s.
Anyone committed to gaol for petty larceny had to find bail within forty-eight hours (so he could be released on his recognizance to wait for trial at the Quarter Sessions), other–wise three Justices of the Peace could convict of petty larceny in petty sessions (without a jury).47 In the 1820s grand larceny often brought six months in gaol and thirty-nine lashes.48 The distinc–tion between grand and petty larceny was removed in 1837.49
Crimes Against the Moral Order
Moral offences included abusive language, breach of by-laws, drunk and disorderly conduct, gambling, public nuisance, keep–ing a disorderly house, and vagrancy. In the Gore District between 1832 and 1840, the average rate of crimes against public order was thirty-three per 100,000.50
As the districts were very autonomous in the early days, each had its own approach to dealing with moral order offences. In some districts, such as Newcastle, very few such crimes appear in the records, in others, such as London, the authorities were more vigilant. For example, between 1800 and 1820 there were four cases of profane swearing. All were convicted, and sentences ranged from fines of 2s. to 6s. Three men were