Scholarly Abstract
Fyson, Donald. Magistrates, Police and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764-1837. Toronto: Osgoode Society for Canadian Legal History / University of Toronto Press, 2006.
This book is a study of everyday criminal justice in Quebec and Lower Canada between the Conquest and the Rebellions, concentrating on the justices of the peace and their police. It differs from most previous studies by exploring the everyday structures and realities of law and justice, shifting the focus from central institutions to local justice and the local state. The book addresses key issues in legal, state and Quebec historiography, such as the impact of formal changes on legal systems, the place of state justice in dispute resolution and in ethnic, class and gender relations, the nature of the criminal law in a colonized and conquered society, and more broadly, the nature of the ancien-régime state. The first half explores the criminal justice system itself: the transfer and adaptation of English criminal law and courts, the appointment and character of the magistracy, and the police. The second half presents an overview of everyday criminal justice in operation: the relevance of everyday criminal justice, the experience of the people who came in contact with the system, and criminal justice as a locus of social power and an instrument of state power.
Overall, the book argues that the colonial criminal justice system, and more broadly the ancien-régime state, was far from powerless and unchanging. Neither the Conquest nor the Rebellions represented the radical caesura postulated in the historiography, bracketing an otherwise undifferentiated period of colonial rule and ancien-régime stasis. There was considerable continuity across the Conquest, both in structures and in personnel. Conversely, colonial state formation, especially at a local level, was well underway before the Rebellions, responding to the demographic, social and economic changes that swept the colony. Criminal law and the criminal justice system were modified to suit local circumstances, and especially the desires of local elites, both Canadien and British; and the magistracy and the police, named from among both groups, became increasingly extensive and professionalized. By the 1820s and 1830s, the ancien-régime criminal justice system had acquired a great deal of hidden strength.
The relationship between the people and the system also changed dramatically across the period. This is perhaps best exemplified by the steady increase in the rate of criminal prosecution. From being relatively marginal, local criminal justice became increasingly used by both the Canadien and British populations of the colony, especially in urban areas. Though there were still significant structural biases inherent in a capitalist and patriarchal society, the flexibility of the system opened a space for the use of state power by those often thought to have been excluded from it. At the same time, the regularity with which people resisted the criminal law in general, and the police in particular, argues strongly against a hegemonic acceptance of the system's legitimacy. As well, everyday criminal justice also offered the colonial state itself, and the British and Canadien elites who controlled it, a relatively powerful, though often faulty, tool to exercise power over colonial society, through developments such as increasing public prosecution and growing recourse to summary justice and imprisonment. In sum, the meaning of the criminal law in the colony was ambiguous, with neither consensus, conflict, or marginality adequately encompassing the complex relationship between Quebec society and everyday criminal justice.