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Book Review
| Donald Fyson, Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837, Toronto: Osgoode Society for Canadian Legal History / University of Toronto Press, 2006. Pp. 467. $65.00 (ISBN 0-8020-9223-3).
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| This study of the criminal justice system evolution in Quebec and Low Canada between the British Conquest and the Rebellions focuses on the justices of peace and their police. From this point of view, the low seriousness of the cases dealt with by magistrates at a local level (petty cases) and their number give an opportunity to describe "everyday justice." Since Fyson's definition of everyday experience of criminal justice is based on routines in law enforcement affecting the greatest number of people, changes in the justice of peace may be significant. Detailed qualitative descriptions of this everyday experience produce a broad picture but quantitative analysis of available archives gives support to the construction. |
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According to a general and timeless law, the less serious offenses are also the most frequent. This means that petty cases constitute "in general the concrete basis of the experience of justice." Being the "bulk of the work" of the criminal justice, the way they are handled is decisive to understand the whole system (5). A major consequence of the inclusion of these petty cases in the picture is a revision of property offenses domination observed for King's Bench indictments. Everyday justice is dominated by a changing combination of personal violence and public-order or regulatory offenses (vagrancy, prostitution, labor and liquor-licensing offenses). |
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The everyday criminal justice is explored through eight chapters dealing with the legislative framework, the recruitment and characters of justices, the system activity including policing, types of offenses and proceedings, the role of criminal justice in its social context and its place among growing state agencies. For all these levels, combining qualitative individual approach and quantitative analysis, Donald Fyson reviews some broad topics linked to debates among historians: the importance of changes during the period, the "ethnic face" of criminal justice and its specific features in a colonial context, the difference between cities and rural areas, the key aspects of professionalism of police and justices, their bureaucratization and centralization in the context of a shift from private to public prosecution with particular attention to the economic aspects, the development of systemic constraints restricting the discretion of prosecutors and judges. The place of incarceration from arrest to punishment is also a key point since it has been clearly increasing in everyday justice during the period. |
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As the picture becomes more complete, observations lead him to question three theoretical approaches of criminal justice: the conflict model including ethnic aspect where law is one of the main tools that elites used to control popular classes, the vision of a socially marginal criminal justice system, and the consensual model where it is on the opposite a significant instrument for community dispute resolution. None of them is adequate to explain the diversity of situations varying across time, space, and criminal offenses even if each of them may well describe some limited part of "the larger picture." |
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From Fyson's point of view, the criminal justice system of this ancient-regime state is not marginal in the everyday life of the colony's inhabitants. Available data show an increase in the rate of defendants from the end of the eighteen century to the 1830s. This increase started later for complaints ending up in front of the Court of King's Bench than for those coming before the justices only. The consequence for Canadian plaintiffs and defendants are important when looking at the "ethnic face" of justices since many of these magistrates were Canadian themselves, especially among active justices between 1800 and 1825. Convincing demonstrations show that the increase was not a mere consequence of the extension of regulatory and public offenses depending on various kinds of public prosecution. The early increase was linked to a growing propensity to prosecute, notably for assault, and if francophones were underrepresented in the justice's courts they did represent the majority of plaintiffs until the 1820s. |
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In the middle of Fyson's book a figure shows criminal justice patterns made of routes going from a committed offense to a possible trial of a defendant (232). Quantifying each of these routes is out of reach. Some are wide roads; others are narrow paths or even mere footbridges. From available data, rough estimates are suggested in particular for those routes ending before trial. For Quarter Sessions complaints, a large majority of cases did not end in a trial and "most of this filtering came at the second stage of a criminal process, between a defendant's appearance before a justice and in Quarter Sessions itself" (254). Especially for assault, this feature may reflect some inefficiency of the ancient-regime criminal justice. But Fyson argues that for many cases the shortened proceedings gave satisfaction to plaintiffs since some informal resolution occurred within the system at a lower cost. With this kind of conflict resolution, justices could offer resources to populations using private prosecution as a form of social power. Such an instrumentalization can explain that a system shaped by the elites for their own purpose was used by colonial society more broadly. |
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The available sources for this study of everyday justice (registers of Quarter or Weekly Sessions of the Peace, cases files, registers of goals, and Houses of Correction) are sometimes too incomplete to reach a full quantitative demonstration. Particular case files and written evidence coming from the actors who experienced this everyday justice are used to fill in the gap. At least, they may show some kind of routines resulting from repeated practice. But in this situation, Fyson's initial goal "combining number with exemplary story" (13) has to be converted in inferring number from exemplary story. Even when judicial sources are quite extensive, quantitative measures are not produced without some shadow. The methodological appendix giving details about the choices made to get the figures included in the book itself is on a companion website. This choice may have been imposed by the editor and in fact if most tables and charts comments are quite cautious when there are obviously some methodological difficulties about the figures, technical details are hardly brought up. Readers will not learn a lot about the everyday work of a quantitative historian! But they will appreciate the cautiousness of the inquiry into the theoretical models fitness for describing everyday criminal justice. Well-balanced, Fyson's conclusions account for the complexity of relationship between colonial society and criminal justice and invite further exploration. |
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| Bruno Aubusson de Cavarlay
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| CNRS-CESDIP, Guyancourt, France |
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