N.b.: the contents of these notes have been only partially updated since the initial publication in 1994.
1. This research has been largely funded by team research grants from the Fonds pour la formation de chercheurs et l'aide à la recherche, to which the Group extends its thanks.
2. While the Province of Canada after 1841 was divided into Canada East and Canada West, legislation and other legal records almost invariably make reference to Lower Canada and Upper Canada in place of these (as in the Superior Court of Lower Canada, established in 1849); as such, the latter terms are more appropriate in a discussion of the judicial system, and are used in this guide.
3. As of the publication of this guide, for example, most of the records of the criminal courts of the District of Montreal before 1900 had been virtually iLACcessible for several years.
4. For a discussion of the legislation in effect in Quebec and Lower Canada, see Donald Fyson, "A Guide to Legislation in pre-Confederation Quebec and Lower Canada," in Donald Fyson, Colin Coates, and Kathryn Harvey eds., Class, Gender and the Law in Eighteenth- and Nineteenth-Century Quebec: Sources and Perspectives (Montreal: Montreal History Group, 1993): 5-28.
5. Imperial legislation could apply to Quebec and Lower Canada, but only if it was specifically extended to them, either explicitly (as in legislation that stated that it applied to the colony) or implicitly (as in legislation that stated that it applied to all colonies, all the King's dominions, etc.).
6. On the English background, see for example J.H. Baker, "Criminal Courts and Procedure at Common Law 1550-1800," in J.S. Cockburn ed., Crime in England 1550-1800 (Princeton, NJ: Princeton UP, 1977): 15-48, or William Searle Holdsworth, A History of English Law (London: Methuen, 1966). On the pre-Conquest French legal system, see for example Edmond Lareau, Histoire du droit canadien depuis les origines de la colonie jusqu'à nos jours (Montréal: A. Periard, 1888).
7. The Consolidated Statutes for Lower Canada ... (Quebec, 1861); The Revised Statutes of the Province of Quebec (Quebec, 1888); Supplement to the Revised Statutes of the Province of Quebec, 1888 (Quebec, 1889); The Revised Statutes of the Province of Quebec, 1909 (Quebec: Charles Pageau, 1909). The Revised Acts and Ordinances of Lower-Canada (Montreal, 1845) was an earlier attempt at consolidation, but in the end simply reprinted the legislation then in force, re-arranged under various headings, and with marginal references next to repealed or amended provisions. Since the court structure of Quebec after Confederation was also influenced by federal legislation, researchers should also consult The Revised Statutes of Canada (Ottawa, 1887) and The Revised Statutes of Canada, 1906 (Ottawa: S.E. Dawson, 1906). Researchers should note, however, that all of these works only considered legislation in force at the time of their publication, and thus do not include legislative provisions that were made after the publication of one revision and were then repealed before the publication of the next.
8. For a more detailed discussion of the sources of this legislation see Fyson, "Legislation".
9. The only gap in this collection is 1792 (32 George III), whose three ordinances are to be found only in the Quebec Gazette.
10. The formal titles of these collections vary; for the copies held by McGill's law library, for example, the English titles are Statutes of Lower Canada (1793-1836); Ordinances of the Governor and Special Council (1838-1841); Provincial Statutes of Canada (1841-1851); and Statutes of the Province of Canada (1852-1866).
11. G.W. Wicksteed, Table of the Provincial Statutes and Ordinances in Force or Which Have Been in Force in Lower Canada ... (Toronto, 1857).
12. Petitions are available in Library and Archives Canada (hereafter LAC), RG68 (Records of the Registrar General), Petitions. Commissions are available in LAC, RG68, Commissions and Letters Patent. RG68 also includes a general index to petitions, commissions, etc. Orders-in-council are available in LAC, RG1 E1 (Executive Council, Minute Books on State Matters, 1764-1867). Note that in these notes, the old style of LAC archival references is used.
13. From 1777, £1 Sterling was worth £1-1sh-8d currency; see 17 George III c.9 (1777).
14. Baker, "Criminal Courts": 26-27; Holdsworth, History I: 204-231.
15. See here.
16. This is evident from the accounts of the Provost-Marshall (Sheriff) of Montreal, Edward William Gray, in LAC, MG19 A2 (Ermatinger Estate), volume 85: passim. On the Courts of Assize, see here.
17. On the criminal appeal in England, see Baker, "Criminal Courts": 45-48. As an indication of the rarity of criminal appeals from the higher courts in Quebec and Lower Canada, Jean-Marie Fecteau's study of the Court of King's Bench before 1840 does not even mention them (Un nouvel ordre des choses: la pauvreté, le crime, l'Etat au Québec, de la fin du XVIIIe siècle à 1840 (Montréal: VLB, 1989)).
18. In examining the colonial legislation defining new offences between 1764 and 1840, for example, we have not come across a single instance of appeals allowed from any criminal court other than those below the level of the Courts of Quarter Sessions of the Peace.
19. See the instructions to Carleton (1768 and 1775), Haldimand (1778), and Dorchester (1786), in Adam Shortt and Arthur G. Doughty, Documents relating to the Constitutional History of Canada, volume 1 (1759-1791) (Ottawa: Historical Documents Publication Board, 1918): 308, 602, 697, and 822.
20. On appeals in criminal cases, see here.
21. The use of the terms "Justice" and "Judge" to refer to members of the upper courts varied considerably in the period covered by this guide. In the legislation, the term "Justice" was used only in specific circumstances: before 1794 in relation to the Chief Justice of the province; between 1794 and 1849 in relation to the principal members of the Courts of King's/Queen's Bench (the Chief Justices and the Puisné Justices); and after 1849 in relation to the Chief Justices of the Court of Queen's Bench and the Superior Court. In all other cases, the term "Judge" was used, with the normal form being "Judge of the Court of ..." or some near variant. We have followed this usage in this guide, although researchers should be aware that in practice, the terms "Justice" and "Judge" were often used interchangeably.
22. On appeals in criminal cases, see see here.
23. On appeals in criminal cases, see see here.
24. In the Quebec and Lower Canadian context, the term equity does not in general seem to have referred to the specialized system of equity law that existed in England, but rather meant that the judge was simply to try the case according to natural justice, rather than the strict sense of the civil law. For a description of the English system of equity law, see here.
25. On appeals in criminal cases, see see here.
26. On appeals in criminal cases, see see here.
27. On appeals in criminal cases, see see here.
28. The term Nisi Prius meant "unless before", derived from the fact that all such cases were to be tried at the central courts in Westminster "unless" the Commissioners arrived in the county "before" they were so tried.
29. Holdsworth, History I: 274-279; Baker, "Criminal Courts": 27-28.
30. Margaret A. Banks, "The Evolution of the Ontario Courts 1788-1981," in David H. Flaherty ed., Essays in the History of Canadian Law. Volume 2 (Toronto: Toronto UP, 1983): 502.
31. The confusion between the sessions of the Court of King's Bench and the Courts of Assize arises mainly from the fact that, unlike in England or in Quebec and Lower Canada after 1775, the Courts of Assize in Quebec before 1775 were not necessarily held under the authority of special commissions issued for each Court, since the general commission of the Chief Justice allowed him to hear all civil and criminal suits at such place and time as he determined, without any further special authorization; see the commission of Chief Justice William Hey, in Shortt and Doughty, Documents I: 273-276. Courts of Assize were rarer in Trois-Rivières, although one of the most famous was held there in 1765, to try the accused in the Walker's Ear incident; whether any were held after that date is unknown. See also Jacques L'Heureux, "L'organisation judiciaire au Québec de 1764 à 1774," in Revue générale de droit 1(1970): 282-283.
32. On appeals in criminal cases, see see here.
33. See note 19.
34. In 4&5 Victoria c.24 (1841).
35. LAC, RG68, Commissions and Letters Patent, volume 2: 3-61 passim.
36. Hilda Neatby, The Administration of Justice under the Quebec Act (Minneapolis: Minnesota UP, 1937): 23; LAC, RG1 E15A (Records of the Receiver General), volume 4, file "Judicial Establishment", Edward William Gray's account for disbursements as Sheriff of the District of Montreal, May 1775 to May 1776.
37. In the various collections of the LAC, there are references to at least 30 such courts held between 1777 and 1830, most in the District of Montreal. There are also extensive nineteenth-century records of these courts at Bibliothèque et Archives nationales du Québec (henceforth BAnQ).
38. On appeals in criminal cases, see see here.
39. See note 19.
40. LAC, RG68, Commissions and Letters Patent, volume 2: 25-27.
41. On the Courts in England, see Baker, "Criminal Courts": 28-29, and Holdsworth, History I: 288, 292-293.
42. Hilda Neatby asserts that Courts were in operation in the period between May 1775 and August 1776, but this is based on an erroneous reading of the May 1775 proclamation appointing the Conservators of the Peace and Commissioners for Suing Out Civil Process (whom she mistakenly equates with Justices of the Peace), and of the accounts of the Clerk of the Peace for the District of Quebec (Neatby, Administration of Justice: 23).
43. John Burke's account for his disbursements as Clerk of the Peace of the District of Montreal between May and October of 1776 includes a receipt dated 16/9/1776 for "un livre blanc de deux mains de papier, pour un registre de la cour des commissaires [de la paix] ... une peau de parchemin pour faire un rôle général des serments" (LAC, RG1 E15A, volume 4, file "Judicial Establishment 1776").
44. According to the 1838 report of the assistant commissioners of municipal inquiry to Lord Durham, only the counties of L'Acadie and St. Hyacinthe had built the court houses and gaols that were a precondition for holding these courts, and only in St. Hyacinthe had they ever been held; see C.P. Lucas ed., Lord Durham's Report on the Affairs of British North America (Oxford: Clarendon, 1912): 160-161.
45. Erwin C. Surrency, "The Courts in the American Colonies," in American Journal of Legal History 11(4) (1967): 350. A strict reading of the ordinance of 1764 would suggest that it was not the Quarter Sessions as such which had civil jurisdiction but rather three justices, however it seems that in practice it was assumed that it was the justices in Quarter Sessions who exercised this jurisdiction.
46. As asserted in the ordinance that removed their civil powers, 10 George III February 1 1770.
47. See for example the first Commission of the Peace for the District of Montreal, in LAC, RG68, Commissions and Letter Patent, volume 1: 13-17. The same basic form was used for the commissions through to the end of the period covered by this guide.
48. On the principle of reception, see Fyson, "Legislation": 9-14.
49. Collating and analyzing all such legislation would far exceed the bounds of a general work such as the present guide: between 1764 and 1836, for example, some 300 separate pieces of colonial legislation modified the powers of the Justices of the Peace in their various courts. As well, any such an analysis would be incomplete without reference to English statutes.
50. Work in progress on the records of the Court of Quarter Sessions of the Peace for the District of Montreal has revealed several such cases, and the power of the Courts of King Bench in this regard is also mentioned in passing in at least one piece of colonial legislation, 6 George IV c.6 (1826).
51. On appeals in criminal cases, see here.
52. In the colonial legislation that defined specific offences, the highest fine imposable by the various courts of the Justices of the Peace was £100, equivalent to about £St92. While in theory the Courts of Quarter Sessions of the Peace could impose any fine they chose for common law offences such as assault and larceny, in practice cases involving large fines were almost always tried by the higher criminal courts.
53. The Montreal Court was apparently in operation from at least October 1776, when the Clerk of the Peace paid a bailiff for "publishing and affixing three general orders of the General and Weekly Sessions of his Majesty's Commissioners of the Peace" (LAC, RG1 E15A, volume 4, file "Judicial Establishment 1776", John Burke's account for disbursements as Clerk of the Peace, May through October 1776).
54. Listing all such offences would be beyond the scope of this guide; see note 49.
55. See here.
56. On the appeal provisions relative to two Justices of the Peace, see here.
57. Baker, "Criminal Courts": 30.
58. See for example 33 George III c.5 (1793) and 36 George III c.9 (1796).
59. This is based on an examination of the records for Montreal that are preserved at BAnQ, namely the Registers of Weekly and Special Sessions of the Peace (1842-1852) and the Registers of Special Sessions of the Peace (1843 on). We have yet to verify whether this was also the case in Quebec City.
60. On the appeal provisions relative to the Courts of Weekly Sessions of the Peace, see here.
61. Allan Greer, "The Birth of the Police in Lower Canada," in Allan Greer and Ian Radforth eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: Toronto UP, 1992): 31.
63. BAnQ, Registers of Weekly and Special Sessions of the Peace (1842-1852) and Registers of Special Sessions of the Peace (1843 on).
64. On the appeal provisions relative to the Justices of the Peace, see here.
65. Baker, "Criminal Courts": 30; Surrency, "Courts": 351.
66. On the appeal provisions relative to the Courts of Weekly Sessions of the Peace, see here.
67. Baker, "Criminal Courts": 30.
68. On the appeal provisions relative to the Courts of Weekly Sessions of the Peace, see here.
69. Frederick Maitland, quoted in Holdsworth, History I: 286.
70. When the Justices of the Peace held "petty sessions", they were sometimes also referred to as acting "out of sessions", referring to the Quarter Sessions of the Peace. To avoid confusion, the former term is used throughout this guide, although Quebec and Lower Canadian sources sometimes use the latter term.
71. Baker, "Criminal Courts": 28-30; Holdsworth, History I: 285-294.
72. Douglas Hay, "Property, Authority and the Criminal Law," in Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (Middlesex: Penguin, 1975): 17-64.
73. J.E. Côté, "The Reception of English Law," in Alberta Law Review 15(1977): 41-43.
75. LAC, RG68, Commissions and Letters Patent, volume 1: 13-17.
76. On the suspension of the system of Justices of the Peace during the American invasion, see here.
77. See Fyson, "Legislation": 9-10.
78. See in particular Richard Burn, The Justice of the Peace, and Parish Officer, with numerous editions published in England through the eighteenth and nineteenth centuries; also the French-Canadian version of Burn, translated and adapted by J.-F. Perrault, Le juge à paix et officier de paroisse, pour la province de Québec (Montréal, 1789).
79. Listing all such offences would be beyond the scope of this guide; see note 49.
80. On the revocation of the Justices' civil powers, see here.
81. Holdsworth, History I: 65-82.
82. Holdsworth, History I: 195-203.
83. On the meaning of equity, see note 24.
84. L'Heureux, "L'organisation judiciaire": 292.
85. These circuits were only mentioned in passing in the ordinance; presumably they were held at the discretion of the Judges. See Neatby, Administration of Justice: 38-39.
86. LAC, RG68, Commissions and Letters Patent, volume 1: 7-8 and 11-12.
87. Neatby, Administration of Justice: 29.
87a. Mario Mimeault, «Le district judiciaire de Gaspé (1788-1988)», Gaspésie 26(2)(1988): 20-25. The actual operation of the court remains obscure, and it is not mentioned in the 1787 ordinance allowing for the creation of the district of Gaspé. It is however referred to implicitly in one of the two July 24 1788 proclamations setting up the new district, and further judges were commissioned in 1788.
88. As before 1777, these circuits were only mentioned in passing in the ordinance, and were held at the discretion of the Judges; see Neatby, Administration of Justice: 39, 145-146.
89. On the meaning of equity, see note 24.
90. On the meaning of equity, see note 24.
92. Harry W. Arthurs, "'Without the Law': The Courts of Local and Special Jurisdiction in Nineteenth-Century England," in Journal of Legal History 5(3) (1984): 130-149.
93. See the 1787 report of the committee of Council relative to the courts of justice, in Shortt and Doughty, Documents I: 882.
94. On the meaning of equity, see note 24.
95. On the meaning of equity, see note 24.
97. On the meaning of equity, see note 24.
98. LAC, RG68, Commissions and Letters Patent, volume 2: 25-27.
99. See note 19.
100. LAC, RG68, Commissions and Letters Patent, volume 2: 25-27.
101. The courts of the Justices of the Peace rarely if ever imposed fines of such magnitude; see note 52.
102. Surrency, "Courts": 260-261.
103. Peter Marshall et al., "William Hey", in Dictionary of Canadian Biography IV: 349-350.
104. LAC, RG68, Commissions and Letters Patent, volume 2: 25-27.
105. Michael J. Prichard, "Crime at Sea: Admiralty Sessions and the Background to Later Colonial Jurisdiction," in Peter Waite, Sandra Oxner and Thomas Barnes eds., Law in a Colonial Society: the Nova Scotia Experience. Dalhousie/Berkeley Lectures on Legal History: Papers presented at the Dalhousie/Berkeley Lectures on Legal History, February 25, 26, and March 11, 12, 1983 (Toronto: Carswell, 1984): 43-44.
106. Surrency, "Courts": 355-357.
107. LAC, RG68, Commissions and Letters Patent, volume 1.
108. Holdsworth, History I: 395-476; Surrency, "Courts": 271-274; Banks, "Evolution": 504.
109. L'Heureux, "L'organisation judiciaire": 304-307.
110. See Shortt and Doughty, Documents I: 647, 884-885, 896, 904.
111. Holdsworth, History I: 372-75.
112. Herbert Alan Johnson, "The Prerogative Court of New York, 1686-1766", American Journal of Legal History 17(2)(1973): 95-144; Neatby, Administration of Justice: 320-332; Shortt and Doughty, Documents I: 192, 606, 826; Arthur G. Doughty Doughty and Duncan A. McArthur, Documents Relating to the Constitutional History of Canada, 1791-1818 (Ottawa: Public Archives, 1914): 26.
113. Shortt and Doughty, Documents I: 879, 894-895; Neatby, Administration of Justice: 331.
114. Neatby, Administration of Justice: 325. Apart from the two surrogates appointed in 1764, Adam Mabane and John Fraser, both also Common Pleas judges, there was also at least one Canadien, Guillaume Guillimin, who used the title "Juge des prérogatives" between 1768 and 1771.
115. For example, see Shortt and Doughty, Documents
I: 842.
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