Magistrates, Police and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837 (review)

As a newly elected member of the Board of the Osgoode Society for Canadian Legal History, I naturally had some qualms about the ethics of reviewing one of the society's publications. My fear of perceived bias was allayed first by the fact that I had already read and admired the book prior to my nomination, and second – and of far greater moment – by the fact that my opinion has been validated by the work's receipt of two awards and two honourable mentions to date.

Like other prize-winning books to have impressed recent award-granting panels of historians and law-and-society scholars, Fyson's work directly engages and challenges an established historiography, demonstrating the ways that socio-legal research can reveal the distortions and lacunae in scholarship that, though it may not have ignored the law writ large, has neglected the law writ small. 'Everyday Criminal Justice' is an apt subtitle, and to my mind would have made a more powerful and appropriate title. By extensive archival investigation into the historical reconstruction of 'low law' in a colonized and conquered society, Fyson is able to undermine, if not entirely explode, two theses he calls 'rupture' and 'stasis,' not unreasonably assumed and heretofore convincingly argued: that Quebec/Lower Canada experienced a profound social dislocation by reason of the displacement of its law by a culturally alien system that was boycotted by the populace, and that the transplant then remained stagnant until the rebellion of 1837 triggered significant legal along with political reforms that recalibrated the landscape of power and privilege.

His focus on 'Magistrates, Police and People' (with a curious but intriguing digression into the material culture of courthouses and court privies) allows Fyson to take a holistic and multi-faceted approach to questions of state formation and gender, class and ethic relations. Quantitative methods predominate, but charts and graphs never obscure the discussion, which is also enriched by biographical vignettes and such textual analysis as bureaucratic forms and processes permit. An expansive definition of what constitutes criminal law, which includes regulatory and municipal offences, may be disputed by purists, but Fyson makes the arguable case that to ignore these is unhelpfully presentist and leads to an underestimation of state control, which was expressed through enforcement of mandated civic duties by Weekly and Quarter Sessions. The summary justice dispensed by single JPs, for which there are few direct sources, was restricted to mostly interpersonal issues, especially violence.

The magistrates are shown to have been of a more commercial character than their English counterparts and more Canadien than might be expected, as willingness to act and a somewhat attenuated ideal of loyalty became the overriding criteria of fitness, and as governors, under the pressures of demographic growth, began to rely on local knowledge for this determination. Fyson also pays considerable attention to the 'police before the police,' a chronologically non-linear and geographically contingent series of mostly ad hoc experimentation, which included professional and semi-professional bailiffs, constables, and watchmen who had much in common with pre-conquest parish peacekeepers, and supplemented the primary British process of private prosecution. Far from marginal or ineffectual, this system resulted in the imprisonment of some 10, 000 citizens in Montreal alone from 1811 to 1836.

Fyson contends that Canadiens and Canadiennes, though not necessarily accepting of the new system's legitimacy, were quite content to use the opportunity to initiate criminal process (though often opting to abandon the same) and appeared in court in greater numbers than they had under French rule, for disputes that tended to be intra- rather than inter-ethnic. Only Aboriginals seem to have shunned the courts; African-ancestored Quebecers, on the other hand, were badly served by the system but not discouraged from attempting to use it to advance their interests. Fyson concludes that overall the justice system might have been...