Crime and Punishment in Upper Canada. Janice Nickerson

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СКАЧАТЬ the Anglican Church. By 1842, only 22 percent of Upper Canadian residents were Anglican. Seventeen percent belonged to one of the many Methodist denominations; 16 percent belonged to the Church of Scotland; 13 percent belonged to the Roman Catholic Church; 4 percent belonged to other Presbyterian denominations; 3 percent belonged to the Baptist Church; 1 percent belonged to each of the Congregational Church, Lutheran Church, and Society of Friends (Quaker); 5 percent belonged to other denom–inations; and 17 percent did not state a religion in the census.¹³ Naturally, special privileges for the Anglican Church became a major bone of contention. Members of other religious denomi–nations resented the fact that their taxes went to support the sala–ries of Anglican ministers (and not those of other denominations) and Anglican churches were built on land specially reserved for them by the government. This was only one of the issues that led up to the Rebellion of 1837, but it was a key one.

       Morality, Criminality, and Justice

      In a deeply conservative society such as Upper Canada, crime was considered a natural extension of immorality. If the community was made up of morally upstanding citizens there would be no crime. But if immorality were to gain a foothold, crime would surely fol–low. So it was important to enforce moral behaviour. Hence, break–ing the Sabbath and blasphemy were indictable offences.¹⁴ And other kinds of moral order offences, such as drunk and disorderly, vagrancy, public nuisance, and prostitution landed people in gaol (jail) nearly as often as offences we might today consider criminal.

      Newspaper editors often discussed the “problem” of crime and its causes and solutions. It was generally believed that a small minority of people were innately “depraved.”¹⁵ But the main causes of crime boiled down to idleness (laziness, not working hard), drunkenness (which was both caused by and led to idle–ness), and lack of moral education (which led to both idleness and drunkenness).¹⁶ Thus, one of the more frequent suggestions for curbing crime was to encourage religious instruction to help people learn how to curb their baser instincts.¹⁷ Another was to limit the number of tavern licences and to appoint innkeepers as constables — with responsibility of keeping their patrons from becoming drunk and disorderly.¹⁸ Finally, there were attempts to find work for people while in gaol or prison — to help them learn industrious habits (and help pay for their keep, of course).¹⁹

       Inequality Before the Law

      Other factors were also at play when Upper Canadians thought about crime. Then, just as now, there were ethnic and racial ten–sions. The black population was extremely small, perhaps 3 per–cent, but young black males were often targeted as suspects in theft cases, and when victims were black, fines and other punish–ments were very low compared to when victims were white.²⁰

      Then, as now, some people thought minorities were treated too leniently. In 1842 a letter to the editor published in the Brantford Courier opined,

      It is high time that the majesty of the law should be vindicated as regards Indians and negroes. Really the government has been too lenient to both these classes of men in Canada; for of late years it was found to be sufficient reason to be an Indian or Negro to escape the gallows, no matter what crime they may have committed; whilst in too many instances white men were punished with all the rigours of the law.²¹

      A much larger “racial” problem was presented by the Irish, especially in urban areas in the 1830s, when immigration from Ireland (especially Roman Catholics) was at its peak.²² Judging by newspaper editorials, the Irish were believed to be ruled by “untamed animal instincts” (thus accounting for the frequency with which they got into fights). The rhetoric of the period wasn’t so different from today’s; only the target has changed. Some of the complaints about the Irish included:

      • They clustered in poor neighbourhoods;

      • They had low morals;

      • They had high rates of single parent families; and

      • they got involved in gangs.

      The Irish were disproportionately represented in justice records, especially for “moral order” offences such as being drunk and dis–orderly, vagrancy, public nuisance, and prostitution.²³ The number of Irish who spent time in the Hamilton gaol between 1832 and 1843 was significantly out of proportion to the population (the Irish-born represented 35 percent of gaol population when only 12 percent of the population was Irish-born) — especially young Irish Roman Catholic women (60 percent of all women in gaol between 1831 and 1851 were Irish). Irish women stood out even more among those gaoled for public order offences. Of the women taken in for drunk and disorderly conduct, three quarters were Irish; of those taken in for vagrancy, four-fifths were Irish.²⁴

       Comparison of Country of Origin of Jail Population with That of Gore District Population ²⁵

Country of Origin	Distribution of Jail Population, 1832-1843	Distribution of District Population, 1842
England and Wales	14 %	13 %
Ireland	35 %	12 %
Scotland	6 %	12 %
Upper Canada	26 %	56 %
United States	17 %	7 %

      Sexism was also a pervasive factor in everyday life as well as in the justice system. Women could not vote or hold any office. Married women could not own property. Wife beating was almost never reported, unless the wife feared for her life. Even then, there were very few convictions. Rape was treated more like property damage (the true victim being the woman’s father or husband) than violent assault. A husband could not rape his wife, partly because marriage created one legal person and partly because marriage implied permanent consent.²⁶

      A newspaper article printed in 1834 summarized the rights of wives thus:

      The effects produced by marriage, on the legal rights of the parties are important to be known in every family.

      In law husband and wife are considered as one person; and on this principle all civil duties, and disabilities rest.

      The wife cannot sue in her own name.

      If she suffers injury or wrong in her person or property, she can with her husband’s aid and concurrence prosecute for redress; but the hus–band must always be the plaintiff. In criminal cases, however, the relation assumes a new form. The wife may, in criminal cases be prosecuted and punished.²⁷

       Crime and Criminal Law

      The laws of Upper Canada were very harsh. When Upper Canada was founded as a colony, its first legislative action was to adopt all the laws of England for the colony. Some laws were later modi–fied, but only very gradually. Even after a new statute was passed in 1833 to reduce the number of capital crimes, there were still many crimes punishable by death: treason (three types), murder, rescuing persons convicted of murder or committed for murder, rape, carnal knowledge of a girl under the age of ten, sodomy, robbery, burglary, arson, rioting, burning or destroying his maj–esty’s ships, arsenals, magazines of naval or military stores, acces–sory before the fact to any capital offence. ²⁸

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