THE COURT STRUCTURE OF QUEBEC AND LOWER CANADA, 1764 TO 1860
Table of contents     Title page     E-mail author

COURT PROFILES

COURTS OF OYER AND TERMINER AND GENERAL GAOL DELIVERY, COURTS OF ASSIZE, COURTS OF NISI PRIUS

Reference to Courts of Oyer and Terminer and General Gaol Delivery, Courts of Assize, and Courts of Nisi Prius appear sporadically in the colonial legislation throughout the period covered by this guide. However, their organization and jurisdiction are never specified, since they were based almost exclusively on English precedent. In late medieval England, royal commissioners were appointed to travel the countryside and mete out justice, empowered by temporary commissions to hear certain types of cases in a particular area (usually a county) at a particular time. There were four main commissions: commissions of Assize, empowering the commissioners to hold their sessions; commissions of Nisi Prius, giving them jurisdiction over most civil matters, and over criminal cases removed before judgement from other courts;(28) commissions of Oyer and Terminer, empowering them to "hear and determine" all criminal matters; and commissions of General Gaol Delivery, empowering them to try all prisoners committed to the local gaol. By the early modern period, the same commissioners generally held all of these commissions; their combined sessions were termed "Assizes", and determined most major cases.(29) The practice was carried over to the colonies; for example, Upper Canada had an assize system similar to that in England.(30) In Quebec and Lower Canada, however, it was less important, with almost all civil cases, and most criminal cases, being tried in the regular terms and circuits of established courts.


1. Courts of Assize, 1764-1775

Establishment and Jurisdiction

The 1764 ordinance setting up the courts in Quebec provided for a regular Court of Assize and General Gaol Delivery to be held at Montreal and Trois-Rivières, with the same jurisdiction over civil and criminal matters as the Court of King's Bench, although without the appellate jurisdiction of that court. However, the regular Court of Assize at Montreal was abolished by an order-in-council in 1765, as Governor Murray felt that it would be far too expensive, and that the Court of King's Bench at Quebec City could handle all matters. The regular Court of Assize at Trois-Rivières was never explicitly abolished, but there is no reason to suppose that it continued while the Montreal Court did not. Nevertheless, the Chief Justice continued to hold Courts of Assize whenever he felt that the regular sessions of the Court of King's Bench at Quebec needed to be supplemented. Indeed, Courts of Assizes were held so regularly at Montreal that from 1767 they came to be regarded simply as sessions of the Court of King's Bench, although both terms continued to be used; at any rate, since the Courts of Assize and the Court of King's Bench were both held by the Chief Justice, with the same jurisdiction, there was no practical distinction between the two.(31)

Composition and Sessions

The regular Court of Assize established in 1764 was to be held by the Chief Justice, with one term annually at Montreal and at Trois-Rivières. The Courts of Assize after 1765 were held by the Chief Justice with sessions at such places and times as he saw fit.

Revision

As extensions of the Court of King's Bench, the Courts of Assize were subject to the same appeal provisions as the latter. As such, in civil matters, judgements of the Court in cases involving sums over £St300 could be appealed to the Governor and Council, and in cases involving sums over £St500, directly to the King and Council. In criminal matters, judgements of the Courts could not in general be appealed, although appeals could be made in certain specific circumstances.(32) From 1768, the instructions to the successive governors did specify that fines over £St100 imposed for misdemeanours could be appealed to the King and Council;(33) however, as this provision was not made explicit in colonial legislation until 1787, it may not have been in force in the colony before that date.

Legislation

4 George III September 17, 1764 (in force with amendments 1764-1765)
Establishing a Court of Assize and General Gaol Delivery at Montreal and Trois-Rivières.

Order In Council January 3, 1765
Abolishing the Court of Assize at Montreal.

5 George III March 9, 1765
Mentioning Courts of Assize, Oyer and Terminer, and General Gaol Delivery at Montreal and Quebec City.


2. Courts of Oyer and Terminer and General Gaol Delivery, 1775-1860

After 1775, the Assize system remained an important feature of the criminal justice system of Quebec and Lower Canada, but in civil matters was almost entirely supplanted by the established courts. Thus, while commissions for Courts of Oyer and Terminer and General Gaol Delivery, for criminal matters, were quite common, commissions for Courts of Nisi Prius, for civil matters, were much rarer, and are mentioned only once in the colonial legislation, in 1841.(34) While the courts for criminal matters were referred to both as "Courts of Assize" and "Courts of Oyer and Terminer and General Gaol Delivery", the latter term was more common, and is used in this guide.

Establishment and Jurisdiction

During the interregnum of 1775 to 1777, after the Quebec Act abolished all existing courts but before a new court system could be established, successive Courts of Oyer and Terminer and General Gaol Delivery were the only courts for the trial of more serious criminal offences. The first was held at Montreal in July 1775, and at least 7 more were held, both in Montreal and Quebec City, before the first session of the new Court of King's Bench was held in 1777.(35) These courts were sometimes referred to collectively as the "Supreme Court",(36) apparently acknowledging that they were effectively ad hoc continuations of the abolished Court of King's Bench.

After 1777, the Governor issued commissions establishing Courts of Oyer and Terminer and General Gaol Delivery whenever he felt or was advised that the sessions of the Court(s) of King's/Queen's Bench were insufficient to deal with all pending criminal cases. This executive prerogative was consistently reaffirmed in the colonial legislation reorganizing the court system between 1777 and 1849. Commissions for these courts were issued fairly often in the 18th and early 19th centuries, especially in the District of Montreal, and sporadically thereafter.(37)

The jurisdiction of the courts was specified by the commissions that established them. In the case of Courts of Oyer and Terminer and General Gaol Delivery, it generally extended in practice to all major pending criminal cases for a particular district that were not under the usual jurisdiction of the Courts of Quarter Sessions of the Peace. This meant that the Courts had the same criminal jurisdiction as the Court(s) of King's Bench, and were effectively extensions of the criminal terms of the latter. During the Rebellions of 1837-38, an 1838 ordinance allowed the governor to establish special Courts of Oyer and Terminer where no Courts of King's Bench were in operation, with jurisdiction over high treason, misprision (concealment) of high treason, treasonable practices, sedition, arson, and murder, committed in any district.

From 1789, the Governor's approval was required for the execution of all sentences imposed by Courts of Oyer and Terminer and General Gaol Delivery in the District of Gaspé involving loss of life or limb, transportation, or fines over £St25, when the Chief Justice of the province was not present; the Commissioners of the Courts were also required to transmit all records of such cases to him. From 1794, these provisions were extended to all Courts of Oyer and Terminer and General Gaol Delivery held in Lower Canada.

Composition and Sessions

Commissions of Oyer and Terminer and General Gaol Delivery were issued to the senior judiciary, generally one or more of the Justices or Judges of the Court(s) of King's/Queen's Bench, sometimes along with senior Justices of the Peace. Members of the Courts were usually referred to as Commissioners.

Revision

As with the Court(s) of King's/Queen's Bench, judgements of Courts could not in general be appealed, although appeals could be made in certain specific circumstances.(38) From 1768, the instructions to the successive governors had specified that fines over £St100 imposed for misdemeanours could be appealed to the King and Council,(39) and the 1776 commission establishing the interim Court of Appeals re-iterated this, presumably in reference to the Courts of Oyer and Terminer and General Gaol Delivery.(40) Nevertheless, as this provision was not made explicit in colonial legislation until 1787, it may not have been in force in the colony before that date. This remained the only formal legislative provision for appeals from judgements of the Courts of Oyer and Terminer and General Gaol Delivery through to the end of the period covered by this guide. However, in 1857, the Court of Queen's Bench, Appeal Side, was explicitly given appellate jurisdiction over Courts of Oyer and Terminer and General Gaol Delivery, suggesting that by this time criminal appeals were more common than the formal legislative provisions might imply.

Legislation

17 George III c.5 (1777) (in force 1777-1794)
Stating the Governor's right to issue Commissions of Oyer and Terminer and General Gaol Delivery when he saw fit.

27 George III c.1 (1787) (in force 1787-)
Allowing appeal to the King and Council in certain criminal cases.

29 George III c.3 (1789) (in force 1789-)
Requiring the Governor's approbation for the execution of certain sentences imposed in Courts of Oyer and Terminer and General Gaol Delivery in the District of Gaspé.

34 George III c.6 (1794) (in force 1794-)
Reaffirming the Governor's right to issue Commissions of Oyer and Terminer and General Gaol Delivery when he saw fit, and requiring his approbation for the execution of certain sentences imposed in such courts.

2 Victoria c.11 (1838) (in force 1838-1842)
Allowing for the appointment of Courts of Oyer and Terminer.

4&5 Victoria c.24 (1841)
Mentioning Courts of Assize, Nisi Prius, Oyer and Terminer, and General Gaol Delivery.

9 Victoria c.35 (1846)
Mentioning Justices of Assize and Commissioners of Oyer and Terminer or General Gaol Delivery.

12 Victoria c.37 (1849) (in force 1849-)
Reaffirming the Governor's right to appoint commissions of Oyer and Terminer and General Gaol Delivery as he saw fit.

20 Victoria c.44 (1857) (in force 1857-)
Allowing appeals from the Courts to the Court of Queen's Bench, Appeal Side.



Donald Fyson, with the assistance of Evelyn Kolish and Virginia Schweitzer, The Court Structure of Quebec and Lower Canada, 1764-1860 (Montreal: Montreal History Group, 1994/1997/2023). http://www.profs.hst.ulaval.ca/Dfyson/Courtstr/

Page content last updated 2004-02-18