The Biases of Ancien Régime Justice: The People and the Justices of the Peace
in the District of Montreal, 1785-1830
Donald Fyson, Université Laval
From Tamara Myers, Kate Boyer, Mary Anne Poutanen and Steven Watt, eds., Power, Place and Identity: Studies of Social and Legal Regulation in Quebec (Montreal: Montreal History Group, 1998): .
Introduction
When studying the place of a criminal justice system in a historical society, understanding the biases of the system is fundamental. Of particular interest for social historians are the effects of various social factors on shaping the experiences of people who came in contact with the system. What follows is a brief, largely quantitative overview of the importance of four such factors, namely geography, ethnicity, class, and gender, in one particular ancien-régime criminal justice system, that of Quebec and Lower Canada between 1785 and 1830. It forms part of a larger study that examined the lower levels of this justice system in the judicial district of Montreal in order to reconstruct the system's structures, everyday operations, and impact.(1)
After the Conquest, the criminal justice system implanted by the new British rulers was essentially a simplified version of that of England. The judiciary was composed of two distinct groups: a small number of salaried, trained judges, and a somewhat larger number of unpaid lay magistrates drawn from the elites, namely the justices of the peace. In the district of Montreal, which covered the entire western half of the colony, the activity of the professional judges in criminal matters was largely restricted to hearing cases in the superior criminal courts, the King's Bench and the Oyer and Terminer. These courts dealt mainly with capital crimes, such as murder, rape, and various types of larceny, hearing perhaps 15% to 30% of all cases. All other offences were dealt with by the justices of the peace, most notably in their formal courts based in Montreal: the Quarter Sessions of the Peace, which dealt with offences of a middling nature, especially assault and battery and non-capital larceny; and the Weekly Sessions of the Peace, which dealt with lesser offences such as disobedience of militia orders or infractions of licensing regulations. The justices of the peace also acted outside of the regular courts, on the one hand performing most preliminary judicial functions, such as the taking of depositions and the issuing of warrants in complaints destined for the formal courts, and on the other passing judgment summarily through their power to impose imprisonment, fining, and peace bonds. It is the activity of the criminal justice system at the level of the justices, both in their formal courts, and in their preliminary and summary proceedings, that is the focus of this paper.
A commonly noted feature of ancien-régime criminal justice systems is their urban bias: they were very largely urban institutions designed for, targeted at, and used by an urban population. This is one of the main points of those who emphasize that in ancien-régime societies, such as pre-revolutionary France, official criminal justice occupied a very marginal place in the resolution of rural community tensions, or in the imposition of state authority. Thus, Olwen Hufton suggests that village communities in large portions of the continent's seemingly most centralized and powerful nation-state, France, came in contact with the criminal justice system only very rarely, and then usually in cases that involved somebody from outside of the community.(2) The work of E.P. Thompson, Douglas Hay, and others suggests that the rural propertied elites in eighteenth-century England were more successful in using the criminal law as a means of controlling their tenants and servants;(3) but even for England, studies have shown that people from rural areas were much less likely to come before the courts.(4) And as for New France, André Lachance has shown that about 60% of criminal cases that came before the royal courts originated in the three main towns, which constituted at most 20% of the colony's total population.(5)
Quebec and Lower Canada was no exception. Table 1 shows the proportion of parties from the city of Montreal itself, in complaints laid before the justices of the peace destined for the Quarter Sessions (QS complaints), and in cases actually pursued to the Quarter Sessions (QS cases).(6) Just as in New France, urban-dwellers were heavily over-represented: between 55% and 60% of both defendants and complainants(7) were from the parish of Montreal when it only accounted for about 10% of the population of the district. In other words, the rate per population for Montreal was about thirteen times as high as that for the other parts of the district.
TABLE 1: PROPORTION OF PARTIES FROM MONTREAL
|
|
Defendants |
Complainants |
||
|
1785-99 |
1800-30 |
1785-99 |
1800-30 |
|
|
QS complaints |
58% |
58% |
59% |
60% |
|
QS cases |
54% |
58% |
55% |
59% |
There have been three principal reasons advanced for this urban bias. The first suggests that there was relatively more crime in urban areas.(8) The second assumes that rural communities were more independent and closed, and had stronger community mechanisms for the resolution of disputes. They were thus less willing and had less reason to resort to an external justice system to resolve disputes, and more liable to resist such a system when it was imposed on them; when they did come in contact with the criminal justice system of the state, it was as a last resort, in extraordinary cases that they could not resolve themselves, or where the state's interest was particularly strong.(9) The third reason, related to and often seen as derived from the second, suggests that the institutions of the state were far weaker in the countryside than in the cities, and that as a result it was both more difficult for the state to impose its will on the populace, and for people in rural areas to have access to state institutions.
Of these three reasons, the first is impossible to gauge from lower court records. As Robert Shoemaker points out, the number of assault cases that turned up in the criminal courts almost certainly had very little to do with the number of assaults actually committed;(10) and this was even more true of the whole range of lesser regulatory offences.
The effects of the paucity of the structures of the criminal justice system are easier to judge. As I have shown elsewhere, the justices, courts, and police who made up this system were not nearly as disorganized, unprofessional, and generally anemic as has previously been argued, especially in the nineteenth century.(11)
Throughout the period from 1764 to 1830, the formal courts were centered at Montreal, and in the eighteenth century there were few justices outside of the city; but there had always been bailiffs in the countryside, and by the 1810s and 1820s there were increasing numbers of active justices and police in the other parts of the district. Thus, by the 1820s, if a complainant wanted to make a complaint, there was probably an active justice within a few miles, and a bailiff or constable willing to serve the warrant or summons if paid the appropriate fee.
Further, if the inaccessibility of the criminal justice system was a factor, we would expect to see at least two trends. First, with more active justices and police outside of Montreal in the 1810s and 1820s, there should have been a proportionally greater number of people from outside of the city coming in contact with the criminal justice system. However, this was not the case. And secondly, if it was the distance from Montreal itself that was a major dissuading factor, then people who made complaints from outside of Montreal should have been much less likely to pursue their complaints to the Quarter Sessions itself, since that court sat only in Montreal; and yet Table 1 demonstrates no such trend.
What is left is the particularity of rural attitudes towards using the justice system, and here the indications are more ambiguous. Consider the amount of time it took for a complainant to arrive before a justice to make a complaint, summarized in Table 2. If the criminal justice system was used only as a last resort, we would expect to see a significant delay between the date of the crime, and the date that the complainant appeared before the justice. Certainly, rural complainants took longer to go before a justice than their urban counterparts: 40% made their complaint the same or the next day, compared to over 70% for urban complainants. However, over half made their complaints within two days, suggesting a rural population for whom going before a justice to make a complaint, far from being a last resort, was one of several primary mechanisms used in response to situations in which they felt aggrieved.
TABLE 2: TIME BETWEEN INCIDENT AND COMPLAINT
|
|
Same day |
Next day |
2 days |
3-5 days |
6-10 days |
11-30 days |
31+ days |
|
Montreal complainants |
28% |
45% |
8% |
10% |
3% |
4% |
2% |
|
Non-Montreal complainants |
14% |
26% |
14% |
19% |
10% |
10% |
6% |
As well, the under-representation of rural parties probably reflects in part an unwillingness of people from outside the city to go before the formal courts in Montreal rather than an outright avoidance of the criminal justice system. There are hints that in the areas furthest from Montreal, justices were more likely to impose, and complainants to accept, a resolution that did not involve a costly trip to Montreal, at least in the sorts of less serious cases that were decided by the justices themselves. Thus, all eight of the assault cases recorded by Henry Crebassa and Robert Jones, two justices at William Henry (Sorel), at the eastern edge of the district of Montreal, in their notebook for 1822-1823 were resolved by imposing a recognizance to keep the peace on the defendant rather than sending the matter on to trial in Montreal.(12) And an 1825 letter from Jonas Abbott, a Saint-Armand justice of the peace, to the clerk of the peace in Montreal, shows how this localization of justice could be at the impetus of the parties themselves, despite the intentions of the justice. In sending in the documents regarding the complaint of John Gibson jr., a Sutton farmer, against Thomas Waters, "a transient person", for assaulting him, Abbott explained why he had not written out in full the recognizances of the parties and witnesses:
I have heretofore been in the habit of making out recognizances at full length, which has occasioned me a great deal of writing, and in some instances have transmitted bonds, which have been taken on the most flagrant kind of assault and battery, neither the complainant nor respondent has appeared, the bonds never called for, and here the matter ended -- the whole country in this part of the relm [sic] is well apprised of this -- and many of our inhabitants dont hesitate to break the King's peace every day of their lives -- give bail for their appearance at the General Quarter Sessions of the peace -- and laugh at the magistrate the moment recognizance is entered into ... I feel very confident that neither the complainant, respondent, or witnesses will appear at court, my reasons for so believing is that the parties have been to me requesting that I would not send the papers to Montreal, saying they could settle the matter amongst themselves.(13)
In this sort of case, the criminal justice system of the state was used at a local level as leverage in local disputes, but bypassed when it became too cumbersome: what suited many people outside of Montreal was having their opponent brought before a justice, without having to make the lengthy and costly trip to Montreal.
Another indication of the role played by the low-level criminal justice system in rural communities is the places of residence of the parties involved. As Table 3 shows, among complaints that involved parties from outside of the city, about 70% involved only people from the same parish, seigneurie, or township, and another 10% only people from neighbouring places. What this suggests is that a significant part of the criminal justice system at the level of the justices did not fit at all the "classic" pattern of an ancien-régime criminal justice system where people outside of the towns only came in contact with the system in cases involving "others", those outside of the community.
TABLE 3: PLACE OF RESIDENCE OF PARTIES
|
All parties from same place |
68% |
|
All parties from neighbouring places |
9% |
|
Other |
23% |
Finally, it is also important to recall that contact with the criminal justice system did not always rest on the willingness of the rural population to use it: in the district of Montreal, there were some very specific ways in which the state itself reached out into the countryside to exercise its control. The Weekly Sessions of the Peace was a Montreal court, which was largely intended to impose order on the town itself. But the urban justices who made up the Weekly Sessions did not hesitate to extend their jurisdiction to cover the entire district, especially in matters where the interests of the state were concerned. In the eighteenth century, this primarily concerned militia and corvée duties, which accounted for about 30% of convictions in the court, and which concerned very largely people from outside of the city. In the nineteenth century, it was through convictions for selling liquor without a license: of 105 such convictions between 1810 and 1829 where the sources provide the place of residence of the defendant (out of 468 convictions altogether), 62, or about 60%, were from outside of Montreal; and these ranged across the entire district, from Contrecoeur to Rigaud, and from Stukely to Saint-Roch.
None of this is to argue that urban dwellers were not in closer contact with and more heavily touched by the criminal justice system; it also does not change the fact that at the level of the Quarter Sessions, the criminal business of the justices was primarily urban. But it does suggest that the geography of contacts with the justice system was more complex than the classic urban/rural split, with only townsfolk affected in any great way by the system and with rural inhabitants coming in contact with it only very rarely and reluctantly. And can we even assume that the preponderance of urban dwellers was necessarily the reflection of an "ancien-régime" criminal justice system and, more generally, a pre-modern state? It certainly did harken back to New France, and was similar to what has been found in many other ancien-régime societies. But this same pattern of a much stronger presence of people from Montreal itself in the criminal justice system also held true almost a hundred years later, at the beginning of the twentieth century, long after the arrival of the "modern" state. Thus, taking 1901 as an example, the conviction rate in the judicial district of Montreal, which included not only Montreal itself but also the rest of the Island of Montreal, Isle-Jésus, Vaudreuil-Soulanges, and part of the south shore, was 3.0 per 1000 population for indictable offences and 13.9 per thousand for summary offences; in contrast, the conviction rate for the rest of what had been, a hundred years earlier, the district of Montreal, was only 0.3 per thousand for indictable offences and 1.2 for summary offences, or about a tenth of what it was for Montreal itself.(14)
The same sort complexity is apparent in another element that has attracted attention from historians of criminal justice in Quebec and Lower Canada, namely the dislike or distrust by the Canadien majority of the system implanted and, as is usually assumed, run by the English conquerors. Most historians have argued that in the decades between the Conquest and the Rebellions, Canadiens generally avoided using the criminal justice system of the state:
In Lower Canada, where the English criminal law was superimposed on a French-speaking society, the law was despised from the outset, and hostility increased from the 1790s down to the mid nineteenth century. The distance of the courts, the infrequency of their sittings, the long and technical proceedings, and the more severe justice assisted in the alienation of the Canadiens to the English that have become a permanent scar on the face of the country.(15)
Louis Knafla's language is perhaps extreme, but in a more nuanced form this notion of a Canadien "boycott" of the criminal justice system, to use Jean-Marie Fecteau's term, is present in the work of most who have written on the subject.(16)
In the higher criminal courts, there is strong evidence for this: the proportion of non-francophones (and thus non-Canadiens) was often overwhelming, at two-thirds or even three-quarters of all parties. But at the level of the justices, we get a different picture of the ethnic character of the criminal justice system. As Table 4 shows, non-francophones were consistently over-represented, given that they made up no more than 5% of the population of the district up to the mid-1780s, and perhaps 20% by the 1820s; on the other hand, apart from the second half of the 1820s, francophones (almost exclusively Canadiens) were in the majority, generally making up 60% or more of both complainants and defendants. Indeed, for the last two decades of the eighteenth century, about 80% to 85% of defendants in the Weekly Sessions, the court which directly touched the largest number of people, were francophones, approaching their proportion in the population at large.
TABLE 4: PROPORTION OF FRANCOPHONE PARTIES
|
|
Defendants |
Complainants |
||||||||
|
1785- |
1794- |
1800- |
1810- |
1824- |
1785- |
1794- |
1800- |
1810- |
1824- |
|
|
QS complaints |
73% |
62% |
73% |
61% |
47% |
63% |
63% |
68% |
61% |
52% |
|
QS cases |
62% |
58% |
64% |
57% |
49% |
58% |
60% |
58% |
61% |
43% |
|
Weekly Sessions cases |
86% |
83% |
54% |
57% |
56% |
n/a |
n/a |
n/a |
n/a |
n/a |
Further, most of the apparent under-representation of francophones was a reflection of the urban bias discussed above. As Table 5 shows, francophones made up around 80% of non-Montreal complainants in Quarter Sessions complaints in the eighteenth and early nineteenth centuries, though this dropped dramatically to less than 60% in the late 1820s; in contrast, they generally made up only about half of Montreal complainants, apart from a slightly higher proportion in the early 1800s. If we consider that the population of the parish of Montreal by 1832 was only half francophone, while that outside of the city was 85% francophone, we can see that in both cases, francophones were far less under-represented than the overall figures show.
TABLE 5: FRANCOPHONE PARTIES, GEOGRAPHICAL BIAS
|
|
1785-93 |
1794-99 |
1800-09 |
1810-23 |
1824-30 |
|
Non-Montreal complainants |
81% |
79% |
82% |
76% |
54% |
|
Montreal complainants |
40% |
27% |
59% |
53% |
52% |
A further insight into the ethnic character of the justice system comes when we look at who was complaining against whom. Table 6 presents the ethnicity of complainants and defendants in Quarter Sessions cases, for both the eighteenth and the nineteenth centuries; for ease of analysis, it amalgamates anglophones and others, and uses a pair-wise comparison (each complainant-defendant pair is counted as a single instance, so that a case with two complainants and four defendants produces eight instances). In both periods, cross-ethnic complaints were very much in the minority, with about 80% and 70% of instances involving a francophone complaining against a francophone, or a non-francophone against a non-francophone. Further, though in the eighteenth century francophones were less likely to complain against non-francophones, this was not true in the nineteenth. It is thus very difficult to see the Quarter Sessions at least as a locus for ethnic conflict; and the same picture also held true for Quarter Sessions complaints, where in the nineteenth century about 75% of complainant-defendant pairs were not cross-ethnic.
TABLE 6: ETHNICITY OF PARTIES
|
|
1785-99 |
1800-30 |
|
Francophone complainant and defendant |
47% |
43% |
|
Non-francophone complainant and defendant |
31% |
28% |
|
Francophone complainant, non-francophone defendant |
8% |
15% |
|
Non-francophone complainant, francophone defendant |
13% |
14% |
There are further hints of the complexity of the relationship between Lower Canadian society and the criminal justice system at the level of the justices when we consider the race of parties. As one might expect, Blacks and Natives, two groups who were marginalized by the dominant European community, did appear as defendants before the justices: for example, a Black slave identified only as "George" who was whipped through the town at least once and perhaps twice in the mid-1760s; or on another scale, Paul and Jean-Baptiste Sacoyatinta, Caughnawaga Natives, who were arrested in 1830 for being drunk and disorderly on the Old Market in Montreal.(17) Further, non-Europeans were more likely to appear before the justices as defendants rather than as complainants (Natives about one and a half times as likely and Blacks about three times as likely), suggesting that for those on the margins of European society, the courts of the justices functioned more as instruments of oppression than as sources of power. However, unlike in the United States, the business of the justice system (at least at the level of the justices) was very little concerned with the enforcement of European domination, since non-Europeans represented only a very small number of defendants, probably under 2% in all; at the level of the justices, the criminal justice system dealt almost entirely with Europeans.(18) And in a few cases Blacks and Natives did appear before the justices as complainants. Thus, in 1799, Agathe Sagosennageté, married to Thomas Arakouanté, a Caughnawaga trader, travelled to Montreal to complain of threats by Otiogwannon Ontsientani, a Caughnawaga Native leader;(19) and in 1795, Catherine D'Amour, a Black woman, accused Marie Lapierre of stealing several items of clothing from her.(20) It is nevertheless hard to draw any broader conclusions from the handful of similar cases.
Insofar as Canadiens were concerned, their larger presence before the justices than in the higher criminal courts can be traced in large part to the character of the system itself. The police and the active magistracy, far from being completely dominated by non-francophones, had a strong and in some periods overwhelming francophone, largely Canadien presence; the main exceptions were the period up to 1770, the late 1790s, and the late 1820s. Further, the criminal law and criminal procedures applied at the level of the justices, though resting on a foundation English law, were in practice not that different from those in New France before the Conquest, especially in regard to proceedings preliminary to trial. Threats and assaults, the bread-and-butter of the Quarter Sessions, were treated very similarly in both systems, with the initiative left up to the complainants; and as for cases in the Weekly Sessions, the law applied was more local than English, based as it was on the enforcement of colonial ordinances and local regulations. At this low level, there was indeed a strong continuity between the practice of the two criminal justice systems, whatever the formal laws might be. And as for the language of justice, at the level of the justices all preliminary documents could be in either English or French, depending on the language of the party whom it concerned and the justice who was making it out; and even the Quarter Sessions, the most formal of the courts, did not operate solely in English, but rather in a mixture of French and English, depending on the parties of the case.
What all of this suggests is that the Canadien majority, far from boycotting the criminal justice system, was quite at home using it when necessary. The only period where a real boycott is evident is the late 1820s; and this is not at all surprising given that control of the magistracy was increasingly in the hands of francophobic tories.(21)
As with geography and ethnicity, the class of complainants and defendants played an ambiguous role in shaping their contacts with the criminal justice system. Table 7 presents the class structure of complainants and defendants in complaints before the justices, broken down into six socio-professional groups: elites, especially merchants and members of the liberal professions; "middling", comprising those who were definitely not part of the elites but also not really part of the popular classes, such as clerks, mid-level government bureaucrats, and small shop-keepers; skilled labourers, especially artisans; farmers; unskilled labourers, along with servants and apprentices; and a residual group including all those on the periphery of colonial society, such as soldiers, indentured seamen, Natives, and Blacks.
TABLE 7: CLASS OF PARTIES
|
|
Defendants |
Complainants |
|
Elite |
11% |
13% |
|
Middling |
13% |
16% |
|
Skilled labour |
34% |
32% |
|
Farmers |
22% |
20% |
|
Unskilled labour |
18% |
16% |
|
Marginal |
3% |
4% |
It is clear that at the level of the Quarter Sessions, the vast majority of parties, both complainants and defendants, were neither elites nor at the very bottom of the social structure. Elites made up less than 15% of complainants, and even adding the "middling" group only raises this figure to about 30%. Further, elites were only slightly more likely to be complainants than to be defendants. And at the other end of the scale, unskilled labourers and the "marginal" group together made up no more than a fifth of defendants, a far cry from the 75% that Jean-Marie Fecteau found in the King's Bench.(22)
Further, if we look at who was complaining against whom, we can see how little of the business of the justices in Quarter Sessions complaints had to do directly with class conflict, and even less with elites using the system against the popular classes. Table 8 presents the numbers of complainants and defendants from each class who complained against each other, based on complainant-defendant pairs; unskilled labourers and marginals are grouped together. Of 861 such pairs altogether, 355, or 41%, involved people from the same group; and another 191, or 22%, involved complainants and defendants who were very definitely from the popular classes. In other words, at least two thirds of these pairs involved no direct class conflict whatsoever.
TABLE 8: PAIR-WISE COMPARISON OF CLASS OF PARTIES
|
Defendant |
Elite |
Middling |
Skilled labour |
Farmers |
Unskilled labour/marginal |
|
Complainant |
|||||
|
Elite |
26 |
10 |
41 |
19 |
22 |
|
Middling |
11 |
38 |
50 |
17 |
34 |
|
Skilled labour |
31 |
36 |
114 |
20 |
44 |
|
Farmers |
7 |
10 |
15 |
117 |
28 |
|
Unskilled labour/marginal |
16 |
11 |
68 |
16 |
60 |
Further, if we examine the top and the bottom of this hierarchy, there were 22 instances of elites complaining against unskilled labourers and marginals, but also sixteen of marginals and unskilled labourers complaining against elites; and 41 instances of elites complaining against skilled labourers but also 32 of skilled labourers complaining against elites. Thus, there is nothing but class in the complaint for fraud that Robert Aird, an important Montreal fur-trader, made in 1785 against Joseph Boucher of Laprairie. Aird accused Boucher of engaging to winter in the Mississippi and accepting an advance of 78 livres even though he had already engaged himself to Joseph Howard; that class informed the complaint comes through strongly in Aird's final words, "au grand préjudice de ce dit deposant et au mauvais exemple de toutes autres dans le pareil cas".(23) We cannot avoid a similar conclusion in the 1830 complaint of Joseph Kollmyer, a Montreal merchant tailor, against eleven journeyman tailors for combining to raise their wages by refusing to work, and threatening any who tried to work for him.(24) But we see the other side of these power relations when we consider the complaint that Louis Laplante, a labourer from Sainte-Anne, launched against François Dumoulin, a merchant for the same place, in 1794. When Laplante and Joseph Poulin, a guide, went to Dumoulin's house to tell him that they could not make it to the wintering because Poulin was sick and they lacked provisions, Dumoulin
se mit en grande colère et lui dit de se déshabiller, ce a quoi luis déposant ne voulait point consentir, disant qu'il avoit trop loing pour se rendre chex lui sans capot. Pour lors le dit François Demoulin lui dit qu'il le deshabilleroit lui même et arracha le couteau de dedans la guenne du deposant et coupa les habillements de dessus le corps du dit deposant lui donnant des coups de poing le blessa sur la main en coupant la manche du capot.(25)
Laplante had Dumoulin arrested on a warrant from Hubert Lacroix, a Vaudreuil justice, and carried the case to a full trial in the Quarter Sessions, where Dumoulin was found guilty and fined 20 shillings.(26)
Class did have some effect on the course a complaint took, though not as much as one might expect. Table 9 presents the results of both Quarter Sessions cases and complaints involving interpersonal violence, by the type of complainant and defendant. There are no readily discernable patterns or trends, but if we compare the experiences of those at the top and bottom of the social scale, the effects of class are more evident. Thus, the clear rate, or the proportion of complaints which led to the defendant being arrested and brought before a magistrate, for complaints by elite complainants, at 77%, was only slightly higher than that for unskilled and marginal complainants, at 71%; but the rate at which elite complainants pursued their complaints to the Quarter Sessions was much higher, at 48%, compared to 33% for unskilled and marginal complainants. And this is complemented by another trend: for elite defendants, the clear rate was 82%, but for unskilled and marginal defendants, only 69%; and while the rate of pursuance to the Quarter Sessions was 46%, for elite defendants, it was only 23% for unskilled and marginal defendants.
TABLE 9: RESULTS OF QUARTER SESSIONS COMPLAINTS AND CASES, BY CLASS OF COMPLAINANTS AND DEFENDANTS
|
|
QS complaints |
QS cases |
|||
|
Clear rate |
Pursued to QS |
No formal resolution/settled |
For complainant |
For defendant |
|
|
Complainants |
|||||
|
Elite |
77% |
48% |
32% |
46% |
16% |
|
Middling |
75% |
39% |
45% |
39% |
26% |
|
Skilled labour |
72% |
31% |
33% |
33% |
33% |
|
Farmers |
81% |
48% |
28% |
46% |
26% |
|
Unskilled labour/marginal |
71% |
33% |
42% |
26% |
32% |
|
Defendants |
|||||
|
Elite |
82% |
46% |
27% |
49% |
24% |
|
Middling |
80% |
43% |
51% |
35% |
14% |
|
Skilled labour |
83% |
44% |
40% |
35% |
20% |
|
Farmers |
82% |
48% |
36% |
37% |
27% |
|
Unskilled labour/marginal |
69% |
23% |
30% |
21% |
49% |
One factor that goes a long way towards explaining the difference between the use of the formal courts by those at the top and bottom of the class structure, and more generally, the reluctance of complainants to move beyond the level of preliminary proceedings, was the costs of justice. Unfortunately, there is not enough information on the costs of cases before the justices for an in-depth study. However, the few bills of costs that do remain show very clearly that the bulk of the expense of a complaint came not during the preliminary proceedings, but once a case had reached the Quarter Sessions itself. Thus, consider the costs of the complaint that Rose Beaulieu launched against Joseph Norbert Faribault, a Montreal gentleman, for assault and battery: the pre-trial proceedings were 12sh 6d for the deposition and warrant, whereas drawing up the indictment alone cost £1 2sh 6d, along with more than £2 in other court costs, all of which Beaulieu would have had to pay in advance.(27) Even the 12sh 6d represented a considerable outlay, the equivalent of perhaps a week's unskilled labour; and as for the costs of a full Quarter Sessions case, they must have been prohibitive to many, especially among the disadvantaged. When a case was decided in favour of the complainant, the justices almost invariably added the costs of the suit to the judgement they inflicted on the defendant; but then there was the problem of actually collecting the amount. Thus, in Beaulieu's case, Faribault did not pay, so that the justices had to issue a warrant of distress against him for the amount owing.
Further, Quarter Sessions complaints involving interpersonal violence were in some ways special, and they must not blind us to the fact that many aspects of the criminal justice system more explicitly involved class conflict and class oppression. Other Quarter Sessions complaints, for example those for petty larceny and the keeping of disorderly houses, were by the very nature of the offence directed against the popular classes, and though they were numerically far outweighed by cases of interpersonal violence, their effects on the defendants in particular were far more devastating, since the penalties inflicted were much more severe.
Likewise, though we have less information on the class of people involved in other aspects of the criminal justice system, we can safely say that in many of these venues class inequalities were more important. Thus, the King's Bench in the district of Montreal very likely followed the same pattern as that found by Jean-Marie Fecteau for the district of Quebec, with an overwhelming preponderance of defendants from the margins of society, although whether the complainants in these cases were necessarily elites is a question that awaits further study. And at the level of the justices themselves, other aspects of their work included much stronger biases of class. Thus, more than half of defendants in summary complaints brought before Montreal justices were unskilled labourers or "marginals", while about 30-40% of complainants were either elites or from the middling group. In large part this reflects the mixture of business done by the justices at this level, which included a number of complaints for breaches of service, especially desertion by voyageurs complained against by important fur-trading merchants.
What this leaves us with, once again, is a system that was at once very definitely used by the elites for their own purposes, and to a considerable extent biased in their favour, but which also could be used, at least in part, by the popular classes for their own purposes. Mary-Anne Poutanen has shown that even prostitutes, certainly at or near the bottom of the social hierarchy, though they themselves were heavily targeted by the criminal justice system, used the system to charge other prostitutes and clients with assaults and other crimes.(28) And this applied more generally to those who came in contact with the criminal justice system as a whole.
When we turn to the presence of women before the justices, we find once again a situation that was far more nuanced than one might have expected. Gender issues have not attracted much attention from those who have written on criminal justice in Quebec and Lower Canada, in part because at the level of the higher criminal courts, where most attention has been focussed, women played a very small role. Thus for example, Jean-Marie Fecteau, in finding that over 95% of defendants in the King's Bench between 1775 and 1840 were male, simply remarks that "la criminalité des tribunaux supérieurs est très majoritairement une criminalité masculine."(29)
It is clear that the criminal justice system itself was an inherently gendered and patriarchal institution. The justices, the clerks and other officials, the constables and bailiffs, the members of the juries, the attorneys, all were men; the laws and the law books were all written by men. But when we look at the people who appeared before the justices, the situation was less clear-cut. As Table 10 shows, women were indeed heavily under-represented; however, their place was not entirely negligible, especially among complainants.
TABLE 10: PROPORTION OF FEMALE PARTIES
|
|
Defendants |
Complainants |
||
|
1785-1799 |
1800-1830 |
1785-1799 |
1800-1830 |
|
|
QS complaints |
11% |
11% |
34% |
23% |
|
QS cases |
12% |
9% |
31% |
22% |
Though women were heavily under-represented, an overall examination of the women who came before the justices shows the same general pattern as with parties in general: a massive over-representation of urban women, little domination of either elite complainants or marginal defendants, and a preponderance of francophones. Among women two of these tendencies were even stronger: as Table 11 shows, over three-quarters of defendants and over two-thirds of complainants were from Montreal, and 70% to 80% were francophone.
TABLE 11: WOMEN INVOLVED IN QUARTER SESSIONS COMPLAINTS
|
|
Defendants |
Complainants |
||
|
1785-1799 |
1800-1830 |
1785-1799 |
1800-1830 |
|
|
Urban |
86% |
78% |
66% |
72% |
|
Francophone |
79% |
68% |
78% |
71% |
TABLE 12: OUTCOME OF QUARTER SESSIONS CASES, BY GENDER
|
Female compl., |
Female compl., |
Male compl., |
Male compl., |
|
|
Against defendant |
39% |
42% |
44% |
36% |
|
For defendant |
39% |
26% |
31% |
28% |
|
Resolved |
11% |
14% |
13% |
14% |
|
No formal resolution |
11% |
18% |
12% |
22% |
But these overall impressions mask some very significant differences between the experiences of women and men before the criminal justice system. First, as Table 10 above shows, women were far more likely to come before the justices as complainants than as defendants, accounting for between a quarter and a third of complainants but only a tenth of defendants. In other words, at the level of the justices, women were about three times as likely to seek out the justice system as to be sought out by it. This did not mean that the justice system actively encouraged women to come before it, for it could equally be an indication that in Quebec and Lower Canadian society, women were more often victims than perpetrators (though as discussed for the urban/rural split above, such an assertion is unproveable from court records alone). But it did mean that in real terms, the women who came before the justices were more likely to be there seeking to bend the power of the justice system to their own ends (if often unsuccessfully) than subject to it.
Even more revelatory of the gendered nature of this criminal justice system were the significant differences in the reasons for which women and men came before the justices. Tables 13 and 14 show the types of complaints in which women and men were involved, in both Quarter Sessions complaints and summary complaints.(31) There were some overall similarities, such as the predominance of cases involving violence, but also some striking differences. Thus, women were much more likely to appear as complainants in cases such as bastardy or domestic violence, which is hardly surprising, given the nature of those offences. Comparatively few women appeared before the justices on service-related charges, despite their strong presence among indentured servants;(32) clearly employers disciplined their female servants in other ways. Finally, women brought before the justices on public morality charges, largely relating to prostitution, formed a very significant proportion of all woman defendants, at least in the nineteenth century, revealing once again the extent to which their contact with the courts was shaped by their gender.
TABLE 13: TYPES OF QUARTER SESSIONS COMPLAINTS BY GENDER
|
|
Defendants |
Complainants |
|||||||
|
1785-1799 |
1800-1830 |
1785-1799 |
1800-1830 |
||||||
|
F |
M |
F |
M |
F |
M |
F |
M |
||
|
Interpersonal violence |
Non-domestic |
58% |
73% |
61% |
85% |
65% |
76% |
77% |
81% |
|
Domestic |
- |
6% |
3% |
1% |
19% |
- |
14% |
<1% |
|
|
Public morality |
- |
1% |
29% |
3% |
- |
1% |
3% |
6% |
|
|
Larceny |
42% |
11% |
8% |
6% |
6% |
15% |
5% |
8% |
|
|
Bastardy |
- |
3% |
- |
<1% |
10% |
- |
1% |
- |
|
|
Other |
- |
6% |
- |
4% |
- |
8% |
1% |
4% |
|
|
|
Defendants |
Complainants |
|||
|
F |
M |
F |
M |
||
|
Interpersonal violence |
Non-domestic |
43% |
48% |
53% |
47% |
|
Domestic |
6% |
11% |
33% |
3% |
|
|
Public morality |
41% |
10% |
10% |
19% |
|
|
Service |
5% |
28% |
1% |
28% |
|
|
Other |
5% |
2% |
3% |
3% |
|
Likewise, the variability of the presence of women in the other parts of the justice system involving the justices had a great deal to do with gendered nature of offences dealt with in the different courts. Thus, the Weekly Sessions, from which women were very largely absent, was a venue primarily concerned with enforcing formal obligations to the state; and such obligations were directed primarily at men. Women were exempted from some of these obligations simply because they were women, as was the case for militia service; but in others, their exemption was based not directly on their sex, but indirectly, through their lack of property. Hence, in the few cases where women did appear, they were mostly widows charged with offences contingent upon the ownership of property, such as selling liquor without a license, not levelling the snow in front of their lands, or refusing to have their chimneys swept.
If we look in more detail at two of the main sorts of cases for which women came before the justices, bastardy and domestic violence, we can appreciate the extent to which the contacts which women had with the justice system had a very different nature according to the type of case.(33)
Bastardy cases, for example, illustrate the criminal justice system at its apparently most responsive towards women. They allowed unwed mothers to sue the father of their child for costs and damages. Bastardy proceedings had a long tradition in England, and the practice also marked a continuity from New France.(34) The threat of a bastardy suit was a powerful weapon to induce an illegitimate father to make some sort of arrangement with the woman he had impregnated, since in the Quarter Sessions after 1779, bastardy suits were consistently successful, and in all but two of the cases where the woman persisted to a full trial before the justices, the man was found guilty. But bastardy cases also illustrate how, while the criminal law could be a tool for women, the legalistic decisions of the justices who made up the Quarter Sessions could severely curtail this tool. After 1795, bastardy proceedings in the court ceased entirely, when a young lawyer successfully convinced the justices that bastardy cases were based on a part of English law that was technically not in force in the colony. Subsequently, the justices refused absolutely to hear any bastardy complaints; and thus one of the principal ways in which women had used the criminal justice system in the eighteenth century disappeared.
In contrast, the experience of women resorting to the justice system in cases of domestic violence illustrates more clearly the ambivalence of the system. On the one hand, unlike in England, in France, or in New France, and following instead the practice in the United States, husbands in Quebec and Lower Canada did not have the legal right to beat their wives, and battered wives had the right to lodge a formal complaint against their abusers.(35) And it is very clear that for some women, the police and the courts were an important tool in responding to violent physical abuse from their husbands, and women made consistent complaints against their husbands for battering them, at least 300 in the period between 1800 and 1830 before urban justices alone. It is also clear that police and justices often took domestic violence seriously. Thus, for example, husbands who battered their wives were four times as likely to end up in gaol on preliminary imprisonment than those in assault cases in general; the willingness of justices to send wife batterers to prison must have been one of the reasons that women were willing throughout the period to bring these complaints before the formal criminal justice system.
The justice system was not, however, a pro-active force in dealing with domestic violence. Battered women almost never pursued their complaints as far as a formal court case: in almost every case, wife-batterers were arrested and then either bound to keep the peace or, in default, imprisoned summarily. Further, battered women faced all of the same barriers as other complainants, such as the centralization of the justice system in Montreal (very few rural women brought these sorts of cases before the justices) and the high costs of a complaint (which in the case of battered wives came directly from the family economy, no matter whether they won or lost); but they also faced additional barriers that were particular to their case. Thus, for example, not all justices were equally willing to facilitate domestic violence complaints; and even if police and justices had all the will in the world to stop spouse abuse, there were severe limits to the extent to which the justice system could really protect women from abusive husbands. One case in particular illustrates these limits, that of Marie Reeves, married to François Vinet dit Souligny, of Longue-Pointe: she had on several occasions had him arrested and sent to the gaol for beating her; but after his last stay, in late 1821, he murdered her by hitting her repeatedly with a piece of fire-wood.(36)
Both bastardy and domestic violence brought women before the justices largely as complainants; when women appeared as defendants, they were even less well-used. Thus, in public morality offences, where the defendants were most often women, the harsh and patriarchal nature of the system in dealing with thoses accused of offending elite standards of morality was blatant, as Mary Anne Poutanen has shown.(37) Among other things, women accused of prostitution received the harshest sentences among all offenders dealt with regularly by the justices.
Conclusion
If anything comes out of the preceding discussion of the factors that shaped the contacts that people had with the criminal justice system at the level of the justices, it is that there is no easy way of encapsulating in this justice system in a few words. Of the four factors I have considered, ethnicity seems to have been the weakest: it is clear that there was no generalized boycott of the criminal justice system by Canadiens, at least until the late 1820s, a situation that can be attributed in part to the predominance of francophones among the justices and the police. Class also played less of a role than one might expect, though the system was not at all class-neutral. In cases where the interests or values of the elites were threatened, such as breach of service, larceny, or prostitution and vagrancy, the justices in particular imposed much harsher penalties than for cases involving interpersonal violence. And though the effects of class on access to the justice system and on the nd results are ambiguous, it is certain that elite complainants could better afford to pursue their cases through the courts, and elite defendants to pay the fines imposed on them. Geography and gender played a much more important role. Urban-dwellers were heavily over-represented, in keeping with the character of most ancien-régime and even contemporary criminal justice systems, and the structural characteristics of women's contact with the justices were very different from those of men, especially in terms of why they found themselves there. Nevertheless, even in these instances the picture was somewhat ambiguous. A significant number of rural dwellers did come before the justices, and showed little evidence of avoiding the system at all costs. And as for women, though the system was clearly patriarchal, and could work strongly against them, it could also work in their favour.
A largely quantitative overview of the biases of the justice system provides nevertheless only the bare outlines of the portrait. Averages and proportions are essential for grasping the nature of the system but tell us little about the actual experiences of the real people for whom these biases had very tangible effects. Consider the folowing complaint, which Marie-Louise Goder, the wife of Pierre Labadie fils, of Vaudreuil, made in September 1810 before Louis Decoigne Mars, the local justice of the peace:
étant ché Pierre Vadeboncoeur à la compagnie de plusieur autres personnes, le dit Pierre Vadeboncoeur a etté le cuë à la main pisser dans le visage de la ditte Marie Louise Goder et après lui avoir fait cette insulte le même Pierre Vadeboncoeur et le dit Joseph Pilon auroit saisi la dite Marie Louise Goder et l'ayant jetté par terre Joseph Pilon a retroussé les pignons etc. et luy a mis la main comme pour enjouir tandis que le dit Vadeboncoeur le tenoit parterre et alors la dite Goder est appellée Françoise LaBeaux à son secours laquelle tant arrivé a pris le bras du dit Pilon et luy a fait echapér la main en lui disant bien des choses et alors a débarassé la dite Goder des mains des dits Pilon, et Vadeboncoeur malgré le secour de la dite LaBeaux a relevé la jupe et luy a pris aussi biens que l'autre de quoy il se vente, tous ce que dessus la dite Marie Louise Goder offre a prouver par plusieurs témoins.(38)
Decoigne Mars issued an arrest warrant to Gilles Guerbois, the local bailiff (who charged 1 livre 5 deniers for serving it), which resulted in Vadeboncoeur and Pilon appearing before the justice a few days later and entering a bond to appear at the Quarter Sessions in October. The case was entered in the registers of the court as a charge of assault and battery against Vadeboncoeur and Pilon, but was dropped since Goder did not appear to press her charges; there is no indication that any of the parties ever made the journey to Montreal.(39)
The case illustrates many of the points I have made concerning the biases of the criminal justice system at the level of the justices. Though urban cases dominated the justices' business, rural inhabitants did use the courts, and did so even for the resolution of local tensions: everyone involved in the affair, from the victim, Goder, to the bailiff, Guerbois, belonged to the same local, rural community. There is no direct evidence of ethnic or class conflict, since all the parties seem to have been habitants. And here was a case of a woman who used the justice system to respond to a serious aggression against her, but for whom this tool did not perhaps answer all of her desires. Thus for example, what could clearly have been charged as attempted rape (or "assault with intent to ravish" in the terminology of the day) was progressively reduced, first by Decoigne Mars to "insulte, viollence et assot" (the words he used in the warrant) which required only an arrest and a bond to appear, rather than committal to the Montreal gaol; and then, in the registers of the court in Montreal, to simple assault and battery, a charge devoid of any connotation of sexual violence.
But a simple examination of biases also leaves many other questions unanswered. Why was Goder at Vadeboncoeur's house in the first place, and what was the relationship between the parties? What does the intervention of LaBeaux tell us about women's solidarity in the face of men's aggression? Who were the people who put up the bonds for Vadeboncoeur and Pilon and why did they do so? What was the reaction of Goder's husband? What discouraged Goder from pursuing the case to a formal trial: the progressive reduction of the charges, the prospect of a journey to Montreal to face an all-male magistracy and jury, or the fact that having Vadeboncoeur and Pilon arrested was enough? Some of these questions are unanswerable, others only by comparing this case with other similar ones. But that is another story, or rather, series of stories ...
Notes
1. Donald Fyson, "Criminal Justice, Civil Society, and the Local State: The Justices of the Peace in the District of Montreal, 1764-1830" (Ph.D., Université de Montréal, 1995).
2. "Le paysan et la loi en France au XVIIIe siècle", Annales 38(3)(1983): 679-701.
3. Thompson, Whigs and Hunters: The Origins of the Black Act (Harmondsworth: Penguin, 1977); Hay, "Property, Authority and the Criminal Law", in Douglas Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (Middlesex: Penguin, 1975): 17-63.
4. Robert Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660-1725 (Cambridge: Cambridge UP, 1991): 276.
5. Crimes et criminels en Nouvelle-France (Montréal: Boréal Express, 1984): 79.
6. This paper is based largely on an examination of the registers of the Montreal Quarter Sessions of the Peace (ANQM TL32 S1 SS11), and of the documents preserved by the Montreal Clerk of the Peace (ANQM TL32 S1 SS1) that concerned complaints that should in theory have ended up before the Quarter Sessions. My sample consists of all cases in the Quarter Sessions registers from 1785 to 1830, all case-files among the Clerk of the Peace's documents from 1785 to 1799 that were available at the time this research was undertaken (more have since been found), and a sample consisting of all case-files every fifth year from 1800 to 1830. The distinction between complaints destined for the Quarter Sessions and Quarter Sessions cases is important given that only about half of all complaints laid before the justices of the peace that should in theory have gone on to the formal Quarter Sessions actually appear in the registers of that court. Data on cases dealt with by the justices at other levels, such as their summary judgements or the Weekly Sessions of the Peace, is far sketchier. For a full discussion, see Fyson, "Criminal Justice, Civil Society, and the Local State": 271-281.
7. In this paper, "defendants" refer to individuals being accused of the offence, and "complainants" individuals initiating the complaint.
8. As in Allan Greer, The Patriots and the People: The Rebellion of 1837 in Rural Lower Canada (Toronto: UTP, 1993): 91.
9. This is perhaps the most important point made by Hufton in "Le paysan et la loi en France au XVIIIe siècle"; it is echoed in Greer, The Patriots and the People: 97-99, and Jean-Marie Fecteau, Un nouvel ordre des choses: la pauvreté, le crime, l'Etat au Québec, de la fin du XVIIIe siècle à 1840 (Montréal: VLB, 1989): 77.
10. Prosecution and Punishment: 7.
11. "Criminal Justice, Civil Society, and the Local State".
12. NA MG8 F89: 3657-3687. The notebook was a summary of the business undertaken by them.
13. ANQM TL32 S1 SS1 18/6/1825.
14. The criminal statistics are taken from Criminal Statistics for the Year Ended 30th September, 1901 (Ottawa: Department of Agriculture, 1902); the population figures are from the Census of Canada, 1901. Volume 1: Population (Ottawa: Department of Agriculture, 1901).
15. "Aspects of the Criminal Law, Crime, Criminal Process and Punishment in Europe and Canada, 1500-1935", in Knafla ed., Crime and Criminal Justice in Europe and Canada: 7.
16. Douglas Hay, "The Meanings of the Criminal Law in Quebec, 1764-1774", in Louis A. Knafla ed., Crime and Criminal Justice in Europe and Canada 2nd ed. (Waterloo: Wilfrid Laurier UP, 1985): 84-85; Jean-Marie Fecteau, Un nouvel ordre des choses: 128-129, and "Between the Old Order and Modern Times: Poverty, Criminality, and Power in Quebec, 1791-1840", in Jim Phillips, Tina Loo, and Susan Lewthwaite eds., Essays in the History of Canadian Law. Volume 5: Crime and Criminal Justice (Toronto: UTP, 1994): 297; Allan Greer, The Patriots and the People: 91-100.
17. ANQM TL32 S1 SS11 5/1765, 7/1765; ANQM TL32 S1 SS1 18/8/1830.
18. Among 1864 complainants, I was able to identify only four Blacks (0.2%) and nine Natives (0.5%); and among 2268 defendants, fourteen Blacks (0.6%) and seventeen Natives (0.7%). For Blacks at least, these figures may be low, since they could not be identified from their names alone (as seems to have been the case with Natives from the main settlements around Montreal), and it is not certain that the officials who filled out the documents always identified the race of the parties.
19. ANQM TL32 S1 SS1 10/5/1799.
20. ANQM TL32 S1 SS1 27/11/1795.
21. See Fyson, "Criminal Justice, Civil Society, and the Local State": 139-140.
22. Un nouvel ordre des choses: 128.
23. ANQM TL32 S1 SS1 1/4/1785.
24. ANQM TL32 S1 SS1 24/11/1830.
25. ANQM TL32 S1 SS1 20/1/1794.
27. ANQM TL32 S1 SS1 4/4/1820.
28. "Reflections of Montreal Prostitution in the Records of the Lower Courts, 1810-1842", in Donald Fyson, Colin Coates, and Kathryn Harvey eds., Class, Gender and the Law in Eighteenth and Nineteenth-Century Quebec: Sources and Perspective (Montreal: Montreal History Group, 1993): 106-108; "'To Indulge their Carnal Appetites': Early Nineteenth-Century Prostitution in Montreal, 1810-1842" (Ph.D., Université de Montréal, 1995).
29. Un nouvel ordre des choses: 128.
30. Between 1802 and 1805, almost half of those committed to the House of Correction were women (Journals of the House of Assembly of Lower Canada 13: 458.); between 1811 and 1815, they accounted 74 of the 141 people committed summarily (NA RG1 E15A volume 29 file "House of Correction 1817"); and in four calendars of the House between 1816 and 1826, women accounted for 44 of 52 summary committals (ANQM TL32 S1 SS1, calendars of the House of Correction, 4/1816, 7/1821, 7/1825, 4/1826).
31. There are no figures for Table 14 for the eighteenth century, due to the paucity of surviving records of summary proceedings.
32. According to Claudette Lacelle, between a half and two-thirds of domestic servants in Montreal in the late 1810s were women (Urban Domestic Servants in 19th-Century Canada (Ottawa, Parks Canada, 1987): 19-21.
33. A more detailed examination of female complainants is presented in my unpublished paper, "Women as Complainants before the Justices of the Peace in the District of Montreal, 1779-1830", presented to the Canadian Historical Association, Brock University, June 1996.
34. On England, Peter Laslett et al. eds., Bastardy and its Comparative History (Cambridge: Harvard UP, 1980); on New France, Marie-Aimée Cliche, "Unwed Mothers, Families, and Society during the French Régime", in Bettina Bradbury ed., Canadian Family History: Selected Readings (Toronto: Copp Clark Pitman, 1992): 33-65.
35. Myra C. Glenn, "Wife-beating: The Darker Side of Victorian Domesticity", Canadian Review of American Studies 15(1)(1984): 19; Margaret Hunt, "Wife Beating, Domesticity and Women's Independence in Eighteenth-Century London," Gender & History 4(1)(1992): 18; Roderick Phillips, "Gender Solidarities in Late Eighteenth-Century Urban France: The Example of Rouen", Histoire Sociale / Social Historu 13(26)(1980): 329; André Lachance and Sylvie Savoie, "Violence, Marriage and Family Honour: Aspects of the Legal Regulation of Marriage in New France", in Phillips, Loo, and Lewthwaite eds., Essays in the History of Canadian Law. Volume 5: 153-158.
36. Montreal Herald 5/1/1822; gaol calendars 8/9/1821 and 2/1/1822 in NA RG4 B21.
37. "'To Indulge their Carnal Appetites'".
38. ANQM TL32 S1 SS1 12/9/1810.
39. ANQM TL32 S1 SS11 10/1810.