approved all non-statutory expenditures, examined the treasurer’s books, could remove the treasurer at will, and heard assessment appeals. Yet, that was hardly the end of it. They also regulated ferries, had responsibility for roads and bridges, determined who got liquor licences, and exercised numerous powers with respect to township officers. In short, until 1832, with no municipal corporations and without any town meetings in surveyed townships, the Court of Quarter Sessions “received all the authority granted by the legislature to deal with the special needs of villages and towns.”
Sixth, because the act of governing requires interpretation and enforcement of laws, justices of the peace shouldered numerous additional duties of adjudication in their governance role, as Aitchison itemized. They imposed penalties for infractions of laws, and heard civil actions for small debt recovery. They exercised these powers either alone or in pairs, depending on the seriousness of the infraction. Acting alone, JPs could order overseers to do roadwork within their districts, receive overseers’ books, lay out commutation money, and administer oaths to township officials to perform their duties. Acting in pairs, they could consider and allow tax assessors’ returns, issue warrants to debt collectors, and approve the apprenticeship of orphaned children by a town warden.
Seventh, King George III’s proclamation in 1763 handed JPs a further, even higher, responsibility: they were expected to uphold and enforce a Christian moral order. The king directed Governor Murray and his justices of the peace to “cause all laws already made against blasphemy, profaneness, adultery, fornication, polygamy, incest, profanation of the Lord’s Day, swearing, and drunkenness, to be vigorously put in execution in every part of your government,” taking “due care for the Punishment of these, and every other Vice and Immorality.” This “morality movement” drew its strength from England, where by the late eighteenth century a resurgence of Christian moral values, particularly from Methodist and Anglican quarters, spread out to the colonies through directives to those in the highest levels of government. This duty to enforce morality among the people posed a problem for justices of the peace operating in a setting and culture different from that of England. In Niagara District, at the time the most populated section of the province, the views of many did not align with the moralistic pattern being urged on the colonials. Niagara magistrates faced conflicting pressures enforcing a Christian moral order in a district, as Murray noted, “where some inhabitants were not shy in demanding they do just that, while others were equally determined to lead their own lives, free of unwelcome judicial interference.”
JPs became real players in the province’s opening decades, even if they played their roles overseeing local administrative, financial, and basic judicial services unevenly. As historian Frederick Armstrong aptly notes, justices of the peace had emerged as “the hinge between the people and the provincial government.”
With so many roles, and with a shortage of justices of the peace to carry them out, the cascading consequences of neglect meant many vital aspects of local government went unaddressed, raising the rebellious ire of townsfolk, villagers, and rural settlers, who, during the 1830s, had a growing list of other unheeded complaints, too, from arbitrary government to impassable roads.
What townspeople demanded, Aitchison explains, were efficient and zealous magistrates who would attend to their duties within the township. “Consequently we find them complaining that for want of magistrates town meetings were not held, township officers could not be sworn in, statute labour was unsupervised and unperformed, certificates for the performance of settlement duties were not issued, lawbreakers went unpunished, the public peace unpreserved, and, since without magistrates the courts of requests could not be held, trifling disputes went unsettled.”
By 1837 these pressures erupted into armed rebellion. That insurgency, combined with simultaneous rebellion in Lower Canada, got the attention of the Colonial Office in London. Was Britain at risk of losing more of its North American colonies?
Although Upper Canada had representative government, in the form of its popularly elected provincial legislature, an inquiry into the uprisings and grievances by Lord Durham, dispatched from England to investigate, produced a report calling for responsible government, which entailed something new in colonial development: accountability. Once more a new constitution was enacted. In 1840 a new single entity named Canada, consisting of two parts, Canada East and Canada West (the new names for Lower Canada and Upper Canada, respectively) was created, with its two parts more closely integrated. Especially important was the advent of “responsible government,” with more accountability of government and a greater role for the elected legislative assembly.
While these major constitutional developments did provide a clearer legal framework for JPs, reality at ground level still required more than proclamations, constitutional authority, statutes, and appointments. For an extended period, the province continued to suffer a real shortage of JPs, which Aitchison attributes to the government believing “that only a small proportion of the population constituted suitable magisterial timber.” With rapid population increase from the 1820s, the ratio of justices of the peace to society as a whole became extremely imbalanced. By the late 1830s this shortage of JPs contributed to mounting dissatisfaction, not just on the part of those who openly rebelled in 1837, but by the provincial government itself, which responded by overcompensating, appointing numerous JPs and making many hundreds more office holders, from mayors and reeves to game wardens, justices of the peace ex officio.
Another ground-level complication was caused by the fact that, because justices of the peace fulfilled far-reaching duties and wielded many powers, a lot turned on who got appointed. One class of qualified candidates were actually disqualified: following the pattern from England, practising lawyers could not act as justices of the peace. British authority Clive Emsley notes that while justices of the peace in England were judicial officials, “they had only the most tenuous links with the legal world,” an observation equally applicable to JPs in Upper Canada, although at least in 1840, explains Murray, the provincial government “moved to appoint professional lawyers as district judges to oversee the magistrates.” The district court judge, who did have to be a qualified lawyer, served as chairman of the Court of Quarter Sessions, “ensuring continuity and greater professionalism in that court.”
An explicit qualification was property ownership, a prospective appointee having to own property worth at least one hundred pounds per year, clear of deductions. As Lewthwaite explains, “the idea was that men who owned property had a stake in the community and were its natural leaders.” This property requirement in England meant potential justices of the peace were often members of the landed aristocracy, while in Upper Canada they were mostly farmers, mill owners, and merchants.
Beyond that property requirement, it is unclear what other criteria guided the province’s British-appointed governor in choosing justices of the peace. Because he could not personally know potential candidates in every district, he took advice from circuit judges who traveled the districts and from local officials. Factors recommending candidates would have included proximity of the candidate’s residence to important towns in the district, the candidate’s character, his local knowledge and experience, competency, and expected acceptability within the local community, although, as Lewthwaite notes about this last point, opinions of ordinary settlers were not sought directly. Once the governor decided on a set of candidates, he issued a Commission of the Peace naming them to the bench of the district in question.
Historian Margaret Banks noted, after reviewing development of courts in Ontario, that it was not hard to identify a suitable candidate for justice of the peace: he would simply be the individual with more training or education than anyone else, which often was relatively little. Along the Canadian frontier, the justice of the peace would be credible so long as, compared to others in the same settlement, he was relatively the most authoritative and qualified person. In this aspect at least, one could say the Canadian JP resembled his English counterpart: in both communities, the administration of justice rose, or settled, to its own level of possibilities.
Whatever their other qualifications, justices of the peace, like judges themselves, were appointed under the political patronage system. Magistrate’s Court was seen, at least by those behind the scenes, as much an extension of party government as it was an independent citadel for equity and justice.
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