Raw Life. J. Patrick Boyer

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СКАЧАТЬ including whom he appointed as local magistrates. In 1878 he named his fellow Liberal “James Isaac Boyer” of Bracebridge as Magistrate for Muskoka District.

      In early Ontario justices of the peace held courts designed to meet the minimum standards of justice, rough-hewn for a rough land. They lacked the firm foundation upon which the English system of JPs was based, and became increasingly ineffective in the face of the developing complexities of Canadian life. By the 1870s James Boyer found himself occupying a judicial office so evolved in Canada that it only loosely approximated the English original.

      He’d become familiar as a boy with the role of county magistrates in his Moreton-in-Marsh village, where effective local government was principally in their hands, then in Stratford-upon-Avon, through his years law-clerking there. In that English setting, he could never have imagined himself in such a role, given the social standing of British JPs. But he was now in the New World, where everything was possible for those looking to get ahead.

      Not only did men change in Canada, but so did institutions. James’s new front-line judicial office in 1878 was certainly not the model originally exported with Britain’s imperial extension of the Old World into the New.

      In fact, it had been a long stretch of seven centuries since King Richard I first gave knights power “to preserve the peace in specified areas.” The JP’s role had grown and changed dramatically in England even before reaching the stage of development exported to Britain’s North American colonies in the 1700s.

      In the mid-1300s, for instance, several statutes clarified and expanded the powers of JPs. A 1327 act provided that “good men and lawful” should be appointed “for the better maintaining and keeping of the peace” in each English county. In 1344 these keepers of the peace were granted extended authority, jointly “with others wise and learned in the law,” to hear and determine felonies and trespasses. After a while these “keepers” of the peace commonly became known as “justices” of the peace, and this popular way of referring to them was officially adopted in a 1361 statute that specifically formalized their powers over the restraint, pursuit, arrest, and punishment of offenders. Under this act, Parliament assigned to every county in England “one Lord and with him three or four of the most worthy in the county with some learning in the law” to keep the peace, arrest and imprison offenders, and hear and determine felonies and trespasses. The following year, these “most worthy” persons became justices of the peace in their own right, when another statute established that commissions of the peace would meet four times a year, eventually giving rise to what became known as “Quarter Sessions.” This enactment also provided that JPs, independently of others learned in the law but with a jury, could try criminal offenders.

      Successive statutes then extended the criminal jurisdiction of the Court of General Quarter Sessions, beginning in the fifteenth century when JPs were empowered to try certain offences outside of quarter sessions, without a jury. These proceedings, conducted by JPs exercising their summary offence jurisdiction, became known as “Petit Sessions,” a term continued in England until 1949, when they were renamed “Magistrate’s Courts.”

      However, it was their non-judicial duties that increasingly made justices of the peace a central part of local government. Today, when judicial functions and government operations are distinctly separate, it is hard to imagine the two combined; however, in 1890s Bracebridge James Boyer was justice of the peace and town clerk at the same time, a combination consistent with the role played by JPs in England, where they had steadily acquired substantial administrative powers in local government in addition to their judicial duties. During the 1400s, for example, justices of the peace in England gained so many regulatory and supervisory duties that soon their responsibilities, notes legal historian James Wilson, “blurred the fine distinction between judicial and administrative duties or criminal and civil jurisdictions.” This “double jurisdiction allowed the justices to confirm themselves as more or less self-contained local oligarchies which doled out administrative and judicial pronouncements with almost absolute and unfettered control.”

      After four centuries of piecemeal development, a new 1590 enactment by Parliament focused the JPs powers by restating them and clarifying that justices of the peace could “proceed in three separate ways according to the matter at hand: they could sit alone, they could sit jointly with one or more of their fellow justices, or they could sit collectively as they had been doing since the 1360s as a general sessions of the whole county.” Through the next century, notes Wilson, most civil administration in the counties came to be performed by these Courts of Quarter Sessions. In addition to resolving disputes and meting out punishments to lawbreakers, JPs were increasingly confirmed in statutes as administrators conducting local government. The cumulative effect was staggering. By 1689 a JP’s government administrative duties ran the gamut from overseeing bridge repairs and the building and maintaining of jails, to issuing alcohol licences, and sanctioning taxes for parish needs. These were tasks that, in time, with pressure for more accountability and democratic control, would become the responsibility of elected municipal councils. Until that happened, however, this steadily growing roster of administrative powers meant that, as scholar David Phillips observes, “for most people, the justices, rather than the central government, represented public authority as they would experience it in their daily lives.”

      Because they wielded such significant powers, the qualifications of justices of the peace mattered. One of those 1300s statutes required that justices of the peace be “the most sufficient knights, esquires, and gentlemen of the land.” Fifty years later a 1439 act stipulated that JPs must own land valued at twenty pounds a year, meaning they had to be to a modest extent members of England’s propertied class. Despite the power JPs wielded, and perhaps to some degree because of it, finding qualified men willing to perform the role was difficult. The time consumed and the potential to make enemies tended to repel men possessing the requisite social and economic standing. Still, those prominent men who did agree to become JPs were often landed gentry. Throughout England’s countryside these propertied and educated individuals often played a catalyst’s role in public affairs. Their independence neither required, nor much tolerated, directions from a distant, all-powerful authority.

      The English jurist Maitland wryly observed, in an 1888 essay entitled “The Shallows and Silences of Real Life,” how the most learned stipendiary magistrates “will find it hard to get so high a reputation among country folk for speaking with the voice of the law, as that which has been enjoyed by many a country squire whose only juristic attainment was the possession of a clerk who could find the appropriate page in Burn’s Justice.” Canadian jurist and law reformer James C. McRuer added that England’s justices of the peace were “persons who felt the responsibilities of their position, who acted out of a deeply developed sense of stewardship, and who were respected and relied on by their poorer neighbours, to whom they were the embodiment of ‘the law.’”

      In short, respect for JPs had steadily grown as a consequence of who they were socially, how effectively they functioned in office, their growing powers in local governance, and their independence. Increases in their statutory powers propelled them into ever-greater prominence, right into modern times when the vast majority of criminal prosecutions in England are disposed of by justices of the peace in the exercise of their summary jurisdiction. They proved indispensable in resolving petty local frictions that were neither so trivial they could be ignored, not so severe as to land a culprit in a higher court on a heavy criminal charge.

      As created in England, this institution represented ground floor, walk-in justice. The fact JPs had emerged from the solid foundations of an existing social order, one they both understood and helped to perpetuate, would be one of countless differences when the office of JP was exported to fledgling colonies.

      The practice of introducing this institution into the rudimentary social order in overseas territories began in North America with England’s first overseas colony, Newfoundland, continued in new colonies like Virginia and Nova Scotia along the coast of New England, and in 1760 extended to New France, once Britain gained СКАЧАТЬ