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
Crimes Against Persons
This category includes abduction, assault, beating, cutting, kid–napping, murder, shooting, and stabbing. In his study of the Gore District gaol records, John Weaver calculated the average rate of crimes against persons between 1832 and 1840 as 75 per 100,000.30 By comparison, the 2006 rate for violent crime in Ontario was 756.
Crimes Against Persons Prosecuted in the Niagara District 29
Assault was the most common offence by far in the Upper Canada period. In the Niagara District there were 261 cases of assault at the Quarter Sessions (the lower court) from 1828 to 1833. However, only one was severe enough to be prosecuted at the Assizes (the high court, which tried cases for which capital punishment was a possible sentence).31
Most assaults were by men against men. A few were by women against women. Very few were by men against women.32
The minutes of the Quarter Sessions for the London District record one case in which it appears that an entire family was charged with assault and battery in 1818. The Best family first appears in the records on 16 May, when the court ordered a bench warrant issued for John Best, John’s wife, and John’s son, Cosper Best, requiring them to appear at the next Quarter Sessions to answer charges. On 14 July, John Best, Mrs. Best, and Cosper Best appeared, as required, but were told to return the next day and given permission to go home.
There is no record of the Best family on the 15th, but on the 16th they appeared again. This time there were four of them: John, Dota (presumably John’s wife), Cosper, and Ann. Each were required to put up £100 to assure their appearance at the next Quarter Sessions. John Young and Philip Young were also required to put up £50 each for each of member of the Best family, as their sureties. There’s a note that says all the court costs were paid up to that date.
On 13 October, the Best family finally began their trial. John, Dota, Cosper, and