Crime and Deviance in

Canada: Historical

Perspectives

Chris McCormick

Len Green

Editors

Canadian Scholars’ Press

Crime and Deviance

in Canada

This page intentionally left blank

Crime and Deviance

in Canada

Historical Perspectives

Edited by

Chris McCormick

and

Len Green

Canadian Scholars’ Press

Toronto

Crime and Deviance in Canada: Historical Perspectives

Edited by Chris McCormick and Len Green

First published in 2005 by

Canadian Scholars’ Press Inc.

180 Bloor Street West, Suite 801

Toronto, Ontario

M5S 2V6

www.cspi.org

Copyright © 2005 Chris McCormick, Len Green, the contributing authors, and Canadian Scholars’ Press

Inc. All rights reserved. No part of this publication may be photocopied, reproduced, stored in a retrieval

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Canadian Scholars’ Press gratefully acknowledges financial support for our publishing activities from the

Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Library and Archives Canada Cataloguing in Publication

Crime and deviance in Canada : historical perspectives / edited by Chris McCormick and Len

Green.

Includes bibliographical references.

ISBN 1-55130-274-8

1. Criminal justice, Administration of--Canada--History. 2. Crime--Canada--History. 3. Punishment--

Canada--History. I. McCormick, Christopher Ray, 1956- II. Green, Len

HV6803.C75 2005 364.971’09 C2005-902481-X

Cover design by Aldo Fierro

Cover photo: Health Canada website and media photo gallery, www.hs-sc.gc.ca. Reproduced with the

permission of the Minister of Public Works and Government Services Canada, 2004.

Page design and layout by Brad Horning

05 06 07 08 09 5 4 3 2 1

Printed and bound in Canada by Marquis Book Printing Inc.

Some images in the printed version of this book are not available for

inclusion in the eBook.

Preface........................................................................................................................................... ix

Introduction .................................................................................................................................... 1

PART I: DEVELOPING ISSUES IN CRIME AND PUNISHMENT

Chapter 1: Administering Justice without the State: A Study of the Private Justice

System of the Hudson’s Bay Company to 1800

Russell Smandych and Rick Linden .......................................................................................... 11

Chapter 2: Criminal Boundaries: The Frontier and the Contours of Upper Canadian

Justice, 1792–1840

David Murray ........................................................................................................................... 27

Chapter 3: The Mounties as Vigilantes: Perceptions of Community and the

Transformation of Law in the Yukon, 1885–1897

Thomas Stone ........................................................................................................................... 37

Chapter 4: Discordant Music: Charivaris and Whitecapping in Nineteenth-Century

North America

Brian D. Palmer ....................................................................................................................... 48

Chapter 5: Railing, Tattling, and General Rumour: Gossip, Gender, and Church

Regulation in Upper Canada

Lynne Marks ............................................................................................................................. 67

PART II: A WORKING CRIMINAL JUSTICE SYSTEM

Chapter 6: Homicide in Nova Scotia, 1749–1815

Allyson N. May and Jim Phillips .............................................................................................. 87

Chapter 7: The Shining Sixpence: Women’s Worth in Canadian Law at the

End of the Victoria Era

Constance Backhouse ............................................................................................................. 107

Table of Contents

Chapter 8: Gender and Criminal Court Outcomes: An Historical Analysis

Helen Boritch ......................................................................................................................... 124

Chapter 9: The Voluntary Delinquent: Parents, Daughters, and the

Montreal Juvenile Delinquents’ Court in 1918

Tamara Myers......................................................................................................................... 148

Chapter 10: Governing Mentalities: The Deportation of “Insane” and “Feebleminded”

Immigrants out of British Columbia from Confederation to World War II

Robert Menzies ....................................................................................................................... 161

Chapter 11: Crime and the Changing Forms of Class Control: Policing Public Order

in “Toronto the Good,” 1859–1955

Helen Boritch and John Hagan .............................................................................................. 187

PART III: POLICING ETHNICITY

Chapter 12: Spectacular Justice: The Circus on Trial, and the Trial as Circus, Picton, 1903

Carolyn Strange and Tina Loo ............................................................................................... 205

Chapter 13: “Gentlemen, This Is No Ordinary Trial”: Sexual Narratives in the

Trial of the Reverend Corbett, Red River, 1863

Erica Smith ............................................................................................................................. 217

Chapter 14: The Relocation Phenomenon and the Africville Study

Donald H. Clairmont and Dennis William Magill ................................................................. 227

Chapter 15: Criminalizing the Colonized: Ontario Native Women Confront the

Criminal Justice System, 1920–1960

Joan Sangster ......................................................................................................................... 240

Chapter 16: Creating “Slaves of Satan” or “New Canadians”? The Law, Education,

and the Socialization of Doukhobor Children, 1911–1935

John McLaren......................................................................................................................... 252

PART IV: REGULATING GENDER AND SEXUALITY

Chapter 17: Moral Reform in English Canada, 1885–1925: Introduction

Mariana Valverde ................................................................................................................... 275

Chapter 18: Defining Sexual Promiscuity: “Race,” Gender, and Class in the

Operation of Ontario’s Female Refuges Act, 1930–60

Joan Sangster ......................................................................................................................... 286

Chapter 19: “Horrible Temptations”: Sex, Men, and Working-Class Male Youth

in Urban Ontario, 1890–1935

Steven Maynard ...................................................................................................................... 299

Chapter 20: Mother Knows Best: The Development of Separate Institutions

for Women

Kelly Hannah-Moffat.............................................................................................................. 310

Chapter 21: “Character Weaknesses” and “Fruit Machines”: Towards an Analysis of the

Anti-Homosexual Security Campaign in the Canadian Civil Service, 1959–1964

Gary Kinsman ........................................................................................................................ 322

PART V: MORAL REGULATION OF PERSONAL BEHAVIOUR

Chapter 22: Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s

Prostitution Laws, 1867–1917

John P.S. McLaren .................................................................................................................. 341

Chapter 23: The First Century: The History of Non-Medical Opiate Use and

Control Policies in Canada, 1870–1970

Robert R. Solomon and Melvyn Green ................................................................................... 353

Chapter 24: Regeneration Rejected: Policing Canada’s War on Liquor, 1890–1930

Greg Marquis ......................................................................................................................... 366

Copyright Acknowledgements ................................................................................................... 385

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We began this text with an interest in collecting some of the best research available on the

history of crime and criminal justice in Canada because we had been teaching a course of

the same name for a couple of years, and had a difficulty in finding the appropriate book. Since this

course is a second-year required course in the Criminology Department at St. Thomas University,

and forms the foundation for upper-level courses on criminal law, policing, young offenders, and

adult courts, we felt the choice of book was important.

First of all, we felt that using American or British sources would submerge key events in

Canada’s history. It is true that we have inherited a British system of common law in Canada. It

is also true that we continue to be influenced by American interests in criminal justice. However,

there is something fundamentally different about how crime and criminal justice have developed

in our country. Canadian differences are not irrelevant, and we think the readings demonstrate this

distinct history.

As editors, we know many of the authors whose writings are collected here, and think that they

have produced some of the best work in the field. Collectively, their work will be a substantial

corpus of research on the history of crime and criminal justice in Canada.

These articles were selected because of their examination of relations of power in society:

relations of gender, social class, ethnicity, and age. Through such topics as prostitution, prohibition,

youth courts, and the regulation of sexuality, we can trace these relations of power and how they

undergird the definition of crime. An individual is located within power relations in which his

or her ethnicity, class, age, or sexuality makes a difference in terms of how the person is treated.

These power relations exist apart from the individual, yet affect what crimes the person might be

charged with, and how he or she is subsequently treated.

The criminal justice system is always formed in reaction to how crime is defined at any particular

point in history. The way behaviour has been defined as criminal in our past might be more strict

than how we would define criminality today because of shifts in morality. We have also relaxed as

a society in moving away from more punitive treatments for individual offenders.

Through these readings, then, we become richer through a re/collection of our beginnings, and our

struggles to define social order and create a criminal justice system. This reader will complement

your introduction to crime and criminal justice and, we hope, will enliven your interest in our

history. In the introduction, we, with the assistance of one of our colleagues, outline some of our

basic theoretical issues.

Chris McCormick and Len Green

Department of Criminology and Criminal Justice

St. Thomas University

Fredericton, New Brunswick

Preface

x Crime and Deviance in Canada: Historical Perspectives

Acknowledgments

We would like to acknowledge the assistance of those who have helped in this project since it began

several years ago. It has blossomed into a wonderful book that will serve students of criminal justice

history well. We have benefited from the editorial assistance of Vanessa Gallant, Sarah Gilliss, and

Juanita Maclean. We would like to especially thank Megan Mueller for her encouragement in this

project, and cheerfulness in seeing it to its conclusion.

A Note from the Publisher

Thank you for selecting Crime and Deviance in Canada: Historical Perspectives, edited by Chris

McCormick and Len Green. The editors and publisher have devoted considerable time and careful

development (including meticulous peer reviews) to this book. We appreciate your recognition of

this effort and accomplishment.

Teaching Features

This volume distinguishes itself on the market in many ways. One key feature is the book’s well-

written and comprehensive part openers, which help to make the readings all the more accessible

to undergraduate students. The part openers add cohesion to the section and to the whole book.

The themes of the book are very clearly presented in these openers.

The general editors, Chris McCormick and Len Green, have also greatly enhanced the book by

adding pedagogy to close and complete each section. Each part ends with critical thinking questions

pertaining to each reading and detailed annotated further readings.

Introduction

O nce the preserve of legal historians and sociologists, the study of crime and punishment in

Canada has become more interdisciplinary in content and focus. Issues of crime, criminal

justice, law, and society are now critically examined by a broad array of academics, most notably

social historians and criminologists. This collection of essays reflects this trend, and begins to

show some of the richness of the historical, criminological, and sociological literature on crime

and deviance.

This literature combines critical theory and empirical historical evidence to enliven the past and

shed new light on how the criminal justice system and Canadian society have responded to the

proliferation of crime and deviance. As Smandych and Linden note, through more of this primary

scholarship, we can recover a unique aspect of Canadian history and society.

In recollecting Canadian criminal justice history, we are interested in the linkage between

economic production, social institutions, and everyday life. People are located in the economic

structure of the time, participate in social activities, and through this process shape and are shaped

by relations of power. To formulate such an enterprise means recovering those links in the historical

evidence, but, more importantly, creating those linkages in the “analytical project.” The work of

historical analysis crosses over between interpreting the evidence of the past, and interpreting it

in such a way as to create an emancipatory understanding of those linkages.1

The work of Michel Foucault illustrates our interest in a connection between relations of power

in society, forms of knowledge production, and how subjectivity is constituted. The way we come

to know ourselves and others is a social construct built through power relations. In this way,

human beings are both objects and subjects constructed through certain forms of knowledge and

relationships of power.

Central to this proposition is that knowledge and power are inseparable: “there is no power

relation without the correlative constitution of a field of knowledge, nor any knowledge that does

not presuppose and constitute at the same time power relations.”2

As social institutions develop, with new legal procedures (technologies), for example, a new

knowledge of the subject is constituted that pivots on power relations. Disciplinary technology,

which is the work of the criminal justice system, makes individuals subject to the power that runs

through the whole social body. The knowledge of the subject involves a documentary record of

their offences and disposition and, increasingly, of their background and social characteristics. This

documentary record makes makes them more subject to examination and discipline. What we will

see in these readings is that the developing Canadian state, with its legal superstructure, revolves

around and intensifies existing power relationships.

Social institutions such as schools, churches, and prisons operate through subtle mechanisms

or “micro-physics” of power that use, in Foucault’s terms, techniques such as “hierarchical

2 Crime and Deviance in Canada: Historical Perspectives

observation,” “normalising judgements,” and “the examination.” The state produces a web of

control by increasing its specification of individuality. 3

We are not suggesting that individuals are powerless in the development of these socio-legal

relations. In many of the readings we will see resistance and attempts to influence the direction of

social change. But as in work on the history of schooling shows, educational practices and techniques

of governance attempt to construct and control character habits that are useful in the moral order

of capitalism. 4 In this way, relations of power involve practices that are hegemonic.

To develop a non-reductionist approach to the history of criminal justice, Giddens says we need

to look at the duality of structure. 5 Through the ongoing dialectic of structure and practice we see

the interplay between individual consciousness and the activities of the subject as they are located

in relations of power. In this way, social life is recursive, which structure both the medium and

the outcome of social life.

As Canada developed, different forms of “doing justice” succeeded and faded from view. Practices

that were considered deviant in the past, for example, abortion, are considered quite acceptable

today. Similarly, the twentieth century has seen the criminalization of substances that have been

used for thousands of years, notably narcotics. This diachronic, or historical, dimension forces

us to consider the relative definition of crime, and thus how it has informed changes in criminal

justice.

In this way, criminological scholarship today is less concerned with a narrow juridic interest in

courts, police, and prisons; we conceive of societal definitions and legal governance in broader

ways.

In the late-eighteenth and early-nineteenth centuries the reaction to crime was brutal. The Hudson’s

Bay’s Company and naval courts in Newfoundland often relied upon corporal punishment, including

lashings with a cat-o’-nine-tails, to ensure that its workers complied with company regulations.6

The sheer size of the territory known as Rupert’s Land—4 million square kilometres—granted to

the Hudson’s Bay Company, and its distance from Britain, necessitated the private administration

of justice. This patchwork system of private and military justice, combined with an emerging state,

moreover, provides insight into the legal plurality that once existed in British North America.

In 1869 Canada bought Rupert’s Land, ten times the size of Canada at Confederation, and in

1873 John A. MacDonald commissioned the North West Mounted Police (NWMP) to patrol this

new territory.7 Their mandate was to quell conflict and dissent so as to secure a frontier suitable

for Canadian exploration and settlement. The development of east–west trade for Montreal and

Toronto was facilitated by the federal police and the construction of a national railway. As Stone

comments, the federal police virtually appropriated conflict and the popular ways of dealing with

it as they began enforcing the criminal law.

It is interesting that in this interregnum between private and military policing, and the coming

era of professional justice, people ordered their lives to principles similar to law. Thousands of

men, isolated annually in mining and lumber camps or on the high seas, suppressed and resolved

confl icts without recourse to police or courts,8 and yet we have virtually forgotten this history.

Drawing on the British tradition, the first half of the nineteenth century was an era of public

executions. This was a time when legal authorities felt that by publicly displaying the severity of

the law, people would refrain from committing criminal acts. The law operated as a repressive

instrument, but also as an ideological system, one that combined both force and imagery to sustain

the power of the propertied ruling class.9

By the dawn of the twentieth century, however, this feeling began to change. Progressive middle-

class reformers believed that public executions would have a detrimental impact upon society. As

Introduction 3

one proponent of conducting hangings within penitentiaries stated in 1925, “such events as these,

amid the peaceful and ordered routine of the towns and cities of the country, have a very certain

effect upon many classes of people, particularly women and children. They leave in the memory

scars that time can never quite remove.”10 Canadians were becoming increasingly uncomfortable

with how in the process of maintaining law and order, the criminal justice system, by practising

public executions, was in fact disrupting public order.

Certain crimes tended to be specific to the pre-Confederation period of Canada’s history.

Smuggling, duelling, “machine breaking,” and sabotaging a coal mine were acts that not only

broke the law, but challenged the social and economic status quo. 11 However, change did not

come easy. In the shift to a centralist form of legal governance, the state often conflicted with

traditional custom. Smuggling, for example, and its close neighbour, wrecking, were ways of life

in a maritime economy. Attempts to enforce the law against popular custom exposed the slippage

between policy and practice.

However, as the state developed, class inequality became solidified in the criminal law and

traditional economic practices increasingly became defined as contravening capitalist property

relations. In this regards, as Alan Hunt has argued, the law became a tool of “ideological domination”

within a capitalist society. 12 People learned how to think of crime in capitalism as a violation of

property relations, and came to think of justice as something to be administered by the state. While

the state has the resources to enforce the law, it also means that popular methods of social control

are lost.

In some cases, crimes and how they were dealt with in the community were symbols of a

burgeoning working-class consciousness that an informal criminal justice system often struggled

to suppress. When oak-cutters rioted in Bytown in 1830, the conflict was as much about class

inequality between the Irish, French, and English as it was about public disturbance, drinking,

and assault.13

Moreover, as Palmer and Marks highlight, the charivari and gossip became informal, community-

based methods of rendering justice upon those individuals who had breached an unwritten code of

public morality. These were ways for the “lower orders” of society to voice their opposition and

hostility toward the social elite and pass judgment upon their family, friends, and neighbours. This

was “rough justice,” along with social and moral regulation, at its finest. Despite its irregularities,

as Murray notes, its practices correspond to what we would fairly call law.

A more formalized system of criminal law and justice emerged as the nineteenth century evolved.

Indeed, the onslaught of industrialization and urbanization in late-nineteenth-century Canada and

the concomitant population boom necessitated a more concerted response to crime. We begin to

see the development of professional policing, for example.

Canada received its own system of codified criminal laws with the introduction in 1892 of the

Criminal Code of Canada. These laws were designed to preserve the power of the British Crown

and the state in Canada. While it was true that Nova Scotia was the first province to receive a

system of judicial procedure in the 1750s, 14 justice was patchy as magistrates were reluctant to

travel outside urban centres. Well into the latter part of the 1800s, any justice system that existed

was haphazard at best.

The idea of “British justice” that Canada adopted was more than a collection of laws and legal

procedures. It was also a means of organizing social relations in modern Canada and of defining,

on an official level, the nature of civil society.15 A society that was meant to be law-abiding and

morally righteous did not tolerate crime and deviancy. As Valverde points out, a great period of

social and moral regulation at the turn of the twentieth century was responsible for a redefinition

of im/morality, especially in Canada’s cities.

4 Crime and Deviance in Canada: Historical Perspectives

Justices of the peace were responsible for the administration of justice in most areas outside of

capital centres for much of the eighteenth century.16 Gradually police courts evolved and criminal

cases were usually tried without a jury or legal representation for the accused. It was here that

the working class and the poor gathered every morning to hear their fate. The Police Court, often

housed in city halls across the country, handled over 80 percent of committed offences. Police courts

were effi cient because they had to be. On an average day at the turn of the twentieth century in

Vancouver, Winnipeg, Toronto, Montreal, or Halifax, a stipendiary magistrate would hear between

30 and 40 criminal cases, most of which were summary offences ranging from public intoxication

to theft. 17 Often the accused pled guilty because he or she did not have the advice of legal counsel

or was intimidated by, or could not comprehend, the proceedings.

The night watch was the forerunner to the police in most towns and cities. This group of

concerned citizens served as an informal mechanism for monitoring a community and imposing

social order. By the 1860s, organized police forces began to appear in cities such as Saint John,

Quebec, and Toronto.18 As Boritch and Hagan discuss, at the turn of the twentieth century a shift

occurred in police operations away from a primitive type of “class-control” to a “crime-control”

model. This was in line with a trend toward more rationalization and professionalization of police

work in North America. In this sense, the police were a product of the social turmoil wrought by

modernity, the need to monitor the activities of new immigrants, and the widening gap between

the rich and the poor.

The addition of policewomen represents another important phase in the modernization of police

work and the criminal justice system. In the early 1900s, police departments in Vancouver, Calgary,

Winnipeg, Toronto, Montreal, and Halifax hired female officers. Policewomen, it was felt, could

help to prevent crime through social service intervention and by dealing directly with female

suspects. Policewomen often served in departments’ “morality squads” where they “looked after

the bad girls.” They searched the cities’ streets for wayward women, especially prostitutes, and

tried to persuade them to return home. In various essays, such as Hannah-Moffat, and Myers and

Sangster, we see how policewomen played a central role in the criminal justice system’s attempts

to control vice and regulate social and moral behaviour. At the same time, the development of

separate institutions for women, and the creation of family courts, created an extrafamilial arena

for dispute resolution that signifies the stress caused by changing relations of production and the

evolving roles of women in modern Canadian society.19

Law and order, however, often came at the expense of equality before the law. For example,

women and girls tended to be arrested for moral offences. Fourteen-year-old Vera was committed

to the Industrial Home for Girls in Vancouver in 1929 for “prostituting herself with Hindus.” Hilda

was charged with being “incorrigible” because “she would not do what her father told her and was

too fond of going out to dances.”20 Ironically, these girls were accorded a degree of sexual agency

by their parents and by the same criminal justice officials who felt that young women who engaged

in illicit sexual encounters were “delinquents” in need of moral guidance and control.

Once captured and sentenced for their crimes, criminals were housed in prisons and asylums.

Ontario and Quebec were among the first provinces in the 1850s to construct lunatic asylums.21

Correctional institutions were makeshift, dark, disease-infested institutions that did little to

rehabilitate criminals. Indeed, some housed adult and juvenile criminals together. This practice

prompted late-nineteenth-century social reformers, such as the Rev. C.L. Ball of Halifax, to

denounce prisons as institutions that “confirm the criminal in crime.”22 Such views precipitated a

movement to build reformatories and homes of refuge for juvenile delinquents and “fallen women.”

Their efforts were part of an attempt to make Canada a more progressive, modern society, a society

Introduction 5

that had an efficient system of justice that ensured the preservation of social and moral order.

Nevertheless, Canada’s prisons, at least prior to 1945, usually punished, rather than rehabilitated,

men and women who broke the law.

Juvenile delinquents, on the other hand, were seen as representing the country’s future, and thus

worthy of being reformed. Juvenile courts stood as a testament to a more progressive and modern

attitude toward juvenile crime and delinquency. In the minds of some of its supporters, the juvenile

court could serve as an instrument of “social betterment,” not only for children, but for society as

a whole.23 As Nova Scotia’s attorney general, Orlando T. Daniels, argued in 1918, juvenile courts

were created in recognition of the fact that “children are children even when they break the law

... and every child has a right to a fair chance to become an honest, useful citizen.” 24 This view

underscored the belief that the future of the country could be placed in serious jeopardy if children

turned to a life of crime when they became adults.

Studying the history of crime and deviance is one way to measure the temperament of a society

and the nature of social relations in specific historical periods. Through this study we can see how

class relations are reproduced through the law, as are relations of gender, age, and ethnicity. These

relations together are relations of power, and the criminal law becomes the pivot around which

people’s lives are ordered.

The incidence of crime and deviancy, and the efforts to curb their outbreak, also highlights the rise

of the state in Canada. Indeed, state formation in Canada produced a strict regime of legal, moral,

and social regulation. Regulation that, as McLaren, Solomon, and Green, and Marquis demonstrate,

had a direct impact upon people’s lives, in particular, the lives of the “other”—Asians, Blacks, First

Nations, and “foreigners”—whom the justice system viewed as a threat to the moral and social

fibre of Canada. This regulation often assumed the form of laws that targeted these groups, notably

the Opium Act and the Pass System for Aboriginals. The implementation of these laws meant that

the state was able to exert the power of the criminal justice system over disadvantaged groups,

for example, in charging Asian men with possession of opium and purveying White slavery, and

confi ning Natives to their reserves.25

Canada also possessed social and criminal deviants whom the criminal justice system,

and segments of Canadian society, constructed, feared, and despised. The “other,” including

homosexuals, were, according to popular beliefs, prone to certain criminal acts, drunkenness

and public violence, White slavery, gambling, drug abuse, and “gross indecency.” Consequently,

their daily activities often came under close supervision by the police. This is where, according

to Maynard, Schmidt, and Kinsman, the power of the state to determine who is “normal” and

what is acceptable behaviour, and subsequently punish abnormal behaviour, dramatically affected

individuals’ work and private lives.26 Moreover, such perceptions fuelled racial and homophobic

sentiments, thereby further marginalizing these groups within society.

Class, gender, ethnic, and religious divisions were at times manifested in acts of crime and public

disorder. Moral and social order were two of the main principles upon which Canadian civil society

was thought to be based. So it was in this context of a fervent belief in the rule of law that crime

and deviance posed such a serious threat to social order. Many Canadians believed that crime had

to be controlled, criminals should be punished, and law and order must be maintained.

Hence the criminal justice system, despite the underlying principle of equality before the law,

failed to treat everyone who appeared in court as equal. The poor, women, ethnic minorities,

and social deviants all endured various forms of discrimination from Canada’s machinery of law

and order. This underscores the fact that in trying to regulate the social and moral behaviour of

some Canadians, the criminal justice system both reflected and perpetuated the socio-economic

inequalities that characterized much of twentieth-century Canadian society.

6 Crime and Deviance in Canada: Historical Perspectives

We hope you are as excited to learn about the history of crime and criminal justice in Canada

as we are to introduce it to you.

Chris McCormick and Len Green

With the assistance of Michael Boudreau

Notes

1. J. Habermas, Knowledge and Human Interests (Boston: Beacon, 1971).

2. M. Foucault, Discipline and Punish: The Birth of the Prison (London: Penguin, 1977); M. Foucault, “Truth,

Power and Sexuality,” in Subjectivity and Social Relations, edited by V. Beechey and J. Donald (Philadelphia:

Open University Press, 1985).

3. P. Rabinow, The Foucault Reader (Ringwood: Penguin, 1984).

4. B. Curtis, Building the Educational State: Canada West 1836–1871 (London: Falmer Press, 1988).

5. A. Giddens, Central Problems in Social Theory: Action Structure and Contradiction in Social Analysis (London:

Macmillan, 1978).

6. See in particular, E.I. Burley, Servants of the Honourable Company: Work, Discipline and Conflict in the

Hudson’s Bay Company, 1770–1879 (Toronto: Oxford University Press, 1997), and J. Bannister, The Rule

of the Admirals: Law, Custom and Naval Government in Newfoundland, 1699–1832 (Toronto: University of

Toronto Press, 2003).

7. C. Strange and T. Loo, Making Good: Law and Moral Regulation in Canada, 1867–1939 (Toronto: University

of Toronto Press, 1997), pp. 15–17.

8. D.G. Bell, “A Perspective on Legal Pluralism in 19th

-Century New Brunswick,” University of New Brunswick

Law Journal 37 (1988): 86–93.

9. J. Phillips, “The Majesty of the Law: Circuit Courts in Theory and Practice in Early Nova Scotia,” unpublished

manuscript.

10. The Halifax Herald, February 11, 1925.

11. For more on the notion of “rough justice” and violence, see S.W. See, “Nineteenth-Century Collective Violence:

Toward a North American Context,” Labour/Le Travail 39 (1996): 13–38.

12. A. Hunt, Explorations in Law and Society: Toward a Constitutive Theory of Law (New York: Routledge, 1993),

pp. 17–35.

13. This and similar incidents are discussed in J. Weaver, “Crime, Public Order, and Repression: The Gore District

in Upheaval, 1832–1851” and M.S. Cross, “Stony Monday, 1849: The Rebellion Losses Riots in Bytown,” in

Lawful Authority: Readings on the History of Criminal Justice in Canada, edited by R.C. Macleod (Toronto:

Copp Clark Pitman, 1988), pp. 22–63.

14. J. Phillips, “The Criminal Trail in Nova Scotia, 1749–1815,” in Essays in the History of Canadian Law, Vol.

VIII, edited by G.B. Baker and J. Phillips (Toronto: University of Toronto Press, 1999), pp. 469–511, and

J. Phillips, “Crime and Punishment in the Dominion of the North: Canada from New France to the Present,” in

Crime History and Histories of Crime: Studies in the Historiography of Crime and Criminal Justice in Modern

History, edited by C. Emsley and L.A. Knafla (Westport: Greenwood Press, 1996), pp. 163–199.

15. G. Marquis provides an incisive analysis of “British justice” in “Doing Justice to British Justice: Law, Ideology

and Canadian Historiography,” in Canadian Perspectives in Law and Society: Issues in Legal History, edited

by W. Wesley Pue and B. Wright (Ottawa: Carleton University Press, 1988), pp. 43–69.

16. D. Murray, Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791–1849 (Toronto:

University of Toronto Press, 2002).

17. Two excellent accounts of the workings of police courts are P. Girard, “The Rise and Fall of Urban Justice in

Halifax, 1815–1886,” Nova Scotia Historical Review (1988), pp. 57–71, and J. C. Weaver, Crime, Constables,

and Courts: Order and Transgression in a Canadian City, 1816–1970 (Montreal and Kingston: McGill-Queen’s

University Press, 1995).

18. A. Greer, “The Birth of the Police in Canada,” in Colonial Leviathan: State Formation in Mid-Nineteenth-

Century Canada, edited by A. Greer and I. Radforth (Toronto: University of Toronto Press, 1992), pp.

17–49.

Introduction 7

19. These issues are also explored by D.E. Chunn, From Punishment to Doing Good: Family Courts and Socialized

Justice in Ontario, 1880–1940 (Toronto: University of Toronto Press, 1992); A. Glasbeek, “Maternalism

Meets the Criminal Law: The Case of the Toronto’s Women’s Court,” Canadian Journal of Women and the

Law (1998), pp. 480–502; M.A. Poutanen, “The Homeless, the Whore, the Drunkard, and the Disorderly:

Contours of Female Vagrancy in the Montreal Courts, 1810–1842,” in Gendered Pasts: Historical Essays in

Femininity and Masculinity in Canada, edited by K. McPherson, C. Morgan, and N.M. Forestell (Toronto:

Oxford University Press, 1999), pp. 29–47.

20. I. Matters, “Sinners or Sinned Against?: Historical Aspects of Female Juvenile Delinquency in British

Columbia,” in Not Just Pin Money: Selected Essays on the History of Women’s Work in British Columbia,

edited by B.K. Latham and R.J. Pazdro (Victoria: Camosun College, 1984), pp. 270–271.

21. For a recent study on the evolution of asylums in Quebec and Ontario, see J.E. Moran, Committed to the Asylum:

Insanity and Society in Nineteenth-Century Quebec and Ontario (Montreal and Kingston: McGill-Queen’s

University Press).

22. The Halifax Herald, November 29, 1905. For more on the prison reform movement in Canada, see A. Cellard,

Punishment, Imprisonment and Reform in Canada, from New France to the Present (Ottawa: Canadian Historical

Association Booklet, 1905), no. 60.

23. M. Keller, Regulating a New Society: Public Policy and Social Change in America, 1900–1933 (Cambridge:

Harvard University Press).

24. The Halifax Herald, February 27, 1918.

25. J. McLaren, “Race and the Criminal Justice System in British Columbia, 1892–1920: Constructing Chinese

Crimes,” in Essays in the History of Canadian Law, Vol. VIII, edited by G.B. Baker and J. Phillips (Toronto:

University of Toronto Press, 1999), pp. 398–442; S. Carter, Aboriginal People and Colonizers of Western

Canada to 1900 (Toronto: University of Toronto Press, 1999); S.H. Razack, ed., Race, Space, and the Law:

Unmapping a White Settler Society (Toronto: Between the Lines, 2002).

26. For more on the construction of “normal” in post-war Canada, see M.L. Adams, The Trouble with Normal:

Postwar Youth and the Making of Heterosexuality (Toronto: University of Toronto Press, 1997).

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The majority of readings in this section deal with issues that predate Confederation. We also

see glimpses of a criminal justice “system” much different than the one we have today.

As such, these readings provide us with a framework with which we can better understand

today’s system of law and order. In tracing the evolution of a system of crime and punishment

that is strongly rooted in a British tradition, we also see a recognition of the French presence

in British North America, as well as Aboriginal, American, and Loyalist influences. While

these different methods of doing justice are perhaps quite difficult to recognize in our present

system, this pluralistic history has nonetheless fed into, and resulted in, the model of justice

that we have today.

In the first reading, Smandych and Linden explore the development of the private justice

system of the Hudson’s Bay Company to 1800. Initially granted a charter to advance trade in

what is now western Canada, the company was given authority to enact laws for maintaining

order among employees. This form of private policing quickly expanded to controlling relations

with local inhabitants, most notably the Aboriginal population that engaged in trade with the

company. The purpose of the study is to develop a better understanding of the evolution of

forms of governance that exist outside the formal state apparatus.

In the next reading, Murray looks at the role the Canadian–American border played in

shaping our criminal justice system in the period before Confederation. Although we might

consider problems associated with border control a modern phenomenon, the evidence

suggests that a number of issues have a rich history, including policies regarding extradition,

banishment, smuggling, and army deserters. In each instance, officials of the day were

conscious of the need to maintain good relations with their neighbours to the south, while

ensuring that British law was upheld. In deciding whether fugitives should be extradited for

crimes allegedly committed on the other side of the border, for example, judges were to decide

each case on its own merits. In deciding whether undesirables should be banished to the United

States, in contrast, officials appear to have taken a much more relaxed approach.

In the third reading, Stone documents the arrival of the North West Mounted Police on the

Yukon in 1894. Prior to their arrival, any disputes had been resolved in the miners’ meeting,

a relatively informal assembly of all interested miners in the area. The meetings appear to

have been quite successful in dealing with most complaints, and were modelled after similar

meetings that sprang up during the California gold rush. Thus, with the lack of much criminal

activity in the area, the real purpose appears to have been the establishment of a strong

Canadian presence in a frontier populated with Americans and American-style justice. As

such, the police were dispatched with the duty to not only maintain law and order, but also

to control the liquor trade with the Indians and to collect customs duties. More importantly, it

Developing Issues in

Crime and Punishment

PART I

10 Crime and Deviance in Canada: Historical Perspectives

shows how the state and its police agents appropriated conflict from people who had already

devised ways of dealing with it.

The final two readings look at the regulation of behaviours that were not always strictly

within the confines of the law. Early charivaris were organized to demonstrate public awareness

of a variety of marital issues, including, for example, suspected cases of cuckolding, adultery,

and “May–December” romances; however, the charivari was also used to warn wife-beaters

that their conduct would not be tolerated. This was particularly important at a time when

such behaviour was considered more of a personal problem than a legal one. Over time, the

custom evolved into a less structured way for younger members of the community (usually

male) to celebrate the wedding nuptials; the cacophony of noise would usually go on until the

noisemakers were invited in for some libation, or given money so they could make their way

to the nearest tavern. This form of popular justice also shows how people developed forms of

social control in the absence of a formal legal system.

This section ends with Marks’s examination of the use of gossip to exert control over

members of the church. In an analysis of an underexamined form of social control, churches

practised what she calls extralegal justice—that is, a form of administering justice outside the

formal justice system. What we say is that for a period of history, church courts were probably

more extensive and dealt with far more cases than the formal criminal justice system. It thus

constitutes a parallel justice system, again illustrating the pluralistic background that we have

inherited in Canada.

*****

This paper undertakes a case study of the

development of the private legal system of

the Hudson’s Bay Company to 1800. The

study is based mainly on primary historical

data held in the archives of the Hudson’s Bay

Company.2 In 1670, a Royal Charter granted by

the English monarchy gave the Hudson’s Bay

Company exclusive control over an area that

encompassed most of what is now the western

part of Canada. As part of its original charter,

the Company was given the power to enact

any laws and regulations, not repugnant to the

laws of England, that were deemed necessary

to govern its relations with its servants and

to maintain social order in the territory of

Rupertsland. In 1821, the Company was granted

a license to extend its trade monopoly and legal

authority to encompass the territory referred to

as “Indian country,” which included all of the

land beyond Rupertsland whose rivers drained

into the Pacific and Arctic Oceans. 3 In effect,

the Charter of 1670, along with later enabling

legislation, gave the Board of Governors of the

Company the authority to govern a territory that

covered approximately 5% of the land surface

of the earth.

Elsewhere we have looked at how the private

justice system of the Hudson’s Bay Company

served as a tool of European colonialism in its

CHAPTER 1

Administering Justice without the State:

A Study of the Private Justice System of

the Hudson’s Bay Company to 18001

Russell Smandych and Rick Linden

application to aboriginal peoples in Western

Canada. 4 However, this system was also used

extensively to control the activities of Company

employees. In this paper, we present evidence of

the manner in which the private justice system

of the Hudson’s Bay Company was applied to

Company servants in the period before 1800.

In addition to drawing on early published

correspondence and reports, the study highlights

the evidence found in selected Hudson’s Bay

Company post journals covering the period

from 1705 to the beginning of the competitive

fur trade era in the 1770s. Specifically, the

study is concerned with examining how the

orders passed by the Board of Governors of

the Hudson’s Bay Company concerning the

behaviour expected of Company employees

were enforced by Bayside governors and other

officers of the Company. In addition to offering

new historical information about the system

of “non-state” governance put into effect by

officers of the Hudson’s Bay Company, the

following study of order and disorder within

the ranks of the HBC provides an empirical

foundation for broader theorizing about the

nature of non-state forms of governance and

about the transition from a paternalistic to a

contractual system of employee regulation.

While traditional historians may feel that it

is somewhat misguided and anachronistic to

12 Crime and Deviance in Canada: Historical Perspectives

undertake a study that distinguishes between

“state” and “non-state” governance in the

17 th and 18 th centuries, since the role of the

“government” (conceived of in the traditional

sense of legislatures and lawmakers) was very

limited during this period compared to later, this

potential criticism of the following study misses

the point made by Foucault that the study of the

“art of government” can include both the study of

the government of populations outside the state,

as well as the study of the degree of the role the

state itself may have played.5 In conclusion, we

argue that historical case studies of companies

like the Hudson’s Bay Company offer a more

adequate empirical foundation for theoretical

work aimed at unraveling the complex and

varied ways in which legal ordering and social

control occur outside the state.

Hudson’s Bay Company Law

The HBC remained a dominant presence in

Western Canada until 1870. By the mid 19 th

century, the Company had established more

than 100 fur trading posts in Rupertsland and the

“Indian Territories.” In the early years following

1670, the Board of Governors of the Company

in London (often referred to as the London

Committee) produced an elaborate set of laws,

policies, rules, and ordinances as a foundation

for establishing its own private legal system. For

nearly 200 years, the Company exercised the

power it was granted by the English monarchy

to enact any laws and regulations that were

deemed necessary to govern its relations with its

servants and to maintain social order throughout

the vast territory of Rupertsland, and later the

“Indian Territories.” Oliver summarizes the

law-making powers granted to the Board of

Governors of the Hudson’s Bay Company in

the Charter of 1670:

The Governor and Company might assemble

and make laws and ordinances for the good

government of the Company and its colonies

and forts, and for the advancement of trade.

They might impose penalties and punishments,

provided these were reasonable and not

repugnant to the laws of England. None of the

Kings’ [sic] subjects were permitted to trade

within the Company’s territories without leave

from the Company under penalty of forfeiting

their goods, one half to the Company, the other

half to the King. The Company was given the

right to appoint Governors and other officers,

to try civil and criminal cases and to employ

an armed force for the protection of its trade

and territory. 6

The legality of the Charter of 1670 and the

law-making powers it granted were reaffirmed

through the enactment of further enabling

legislation by the British Parliament and through

legal opinions and judgements that resulted from

challenges to the Company. In 1690, the Act

for confirming to the Governor and Company

trading to Hudson’s Bay their Privileges and

Trade 7 reaffirmed the legal powers granted to

the Board of Governors of the Company in the

Charter of 1670.

[I]t being necessary that such a Company should

have sufficient and undoubted powers and

authorities privileges and liberties to manage

order and carry on the said Trade and to make

Bye laws orders rules and constitutions for the

due management and regulation as well of the

said Company as Trade and for the punishment

of offenders and recovering of forfeitures and

penalties which cannot be so effectually done

as by authority of Parliament.

Although the Act of 1690 also stipulated “this

Act shall continue and be in force for the term

of seven years and from thence to the end of the

next Sessions of Parliament and no longer,” for

almost 200 years the Hudson’s Bay Company

continued to claim it had legal jurisdiction over

territory of Rupertsland, even when contrary

legal opinions declared that the Charter of 1670

was illegal, and should no longer be considered

to be in effect.8

Until 1803, the London Committee was left

on its own to enact laws for maintaining order

Administering Justice without the State 13

and for carrying out trade with the Indians.

There were a number of challenges to the system

during this period, but it was not until after 1812

that the London Committee acknowledged that

its power to enact laws in western Canada was

limited by its delegation of judicial powers to

the Governor and Council of Assiniboia which

governed the Red River Settlement.9

Merchant Capitalism

Trading companies such as the Hudson’s

Bay Company and the East India Company

exemplified 17 th -century British merchant

capitalism. They were colonial monopolies

operating under the authority of the Crown

which were designed to maximize profits for

stockholders by harvesting the natural resources

of the empire and to “maintain the interests of

the crown by carrying out exploration, territorial

expansion and law making.” 10 The profit

motive was clearly stated in the 19 th century

by Fitzgerald:

[T]he Hudson’s Bay Company enjoys a right

of exclusive trade with the Indian population.

This right of exclusive trade is, practically and

positively, a right of exclusive property in the

labour, life and destinies of the Indian race. It is

an absolute and unqualified dominion over their

bodies and their souls—a dominion irresponsible

to any legal authority—a despotism, whose

severity no legislative control can mitigate,

and no public opinion restrain. It knows but

one limit, and obeys but one law,—”Put money

in thy purse.”11

The focus on profit helped determine the labour

relations policies of the trading companies, which

tried to get the most work from employees at the

least cost. Since the motivation of employees

was often quite the opposite, the companies

had to develop and enforce systems of rules and

regulations. The distance from home, along with

the harsh physical environment and the dangers

of living in Rupertsland, compounded the order

maintenance problems faced by the company.

Hudson’s Bay Company Labour

Relations

*****

In the following sections, evidence is

presented which suggests that disobedience

and insubordination were also a problem for

Company offi cers in the century prior to 1770.

The historical evidence also seems to suggest

that the labour relations system of the Hudson’s

Bay Company was in fact a transitional one

between a paternalistic system in which servants

were part of the household and treated like

part of the family (albeit a poor relative) in

exchange for their labour and loyalty, and a

capitalist system in which wage labour was a

commodity whose value was set by the forces

of the market.12 In several respects, the working

conditions of labourers and craftsmen in far-

flung trading posts anticipated those of factory

workers after the Industrial Revolution. In this

respect, Company employees had much in

common with those working for the merchant

marine.

Parallels between Trading

Companies and the Merchant

Marine

[…] The situation of employees of the Hudson’s

Bay Company was very similar. They were

working in relatively small groups isolated from

friends and family; they were distant from the

British legal system; and they were required

to work effectively and efficiently in order to

ensure profits for their corporate masters. In

both cases, the paternalistic system, exemplified

by the manorial estate, was breaking down and

being replaced by a market-driven system. The

strain created by this transition led to conflict

and tension between masters and subordinates

in both the merchant marine and the trading

companies.

Rediker concluded that maritime industries

developed a system of “disciplinary paternalism”

to work through this transition. Sea captains

tried to legitimate their authority symbolically

by playing the role of masters, rulers, or even

14 Crime and Deviance in Canada: Historical Perspectives

“fathers” who were responsible for ensuring

the character of their men as well as for sailing

their ships. This degree of authority was upheld

by the law through the admiralty courts and

through the sailors’ contracts. During an earlier

time when trade was typically closer to home,

ships were run on a more egalitarian basis and

all on board often held shares in the goods

transported. However, in the late 17 th century,

voyages became longer, crews became larger,

and trade became more important to the empire.

Under these new circumstances, the captain’s

authority became more autocratic. His authority

was transmitted through a hierarchical structure

with clearly differentiated ranks and roles. Men

of all ranks and statuses were clearly subordinate

to the captain, who was the representative of an

employer far-removed from the direct operation

of the deep-sea sailing vessel. The captain had

a great deal of authority to define what was

right and wrong on his ship. Rediker illustrated

this point with a quotation from an 18th

-century

mariner: “There is no justice or injustice on

board ship, my lad. There are only two things:

duty and mutiny—mind that. All that you are

ordered to do is duty. All that you refuse to do

is mutiny.”13

Rediker has recognized that these sailing

ships were total institutions. Like prisons and

monasteries, life onboard ship encompassed

all aspects of the crews’ activities. Goffman 14

has enumerated several characteristics of

total institutions. Among these are: all aspects

of life are conducted in the same place and

under the same authority; all daily activity

is carried on in the company of others who

are doing the same thing; all activities are

scheduled and these schedules are imposed by

officials; these regimented activities are part of

a plan designed to fulfil the stated aims of the

institution; and there are significant barriers

between the managed group (inmates, sailors,

or workers) and the managers (captains, factors,

or officers). The nature of these institutions is

such that the manager, in this case the captain,

has nearly dictatorial power over all facets of

the lives of his subordinates. This power was

often expressed in acts of extreme cruelty, but

as with other total institutions, a regime of terror

is not an efficient way to manage a ship for an

extended period of time and there were many

examples of resistance by the sailors even to

the point of mutiny. Eventually, order must be

negotiated between captain and crew or the

work effort will fail.

The parallels between the merchant marine

and the Hudson’s Bay Company are obvious

and are understandable given the similarities

we have noted between sailing ships and

trading posts. Like the ship, the trading post

is a total institution where all residents were

supposed to work together under conditions

which were at times dangerous, with the goal

of making profits for the Company. While there

were many paternalistic elements involved in

the management of the posts, there were also

strains caused by the workers insisting on more

freedom than Company officers were prepared

to allow.

In the rest of the paper, we will describe the

system of employee discipline in the Company

with a particular emphasis on one post—Fort

Albany. In this analysis, we find that there were

many paternalistic elements involved in the

management of the posts and discipline was

at times highly coercive. However, we also

see a transition to a system of discipline that

was based on the law rather than on Company

order and in which post councils were used as

juries and the accused was able to exercise some

legal rights. This move away from a strictly

paternalistic system of governance illustrates

the transitional nature of the disciplinary system

within the Company in the 18th century.

Employee Discipline within the

Hudson’s Bay Company

Although the system of laws, policies, rules,

and ordinances that came into being during the

period of Hudson’s Bay Company control was

complex and constantly changing, the London

Committee paid particular attention to a number

of concerns throughout the period. One of these

was the problem of “private trading,” while

Administering Justice without the State 15

another was regulating the manner in which

Company servants were “conversing” with the

Indians.

At one of its first recorded meetings, on 17

May 1672, the London Committee passed an

order concerning private trade which stated

“[t]hat all persons to be imployed Shall enter

into articles or otherwise oblige themselves

not to trade in beaver upon forfeiture of theyr

goods & wages.”15 During the next decade, the

London Committee issued several additional

orders and policies to prohibit Company

servants from siphoning profits from the fur

trade that the Committee felt should go to

stockholders. It is also noteworthy that, from

its earliest years, the Company took steps to

ensure the loyalty of its employees. According

to the minutes of the meetings of the London

Committee, in adherence with an enabling

clause of the Charter of 1670, the Company

adopted the policy of requiring employees

to swear an oath of loyalty to the Company.

At the meeting of 22 December 1673, it was

ordered “[t]hat the Committee prepare an oath

to bee administered to all the members of the

Company & others relateing to theyr Service,

accordeing as the Charter Shall directe.” At the

meeting of 29 January 1674, it was ordered

that a copy of the Charter be delivered “to Mr.

Rastell, accordeing to the direction whereof

hee is to prepare an oath to be administered

to the members of the Company & to theyr

Servantes, & alsoe an affidavit to be drawn up

to bee Sworne to by Such as Shall bee deemed

needfull.”16 This appeal to loyalty is very similar

to symbolic means of order maintenance used

on sailing ships. Despite the efforts made to

ensure the loyalty of Company servants and to

prevent them from engaging in private trade, the

London Committee was never able to stop less

honest servants from taking some profits from

the Company’s stockholders.17

Company servants were forbidden from

engaging in unauthorized fraternizing with

the Indians until the late 1700s. This law

against “conversing” with the local Indian

population was closely tied to the Company

rule prohibiting servants from having sexual

relations with Indian women or taking them

as “country wives.” These policies may have

been passed because the English did not trust

Indians because of their prior contact with, and

potential loyalty to, French fur traders who came

to Western Canada overland from Montreal.

Limiting contact with the Indians also reduced

the likelihood of private trading. […]

*****

The prohibitions against contact with natives

remained in effect until the late 1700s when

everyone realized they were impossible to

enforce. Almost from the time they began

building their posts on the shores of Hudson

Bay, the local postmasters (referred to also

as Chief Factors and Bayside governors) and

other higher-ranking Company servants began

marrying “country wives,” and sometimes

raising sizable families with them. […]

*****

Although the problems of private trading and

fraternizing with the Indians were two concerns

that were perennially addressed by the London

Committee, […] it appears that, despite clearly

written orders from London disobedience and

insubordination were also often the norm in the

period before 1770.

Early evidence in support of this argument

can be found in the report Governor John Nixon

wrote to the London Committee in 1682.18 In his

report, Nixon provides an account of the unruly

behaviour of Company servants that he was

forced to put up with, along with an account of

the steps he claimed he was taking to try and get

the servants to obey his orders. Nixon told the

London Committee that it was very important

to leave a reliable person in charge of the posts

that were being set up on the Bay because the

men couldn’t be trusted to govern themselves.

In addition to complaining about the widespread

private trading and routine drunkenness he

often witnessed among Company servants and

the crewmen of HBC ships, Nixon complained

that he had to put up with constant verbal abuse

16 Crime and Deviance in Canada: Historical Perspectives

and the threat of physical violence, because he

did not have the power to force the men to obey

his orders. […]

*****

Nixon pointed out that his inability to exert

adequate control […] was also due in part to

the lack of clear guidelines from the London

Committee concerning the type of legal

system that should be put into place to deal

with disobedient and dishonest employees.

Specifically, Nixon noted that he was uncertain

about whether either military or civil law

was “the law of England” that he should be

putting into force. He also offered the London

Committee his advice on the system that should

be put into place to deal with Company servants

who committed acts that were defined as

crimes by the Company and the King. Nixon’s

comments on these matters are worth quoting

at length, since they bear directly on the origins

of the private legal system of the Hudson’s Bay

Company that would exist in Western Canada

for the next 150 years. Specifically, Nixon told

the London Committee:

[M]y commission is to governe efter the lawes

of England, but which of them, military or sivill,

and if I were capable of both I have not power to

put them in practice, all that I can doe at present

is only to send them home, and wryt their fact,

so that they have the opportuniety of cleering

themselves and accusing of me, for it hath been

the speach of some all reddy that if they had a

minde to goe home, they had no more to doe

but to make a mutiny and so they should be

sent home, such things is in custome heare for

which they would be severely punished in other

places, therefore if there be not some lawes put

in practice heare, there will unavoydably some

notable dissaster befall the country, and I am

sure no government at present can stand with

the constitution of this country, but military

and no law but martiall at present. But if your

honors, see that martiall lawe is either too severe

or that it can not be granted, I doe not desire it

in the large latitude thereof, so far as to extend

to lyfe and death, for that is a thing which if I

could avoyd I would not pass sentance of death

on any man, but the crime being such, as that

by a counsell we may prove the fact against a

criminall, according to the booke of articles in

that casse provyded, and accordingly chastise

him with corporall punishment for ane example

to others, or else to send him home in irons to

receave his punishment in England, as the case

may require, these things may bring the country

into good order in tyme, and put a great stop to

lisentiousness, for without some thing of this

nature the country will still lye in danger.19

*****

The Role of Post Councils in

Maintaining Discipline

From a very early date, the London Committee

also appointed a specific number of Company

officers and ship captains to serve as members

of “Post Councils” (or Councells), that were

to assist the governor in making decisions

that needed to be made on-the-spot when he

was not able to first consult with the London

Committee. […]

Post Councils before 1696

Evidence suggests that from as early as the

1680s, post councils played an active role in the

operation of the private internal legal system of

the Hudson’s Bay Company. […]

[…] It is somewhat surprising to find evidence,

given that throughout the years from the mid

1680s to 1713, England and France fought over

the fur-trade posts in Hudson Bay, and military

law was clearly in effect during this period.20

It is significant that at the first council meeting

recorded by Nixon, which was held at Charleton

Island on 28 October 1681, a decision was made

bearing on the problem of how social order

and discipline were to be maintained at the

different locations at which the Company was

beginning to set up bayside posts. Specifically,

Nixon reported on the decision he and his

councillors made when they were faced with

potential disciplinary problems that arose from

Administering Justice without the State 17

the fact that cold weather and frozen ice had

left them stranded on Charleton Island away

from the posts on the mainland. In order to

prevent the men on the mainland from rising

up in mutiny and stirring trouble among the

Indians—as Nixon reported usually occurred

when they were left without someone to watch

over them—the council ordered that:

[f]or the better Saveing of the Companeys

Goods, and Keepeing all things In good Order,

that the yaucht Colleton & her Companey wth

the Governor Doe Remaine Att Charleton Island,

& there to winter, that she may be the more Safe

to serve the Companey the next Spring, & that

Mr. Tho. Phypps [Thomas Phipps], whom

we have found Abell and Willing be Deputed

Deputy Governor & If Wind & weather Shall

Searve, with the first Opertunitye himselfe &

four hands more will Trye If Possible to Gett

to the Maine, In A Boate, & from thence To

Travell for Prince Ruperts West River, & there

to take Charge of all things, as Deputy Governor

ought to doe, Given under our hands this present

Instant.21

Another indication that the London Committee

encouraged collective decision-making, instead

of imposing a strict form of military rule in

which the governor held absolute power, can be

seen in the instructions that were given to James

Knight in 1692 when he was commissioned as

“Governor & Cheife Commander” of all of the

forts and other lands and territories claimed by

Hudson’s Bay Company in North America. 22

Knight was ordered to sail into Hudson Bay,

and begin retaking HBC posts that had been

captured previously by the French. […]

Knight was also told to take into account

the advice of councillors in the event that he

succeeded in either recapturing or establishing

new posts on the bottom of the Hudson Bay:

“When you are able & you are possest of a

proper place you are to Build & settle a Fort

& Factory, but it were much better to take it

ready erected & Fortefied from the French

which indeed is our Owne, An as soone as you

enter upon Deliberation you shall Constitute a

Councell for the better consulting & Concearnes,

which we referre to you to Chose out the most

discreet & sober persons about you A most

faithful to our Intrest.23

During the period in which the Hudson’s

Bay Company was struggling to regain its

posts on the bottom of the Bay, James Knight

was encouraged to treat the men under his

command with a blend of strong military

discipline tempered with a system of collective

decision-making and benevolent paternalism.

The London Committee also hoped that this

paternalism would be extended to the Indians

who would bring in the furs the Company

needed in order to recoup the losses it suffered

because of the Anglo-French rivalry over the

Bay. This view is clearly reflected in the part

of Knight’s instructions that spelled out how he

was to conduct himself in his role as governor

and chief commander. With respect to the

treatment of Indians, the London Committee

noted:

If you chance to come to a Trade with the Indians

Wee need not tell you how you shall treat them,

with all humanity Justice & Kindnesse, you

being soe well acquainted with their Natures

& your owne Experience teaching you. But at

this time it is more especially necessary when

they have missed us soe long in those parts &

wee believe are weary enough of the French, &

therefore Wee hope by a smooth Carriage with

them you may make them very usefull to your

designe or at leat gett good information from

them of the strength of the French & (heir Trade

wherby to forme your approaches the better.24

On the matter of how he was to govern over

the men placed under his command. Knight

was told that:

Wee have ordered [the ships’ captains] with

their Crew to attend you all the Winter & as

long as they stay there to observe your orders

18 Crime and Deviance in Canada: Historical Perspectives

& Directions, to forward your Buildings &.

fortifications, & in fine to Obey & execute what

ever Commands you impose upon them in order

to [do] Our Service whether of building trading

or any other works whatsoever or of attacking

the Enemy ... And for the makeing your owne

men & the Shipps Companies more useful to

you upon any extraordinary occation Wee doe

Order you to Muster & Traine them all & to keep

them in the exercise & understanding of martiall

Discipline, that in Case of an Enemy they may

more couragiously stand by you & discharge

their Duties either at Sea or Land both to their

Matie & us. 25

The fact that James Knight took this order

seriously, and indeed imposed a system of

strong military discipline on Company servants

in the early years following the retaking of

Albany, is revealed in documents relating to

the punishment of mutineers at Albany between

1694 and 1696. 26 The miscellaneous files for

Albany Fort, dated 2 October 1694, contain

two depositions from Company servants who

both claimed to have heard Joseph Eglinton

threaten to sink the Perry Friggat, because of

the way he was being treated by HBC Company

officers. […]

Although it is not known how Joseph Eglinton

was punished for making these threats, there is

evidence that other Company servants who

acted in a similar way at Albany Fort in 1696

were severely punished under orders from

James Knight and the post council at Albany.

In one of these cases, James Knight charged a

servant by the name of John Cartwright with

“stirring up Mutiny and Rebellion in the Factory

(and) endeavouring the utter destruction of the

Government and Countrey [by] throwing out

lyes and false reports upon my Deputy and his

Brother.” […]

*****

According to Knight, a further aggravating

circumstance in Cartwright’s case was that when

he was told by another servant that there would

be no ships coining from England, and that as a

result they would out of necessity “be forced to

eat Succoo’s [which] is [the] Indian Name of a

Carp,” he replied that they should all “[g]o to

the Gov:r and demand the ship to go home.” The

sentence and punishment Cartwright received

for his attempt at causing a mutiny were stated

as follows:

The Gov:r And Council takeing the above

mentioned thinges into serious consideration,

well pondering and Considering the Bad

Inconveniencie that doth accrue from such

factious turbulent follows To prevent the like

for the future and that it may be an example to

others, hath ordered that you John Cartwright

Shall be whipt thirty stripes. Lye in Irons

confi ned close prisoner, and fed upon Succoo’s

as you call them, till either Our ships arrive here

from England to carry you home, or the Ship

wee have Now in y:e Countrey Go from their.

Dated at Albany fort America y:e 15:th day of

August 1696. 27

*****

Post Councils after 1713

Although it is evident that the London Committee

believed that military discipline was needed in

order to regain control of the Bay, evidence

suggests that, in later years, and certainly after

the signing of the Treaty of Utrecht in 1713,

which ended the French–English rivalry over

the Bay, a more civilian- (or English common

law-) based legal system, which included the

use of post councils as juries and the granting

of more legal rights to the accused, was used

at certain times to deal with dishonest and

disobedient Company servants.

One indication of this can be found in the

surviving transcripts of one of the first post

council meetings that was held at York Factory

after it was reclaimed from the French by James

Knight in 1714. 28 On 27 December 1715, a

Company servant named Thomas Butler was

placed on trial at York Factory for a number of

crimes that he was alleged to have committed.

Administering Justice without the State 19

This formal criminal trial was presided over

by James Knight and five Company officers

“sitting in Councell for Maintaining & keeping

the (legal) Rights & Priveleges of (the) Crown

of England as by Law Established.”29

Thomas Butler was arraigned and brought

before the Council to be tried for several

“high and Misdormeanour” crimes, which

included: “Feloniously Stealing at Sundry

times,” “threatening Mens Lives” using

“very Unbecomeing Languages abuseing his

worthy Gover:or,” and “most Slanderously

Scandelizeing his Hon:ble Masters the Company

in England (which led) to the Subverting of this

Goverm:t by causeing ... Misunderstandings

Among the Men” about the wages they were

entitled to receive from the Company (Butler

was accused of spreading rumors that the

Company was broke and that no one would get

paid the wages they were owed). Butler was also

charged with disobeying the “Expres Orders”

of the London Committee which prohibited

unauthorized fraternizing with the Indians.

Butler was accused specifically of threatening to

cause the Indians to rise up against the Company

because of his “Abusing the Natives here by

lyeing with a Woman of this Country.”30

*****

In order to ensure him “a fair and Legall

hearing,” before they proceeded to pass their

verdict, the council gave Butler the opportunity

to bring forward any person he could who might

speak on his behalf or defend his reputation.

However, it was recorded that Butler did not

do this and that he spoke “but little in his

own Defense.” Unfortunately, although the

surviving transcripts state that “Thomas Butler

was found Guilty of the Aforewritten Crimes

Unanimously Agreed to by us all the Govern:r

& his Councell,” there is no record included of

the sentence that was imposed on Butler for his

crimes. In any event, this trial provides us with

a good indication of the role played by early

post councils in administering Hudson’s Bay

Company law.31 […]

Order and Disorder on the Shores

of the Bay: An Analysis of Albany

Post Journals and Correspondence,

1705–1742

In the years following 1714, Albany and

York became the largest and most important

Hudson’s Bay Company posts on the shores

of Hudson Bay. During the first half of the 18 th

century, the size and profits of the Company

also grew substantially under the leadership of

Sir Bibye Lake,32 and several other HBC posts

were established on and later inland from the

Bay. […]

[…] There is a considerable amount of

variation in the manner in which different

Bayside governors and other Company officers

attempted to enforce the orders and policies

written by the London Committee. In addition,

evidence suggests that, while some Bayside

governors were perceived by Company servants

as being cruel and inhumane, others appear to

have been much more well-liked and respected

(or at least more often listened to) because of

the way in which they conducted themselves

in dealing with the men who were nominally

subjected to their orders. […]

Crime and Governance at Albany,

1705–1739

With the French occupying York, and with

Moose Factory and Rupert House abandoned

between 1697 and 1714, Albany was the only

permanent post in the Company’s possession.33

From 1693 to 1697, James Knight served as the

governor of Albany Fort, and following him,

John Fullartine became governor until 1705.

When Fullartine decided to resign in 1703, he

recommended Anthony Beale to the London

Committee as someone who was “a very

careful, honest man and knows the affairs of this

country as well as most men that ever were in

it and deserves encouragement as being an old

servant and one that has always been faithful

to his masters.”34

*****

20 Crime and Deviance in Canada: Historical Perspectives

The post journal kept by Beale from

September 1705 to July 1706 35 reveals that,

during this time, the London Committee was

still requiring Bayside governors to enforce

British military law. […]

The post journals Beale kept during his

second term from 1711 to 1714 show that he

continued to be concerned about keeping his

men in a state of military readiness to guard

against Indians and the French. 36 However,

entries for this period record only one case in

which he arguably used “military law” to deal

with dishonest Company servants. In his entry

for 25 January 1713, Beale reported that he “had

the Good fortune” to find out the names of four

men who were guilty of stealing food from the

“flanker and warehouse By breaking open the

flank ports and Leaving y:e [the] factory open to

an Enemy.” Beale also reported that he put the

four men in irons and that he planned to “find

outt othars if thare be any” and “punish them”

as they deserved. In his journal entry written

the next day, Beale reported that although the

men would not admit of any other confederates,

they did confess that they had stood watch for

each other, and that they had frequently stolen

extra food [like sugar plums and cheese] from

the warehouse since they all arrived together

at Albany on the last ship from England. As to

their punishment, Beale wrote that he “tied them

hand and futt and stript them naked to thar wast

and (whipped) them Prety Souarly in so much

(that he promised) Never to be of the Same any

Moore.”37

*****

After Thomas Macklish took over as governor

in 1715, he […] wrote the London Committee

on several occasions, outlining the steps he was

taking to protect the Company’s interests in the

Bay. 38 In his letter of 16 July 1716, Macklish

noted that, as the London Committee had

ordered, after he had taken charge as Governor,

he proclaimed King George “as right & Lawfull

King of great Britain, & y:e [the] Territories,”

according to the form perscribed, and he

promised that he would “keep good watch both

night and day,” remembering how the French

had nearly captured the factory in 1709, “had

not Governor Fullartine given the first alarm.”

Macklish also gave the London Committee

nearly the same story as Beale about how he

promised to watch over the men at Albany,

in order to encourage personal discipline and

prevent them from spending all of their wages

on brandy.

*****

In his letter to the London Committee, written

three years later,39 Macklish reported on how he

was continuing to restrict the amount of brandy

that the men were allowed to purchase from the

Company, warehouse. […]

Macklish also used this letter to comment on

how he would treat the newly hired Company

servants who had arrived at Albany in the

summer of 1719, noting that “[t]he men sent this

year Appears to be lusty able young men And

hope will answer expectation, and according as

they behave themselves Shall be used with all

the Civility Imaginable.”

It is no doubt the case that some of the

Company’s Bayside governors did treat the

men under their command with civility and

respect, and that the men in turn reciprocated.

Evidence of this can be found in letters that

the succeeding governors, Joseph Myatt and

Richard Staunton, sent back to the London

Committee in the early 1720s. On 22 August

1722, Myatt wrote, thanking the London

Committee for appointing him as Governor of

Albany, and reporting on how he was carrying

out the orders that he had received from the

Committee.40 Myatt commented specifically on

how he was enforcing the Committee’s order

against allowing men to borrow against their

wages (to buy brandy and pay gambling debts),

and he reported that most of the men were now

following this order. […]

*****

However, Myatt was subsequently demoted

to deputy governor because the Committee felt

he had not exercised sufficient discipline within

Administering Justice without the State 21

the post. In addition to allowing Indian women

access to the Fort, Myatt let the men drink large

quantities of brandy. After writing to the London

Committee on 10 August 1726, informing it

that four servants had died at Albany in the last

year, 41 the Committee wrote back to Myatt,

informing him that: “[W]hereas we have to

believe the excessive drinking of Brandy hath

been the cause of the Death of some of our

Servants, to prevent which for the future, we do

hereby order you to punish all Persons who are

contrivers and promoters of such Wickedness,

and to send Us their Names in order to their

being sent ... Home, likewise not to suffer them

to Collect quantities of Brandy together with a

design to make themselves Drunk, which we

are inform’d hath often been practis’d, but we

are resol’d to remove all such Persons from our

Service.”42

Myatt’s experience at Albany in the 1720s

highlights the difficulty more than one Bayside

governor must have faced in trying to balance,

enforcing the orders of the London Committee

against the need for getting cooperation from the

Company’s bayside servants. There is evidence

that the chief factors at both Albany and York,

as well as at other posts experienced similar

difficulties.

Crime and Punishment at Albany

under Joseph Isbister

One Bayside governor who acquired a reputation

for harsh discipline is Joseph Isbister, the Chief

Factor at Albany during the 1740s. Isbister

began his career with the Company in 1726

as “servant” on board the Hannah Frigate

sailing between England and the Bay, and he

worked as a crewman on HBC ships travelling

back and forth across the Atlantic until 1835,

when he was hired on again as a “Sailor,” with

orders to proceed to the Bay. On his arrival at

Albany in 1735, Isbister was appointed Master

of the Eastmain Sloop and in September he

sailed for Eastmain where he spent the winter

of 1735–1736 and each of the four succeeding

winters. In August 1740, Isbister was appointed

by the council at Albany to succeed Rowland

Waggoner as the Chief Factor at Albany—

who it was commonly believed had died of

“immoderate drinking and other debauchery”43

and this decision was subsequently confirmed

by the London Committee. Over the next 16

years, Isbister served several terms as the Chief

Factor at Albany and Fort Prince of Wales.44

Isbister’s career provides a great deal of

insight into the “problems of management and

discipline” experienced by HBC governors and

the London Committee. 45 One reason for this

is that, when Isbister’s appointment as Chief

Factor was confirmed by the London Committee

in 1742, he was specifically commanded to

stamp out drunkeness and private trade, and

“hinder as much as Possible the detestable Sin

of Whoring.”46 Following these orders, Isbister

instituted a strict military regimen at Albany,

and he often resorted to physical force to punish

disobedient servants. In addition to antagonizing

Company servants by imposing a system

of strict military discipline, Isbister raised a

great deal of protest because of his attempt

to prohibit everyone—except himself—from

having contact with Indian women. Mainly

because of these reasons, the post journals

kept by Isbister at Albany during the 1740s

and 1750s, along with coinciding inward and

outward correspondence, provide a rich source

of primary data on the qualities and problems

of governance experienced by servants of

the Hudson’s Bay Company in the mid-18 th

century.

The post journal Isbister kept while he was

stationed at Eastmain from 1736 to 1740 also

contains data on the way in which he tried to

impose a strict system of military discipline on

Company servants. 47 […] In the post journal

entry he wrote after having served just over

a year as the Chief Factor at Albany, Isbister

complained to the London Committee about

the lazyness of earlier chief factors, and how

this resulted in the fact that the fort was in a

state of crumbling disrepair. In his journal entry

for 16 September 1741, Isbister complained he

was forced to make extensive repairs to the fort

because the “Masters” that came before him

22 Crime and Deviance in Canada: Historical Perspectives

“Sat att Theire Eas & Cried [they] would Serve

There Times Taking no Care for ... Any Part of

y:e Factory but y:e Square house That They

lived in.” Isbister told the London Committee

that he could also have sat on his ass like the rest

of them, but he wasn’t the type to be “Caring

for Nothing as Long as they Could but Get there

Mugg and There boull & Pip of Tobaco to pass

The Time away [and] Lete all Go to wreck And

rewin.”48

*****

Despite the boasting he did about his success

at restoring order at Albany, the post journals

Isbister kept from 1740 to 1742 are full of

examples of employee disobedience and

insubordination. When he took over as governor

in August 1740, Isbister had 17 men under his

command at Albany and 9 men at Eastmain. In

his very first entry in the Albany post journal,

dated 22 August 1740, Isbister reported that,

after being appointed as the “Master of Albany

Fort” in the afternoon, he ordered some of the

men to go out and gather some stones for ballast

for the sloop and to cut some wood. Isbister also

recorded the fact that, rather than following his

commands, a labourer named Ralph Whitte, as

he had been doing all winter, “Gave me [an]

abundance of ill Language & would Not work”

and “he also chalinged me to fight.” As he would

do so many times in the future, Isbister said that

“for his Great incelance [insolence]” he flogged

him “Very hartely with my hands.”49

*****

By the end of March 1742, Isbister felt that

he had finally succeeded in restoring order at

Albany. To cement his success, he decided both

to post a new copy of London Committee’s

longstanding orders on employee behaviour,

and introduce a new set of detailed regulations

concerning the officers’ and servants’ mess.

Isbister also wrote a boastful account to the

London committee outlining the steps he had

taken to put an end to private trading and

bootlegging that was still being encouraged by

the captains of HBC ships.50 Reading between

the lines of Isbister’s 18th

-century English,51 it

is obvious that one of the things he tried to do

was to stop Company servants from stealing

furs and other goods, which they then bartered

for liquor. However, just as we know that

other Bayside governors were never able to

completely stop private trading, it is unlikely

that Isbister actually ever succeeded in putting

Albany Fort into a perfect state of order. Indeed,

the fact that Isbister resorted to imposing

corporal punishment on Indians and Company

servants alike throughout the remaining years

of his tenure at Albany 52 clearly suggests that

he was never able to stamp out resistance and

opposition to his rule.

Perhaps, one of the most bothersome obstacles

Isbister faced in trying to get men to conform to

his style of government was that the men placed

under the command of Bayside governors

changed significantly every time another ship

arrived from England. For example, in the

new post journal Isbister began on 11 August

1742, he listed the names of the 14 men under

his command. Seven of the men named on the

list were new at Albany, having either arrived

there by ship from England, or—at least in one

case—having been transfered to Albany from

another bayside post.53 As we can see from this

example, early HBC fur-trading posts were not

entirely the same as Goffman’s total institution,

and Bayside governors appear as if they were

never able to deal effectively with employee

insubordination.

Conclusions

*****

While some governors appear to have opted

for the practice of showing paternalism and

kindness to the men under their command,

others, like Joseph Isbister, were undoubtedly

cruel and inhuman, even when looked at

from 18 th -century standards. The evidence

presented in this study also suggests that the

labour relations system that existed within the

Hudson’s Bay Company in the 18th century was

transitional in nature, resembling a shift from a

Administering Justice without the State 23

paternalistic system. […] In several respects,

the experience of labourers and craftsmen in

the far-flung HBC trading posts resembled

the experience of the labouring poor in 18 th -

and later, 19 th -century Britain. 54 Just as Edith

Burley 55 has pointed was the case after 1770,

evidence from HBC post journals shows that

many of the class divisions and much of the

class conflict that existed in Britain before

1770 ended up being reproduced within the

ranks of the Hudson’s Bay Company. This is

not to say, however, that the same conditions of

work and social life that existed in Britain for

the labouring poor also existed on the shores

of Hudson Bay. Rather, as we have seen, the

conditions endured by servants who were sent

out to work at Albany and other HBC posts

on the shores of Hudson Bay in the late 17 th

and 18 th centuries, were more likely similar

to those that existed on board British naval

ships, and in Goffman-like total institutions.

These conditions resulted in different ways

of governance, and different problems of

governance, for the Company officers who were

ordered by the London committee to watch

over and protect their economic interests on the

shores of Hudson Bay.

*****

Notes

1. An earlier version of this paper was presented at

the Law and Society Association Annual Meeting,

Toronto, Ontario, June, 1995. We would like to

thank the anonymous reviewers and editorial board

of the CJLS/RCDS for their constructive reviews

and editorial advice, and the Social Sciences

and Humanities Research Council of Canada for

funding the research undertaken for this paper.

2. The Hudson’s Bay Company Archives [hereinafter

HBCA] now exist as part of the Provincial

Archives of Manitoba in Winnipeg. The HBCA

contain a detailed historical record of the operation

of the Hudson’s Bay Company in western Canada

from the 1670s to the end of the 19th century.

3. Hamar Foster, “Long-Distance Justice: The

Criminal Jurisdiction of Canadian Courts West

of the Canadas, 1763–1859” (1990) 34 American

Journal of Legal History I.

4. Russell Smandych & Rick Linden, “Co-existing

Forms of Aboriginal and Private Justice: An

Historical Study of the Canadian West” in K.

Hazlehurst, ed., Legal Pluralism and the Colonial

Legacy: Indigenous Experiences of Justice in

Canada, Australian, and New Zealand (Aldershot,

Avebury, 1995); Russell Smandych & Gloria Lee,

“Resisting Company Law: Aboriginal Peoples

and the Transformation of Legal Ordering and

Social Control in the Canadian West to 1850”

(Paper presented at the meeting of the Western

Association of Sociology and Anthropology,

Saskatoon, March, 1994) [unpublished]; Russell

Smandych & Gloria Lee, “Women, Colonization,

and Resistance: Elements of an Amerindian

Autohistorical Perspective to the Study of Law and

Colonialism” (1995) 10 Native Studies Review 21;

Russell Smandych & Karina Sacca, “From Private

Justice to State Law: The Hudson’s Bay Company

and the Origin of Criminal Law in the Canadian

West to 1870” (1996) Manitoba Law Annual

[forthcoming].

5. Moreover, during the period considered in this

study, the Hudson’s Bay Company, and other

existing chartered companies—like the English and

Dutch East India Companies and the Royal Africa

Company—were not companies that acted simply

as additional “arms of the state,” by supposed

virtue of the fact that they catered to the interests of

the monarchs who granted them their law-making

powers. Rather, other studies have suggested that,

far from subservient to the state, these companies

likely used the powers they were delegated by

the state to pursue their own economic interests.

See, for example, Julia Adams, “Principals and

Agents, Colonialists and Company Men: The

Decay of Colonial Control in the Dutch East

Indies” (1996) 61 American Sociological Review

12; Robert Brenner, Merchants and Revolution:

Commerical Change, Political Conflict, and

London’s Overseas Traders, 1550–1653 (Princeton:

Princeton University Press, 1993).

6. E.H. Oliver, ed., The Canadian North-West: Its

Early Development and Legislative Records, vol.

1 (Ottawa: Government Printing Bureau, 1914) at

22.

7. 1690, 2 W. & M. c 23.

24 Crime and Deviance in Canada: Historical Perspectives

8. Kachryn Bindon, “Hudson’s Bay Company

Law: Adam Thorn and the Institution of Order

in Rupert’s Land 1839–54” in D. Flaherty, ed.,

Essays in the History of Canadian Law, vol. I

(Toronto: University of Toronto Press, 1981);

Arthur Dobbs, An Account of the Countries

Adjoining to Hudson’s Bay Company in the

Northwest Part of America (London: Printed for J.

Robinson, 1744); Great Britain, Parliament, House

of Commons, “Select Committee on the Report

from the Select Committee on the Hudson’s Bay

Company; together with the Proceedings of the

Committee, Minutes of Evidence, Appendix and

Index” (Chairman: Rt. Hon. Henry Labouchere)

(ordered by the House of Commons to be printed,

31 July and 11 August 1857); Joseph Robson, An

Account of Six Years Residence in Hudson’s Bay

from 1733 to 1736, and 1744 to 1747 (London: J.

Payne, 1752). Although they represent an important

aspect of the early history of the Company, more

detailed discussion of these legal challenges is

beyond the scope of this paper.

9. See, generally, Smandych & Sacca, supra note

4; Dale Gibson, “Company Justice: Origins of

Legal Institutions in Pre-Confederation Manitoba”

(1995) 23 Man. Law J. 247; Howard R. Baker II,

Law Transplanted, Justice Invented: Sources of

Law for the Hudson’s Bay Company in Rupert’s

Land, 1670–1870 (M.A. Thesis, University of

Manitoba, 1996).

10. Glen Makahonuk, “Wage-Labour in the Northwest

Fur Trade Economy” (1988) 41 Saskatchewan

History 1.

11. James E. Fitzgerald, An Examination of the Charter

and Proceedings of the Hudson’s Bay Company

(London: 1849) at 135–136, cited in Makahonuk,

supra note 10 at 1–2.

12. The shift in the nature of HBC labour relations

that occurred in the period from the 1690s to

the 1790s appears to have occurred more or less

simultaneously with the transition to capitalism

and corresponding changes in the nature of social

class relations that occurred in England during

the same period. The shift toward a “free labour”

market economy in England, and the manner in

which it was linked to both the transformation of

master-servant relations and changes in institutions

used to control “problem populations” like the

poor, the criminal, and the insane, is given detailed

attention in the work of revisionist historians like

Michael Ignatieff, A Just Measure of Pain: The

Penitentiary and the Industrial Revolution (New

York: Pantheon Books, 1978), and Andrew Scull,

Museums of Madness: The Social Organization

of Insanity in the Nineteenth Century (London:

Allen Lane, 1979). More recently, Peter Linebaugh,

The London Hanged: Crime and Civil Society in

the Eighteenth Century (Cambridge: Cambridge

University Press, 1992) has argued similarly that

the punishment of the labouring poor for crimes

in 18 th

-century London must be understood within

the broader context of structural changes in the

economy that affected the labour market and the

nature of social class relations.

13. Marcus Rediker, Between the Devil and the Deep

Blue Sea: Merchant Seamen, Pirates, and the

Anglo-American Maritime World, 1700–1750

(Cambridge: Cambridge University Press, 1987)

at 211.

14. Erving Gottman, “On the Characteristics of Total

Institutions: The Inmate World” in Donald R.

Cresscy, ed., The Prison: Studies in Institutional

and Organizational Change (New York: Holt,

Rinehart & Winston, 1961) at 15.

15. E.E. Rich, ed. Minutes of the Hudson’s Bay

Company 1671–1674, vol. 5 (London: Hudson’s

Bay Record Society, 1942) at 38.

16. Ibid. at 67, 75.

17. The problem of private trading persisted until

at least the mid-l9 th century. Indicatively, as late

as 1834, the London Committee ordered the

printing of a new “Deed Poll” respecting the rights

and duties of Chief Factors and Chief Traders

conducting trade on behalf of the Company in

Rupertsland and the Indian territories, which

contained an article prohibiting private trading.

See Hudson’s Bay Company, Deed Poll, by the

Governor and Company of Hudson’s Bay. With

Respect to their Chief Factors and Chief Traders

for Conducting their Trade in Rupert’s Land and

North America; And for Ascertaining the Rights

and Prescribing the Duties of Those Officers

(London: Printed by Henry Kent Causton, 1834).

Specifically, Article XIV of the “Deed Poll” of

1834 read that: “The Chief Factors and Chief

Traders shall not on their separate account, distinct

from the said trade, enter into any trade, business or

commerce whatsoever, either directly or indirectly,

or be in any wise (sic) concerned or interested

therein, neither with Indians nor with any other

person whomsoever; and every such Chief Factor

or Chief Trader so offending, shall for each such

offence, pay the sum of 1,000 (pounds) to the

Governor and Company as stated, or liquidated

damages.”

18. “Report to the Governor and Committee by

John Nixon 1682” in E.E. Rich, ed., Minutes of

the Hudson’s Bay Company 1679–1682, vol. 8

Administering Justice without the State 25

(London: Hudson’s Bay Record Society, 1946) at

239–304. Jennifer Brown, Strangers in Blood: Fur

Trade Company Families in the Indian Country

(Vancouver: University of British Columbia Press,

1980) at 14, has noted that Nixon’s “report” of

1682 is the earliest surviving account of the fur

trade sent back to London from Hudson Bay.

19. Ibid. at 272–73.

20. For an overview and documents concerning this

Anglo-French rivalry, including a chronology of

battles between the French and English over HBC

posts, see E.E. Rich, ed., Hudson’s Bay Company

Letters Outward, 1679–94, vol. 11 (London:

Hudson’s Bay Record Society, 1948) at 39–40, 79–

80, 111–112, 149, 179–80, 195, 233, 239 and E.E.

Rich, ed., Hudson’s Bay Copy Booke of Letters,

Commissions, Instructions Outward, 1668–1696,

vol. 20. (London: Hudson’s Bay Record Society,

1957) at 101, 121, 125, 147–149.

21. Rich, ed., supra note 18 at 301–02.

22. E.E. Rich, ed., Hudson’s Bay Copy Booke of Letters,

Commissions, Instructions Outward, 1668–1696,

vol. 20 (London: Hudson’s Bay Record Society,

1957) at 144–48, 164–65.

23. Rich, ed., supra note 20 at 147.

24. Ibid.

25. Ibid. at 147–48.

26. Hudson’s Bay Company Archives (HBCA),

B.3/z/2, fos., 1–3, Albany Fort. Miscellaneous

files, 1694–1696. The HBCA miscellaneous files

pertaining to Albany Fort are a series of documents

that contain depositions of Company servants. Post

accounts, Men’s accounts, Indian’s accounts, lists

of Day and Night Watches, and Memoranda. All

of these documents appear to have been placed in

the Albany Fort miscellaneous files because they

were not part of the post journal itself.

27. HBCA, B.3/z/2, fo. 2. It is beyond the scope of this

paper to undertake a detailed comparison of the

type and severity of punishments administered by

officers of the HBC and the captains of merchant

ships or officers in the British military. However,

a number of studies have been completed that

provide a good starting point for such a study. See

generally, the data and literature discussed in John

Braithwaite, “Shame and Modernity” (1993) 33

British Journal of Criminology 1; J.S. Cockburn,

“Punishment and Brutalization in the English

Enlightenment” (1994) 12 Law and History Review

155.

28. HBCA, “York Factory Councils” B.239/a/2, fos.

75–78.

29. The five councillors who participated in the

trial were Henry Kelsey (who was then Deputy

Governor), Alexander Apthorp, David Vaughan,

John Carruthers, and Fotherby Jackson.

30. HBCA, B.239/a/2, fo. 75.

31. Although the recorded post council meetings that

were held at York Factory between 1714 and the

mid 1720s contain no examples of other criminal

trials, it is evident from the council minutes

that they were also convened to make collective

decisions on how disobedient and dishonest

Company servants should be dealt with. For

example, at the council held at York Factory on

1 September 1725, presided over by Governor

Henry Kelsey, a decision was made to extend the

contracts of a number of bayside servants for an

additional year because the crew and men who

arrived on the “Whalebone Sloop” from England

in the summer refused to stay over the winter and

take the place of the men who were scheduled to

return. The members of Henry Kelsey’s council

also took steps at the meeting to deal with a case

involving the suspected theft of Company furs

by a servant by the name of Hall. Specifically,

it was reported that the Governor ceased “all M:

r Halls papers and Furrs that he Could find in his

Cabbbin. Chest or elsewhere, tyed them up on a

Bundle and afterwards Open:d them before the S:

d Councell (but) found No papers Materiall & of

Furrs, (except) one black Beav:r the Gov.r gave

him 10 Marins (and) one Red Fox. he Catcht in

the Winter.” However, the council stated that “we

are (still) Senceable he Caught more.” HBCA,

B.239/b/, fo. 9.

32. Lake became the Governor of the Hudson’s Bay

Company in 1712 (when he was around 28 years

old), and remained the Governor without a break

until his death in 1743, a total of 29 years. This

was the longest term served by any Governor of

the Hudson’s Bay Company prior to 1949. Lake

was also “a Sub-Governor of the Africa Company.”

He was also actively involved in buying and

selling stocks and annuities, including “East India

stocks of various denominations.” See E.E. Rich,

ed., Introduction to James Isham’s Observations

and Notes, 1743–49, vol. 12 (London: Hudson’s

Bay Record Society) 1949 at xix. Lake was a key

member of the Board of Governors of the Company

until his death, and he is said to have exerted a great

deal of influence and control over the Company’s

activities in North America. According to Rich:

“During the period of the recovery (following the

Treaty of Utrecht and the return of HBC posts to the

control of the Company) the dominant personality

was undoubtedly the Governor, whose character

pervaded not only the London Committee meetings

26 Crime and Deviance in Canada: Historical Perspectives

but also the councils of the remote forts on the

Bay; a subtle, reasonable influence, apparently

unenterprising except in matters of accountancy

but yet keen, shrewd and utterly reliable.” Ibid. at

14.

33. Glyndwr Williams, ed., Hudson’s Bay Miscellany

1670-1870 (Winnipeg: Hudson’s Bay Record

Society, 1975) at 5.

34. “Captain John Fullartine, Governor of Albany Fort

in Hudson’s Bay, to Governor and Committee of

the Hudson’s Bay Company, 2 August 1703” in

K.G. Davis, ed., Letters from Hudson Bay 1703–

1740 (London: Hudson’s Bay Record Society,

1965) at 5–14. Fullartine returned to Albany in

1708 and successfully defended the post against

the French in 1709. Fullartine was not a novice at

righting with the French, as he had participated in

earlier military campaigns in the Bay in the 1680s

and 1690s, and on two of these occasions, he was

captured and taken prisoner. Fullartine finally

returned to England in 1711, where he became a

member of the London Committee until shortly

before his death in 1738. Ibid. at 10, note 1.

35. Williams, ibid. at 10–65.

36. HBCA, B.3/a/4, Albany Post Journals, 4, 15, and

16, May 1713.

37. HBCA, B.3/a/4, Albany Post Journal, 26 January

1713.

38. HBCA, A. 11/2, fos. 26–33, 34–41, Inward

Correspondence, Thomas Macklish, Albany

Fort, to the London Committee, 16 July 1716,

12 September 1716, 20 August 1717, 31 August

1719.

39. HBCA, A.I 1/2, fos. 38–41, Thomas Macklish,

Albany Fort, to the London Committee, 31 August

1719.

40. HBCA, A. 11/2. fos. 42–45.

41. HBCA, A. 11/2, fos., 56–57, cited in Davis, supra

note 34 at 113–16.

42. HBCA, A.6/5. fo. 2–2d, London Committee to

Joseph Myatt, 25 May 1727, cited in Davis, supra

note 34 at 114.

43. Davis, supra note 34 at 323.

44. HBCA, Search fi le, Joseph Isbister.

45. Sylvia Van Kirk, “Joseph Isbister” 6 Dictionary of

Canadian Biography at 381.

46. HBCA, A.6/7, Outward Correspondence, London

Committee to Mr. Joseph Isbister and Council

at Albany Fort, 5 May 1742. Specifically, the

London Committee told Isbister: “We Expect a

due Performance of your Promise by your Vertuous

example, not only to prevent immoderate drinking

and other vices that did occasion M:r Waggoners

Death, but that you will take care to hinder as

much as Possible the detestable Sin of Whoring

w.xh we are informed is practiced in the Factory

notwithstanding what we have so often ordered in

our former letters to the Contrary.”

47. HBCA, B.59/a/l–4, Eastmain Journals, December

1736 to April 1740.

48. HBCA, B.3/a/33, Albany Post Journal, 16

September 1741 [emphasis added].

49. HBCA, B.3/a/3O, Albany Post Journal, 22 August

1740.

50. HBCA. B.3/a/33. Albany Post Journal, 28 March

1742.

51. Isbister also had awful spelling, even in comparison

to his 18th

-century peers.

52. HBCA, Albany Post Journals, 1742–1748, 1753–

1756; Smandych & Linden, supra note 4.

53. HBCA, B.3/a/34, Albany Post Journal, 11 August

1742.

54. Ignatieff, supra note 12; Scull, supra note 12;

Linebaugh, supra note 12.

55. Edith Barley, Work, Discipline and Conflict in

the Hudson’s Bay Company, 1770 to 1870 (Ph.D.

Dissertation, University of Manitoba, 1993).

CHAPTER 2

Criminal Boundaries:

The Frontier and the Contours of

Upper Canadian Justice, 1792–1840

David Murray

*****

The Frontier

The perception of the boundary between

Canada and the United States has changed

dramatically over time. In part this has occurred

because travel across the border has become so

commonplace, creating an easy and automatic

sense of familiarity with the other. Even by

the 1930s, an estimated thirty million border

crossings occurred annually. Today when we

cross the border to the United States at Niagara

Falls or Fort Erie, or when we enter Canada

from the United States, our awareness of passing

from one country to another comes primarily

from a change in symbols, like flags or our

experience with the officious state bureaucracy

of customs and immigration, found on both

sides of the border. Adam Shortt taught his

Queen’s University students that at the turn of

the twentieth century the boundary line between

Canada and the United States was imaginary.

One of those students, W. Swanson, after going

on to Chicago for further study, wrote to him to

acknowledge the truth of Shortt’s observations.

Swanson added, “really the people of Ontario

and New York State have far more in common

than the people of Ontario and Quebec,” a

comment that resonates with much more impact

today, in the aftermath of the most recent

Quebec referendum, than it did at the beginning

of the twentieth century (correspondence from

W. Swanson to Adam Shortt, 13 January 1906,

cited in Berger 1972, 34 n. 4).

If the boundary line was believed by some to

be imaginary at the beginning of the twentieth

century, can we trace this perception back any

further? One of the earliest American historians

of immigration to North America, Marcus L.

Hansen, shrewdly observed that “immigrants

viewed the continent as a whole.” Hansen went

on, “it was not the United States and Canada.

It was all of America to them” (1937, 106).

Another historian of Canada, J.B. Brebner,

carried the idea further still. The immigrants

were “eminently capable of allegiance to one

country one day and to another the next” (cited

in Berger 1972, 47). […]

We may be much less conscious of fundamental

differences between two separate countries than

our predecessors were in the early nineteenth

century. During the period when Upper Canada

was a separate colony, 1791–1840, an era

marked by war and rebellion, visitors and

inhabitants alike commented knowingly on

the contrasts between British America and the

United States (Wise 1993, 45–60). […]

[…] There was a sense of vivid differences

between the British colonies and the United

States, a vividness born in Upper Canada

28 Crime and Deviance in Canada: Historical Perspectives

by a Loyalist culture strongly reinforced by

the experience and memories, first of the

American Revolution and then of the War of

1812. Underlying it, of course, was a boastful

pride of Britons and many colonists in the

unquestioned superiority of the monarchy and

British institutions, matched no less on the other

side of the border by an equally aggressive

pride held by Americans in their Republican

ideals and institutions, as well as the conviction

held by many that the inevitable destiny of

the Canadas was to become part of the United

States. Even the failure of the 1837 rebellions

did not squelch this conviction.

*****

The border between the United States and

Upper Canada in the early nineteenth century

was much more than a boundary line between

republic and empire. The frontier areas on

both sides witnessed not only the increased

traffic brought by growing trade, population

movements, and the tourist magnet of Niagara

Falls, but also clashes between rival states and

armed incursions during the two periods of war

and heightened tension, 1812–14 and 1837–38.

What then was the interaction between justice

and the frontier?

Apart from periods of war and armed rebellion

when restrictions on the usual access to the

border were expected, if not always totally

accepted, the normal peacetime expectation

was that movement across the border was

untrammelled and open to anyone. Individuals

freely crossed the border, including immigrants,

but legal commerce was tied up in the tariffs of

the old colonial system until the middle of the

century. When anything occurred to interrupt

this, the reaction was quick and forceful. The

appearance of cholera in the summer of 1832

prompted emergency measures on both sides

of the border in an attempt to prevent the rapid

spreading of the disease. […]

*****

Just as there was a growing traffic in legitimate

commerce and population flows, so there was

also a complicated pattern of illegal movements

across the border. Criminals escaping justice

or jail regularly fled from one jurisdiction to

the other; soldiers deserted or tried to desert by

fleeing across the border; African slaves crossed

into Upper Canada seeking freedom; and goods

were illegally smuggled across the border then

as they are now. The illegal movements tended

to concentrate in three regions where there was

a close proximity between communities on each

side of the border; Kingston, the Niagara region,

and the area of Amherstberg and Sandwich

opposite Detroit.

These activities gave rise to what I will call

acts of private or community justice, as well

as the ever present efforts of authorities to

maintain official justice. […] A brief survey of

the issues of extradition, banishment, desertion,

and smuggling, highlighting a few cases,

will illustrate the complexity of relationships

between the political border and the illegal

movements of people and goods across it. For,

if borders create regions of interaction and

elements of division, the criminal justice system

should illuminate both, often in unusual ways.

Extradition

At the local level, by the 1830s, the magistrates

on the Upper Canadian side of the border

had developed a close and effective working

relationship with their counterparts on the

American side. When John Fitzgerald, an

Irishman suspected of committing a murder

in Waterford, Ireland, in the early 1820s, was

discovered to be living in Niagara in 1832 and

working as a tavern keeper, he quickly slipped

across to the United States after learning that

he was about to be arrested. Normally, he

might have been able to escape, but the Niagara

magistrates were able to issue a warrant and

persuade the American officials to arrest him

within a day. He was brought across the frontier

to the Niagara jail and ultimately sent home to

Ireland to face trial.1 Without this prompt action

by the Americans, the Canadian authorities

would have lost Fitzgerald.

Charles Eliot, an Upper Canadian magistrate

at Sandwich opposite Detroit, wanted to act

Criminal Boundaries 29

in the same cooperative manner in November

1832, when he received a request from the

Michigan authorities to return two men, James

Walker and William Bird, suspects in a series

of thefts on the Detroit shore. Eliot obligingly

had them arrested and jailed, prior to being

turned over to the Americans. When he asked

the government officials at York to issue the

necessary instructions, a wall of legal roadblocks

suddenly appeared. Eliot understandably was

anxious to facilitate cross-border cooperation

in the return of suspected criminals. He pressed

his case forcefully with Sir John Colborne, the

lieutenant-governor.

In justice to the Americans I must declare that

they have ever evinced extreme eagerness to

protect us from the mischief attending the escape

of such hardened monsters: they have most

readily arrested and resigned, at our request,

both murderers and thieves. How merited then,

would be the reproach upon us, were we in no

one instance to alternate with them.2

The governor promptly turned this legal

nettle over to his attorney-general, Henry

Boulton, who issued an opinion stating that

without solid evidence to implicate the accused

men in a crime, he could not support the

local magistrate. 3 To resolve the impasse, the

government arranged for an unusual legal

hearing where the attorney-general acted as

a private counsel for the prisoners and the

solicitor-general acted for the crown before

one of the province’s King’s Bench judges,

James Macaulay. 4 The government’s purpose

was to obtain a definitive judicial ruling on the

province’s legal obligation to return fugitives to

the United States. Mr. Justice Macaulay obliged

with a long judgement in which he reviewed

all the available legal precedents, including

American ones. He found nothing in the warrant

of committal of the suspects to verify that they

were, indeed, American citizens. He concluded

in the absence of such evidence that they were

British subjects, entitled to all the protection

of British law and specifically the rights of the

Habeas Corpus Act. Macaulay ordered their

release from jail under Habeas Corpus, which

prevented their being sent to a foreign country

for trial, in spite of the general impression of

their likely guilt in the cross-border thefts.

Walker and Bird were both identified in the

court documents as black, but other than this

identification, there is no implication that race

played any part whatever in the outcome of

this case.

The government must have been disappointed

in its hope of finding judicial clarification.

Macaulay wrote that each case where a request

to transfer a fugitive came from the United

States “must be decided on its own peculiar

features & merits.” Cases of murder might be

dealt with more expeditiously, but Macaulay

stressed that “in each instance the nature of the

offence—the degree of proof—the political

character of the fugitive—the promptness of

the pursuit & application,” must all be carefully

scrutinized by the Upper Canadian courts

before a fugitive could be transferred to the

United States. 5 Macaulay also concluded that

there was no existing law or treaty governing

the transfer of fugitives between territories of

the United States and Upper Canada. Jay’s

Treaty (1794) originally had provided that

anyone charged with murder or forgery could

be aimed over to the other country, but Article

27 containing this clause had expired in 1803

and had never been renewed (Bemis 1962,

482–83; Burt [1940] 1961, 198). The top

legal officials and judges at York, by now all

Upper Canadians, were determined to apply

British law in each case, even if this meant

disrupting the harmonious local networks of

cross-border judicial cooperation. Solicitor-

General Hagerman summed up the law for

the lieutenant-governor, following Mr Justice

Macaulay’s ruling. “The power to surrender

fugitives from a foreign country—such fugitives

being subjects of that Country—is Discretionary

with the Government, but that discretion was

never exercised in sending away subjects of His

Majesty or residents within his dominions.”6

30 Crime and Deviance in Canada: Historical Perspectives

Charles Eliot, the Sandwich magistrate who

originally had raised the question with the

government, was dumbfounded by the outcome.

When he heard about it in January 1833, he

was in the midst of another complicated case

involving forgers who were operating on both

sides of the border. He pleaded for guidance

on what he should do in future and he wrote,

plaintively,

What shall I say on this liberation to His

Excellency, Governor Porter [of Michigan] after

his prompt & effectual exertions to serve us?

And how can we now apply to him for Crofts,

alias Crawford, who has passed so many forged

bills on our side & to so many of our poorer

Inhabitants, & against whom I have conclusive

testimony? 7

Not only was Eliot’s credibility badly damaged

as the story of the release quickly spread on

both sides of the border, but he found himself

vilified by at least one of his fellow magistrates

for arresting suspects at the instigation of the

Americans. Eliot’s latest dilemma, how to

prosecute the suspected forger, Crofts, was

made worse by the fact that an American grand

jury had not been able to indict Crofts because

of a lack of evidence. As Eliot informed the

lieutenant-governor, Crofts “has been astute

enough never to pass a forged Bill on his own

side of the river.”8

This time, however, the attorney-general

was firmly on the side of the magistrate. The

Evidence is so strong-and flagrant,” that Eliot

was ordered to apply immediately to have the

suspect, Crofts, transferred to Upper Canada

for trial. Should the Michigan laws require a

formal request from the lieutenant-governor,

Attorney-General Boulton recommended that

this be done. Where forgers were concerned,

“it is evidently the Interest of both Countries

to put down this Nefarious System of fraud

which is practised with too much Success by

gangs of Villains infecting both sides of the

Water.” 9 Eliot had not waited for instructions

from the Upper Canadian capital. He had visited

the governor of Michigan to lay before him all

the evidence he had gathered. Governor Porter

ordered Crofts to be imprisoned until a formal

application for transfer came from the Upper

Canadian government. Eliot strongly believed

in reciprocity of treatment across the border

and he was immensely relieved to hear that one

outcome of the legal imbroglio over fugitive

criminals was a new Upper Canadian law, the

first one to be passed, outlining the conditions

for the return of fugitives to the United States.

This would help to reassure the American

authorities that the return of criminals would be

reciprocated. Eliot asked for extra copies of the

law not just for the Upper Canadian magistrates

in his area, but some for the Americans as well,

“whose ever prompt compliance with our wishes

indubitably merits our warmest thanks.”10 The

fugitive offenders act came into force early in

February 1833, and gave the government all the

legal powers it needed to return those “charged

with Murder, Forgery, Larceny, or other crime”

to the United States upon application through

the proper authorities. 11 This act governed all

extradition proceedings between Upper Canada

and the United States until it was superseded by

the Webster-Ashburton Treaty of 1842.

*****

Banishment

Upper Canadian government officials did

not view the frontier solely as a source of

problems. They were quick to use the proximity

of the border when it suited their purposes.

Undesirables were banished to the United

States. The modification of British criminal

law by the Upper Canadian legislature in

1800 to incorporate banishment as a criminal

punishment was a conscious recognition of

the ease and economy of transferring Upper

Canada’s criminals to the United States.12 It was

also, as the law itself stated, an acknowledgement

that transportation overseas in official Upper

Canadian eyes was either “inapplicable” or it

could not be implemented without “great and

manifest inconvenience.”13 Banishment was the

Criminal Boundaries 31

Upper Canadian version of transportation but,

viewed from the perspective of the criminals

affected, it was a far less severe punishment

and highly preferable to an alternative like

execution. Not until 1842 was banishment

formally replaced by imprisonment in Canadian

law. In practice, however, the opening of the

Kingston Penitentiary in 1835 meant that

many criminals who earlier might have been

banished were now sent instead to Kingston.

The following year, the British government

opened Van Diemen’s land to North American

colonies for the transportation of their criminals.

A number of Upper Canadian criminals were

transported there, including many convicted for

their part in the 1837–38 rebellions.

The appearance of cholera in 1832 gave a

new twist to the use of banishment by the Upper

Canadian government. A number of prisoners

confined in local jails and fearing for their

own safety in the midst of a cholera epidemic

petitioned the lieutenant-governor for pardon.

The governor referred these petitions to Chief

Justice Robinson for his advice. Robinson’s

solution for the prisoners convicted of the more

serious crimes was to recommend banishment.

[…] The royal pardon really had become a

vehicle for dumping Upper Canada’s unwanted

prisoners on her neighbour’s frontier in the full

expectation that they would find a new home

somewhere in the United States. Banishment

could be controversial in Upper Canada as the

Standish affair had proved. A grand jury in

the Gore District protested to the lieutenant-

governor that the practice had “a most baneful

effect ... upon the moral Condition of the

people of this District” because several of those

banished had returned. They were seen by their

neighbours as having escaped the punishment of

the law. The grand jury argued that this would

“have the effect of encouraging the vicious and

unprincipled to go on in Crime with a hope of

impunity.”14

*****

We rarely hear what the criminals themselves

felt about being forced to move from one state to

another. In one case where an Upper Canadian

fugitive sought refuge in the United States to

avoid imprisonment on a murder charge, we

do have a letter from him, justifying his action.

John Ward had escaped to Michigan early in

1830 and wrote a letter home, intended for his

family, although it ended up in the hands of

the government officials. His explanation does

have a certain logic, viewed from his desperate

position; “i think it is better for me to keep my

liberty untill i Can have my trial. It will make it

no better if i Should ly in prison untill then.”15

For Ward, as for the other criminals or criminal

suspects who fled across the border seeking

sanctuary, the boundary was a minor obstacle

easily overcome. […]

*****

Some convicts openly used the United States

as a temporary refuge. David Underhill was

convicted in the Gore District in 1829 of assault

and battery and sentenced to three months’

imprisonment and a fine. On the way from court

to the jail, he escaped and fled to the United

States, where he remained nearly a year. Then he

quietly returned to his family, apparently hoping

to escape notice. This ploy was unsuccessful.

He was recaptured and taken to prison. He was

then able to use compassionate circumstances,

a likely terminal illness, poverty, and a pregnant

wife, to appeal successfully for clemency.16

*****

How effective was banishment? Since the

Upper Canadian authorities never analyzed it,

nor did they even keep statistics of the number

banished and those who returned, it is difficult to

answer the question. The absence of American

complaints suggest the numbers were small

enough to escape official notice in the United

States. Chief Justice Robinson remained a

strong proponent of banishment until feasible

alternatives emerged in the middle of the

1830s, principally the Kingston Penitentiary.

His continuing support is one indication that

in this early period of Upper Canadian history

banishment offered a cheap, ad hoc alternative

32 Crime and Deviance in Canada: Historical Perspectives

for government officials anxious to avoid either

long and costly imprisonments in overcrowded

local jails, or a rash of public hangings which

might bring unwanted political attention to the

colony’s largely inherited system of criminal

laws. Banishment thus served as a ready

safety valve for the Upper Canadian colonial

government from 1800 to the mid 1830s.

Deserters

The American border was a powerful magnet

for deserters from the British army who were

stationed at posts along the frontier from

Kingston to Detroit. […]

*****

The number of British deserters rose rapidly

in the years following the end of the War of

1812. Immediately following the end of the

war, complaints about British army deserters

being seduced by the Americans mounted. […]

Richard Preston, in his study of Kingston before

the War of 1812, discovered that “a successful

breakaway by one deserter always proved

infectious and would be followed by others”

(1959, lxxxiv). Their British officers professed

to be mystified by the continuous desertions.

One wrote in Kingston in 1801, “I have done

every thing in my power to find out the cause

of this Spirit of Desertion without Effect”

(correspondence from Mackenzie to Green, 8

September 1801, cited in Preston 1959, 247).

Some deserters were promptly recruited into

the United States army, although the Americans

insisted that they officially discouraged the

practice. John Richardson, writing in the 1840s

about his years in the Canadas, claimed that five

thousand had deserted for the United States in

the years between 1815 and 1838. The main

centres for this unofficial emigration movement

were Niagara, Kingston, and Amherstberg.

[…]

Peter Burroughs has written the most

thorough account of British desertion in

nineteenth-century British North America. He

has tabulated figures for the Canadas of six

thousand desertions between 1815 and 1840,

an average annual desertion rate of over five

percent of the army establishment (Burroughs

1980, table 1, 30). The highest annual desertion

rates occurred in the middle years of the 1830s.

Desertions occurred for many different reasons

but, as Burroughs stresses, some soldiers had

enlisted deliberately to have their fares paid to

North America, with a clear intention of staying

there by deserting to the United States. British

officers especially blamed the Irish. Lieutenant-

Governor Arthur wrote to the government in

1838; “They all have relations or friends settled

in the States, and what will bind an Irish Soldier

if he has the opportunity of seeing his cousin”

(correspondence from Arthur to Somerset, 24

November 1838, cited in Burroughs 1980,

34–35). The real causes were more mundane

and easily understood. British soldiers were no

less attracted than civilians to the United States,

“where wages were known to be higher than

those prevailing in Canada or in Britain itself

and where good land was readily available to

purchasers of limited means” (Burroughs 1980,

36). For these deserters, crossing the frontier

opened the gate to a new life in a new country

free from the confines of the military. It was not

altogether a one-way movement of soldiers, nor

of course were the military authorities on either

side content to let it go on unchallenged, even if

their efforts to stop it were largely unsuccessful.

[…]

*****

The governors of Upper Canada during this

period, nearly all of them military officers, along

with the colony’s judges, regarded the crime of

enticing to desert as a most serious one and dealt

very harshly with anyone convicted of it. Albert

Spear was a young man, aged twenty, when

he was convicted of trying to help a soldier

to desert to the United States at Amherstberg.

Pleading for a pardon after spending fourteen

months in the district jail, Spear claimed he had

been intoxicated when the offence occurred.

The lieutenant-governor referred the petition

to Judge L.P. Sherwood, who had presided at

the trial. Sherwood replied with an argument

Criminal Boundaries 33

he must have known would appeal to Colborne

who, in his capacity as governor, was also the

Commander-in-chief of the British forces in

the colony.

When it is considered that the facility of passing

the frontier of the province from Amherstberg

into the United States is a great inducement to

desertion, and that the hope of assistance creates

confidence in those inclined to desert, the public

good seems to require examples to be made of

such persons. 17

Colborne agreed with Judge Sherwood and

rejected the petition.

Smuggling

Smuggling was rampant across the border

between the United States and Britain’s

Canadian colonies. The major reason was British

insistence on maintaining her mercantilistic

system of customs duties, which she applied to

her colonies until she finally shifted to free trade

in 1846, and then signed the Reciprocity Treaty

with the United States in 1854. The Duke de la

Rochefoucauld Liancourt observed the impact

in the 1790s. “The high duty laid by England

upon all the commodities exported from her

islands proves a powerful encouragement to a

contraband trade with the United States, where,

in many articles, the difference of price amounts

to two-thirds” (Liancourt 1799, v.1, 247).

Key foodstuffs like tea could not be imported

directly from the United States without duties

because of the monopoly retained by the East

India Company. The incentive to smuggling

was irresistible. William Lyon Mackenzie

wrote of personally witnessing a tea-smuggling

operation from Youngstown, New York to Fort

George right under the noses of British soldiers

who made no effort whatever to intervene.

He concluded that smuggling tea and other

American goods across the border, especially

at Niagara, “must have been nearly universal”

(Mackenzie 1833, 81–84).

American treasury officials, perhaps even

more than the British, tried their utmost to put

a stop to smuggling across the border, but from

both sides the officials could only intercept a

trickle of the huge stream of smuggled goods

regularly crossing the line. […] Cross border

trade, both legal and illegal, steadily increased

in the first half of the nineteenth century.

The locals, especially those living next to the

frontier, refused to equate smuggling with

crime, especially since it usually proved so

lucrative (Stuart 1988, 106–16).

Smugglers did not always escape the clutches

of the magistrates and customs officers. One

bizarre episode along the Niagara frontier

illustrates the hazards of a smuggling mission

gone awry. On 5 December 1825, at about ten

o’ clock at night, Robert Grant, the Collector of

Customs in Queenston, heard that three wagons

had just passed through the village. Suspecting

smugglers, he took a constable with him and

set off immediately in pursuit. They caught up

with the suspects at a barn near St. Catharines

around midnight. Grant seized the wagons and

discovered that they contained metal stoves and

boxes of window glass, all manufactured in the

United States. There must have been a ready

market for American stoves and window glass,

but these are not the first objects to come to

mind when we think of cross-border contraband

in this period. We can, however, infer their value

from the subsequent actions of the smugglers.

They would not give up their booty without a

fight. They attacked the Collector of Customs

and his constable with stones, poles, and rails.

The constable claimed that “he rather got the

better” of one of his assailants, but when another

tried “to deprive him of his eyes,” he gave in.

The smugglers escaped temporarily with all

their goods except for a stove, which fell out of

the back of one of the wagons as they fled.

Robert Grant petitioned the Quarter Sessions

court at Niagara early in January 1826 for a full

criminal prosecution, which the court endorsed.

A trial occurred at the fall assizes, held in

Niagara. The chief culprit, William Terrybery,

a forty-two-year-old St. Catharines innkeeper

who apparently was well known to the local

authorities, was convicted on the charge of

rescuing smuggled property and sentenced to

34 Crime and Deviance in Canada: Historical Perspectives

three months imprisonment and a twenty-five

dollar fi ne. He was one of the very few of what

must have been a steady stream of smugglers

along the Niagara frontier in this period to be

caught, successfully prosecuted, and imprisoned.

Had he not resisted arrest in such a violent

manner, he likely would have escaped with only

the confiscation of his smuggled goods. Unlike

those convicted of enticing soldiers to desert,

who regularly appear on the jail returns of the

border districts like Niagara, Terryberry stands

out as a rare Upper Canadian convict because of

the crime for which he was convicted.18

Conclusion

*****

However much the notion of a common North

American individualism, lying just underneath

the surface on both sides of the border, may

prove to be a more seductive interpretive

framework for early nineteenth-century

Canadian–American relations, it should not be

given a completely free rein. True borderlanders

certainly existed, but even by 1840 they were far

from a majority. Cross-border contacts became

both broader and deeper, but the border itself

never disappeared. In Upper Canada, British

law, British institutions, and British concepts of

justice had sunk deep roots, giving the border

both a political and cultural configuration. Philip

Buckner argues that in this period people on both

sides of the political border “knew on which side

they belonged and, equally importantly, who

belonged on the other side” (1989, 157). Like

dangerous chemicals, the border regions could

prove to be highly unstable, as in 1837–38,

bringing Britain and the United States much

closer to possible conflict than either desired.

The border remained part of the inescapable

and ever present political, social, and economic

reality of Upper Canadian existence.

Upper Canada’s frontier brought into sharp

focus the complex problems thrown up by the

criminal justice systems on both sides of the

line. Criminals, smugglers, deserters, and others

of nineteenth-century society’s outcasts moved

regularly across the Upper Canadian–U.S.

border only to disappear as quickly as water

through sand. In their own unique way they were

continentalists, operating with a North American

individuality, not confined and certainly not

shackled by political boundaries. Even Upper

Canadian government officials, whose task

was to enforce the laws and regulations which

made the boundary a very real political frontier,

discovered the utility of making it permeable

when it came to banishing prisoners. For these

officials, the border took on different coloration

depending on whether it offered a convenient

and cheap solution to the vexing dilemmas of

overcrowded local jails, or whether it seemed

to be the source of nagging and insoluble

problems like smuggling or desertion. Both the

criminals and the officials learned quickly how

to manipulate the political frontier to their own

purposes. Through the criminal justice systems

on both sides of the political frontier, we gain

a new perspective of the border in this colonial

period as well as insights into the different

political cultures evolving in the United States

and British North America.

Notes

1. Daniel McDougal to Lt. Col. Rowan, 26 December

1832, with enclosed affidavits. NA, R.G. 5. Al,

UCS. v. 124:68246–267.

2. Charles Eliot to Lt. Col Rowan, 29 November

1832, N A, R.G. 5, Al, UCS, v. 124:68185–186.

3. Attorney-General Boulton to Lt. Col. Rowan,

10 December 1832, NA, R.G. 5, A1, UCS, v.

124:68187.

4. For a brief biography of Macaulay, see Read (1888,

148–57).

5. Justice Macaulay’s “Notes on The King vs. James

Bird and William Walker,” 29 December 1832, NA,

R.G. 5, Al, UCS, v. 124:68614–627.

6. Solicitor-General Hagerman to Lt. Col. Rowan, 1

January 1833, NA, R.G. 5, Al, UCS, v. 125:68817–

18. Also see Attorney-General Boulton to Lt. Col.

Criminal Boundaries 35

Rowan, 3 January 1833, NA, R.G. 5, Al, UCS, v.

125:68842–843.

7. Charles Eliot to Lt. Col. Rowan, 14 January 1833,

NA- R.G. 5, Al. UCS, v. 125:69014-015.

8. Charles Eliot to Lt. Col. Rowan, 24 January

1833 and enclosed, W.H. Witherell, U.S. District

Attorney, to Charles Eliot, 18 January 1833, NA,

R.G. 5, Al, UCS, v. 125: 69157–160.

9. Attorney-General Boulton to Lt. Col. Rowan,

19 January 1833, NA, R.G. 5, Al, UCS, v.

125:69110.

10. Charles Eliot to Lt. Col. Rowan, 24 January 1833,

NA, R.G. 5, Al, UCS, v. 125:69157–158.

11. William IV, c.vii, “An Act to provide for the

Apprehending of Fugitive Offenders from Foreign

Countries, and delivering them to Justice.”

12. The following argument suggests that banishment

was seen as more effective by key members of the

Upper Canadian government than John Weaver’s

recent conclusion that “it was never a satisfactory

form of punishment” (1995, 61).

13. 40 Geo. III c.1, “An Act for the further introduction

of the Criminal Law of England into this Province

and for the more effectual Punishment of certain

Offenders.”

14. Grand jury presentment, Gore District, 1 September

1831, NA, R.G. 5. Al, UCS, v. 109:62205.

15. John Ward to Schofleld, 4 April 1830, enclosed in

M. Burwell to Z. Mudge, 17 April 1830, NA, R.G.

5, Al, UCS, v. 99s 56093–097.

16. Petition of David Underhill, 18 June 1831, and

enclosed John Wilson to Z. Mudge, 13 June 1831,

NA. R.G. 5, Al. UCS, v. 107:61178–179.

17. LP. Sherwood to Edward McMahon. 27 September

1831, NA. R.O.5. Al. UCS, v. 109:62053–054.

18. The documents on this case are found in NA, M.G.

24126, v. 49; depositions dated 12 December 1825,

and Quarter Sessions decision 11 January 1826.

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Legal Acts

3 William IV, c.vii, “An act to provide for the Apprehending of Fugitive Offenders from Foreign Countries, and

delivering them up to Justice.”

40 Geo. III ci. “An Act for the further introduction of the Criminal Law of England into this Province and for the

effectual Punishment of certain Offenders.”

CHAPTER 3

The Mounties as Vigilantes: Perceptions

of Community and the Transformation

of Law in the Yukon, 1885–1897

Thomas Stone

Introduction

When the North West Mounted Police were

dispatched to the Yukon district in the 1890s,

they confronted a population of largely

American or Americanized miners who were

relying on the “miners’ meeting”—a fully

autonomous, highly democratic, and egalitarian

institution—as the basis for law and government

in the gold camps. 1 Given the prevailing

image of the undisciplined and disorderly

American frontiersman, 2 coupled with the

distrust of American democratic institutions

which characterized Canadian opinion 3 it is

hardly surprising that the arrival of the Mounties

was widely viewed as posing a confrontation

between Canadian law and American frontier

lawlessness. In the popular imagination of both

Canadians and Americans, the Mounties of the

Yukon became a symbol of justice, peace, and

order in the district, their presence serving as

the only barrier to dangerous and potentially

violent anarchy.

The facts of the case, however, appear

otherwise. The evidence suggests that before the

summer of 1897, when the Klondike rush began

in earnest and the character of Yukon society was

radically transformed, “lawlessness” was not a

problem. There is little indication that people

were either in serious danger of having their

rights violated or that they lacked an effective

remedy for those grievances that did arise. The

presence of the Mounties, which displaced the

authority of the miners’ meeting in Canadian

territory, did little to improve the administration

of justice. In certain respects, in fact, it appears

only to have incapacitated it. On the other

hand the Mounties did effectively symbolize

class dominance in a situation where incipient

stratification and a perception of threatened

class conflict were beginning to emerge. And

in this role, ironically, the Mounties stand as

the counterpart in the Yukon of the vigilante

movements which emerged on the American

mining frontier.4

The case of the Mounties in the Yukon,

however, has even broader relevance. The

miners’ response to the appearance of the

police provides an illustration of the distinction

between the symbolic and instrumental functions

of law and the role of the former in conditioning

public attitudes toward legal institutions. Legal

agencies perform an instrumental function

through law enforcement and dispute resolution.

At the same time they perform the symbolic

function of publicly affirming social ideals and

dominant norms. 5 While the instrumental and

symbolic functions of legal agencies often arise

from the same activities, they are analytically

separate6 and often pull in different directions.

In the present case, the appearance of the

Mounties failed to improve—and indeed

38 Crime and Deviance in Canada: Historical Perspectives

demonstrably weakened—the instrumental

functions of law in the Yukon district.

Nonetheless, their authority was quickly

accepted and hailed as a welcome replacement

for the miners’ meeting by the established

miners and their spokesman. The reason for

this, it can be shown, lies in the fact that the

authority of the Mounties reliably ensured the

public affirmation of established community

values and norms at a time when these were

perceived as being threatened.

The Miners’ Meeting in the Yukon

By 1894, the year the Canadian government

first dispatched Charles Constantine of the

North West Mounted Police to the territory,

the region of the upper Yukon drainage in

the vicinity of the Alaska–Canada boundary

had drawn a substantial influx of gold miners

and prospectors. Their activities were largely

centred in two districts on opposite sides of the

border. At the junction of Fortymile Creek and

the Yukon River, in Canadian territory, there

was Fortymile post, a town of some 150 log

buildings, mostly cabins, but including saloons,

restaurants, a theatre, and a billiard room. 7

Fortymile was the supply centre for the major

mining district on the Yukon in 1894. Close

to 1000 miners worked in the district in the

summer of 1894.8 Downriver to the Northwest,

across the international boundary in Alaska, a

new supply post was just being established that

same summer to service the newly discovered

Birch Creek mining district. A year later, Circle

City (as this new post came to be called) and

the Birch Creek district not only rivalled but

had begun to outstrip Fortymile as a centre of

population and mining activity in the region,

even though the Fortymile district itself did not

substantially decline in population.9

Gold prospectors and miners had been

drifting into the region in increasing numbers

since 1878, but mining activity was scattered

and desultory until strikes on the Stewart River

in 1885, followed quickly by the Fortymile

strike in 1886, concentrated the population first

(briefly) at the Stewart, and then at Fortymile.

Fortymile then dominated the upper Yukon,

remaining the centre of population and mining

activity until the discoveries on Birch Creek.

In the early years, a small summer population

would typically shrink to an even smaller

community of less than one hundred miners

and prospectors who would remain during the

long winter season, gathered together in winter

quarters at the site of a trading post. With the

arrival of the relatively short summer season,

the men would again disperse to prospecting

or mining operations on the creeks, joined by a

summer influx of returning and new prospectors

entering the district. As time went on, the size

of the summer influx and the smaller wintering

population grew markedly.

From the beginning of mining operations

until the Klondike rush of 1897, other trends

in the social development of the region can

be noted. Not only did population increase

steadily, but noteworthy institutional growth and

elaboration took place as Fortymile (and later

Circle) acquired the trappings of civilization.

The population also became less homogeneous

as women began to arrive and occupational

diversity increased.

*****

It was this changing Yukon society which

provided the context for the operation of

the miners’ meeting, an institution which

had emerged by 1885 to provide for the

administration of law and government in the

camps and which had its roots in the early

system of camp government in California and

the American West (reflecting the American

origin of many of the Yukon prospectors). The

miners’ meeting was simply an assembly of

all those residents in a particular camp who

chose to attend when a meeting was called.

This assembly considered with a minimum

of formality question which might provide

the occasion for its being called. Decisions

were rendered by a simple majority vote. In

cases where it might be deemed necessary, a

The Mounties as Vigilantes 39

committee of the assembled miners was elected

to the execution of the meeting’s decision.

[…]

*****

[…] The jurisdiction assumed by these

meetings was wide ranging: they functioned as

a forum for the disposition of private disputes;

they prosecuted what could be regarded

as crimes; they established special mining

regulations which might apply in a particular

creek or locality; and they established by-laws

relating to almost any conceivable matter of

public concern within the camp.10 Decisions and

action taken through a miners’ meeting might

range from seemingly trivial matters, such

as the case where a meeting acted to prevent

a white saloon-keeper from reneging on a

marriage proposal to a half-breed Indian girl,11

to the potentially dangerous (and, by outside

standards, illegal), as in the case of a decision

to commandeer a winter supply outfit for each

man from a passing riverboat.12

During the period of community growth, from

1885 to the Klondike rush in 1897, the setting

for these assemblies changed from small camps

of a few miners depending on a particular post

for supplies, to sizable towns with a substantial

population drawn from widely scattered camps

and where the meetings in later years were often

held in one of the town saloons. […]

[…] The meetings dispensed a form of justice

where character judgments figured prominently

and the prevention of possible future trouble was

an overriding concern. […] Decisions regarding

the rights which should be accorded and

enforced on behalf of any party rested heavily

on judgments of individual character derived

from participants’ knowledge and impressions

of a person’s behaviour and attitudes.

*****

[…] Evidence for this can be found in the

decisions reached in individual cases and in

the type of penalties administered for particular

offences.

On the Stewart River, for example, in the

year before the establishment of Fortymile,

one member of a party of five miners attempted

to poison, then shoot the others before he was

discovered and apprehended by his partners.13

The murder attempt was carried out by the man

who had originally organized the party, a man

referred to simply as “Discoverer.” Discoverer

claimed to have had first-hand information

about a lost mine in the Yukon district. He

convinced the others in Seattle of the truth of

his information, and headed north with them.

After a season of unsuccessful prospecting

for this fabulous source of gold, the party was

forced to settle in for the winter on the Stewart.

One particularly querulous member of the

group began to talk of lynching Discoverer for

misleading them, and while the others did not

appear to take this talk seriously, neither did they

openly oppose the idea. Discoverer ultimately

concluded that his life was in danger and laced a

supper of beans with a generous dose of arsenic.

The others in the party became violently ill

(and Discoverer feigned illness as well), but

not fatally so. The following night when the

others appeared to be sleeping, Discoverer was

observed preparing to shoot one of the men.

He got off his fi rst shot, but fortunately missed,

and was quickly restrained before he could fire

again. Rather than administering punishment

on the spot, it was decided to bring the matter

to the whole camp at the mouth of the Stewart,

some sixty miles away.

At the Stewart camp, a miners’ meeting was

called to hear the case, and both Discoverer

and the others related their sides of the story.

According to Ogilvie’s informants, the earnest

manner in which Discoverer related his

perception of events convinced the miners

of the genuineness of his own fear for his

life, and some of the others in the party also

admitted, quite frankly, that if they had been

in Discoverer’s position, they would have

felt cause for alarm. As a result, according to

Ogilvie:

It appeared to the majority that Discoverer

acted in self-defence only, nevertheless, he

was considered an undesirable citizen, and

40 Crime and Deviance in Canada: Historical Perspectives

after much discussion it was decided to banish

him, so he was furnished with a sled, provisions

enough to get out if he could, and was ordered

to move up-river at least one hundred and fifty

miles from that camp, and assured that if ever

he was seen within that distance of it, any one

then present would be justified in shooting him

on sight.14

In another case on the Stewart recorded

by Ogilvie, 15 a seemingly much less serious

“crime’’ which took place in the same winter

received virtually the same sentence. Provisions

for the camp on the Stewart had run very short

by the fall of 1886, and the traders Harper and

McQuesten had allotted equal shares of the

available provisions to each man known to be

working in the district. Later in the winter a

miner known as “Missouri Frank” came in from

his camp fifteen miles up the river; since he had

already received the allotted amount of butter,

Harper refused to sell him more. That night,

Frank broke into the storehouse and absconded

with all the remaining supply of butter, which

amounted to the allotment for three or four men

who had not yet come in to the post. When the

butter was later missed, Missouri Frank was

suspected, and a deputation of miners from

the Stewart camp travelled up the river to

apprehend him. His partner—whom Frank had

told that he had purchased the butter at a high

price—confessed to the extra supply which

Missouri Frank had brought home. Frank was

brought down to stand trial at a miners’ meeting.

In this case the vote was unanimous “that he be

exiled from camp at least one hundred and fifty

miles, and that he never come near it” again

on penalty of death.16 Ogilvie observes: “This

may be considered a severe sentence for such a

crime, but the idea appeared to be that he was a

bad man, and lest he get the camp into difficulty

over a killing, it was deemed best to get rid of

him in time.”17 It is perhaps worth noting here

that prior to this incident Missouri Frank had

(rather unwisely, it would appear) “let it be

assumed he was a bad man from somewhere”

and “had notches on his gun, and all the other

insignia of the class.”18

*****

In the case of the mining camps, […] securing

compensation or administering sanctions was,

indeed, a function allocated to the community

at large through the public institution miners’

meeting, and case after case illustrates this.

[…] The appeal to public authority and sanction

in the institution of the miners’ meeting,

furthermore, was by no means limited to

cases which might be conventionally regarded

as involving “criminal” matters. Appeals to

secure sanctions or damages or to otherwise

adjudicate rights were common enough in

disputes stemming from what could be regarded

as voluntary and private arrangements.

*****

The Elimination of the Miners’

Meeting: Canadian “Law” versus

American “Lawlessness”

*****

The circumstances leading to the Canadian

decision to establish the Mounted Police in

the Yukon district are well documented. The

government had dispatched G.M. Dawson,

R.G. McConnell, and William Ogilvie to

survey the upper Yukon region in 1887–88;

this was the first official interest displayed

by Canadian authorities in the district. 19 The

question of establishing Canadian authority in

the Yukon was raised at that point, but Ogilvie

recommended against any such action, arguing

that an attempt to impose Canadian laws would

drive most of the prospectors to the American

side of the international boundary 20 and thus

militate against development of resources in

the district. By 1893, however, the continuing

expansion of mining activity and the increasing

influx of American miners into the district led

Ogilvie to reconsider. In his own words: it

was “time we were moving in the matter of

establishing authority over the Yukon in the gold

The Mounties as Vigilantes 41

fields, as we might, if the work were delayed,

have to face annoyances, if not complications,

through possession, without protest from us, by

American citizens.” 21

Ogilvie’s recommendation and the subsequent

dispatch of Constantine and Brown the

following year reflected a growing concern

in Ottawa for the effective establishment and

security of Canadian sovereignty in the region.

Furthermore, there were private interests

which had a stake in the effective imposition

of Canadian sovereignty and law. In 1893,

the government also received requests for the

dispatch of police to the district from two other

sources. Bishop William Bompas, an Anglican

clergyman who maintained an Indian mission

at Fortymile, requested the immediate dispatch

of a magistrate and detachment of police to halt

what he described as a burgeoning liquor trade

with the Indians.22 And the assistant manager of

the North American Trading and Transportation

Co., which operated a post adjacent to Fortymile,

requested police assistance to regulate the liquor

traffic in order to forestall potential trouble

between the whites and the Indians, as well as to

provide for the collection of customs duties.23

*****

Anticipating a hostile reaction from the

miners, the Privy Council decision included

a recommendation that Constantine proceed

cautiously, specifically instructing that he:

Be on the spot to collect customs duties on

all importations arriving in the Yukon district

during the season of navigation, and that he

be authorized to exercise, discretely [sic],

but without risk of complications, the powers

conferred upon him by his several commissions

and towards the end of the season report on all

subjects, with suggestions and recommendations,

thus placing the government in possession of

information upon which further development

of a system of government in the Yukon district

could be based.24

Furthermore, on the recommendation

of NWMP Comptroller Frederick White,

Constantine was not to be styled an officer of the

police but, rather, an “Agent of the Dominion

Government.” 25 White doubted “whether a

police officer with only five men to enforce his

authority would be met in a proper spirit by

between three and four hundred miners who

hitherto have respected no laws except those of

their own making.”26

In a subsequent letter to the Commissioner,

White reiterated the need for circumspection:

With regard to the preservation of law and order.

The Yukon District has hitherto been without

any form of government, the inhabitants are

principally of the mining class, and the mining

operation [sic] are reported to be in the vicinity

of the International Boundary. These conditions,

together with the fact that Inspector Constantine

will have to depend on the support of those in the

District, will demand most careful judgement

and discretion on his part. In the event of his

finding a disposition to resist authority, he will

abstain from exercising his Magisterial and

Police powers until he has reported the condition

of affairs for the consideration and instructions

of the Government.27

Following his first visit to the Yukon camps,

Constantine recommended dispatch of a force

of more than forty men. “The miners are very

jealous of what they consider their rights,”

Constantine wrote, “and from what I could see

and learn, any enforcement of the different laws

will have to be backed up with a strong force

at least for a time.” 28 A force of twenty men

was dispatched in 1895, under the command

of Constantine, but despite the fears of the

police and officials in Ottawa, there was little

resistance by the miners to the exercise of police

authority and the imposition of Canadian law.

*****

[…] In his annual report for 1895 he noted

that “no crime of any seriousness has been

committed,” and he enumerated only three

incidents where the police had become involved:

one case where a man was ordered out of the

42 Crime and Deviance in Canada: Historical Perspectives

country to prevent trouble after he had taken

another man’s wife; one case of selling liquor to

Indians; and one case of assault following which

the accused individual fled Canadian territory.29

Even the liquor trade appeared to pose no

serious problem. In a letter to the Commissioner

dated 4 September 1895, he reported that “The

arrival of the police in this part of the country

has almost finished the moving in of liquor, and

in several cases where liquor had been ordered

by the saloon men here, was the cause of the

orders being cancelled.” 30 […]

*****

The presumption that the police would be

faced with the task of imposing order on a

chaotic and crime-ridden society was patently

false. With or without police control, crime in

the Yukon did not pose a problem. At Circle

City, where the police exercised no authority

whatsoever and where they assumed that the

“criminal element” on the Canadian side of

the border had retreated in the face of their

authority, observers found things every bit as

peaceful and crime free as at Fortymile. A.T.

Walden, who was working as a dog driver at

Circle City in 1896, described that American

settlement in the following terms: “Here there

was no murder, stealing, or dishonesty and

right was right and wrong was wrong as each

individual understood it. Here life property and

honor were safe, justice was swift and sure, and

punishments were made to fit the case.”31 […]

There was one confrontation between police

authority and the miners’ meeting. In August

1895, the owner of a claim on Glacier Creek, in

the Fortymile District, leased it to a man named

Gordon. Gordon hired a number of men to work

the claim for him, but failed to pay their wages

and “jumped the country,” going to Circle City.

The workers who had lost their wages called a

miners’ meeting. Its decision was to order the

owner of the claim to pay the wages owed by

Gordon—a sum amounting to about $800. If the

wages were not paid, the miners’ meeting ruled,

the claim was to be sold.

The owner protested to Constantine and

requested police protection. Constantine then

dispatched a notice to the committee of miners

which had been appointed to carry out the

orders of the meeting, informing it that “there

is but one authority in this country, and that is

the law as laid down by the Parliament of the

Dominion of Canada .... [A]ny action taken by

you as to selling the claim for wages due by

Gordon is illegal and done at your own peril,

and that should you carry out your intention the

party buying takes no title and is a trespasser.”33

The incident was quite rightly regarded by the

police as a critical test of their authority, and

Constantine’s response reflected the perceived

gravity of the situation. 34

Constantine’s notice was served on the

committee three hours after the sale had taken

place, on 28 June 1896. Upon reading the

notice, the highest bidder refused the claim.

Thereupon the committee took possession of the

claim and turned it over to the second highest

bidder. The owner then notified Constantine

of these developments by special messenger

in a communication dated 1 July. On 4 July,

Constantine responded by dispatching a small

force to the creek, with instructions to “remain

on the claim until such time as seems to you

wise to leave” and “to proceed with greatest

caution in dealing with this case. You will, in

a quiet manner, be guided by circumstances

as they arise, but the law must be upheld.” 35

When the purchaser of the claim arrived at

Fortymile to register the Bill of Sale given him

by the miners’ committee, Constantine refused

to register it. The purchaser left that night for

the creek, in Constantine’s words, “breathing

defiance, and saying that the miners would see

him through.”36

Strickland, the officer in charge, recounts

the events following the arrival of the police

contingent on the creek:

We reached Glacier Creek and went to Messrs.

Van Wagoner and Westwood claim #19 above

discovery, the seat of the trouble. Mr. Westwood

informed me that Jerry Barker [the purchaser]

had put a man in possession of the claim. I

ejected this man and warned Jerry Barker to

The Mounties as Vigilantes 43

attempt no further occupation of the place. I saw

the chairman of the committee appointed by the

miners and gave him a similar warning. I think

they saw the force of our argument as one of the

committee took to the bush immediately on our

arrival at the creek. The better class of miners on

the creek are in favor of law and order and seem

to be glad that the so-called laws made by the

miners meeting are null and void. Several of the

miners of the worst class indulged in some big

talking and were very anxious that I should call

a meeting of the miners—to explain the law to

them. I gave a decided refusal to this proposition

stating that ... you had sent them a written notice

which they had chosen to utterly ignore and

that my present business on the creek was not

to talk but to act, they had nothing further to

say to this.37

*****

Once it was evident that the police were

opposed to the continuation of the miners’

meeting and were ready and willing to take

action in response to an appeal front the

judgment of such an assembly, the institution

was doomed. The attitude of the police meant

that the meetings had lost their power of

enforcement. […] By the fall of 1896 they had

virtually ceased to function on the Canadian

side of the boundary. The fact that the police

had undermined and supplanted them was not

generally resented. “All in the country,” Haskell

notes, “were quite ready to join in their [the

meetings’] obsequies when the Canadian police

instituted a different condition of things.”38 And

writing from Fortymile in May 1897, Ogilvie

could report that “The cry everywhere is ‘let

us have law administered by disinterested men

who are above influence and reproach’ as proof

of this sentiment I have only to say no miners’

meetings have been held in this District for over

six months.”39

*****

The law as administered by the Mounties

failed to serve any significant instrumental

functions above and beyond those which the

miners’ meeting had served prior to 1895.

Indeed, in this respect the law of the Mounties

proved decidedly more limited than the earlier

law of the miners’ meeting. However, the law

of the Mounties performed certain symbolic

functions which the miners’ meeting could

not. The Mounties, unlike the more egalitarian

miners’ assemblies, were capable of reliably

sustaining the public affirmation of a particular

set of class norms and values in the face of

perceived threat to the supremacy of these

norms within the community. […]

The Consequences of Police Control

*****

The instrumental consequences of police

control […] did not include any radical change

in the style of justice as it was being enforced

in the community. There was, however, one

noteworthy development with respect to the

instrumental functions of law in the district. This

was the introduction of some significant new

limits on the provision of remedies. The miners’

meeting, it will be recalled, had exercised wide-

ranging jurisdiction: it was bound by no formal

distinctions between “civil” and “criminal”

matters and could readily be called upon to

deal with either as the occasion might arise.

On the other hand, even though the Mounties

exercised judicial as well as police powers,

their jurisdiction was limited to criminal cases.

This was a distinction which they scrupulously

observed. But since the miners’ meeting was

discredited and no longer a viable institution,

many disputes and issues were left without an

appropriate forum for resolution.

*****

[…] As early as 1895, Constantine recognized

the need for civil courts. In his report for that

year, he wrote: “Civil courts are much required

and should be established without delay. Many

take advantage of the fact of there being no

machinery for the collection of small debts.”40

Again, in his report for 1896, Constantine

pleaded:

44 Crime and Deviance in Canada: Historical Perspectives

The necessity for civil courts is daily increasing.

They should be established with the least

possible delay. The want of them creates a

distrust in the administration of government

and there is an idea spreading that the country

is occupied by the government solely for the

purpose of revenue.41

The evidence suggests, therefore, that the

establishment of police control entailed no

profound change in the character of criminal

justice from the way it had been administered

under the miners’ meeting. Elimination of the

miners’ meeting did create at least a temporary

void in the authoritative resolution of civil

disputes. […]

By the time the police arrived in the district,

however, the changing character of the mining

communities had created an opportunity for

the Mounties to assume a significant symbolic

role which the miners’ meeting was incapable

of performing.

*****

[…] The growing population of drifters in

the towns began to be viewed as a threat to the

peace and good order of Yukon society.

Such perceptions and fears are perhaps

reflected in the establishment of the Yukon

Order of Pioneers at Fortymile in December

1894. The YOOP was initially limited in its

membership to those who had been residents

in the Yukon before 1888. The constitution

of the organization stated that its purpose

‘‘shall be the advancement of the great Yukon

Valley, The Mutual Protection and Benefit of

its Members” and “to unite the members in the

strong tie of Brotherhood and to prove to the

outside world that the Yukon Order of Pioneers

are men of Truth, Honor and Integrity.” 42 The

establishment of the YOOP by the earlier

miners in the district was an effort to preserve

for themselves—through the brotherhood—the

kind of community, system of values, and status

which they associated with the early camps.

[…]

[…] The favourable response of the older

miners to the police, as they asserted their

control in the district, was a reflection both of

this anxiety concerning the miners’ meeting and

approval of the kinds of norms and values the

police themselves represented.

In 1893, Warburton Pike visited the region

and expressed the view that the miners’ meeting

was “an excellent court as long as the better

class of men are in the majority, but a dangerous

power in the hands of the vile specimens of

humanity who sooner or later get the whip hand

in most of the mining camps.”43 […]

*****

The police themselves were decidedly in

tune with these sentiments. They were ready

to interpret the potential for trouble in general,

or perceived abuses of the miners’ meeting

in particular, largely in class terms. Writing

in February 1896, Constantine was moved to

comment that “The advent of the police has had a

quieting effect ... the greater portion of the tough

element have gone to the American territory

lower down the river. Being nonproducers

have not lessened the wealth or resources of the

Country or community.”44 In his annual report of

20 November 1896, his view of the significance

of the increasing criminal “element” entering

the country surfaced again:

With such a large number of men coming into

the country every spring, of necessity, there is a

certain percentage of criminals amongst them.

Having no means of learning their past record, it

is impossible to pick them out until such a crime

is committed. The element is increasing and will

increase. It is noticed, however, that through the

fear of Canadian law and its enforcement by the

small police detachment here many continue

their journey a couple of hundred miles down

the river to Circle City. 45

*****

The Mounties as Vigilantes

*****

The symbolic role of police control in the

Yukon has a curious parallel in the rise of

The Mounties as Vigilantes 45

the vigilante movements, which similarly

transformed existing systems of law in the

earlier mining communities of the American

West. Ironically, the Mounties—that prominent

symbol of Canadian “law and order”—may have

found support in their effort to eliminate the

miners’ meeting and assume ultimate authority

in the Yukon for some of the same reasons that

the vigilantes—that equally prominent symbol

of American frontier lawlessness—may have

been supported in assuming power and usurping

other forms of governance on the American

mining frontier. The parallel deserves at least

passing notice, not simply because of the

irony involved, but because of what it suggests

about the broader significance of the symbolic

functions of law in the transformation of legal

systems.

*****

In the Western mining towns, the newness

of settlement, the fact that their inhabitants

arrived as relative strangers to one another, and

ultimately the increasing differentiation and

heterogeneity of the population, all combined

to engender uncertainty about community

structure and values and about how choices

were to be made among opposed normative

systems which were recognized as challenging

one another for dominance. Under these

circumstances, the vigilantes emerged to serve

the function of dramatizing and affirming the

“behavioral boundaries” 46 of the community,

defining and clarifying its structure and

supporting establishment values. The fact that

the movements were widely applauded, that

movement leaders were typically drawn from

the upper class, and that upon occasion the

movements arose even where uncontrolled

crime was not, in fact, an immediate problem

attest to the significance of the symbolic

function of the vigilantes.47

Obvious differences did distinguish the

Mounties in the Yukon from the vigilantes in

California: the Mounties were a legal rather

than extra-legal organization, and their rule was

imposed from outside rather than from within

the local community. But as to functions and

the sources of support in the community, there

are noteworthy parallels. The vigilantes, like the

Mounties, derived their support from reactions

to rapidly increasing community differentiation

and increasing lack of certainty with respect to

community structure and values. In each case,

the new institution for the administration of

law symbolized the dominance of a particular

normative order. […]

But the point to be emphasized is that in the

mining communities of the American West

as well as in the Yukon, we see a significant

symbolic function—the capacity to provide a

clear public affirmation of the dominance of

one particular set of social ideals and norms—

supporting a fundamental transformation in

the administration of the law. The Yukon case

supports the view that increasing differentiation,

accompanied by perceptions of increasing

conflict of values and interests, may promote

the acceptance and institutionalization of

specialized, centralized agents of legal control

regardless of their relative instrumental

effectiveness. From the standpoint of the need

for agents or institutions of control which can

serve to define clear and consistent “behavioral

boundaries” for a community, this is perhaps

advantageous, if not necessarily laudable. In a

differentiated community, divided by conflicting

interests and values, consistency and clarity

in the public affirmation and sanctioning of

community norms may be best served by the

concentration of public sanctioning power in the

hands of a specialized body identified with one

particular set of such values and interests.

46 Crime and Deviance in Canada: Historical Perspectives

Notes

1. Morris Zaslow, “The Yukon: Northern Development

in the Canadian–American Context” in Regionalism

in the Canadian Community, 1867–1967, ed.

Mason Wade (Toronto: University of Toronto

Press, 1969), 183–84.

2. John Phillip Reid, “Paying for the Elephant:

Property Rights and Civil Order on the Overland

Trail,” Huntington Library Quarterly 41 (1977):

37; Barry M. Gough, “Keeping British Columbia

British: The Law-and-Order Question on a Gold-

Mining Frontier,” Huntington Library Quarterly

38 (1975): 278.

3. Robert Craig Brown, “Canadian Opinion after

Confederation, 1867–1914” in Canada Views

the United States: Nineteenth-Century Political

Attitudes, ed. S.F. Wise and Robert Craig Brown

(Seattle: University of Washington Press, 1967).

4. Richard Maxwell Brown, “The American Vigilante

Tradition” in The History of Violence in America:

Historical and Comparative Perspectives, ed.

Hugh Davis Graham and Ted Robert Gurr (New

York: Praeger, 1969), 178–90.

5. Joseph R. Gusfield, “Moral Passage: The Symbolic

Process in Public Resignations of Deviance,”

Social Problems 15 (1967): 76–77.

6. Ibid.; Joseph R. Gusfield, Symbolic Crusade

(Urbana: University of Illinois Press, 1963);

Murray Edelman, The Symbolic Uses of Politics

(Urbana: University of Illinois Press, 1964); Kai

T. Erikson, Wayward Puritans: A Study in the

Sociology of Deviance (New York: Wiley, 1966).

7. Charles Constantine, “Report of Inspector

Constantine, 10 October 1894,” in Report of the

Commissioner of the North-West Mounted Police

Force, 1894 (Ottawa: Queen’s Printer, 1895);

S.A. Archer, A Heroine of the North: Memoirs of

Charlotte Selina Bompas (New York: Macmillan,

1929), 138.

8. Public Archives of Canada (hereafter PAC),

Records of the Royal Canadian Mounted Police

(hereafter after RCMP), RG18, vol. 1318, file 212-

1894, draft copy of Report of Inspector Charles

Constantine.

9. Harold B. Goodrich, “History and Condition of the

Yukon Gold District to 1897” in Geology of the

Yukon Gold District, Alaska, ed. Josiah Edward

Spurr (Washington: Government Printing Office,

1897), 119.

10. William Ogilvie, Early Days on the Yukon (New

York: John Lane, 1913), 245; Zaslow, “The

Yukon,” 184.

11. Arthur Treadwell Walden, A Dog Puncher on the

Yukon (Boston: Houghton Mifflin, 1928), 55–56.

12. Ibid., 102.

13. Ogilvie, Early Days on the Yukon, 42–51.

14. Ibid., 50.

15. Ibid. 267–71.

16. Ibid., 270.

17. Ibid., 271.

18. Ibid., 268.

19. D.R. Morrison, The Politics of the Yukon Territory,

1898–1909 (Toronto: University of Toronto Press,

1968), 7; Zaslow, “The Yukon,” 183.

20. Ogilvie, Early Days on the Yukon, 142–44; Zaslow,

“The Yukon,” 183–64.

21. Ogilvie, ibid., 144.

22. PAC, Constantine papers, MG 30/E55, vol. 3, file 4,

W.C. Bompas to Minister of Interior, 9 Dec. 1893;

ibid., W.C. Bompas to Superintendent of Indian

Affairs, May 1893.

23. Ibid., CH. Hamilton to Minister of Interior, 16 April

1894.

24. PAC, Constantine papers, MG 30/E55, vol. 3, file

4, certified copy of Report of Committee of Privy

Council, approved 26 May 1894.

25. Ibid.

26. Ibid., memo from F. White, comptroller NWMP, 2

May 1894.

27. PAC, Records of the RCMP, RG18, vol. 1318, file

212-1894, Comptroller NWMP to Commissioner,

20 May 1894.

28. Ibid., draft copy of Report of Inspector Charles

Constantine.

29. Ibid., Yukon Superintendents’ Letterbooks, copy

of 1895 report.

30. PAC, Records of the RCMP, RG18, vol. 1345, file

190-1895, Constantine to Commissioner, 4 Sept.

1895.

31. Walden, Dog Puncher, 45.

32. PAC, Constantine papers, MG 30/E55, vol. 4,

Constantine to Officer Commanding the NWMP,

13 July 1896.

33. PAC, Records of the RCMP, RG18, vol. 123, file

468, Constantine to Oscar Jackson, E.S. Maloney,

and Jas. McMahan, the Committee Appointed by

Certain Miners of Glacier and Miller Creeks, 19

June 1896.

34. Ogilvie, Early Days on the Klondike, 250–52;

Hayne, Pioneers of the Klondike, 121–24.

35. PAC, Records of the RCMP, RG18, vol. 123, file

468, Constantine to Strickland, 4 July 1896.

The Mounties as Vigilantes 47

36. PAC, Constantine papers, MG 30/E55, vol. 4,

Constantine to Officer Commanding the NWMP,

13 July 1896.

37. Ibid., Report of Strickland to Constantine, 14 July

1896.

38. William B. Haskell, Two Years in the Klondike and

Alaska Goldfi elds (Hartford: Hartford Publishing

Co., 1898), 154.

39. Zaslow, “The Yukon,” 187.

40. Ibid., Yukon Superintendents’ Letterbooks, copy

of 1895 report.

41. Charles Constantine, “Report on the Yukon

Detachment 20 November, 1896” in Report of the

Commissioner of the North-West Mounted Police

Force, 1896 (Ottawa: Queen’s Printer, 1897),

235.

42. Yukon Territorial Archives, Records of the Yukon

Order of Pioneers, Minute Book, Dec. 1894

entry.

43. Warburton Pike, Through the Subarctic Forest

(London: Edward Arnold, 1896), 220–21.

44. PAC, Constantine papers, MG 30/E55, vol. 4,

Constantine to T.M. Daly, 11 Feb. 1896.

45. Constantine, “Report on the Yukon Detachment,”

234.

46. Erikson, Wayward Puritans, 9–11.

47. Richard Maxwell Brown, Strain of Violence (New

York: Oxford University Press, 1975), 105–12,

124.

CHAPTER 4

Discordant Music:

Charivaris and Whitecapping in

Nineteenth-Century North America

Bryan D. Palmer

That monster custom, who all sense doth eat,

Of habits devil, is angel yet in this,

That to the use of actions fair and good

He likewise gives a frock or livery,

That aptly is put on.

—Hamlet, III, 4

Friend, hast thou hear’d a Strong

North Eastern roar,

Or the harsh discord of Charivari,

or Cat’s wild scream ere them to

love agree?

—Quebec Gazette, 12 January 1786

*****

[…] Charivaris and whitecapping, two prominent

forms of extra-legal authority in North America

that have received little scholarly attention,

reveal important dimensions of the nineteenth-

century past.

*****

II

Perhaps one of the most persistent cultural

forms known to scholars of popular customs

and traditions was the charivari. As a ritualized

mechanism of community control, with roots

penetrating back to the medieval epoch, the

charivari was known throughout the Atlantic

world. 1 Although it could be directed against

virtually any social offender, the custom was

most often used to expose to the collective wrath

of the community adulterous relationships,

cuckolded husbands, wife and husband beaters,

unwed mothers, and partners in unnatural

marriage. Many variants were possible, and

the phenomenon had a rural as well as an urban

presence, but the essential form was generally

cut from a similar cloth. The demonstration

was most often initiated under the cover of

darkness, a party gathering at the house of the

offender to beat pans and drums, shoot muskets,

and blow the ubiquitous horn, which butchers

often rented out for the occasion. Sometimes the

guilty party was seized, perhaps to be roughly

seated on a donkey, facing backwards, and

Discordant Music 49

then paraded through the streets, passers-by

loudly informed of his/her transgression. The

charivari party was often led by youths, on other

occasions by women. In seventeenth-century

Lyon and eighteenth-century Paris we know

that journeymen and artisans were particularly

active, as were rural tradesmen in eighteenth-

and nineteenth-century England. As a constant

check on misbehaviour, the charivari served

an important purpose in many communities

and in many different cultural contexts. Its

disappearance, usually dated around 1850 at

the latest, has been interpreted as an indicator

of the potent rise of the nuclear family, which

no longer required the collective surveillance of

neighbours and townsfolk to assure its stability

and continuity. 2 […]

The English charivari was practised under

a multitude of names: rough music, known in

East Anglia as tinning, tin panning, or kettling3

;

skimmington, skimmerton, skimmety-riding,

or wooseting; […] riding the stang, apparently

most popular in the northern counties and in

Scotland4

; Devon’s stag hunt5

; the occupational

variation, the butcher’s serenade, artfully

employed by London’s Clare Market men,6 or,

the American term, shivaree, common among

Cornish miners.7 […]

Two cases of English charivaris waged

against wife-beaters indicate the general

contours of the practice. 8 The first instance,

recorded in 1860, documented the use of the

custom in the Surrey and Sussex region during

the 1840s. It was suppressed by the police,

who grew irritated with forms of rough music

because they frequently rendered the roads

impassable. Offending wife-beaters were first

warned of the community’s wrath, chaff from

the threshing-floor strewn on their doorsteps in

the dead of night. If the offence continued, the

man was subjected to rough music. Under the

cover of darkness a procession formed, headed

by two men with huge cow-horns, followed by

an individual with a large old fish-kettle around

his neck, representing the trumpeters and big

drum of a serious parade. Then came the orator,

leading “a motley assembly with hand-bells,

gongs, cow-horns, whistles, tin kettles, rattles,

bones, frying-pans, everything in short from

which more and rougher music than ordinary

could be extracted.” At a given signal, the group

halted, and the orator began to recite:

There is a man in this place

Has beat his wife!! (forte. A pause)

Has beat his wife!! (fortissimo.)

It is a very great shame and disgrace

To all who live in this place.

It is indeed upon my life!!

A bonfire was then lit, and the charivari party

danced around it, as if in a frenzy. The noise was

heard as far away as two miles. The orator closed

with a speech recommending better conduct,

and the practitioners of rough music departed,

encouraged by the offender’s neighbours, who

provided beer for “the band.”9

Another case, this time from Hedon, in the

East Riding of Yorkshire, outlines the events of

18–20 February 1889. Jack Nelson had cruelly

beaten his wife. An effigy of Nelson was carried

by two men through the village, accompanied

by a large crowd, wielding the traditional

instruments of rough music. The procession

eventually came to a halt in front of Nelson’s

door, and the clatter of pans and horns quickly

ceased, the crowd breaking out in voices loud

and harsh:

Here we cum, wiv a ran a dan dan;

It’s neather fo’ man cause nor tha cause

that Ah ride this stang

Bud it is fo’Jack Nelson, that Roman-nooased man.

Cum all you good people that live i’ this raw,

Ah’d he’ ya tk wahnin, for this is oor law;

If onny o’ you husbans your gud wives do bang

Let em cum to uz, an we’ll ride em the stang.

He beat her, he bang’d her, he bang’d her indeed;

He bang’d her afooar sha ivver stood need.

He bang’d her wi neather stick, steean, iron

nor slower,

But he up wiv a three-legged stool an knockt

her backwards over.

Upstairs aback o’ bed

50 Crime and Deviance in Canada: Historical Perspectives

Sike a racket there they led.

Doon stairs, aback o’ door

He buncht her whahl he meead her sweear.

Noo if this good man dizzant mend his manners,

The skin of his hide sal gan ti the tanner’s;

An if the tanner dizzant tan it well,

He sal ride upon a gate spell;

An if the spell sud happen to crack,

He sal ride upon the devil’s back;

An if the devil sud happen ti run,

We’ll shut him wiv a wahld-goose gun;

An if the gun sud happen ti miss fire,

Ah’ll bid y good neet, for Ah’s ommast tired.

Upon the conclusion of this serenade, the

clamour of rough music was again initiated.

Amidst cheering and loud noise, the effigy was

carried around the village for three successive

nights. The ceremony was terminated on the

third evening, when Nelson’s likeness was

finally burned on the village green.10

In France, and indeed on the continent in

general, wife-beaters were seldom subjected to

the charivari. But the practice was nevertheless

quite common, often initiated by the young,

resentful of old men who married young

women, robbing youth of its rightful access to

the marriageable females of the community.

Payment was often demanded to appease those

who saw themselves wronged by the act of

unnatural marriage:

Fork up, old pal

The dough that you owe

We’re the boys of the block

And’ we want a good show

We’re wild as they come

And off on a spree

So out with the cash

Or charivari!11

Once their palms were greased with coin of

the realm, the young men often retired to the

nearest tavern, and left the married couple to

their wedding-night pleasures. Occasionally,

however, the charivari was actually used to

punish those who had deprived the local young

of potential spouses, and no amount of cash

could deflect the final reckoning.12 […]

Marital mismatches, while a prominent cause

of French charivaris, were rivalled by a series of

sexual offences. Married men who impregnated

single women, cuckolded husbands, unwed

mothers, and those engaged in adulterous

relationships were all subjected to the charivari,

censured for the threat they posed to community

social order.13 […]

[…] Natalie Zemon Davis notes that at this

early date the ritual could be moved to explicitly

political purpose, a mechanism whereby petty

proprietors, artisans, and merchants marshalled

the urban poor to voice their critique of king

and state. 14 Closer to the modern period,

charivaris assumed importance in the years

of revolutionary upsurge of the 1790s, and in

the turbulent political climate of 1824–1848. 15

And yet, even in this context, charivaris are

perhaps best seen as a pre-political form of class

action, admittedly set firmly against the wall

of nineteenth-century authority, but lacking in

conscious, political direction. A case in point,

perhaps, is provided by the Limoges prostitutes.

In 1857 they faced persistent harassment and

incarceration in a local hospital. Escaping

from the institution, the women resisted efforts

to curb their business activities by organizing

charivaris that drew the enthusiastic support

of the local barracks. 16 This was, to be sure,

a political undertaking, and one revealing

important social tensions, but it implies no

condescension to place it in the category of

primitive rebellion.17

*****

The charivari, then, was hardly an isolated

phenomenon. Bound by neither region nor

nation, it was a universally practised custom, an

essential component of the “invisible cultures”

and “limited identities” of the plebeian world. 18

[…] For the charivari has a North American

presence, as well as a European one. Those

migrating to the New World brought much

of their culture with them: traditions, values,

Discordant Music 51

language, and specific forms of ritualized

behaviour. Woven into the very fabric of this

culture was the charivari, and it would not easily

be displaced.

III

Conventional wisdom has it that the charivari

was brought to North America by the French,

that it was originally prominent in the settlements

of Lower Canada, Louisiana, and Alabama, and

that it was gradually adopted in English-speaking

areas, where the derivative term shivaree was

used to denote the custom. 19 And, indeed, the

first recorded instances of North American

charivaris that have come to my attention

occurred in Lower Canada. A Quebec charivari

of 28 June 1683 illustrates a common pattern.

Francois Vezier dit Laverdure died 7 June 1683,

leaving a widow 25 years of age. Three weeks

later his mourning spouse took a new husband,

Claude Bourget, aged 30. Twenty-one days of

widowhood seemed an unreasonably short time

for the people of Quebec, and they turned out

to charivari the couple. Disorder reigned for

more than a week, and the Church authority

eventually intervened. […]

*****

[…] In regions with a sprinkling of French

Canadians, the charivari was always present.

Ottawa and Peterborough were well known for

the practice, and the Smith’s Falls and Gatineau

regions also witnessed the custom on a number

of occasions. Well into the 1870s the ritual

remained intact.20

Lower Canada, too, was familiar with the

charivari. […] Montreal was the scene of a

veritable epidemic of charivaris in the early

1820s. […]

*****

[…] Common throughout the Cajun districts

of the American South, the charivari supposedly

gained acceptance out of “an indisposition to

allow ladies two chances for husbands, in a

society where so few single ladies [found] even

one husband! a result, it is to be presumed, of the

concubinage system so prevalent [there].”21

[…] Alice T. Chase argued that the charivari

was common, in the 1860s, in most rural

hamlets from Pennsylvania west to Kansas

and Nebraska, being particularly prominent in

Ohio, Indiana, and Illinois. She saw the ritual

coming to America with the Pennsylvania

Dutch. 22 Among New Englanders the practice

was well established, known as the serenade.

In Nebraska in the 1870s belling the bridal

couple, giving them a “warming,” 23 was a

frequent occurrence. 24 “It was understood,”

within the Tennessee mining community, “that

every bride and groom had to be shivareed.”25

The sanserassa, a serenade of tin pans, horns,

kettles, and drums, was actively practiced

by the Spanish population of St. Augustine,

Florida, where the ritual was common in the

1820s. 26 Scandinavian settlements apparently

incorporated the practice into their language

and their culture.27 Even in early Upper Canada,

or post-Confederation Ontario, where we have

seen the French influence to be operative,

numerous cities, towns, villages, and rural

communities sufficiently removed from the

shadow of French culture utilized the charivari,

repeatedly directing it against those who

flaunted community standards.28 Across North

America, then, the custom had a vital presence,

known, according to local and regional taste,

as serenade, shivaree, charivari, tin-panning,

belling, homing, bull banding, skimmelton, or

calathump.29

*****

In nineteenth-century Upper Canada, for

instance, the charivari was often a force

undermining social authority, resolutely opposed

by magistrate and police. […]

*****

Three Kingston, Upper Canada, charivaris of

the mid-1830s, all directed against remarriage,

forced the hand of the local authorities, one

leading to two arrests, another necessitating

the calling into operation of the Summary

Punishment Act, the third leading to the creation

of a special force of constables, 40 strong, to

52 Crime and Deviance in Canada: Historical Perspectives

enforce the peace.30 The latter event, led by one

Henry Smith, Jr., illustrates well the deliberate,

planned nature of some of these undertakings,

revealing the importance, perhaps, of local

groups consolidated around a popular figure.

Smith was a barrister with a long history of

involvement in shady legal entanglements, a

man who had himself been in court on charges

of assault, perjury, and riot. […] It could well

have been men like Smith who provoked this

response from the Hamilton Board of Police,

22 March 1842:

Whereas the custom of meeting together at night

by ill disposed persons disguised by dress, paint,

and for the purposes of indulging in what is

commonly called a chevari, has been a source of

great annoyance to all the peaceable inhabitants

of this Town, and whereas such assemblages

endanger the peace of the Town, the safety of

property and person and are highly disgraceful

to all concerned in them ... it is ordered that

persons convicted of being a party to any such

proceedings shall be fined.31

[…] Charivaris directed against domestic

impropriety particularly remarriage, could

thus raise issues that went well beyond popular

distaste for unnatural marriage.32

In other cases, too, the charivari extended

beyond the purely domestic concerns that so

often defined its purpose. Indeed, the custom

often reflected essential social tensions. Mrs.

Moodie documented the case of Tom Smith, “a

runaway nigger from the States” charivaried for

his pretentious, and successful, bid to have an

Irish woman marry him. Dragged from his bed,

ridden on a rail, and beaten, the black died under

the hands of the charivari party.33 […]

*****

More explicitly, the charivari was often

used to show open disapproval for certain

forms of behaviour, particularly those judged

immoral or illicit. 34 […] A Bowmanville,

Ontario, lawyer, Mr. Loscombe, faced the

rough music of his neighbours in 1868, when a

crowd gathered at his office to tar-and-feather

him, punishment for his unlawful bestowing

of affections upon a servant girl. A constable

eventually had to escort Loscombe home, but

the crowd captured the lawyer, handled him

roughly, and threw him over a fence. After an

announcement that the man’s wife was ill, the

crowd discontinued the disturbance. The next

morning Loscombe escaped the city, but the

group assembled anyway, burning effigies in

front of his house. 35 […] An Ancaster, Upper

Canada, lawyer, accused of living adulterously

with a woman who had deserted her husband

due to ill treatment; a New York City woman

thought to be a murderess; and a free-love

advocate, cohabiting with his mistress in Utica,

New York, in 1860, faced similar forms of

rough justice. […] Prostitutes, too, were likely

candidates for the charivari, bearing the brunt of

a vicious form of popular justice in the Quebec

timberlands and American west well into the

twentieth century. 36

A jealous eye toward property, or resentment

of those who attempted to establish themselves

as superior elements in a community of

equals, also elicited the charivari. […] Edward

Littlejohn, aged 74, was charivaried in 1881 by a

group of young men who hoped to drive him off

of his Highland Creek, Scarborough Township

property so that they could secure access to the

land. 37 […] Social pretensions drew immediate

reaction in the timber-lands of western Ontario.38

Finally, the hostility with which a “ruffian mob”

greeted a Saltfleet marriage in 1868, the husband

“revoltingly maltreated,” and the bride “taken

out en dishabille, and conveyed some distance

in the piercing cold on an ox sleigh, meanwhile

being taunted on the felicities of her bridal tour,”

suggests a strong sense of resentment.39

Occasionally, the charivari could be directed,

not at domestic impropriety, sexual misbehaviour,

or social pretension, but at constituted authority

itself, a brazen display of popular contempt for

law and order. This appeared to be the case in

a series of noisy parades in St. John’s, Lower

Canada, in August 1841. As the local police

seemed incapable of quelling the disturbances,

Discordant Music 53

they asked for deployment of troops to the town

to aid the civil power in suppressing disorder.

Upon official investigation the Magistrates were

informed that:

... the disturbance, in the first instance, had only

amounted to the putting in practice an illegal,

but long established custom throughout Canada,

called a “chri-vri”—a boyish frolic liable to be

treated by the police as a common nuisance

or actionable under the more serious charge

to extort money .... The indiscreet conduct of

the Magistrate, who appeared to have worked

himself up into a state of nervous excitement

led some idle persons of the Village to direct

their petty annoyances against him with too

good success.

A small patrol eventually suppressed the

charivari, but not before constituted authority

had exposed itself “and Her Majesty’s troops to

the amusement and derision of the mischievous

persons who sought to annoy [it].”40

[…] Perhaps one of the most striking uses of

the charivari to show popular disapproval, in

the political realm, occurred in the Placentia,

Newfoundland election of 1869, where the

ritual was employed to express the inhabitants’

hostility to Confederation. Ambrose Shea, the

island’s delegate to the Quebec conferences,

paid a visit to Placentia, where he was greeted

by locals carrying pots of hot pitch and bags of

feathers, angered at “de shkeemer’s” effort to

“sell his country.” In addition, a crowd of fifty

“sounded melancholy insult to the candidate

through ... large conchs which the fishermen

get upon their ‘bull tow’ trains in summer, and

another band of about thirty, ... blew reproaches

and derision through cow horns.” Insulted and

disgusted by the display, Shea could not even

land on the shore.41

But this use of the charivari must have been

rare. When directed to explicitly political

purpose, the charivari was most often a

mechanism of popular endorsement, waged

to celebrate some notable event, or to support

a popular candidate. The Callithumpians, for

instance, were a group of Baltimore “rowdies,”

patterning themselves after the “Ancient and

Honourable Artillery Company” of Boston, who

ushered in the fourth of July with grotesque attire

and the clamour of tin pans, kettles, bells, and

rattles. 42 In New York City the Callathumpians

were prominent in the 1830s, when an American

story-teller first witnessed them:

I was in New York, New Years, and all at once

I heard the darndest racket you’d ever wish to

hear. There was more than ten thousand fellers

with whistles, penny trumpets, tin pails, shovels,

tongs, spiders, gridirons, warming pans, and all

such kind of implements. Why, they made more

noise than a concert of cats, or a meeting house

full of niggers.43

In old Ontario the term Kallithumpian Klan, or

“Terribles,” often referred to the grotesquely

attired processions organized to celebrate the

Queen’s Birthday or Dominion Day. The term

callithumpian band, an American variation

of the charivari, seemed appropriately fitted

to these parades, always marked by “the

sound of discordant ‘music’,” and outrageous

disguise.44

*****

Aside from these kinds of festive parades, the

charivari was sometimes used to endorse a

specific politician. […] Certainly one of the

last recorded cases of this use of the charivari

occurred in 1910, after Harry Middleton Hyatt’s

father was elected to the Quincy, Illinois, City

Council. A progressive reformer, the elder Hyatt

had fought “the City Hall Gang” for years in his

newspaper column. Upon his victory, “the old

time charivari bunch” turned out to pay their

respects, pounding on drums stamped R.A.R.,

initials proclaiming them the “Ragged Assed

Rounders.”45

Where the charivari was turned most

emphatically to purposes of a political or social

nature was when it was used by working men

and women to register their discontent. The

custom had a long history of this type in the

54 Crime and Deviance in Canada: Historical Perspectives

British Isles. 46 When the English government

attempted the enclosure of lands and forests in

the western districts in the years 1628–1631,

popular resentment flared in the anonymous

personage of Lady Skimmington.47 […]

In the United States the charivari, or similar

forms of ritualistic derision, could also be turned

to working-class purpose. As early as 1675 a

group of Boston ship carpenters had forcefully

ejected another worker from their presence,

claiming he had not served his full seven

years’ apprenticeship. John Roberts and eight

other defendants admitted having carried John

Langworth, “upon a pole and by violence,” from

the north end of Boston to the Town dock. A

constable eventually rescued the carpenter, and

the men were fined fi ve shillings each, payable

to the government and the victim. But they

justified their action on the grounds that “hee

was an interloper and had never served his time

to the trade of a ship carpenter and now came

to work in theire yard and they understood such

things were ususall in England.”48 […]

In Canada, the use of the charivari in this

manner remains obscure. Strikers, of course,

often utilized mock processions to denigrate

opposing forces. […] Unskilled labourers at the

Chaudière Lumber Mills, engaged in an 1891

battle with their employers, mocked the militia,

summoned to preserve order, with a charivari

in Hull, Quebec, twenty of their number

blackening their faces. Dressed as “Terribles,”

the men paraded with sticks on their shoulders

“and went through military movements in a

laughable manner.”49 […]

The most explicit use of the charivari in this

manner, however, occurred in the midst of a

weavers’ strike in Hamilton, Ontario, in the

spring of 1890.50 On two occasions the striking

weavers, blowing fish-horns, shouting, and

acting, according to the local newspaper, like

a procession of “Grit schoolboys attempted

to intimidate women who refuse to join their

cause.” Mrs. Anne Hale was subjected to similar

treatment, charging Moses Furlong, Richard

Callan, Henry Dean, and Ann Burke with

disorderly conduct. The proceedings ended in

$5.00 fines for the “charivaring weavers.”51

Perhaps this kind of legal suppression took

its toll. The charivari certainly continued into

the twentieth century, but only the carcass

remained, pleasant sport for villagers and small-

town North American youth.52 […]

*****

[…] It is impossible to date the decline of

the ritual, indeed, numerous colleagues have

witnessed forms of the charivari in Canadian

villages and towns as late as 1963. 53 But the

research index cards can tell us something.

By the mid 1890s the custom is increasingly

rare, and the last nineteenth-century Canadian

charivari I have located in the newspapers

occurred in 1896, near Brantford, Ontario, on

Christmas Eve. Like so many similar affairs, it

ended in death, a young farmer succumbing to

the shot-gun blast that was meant as a warning.54

In Adams County, Illinois, the charivari had

disappeared in the immediate pre-World War

I years. 55 And yet, despite the unmistakable

demise of the custom, its function was to

be fulfilled by another ritualized method of

enforcing community standards and appropriate

behaviour. In the years 1888–1905 whitecapping,

a distinctively American phenomenon, took up

where the charivari had left off.

IV

John S. Farmer, author of Americanisms—Old

and New, described the White Caps as, “A

mysterious organization in Indiana, who take

it upon themselves to administer justice to

offenders independent of the law. They go out

at night disguised, and seizing their victim,

gag him and bind him to a tree while they

administer a terrible whipping. Who they are is

not known, or if known no one dares to make a

complaint against them. They are particularly

severe,” concluded Farmer, “against wife

beaters.” 56 Other popular dictionaries offered

similar definitions of the White Caps stressing

their efforts to regulate public morals, and to

administer justice to offenders independent

of the law. 57 One source concluded that, “The

whole White Cap movement was borrowed

from English outlawry.”58

Discordant Music 55

These kinds of assessments, often based on

the scantiest of evidence, tell us very little.

In some cases they may even lead us into

further confusion. For the White Caps owed

little to any English predecessor, developing,

rather, as a peculiarly North American form

of rough justice, one strand in the long history

of vigilante activity and popular tribunal that

stretched from the tar and feather feats of Comet

Joyce, jun., leader of Boston’s revolutionary

crowd, 59 through the Carolina regulators 60

and into the nineteenth-century associations

emerging in San Francisco and Montana to curb

the activities of criminals and highwaymen. 61

Lynch-law, and the more individualized acts

of cowhiding, rawhiding, and horsewhipping,

sustained themselves as part of the same long

tradition of American popular justice. 62 These

forms, reaching well into the twentieth century,

were often used against radical dissidents, as the

history of the Industrial Workers of the World

and the 1919 Winnipeg General Strike reveal63

or against oppressed groups, but they could also

be employed by those significantly removed

from the bastions of social and economic

power for their own purposes. Thus, nineteenth-

century workers often threatened, and practiced,

tarring and feathering, utilizing the ritual

against strikebreakers; in the depression decade

of the 1930s tarring and gravelling was one

popular punishment inflicted on landlords

who attempted to exploit hard times, evicting

tenants of long residence, drawing out the last

penny of rents that, to the suffering victims,

seemed highly extortionate. 64 For the student

of North American legal and social history,

then, the popular tribunal is a realm of vital

importance. 65

Whitecapping drew much of its vigour

from this essential continuity in the North

American tradition of vigilante activity. But it

buttressed this strength, tapping other sources

of attachment and commitment. It may, in

certain parts of North America, have drawn on

the White Cross Movement, a religious crusade

of the 1880s raging against prostitution, drink,

and lewdness, for moral tone and rigour.66 The

regalia of the White Caps, most commonly

masks, hoods, and robes, likely borrowed

heavily from the experience of the Ku Klux

Klan, and must have attracted many to the ranks

of the movement. 67 More important, perhaps,

were the elaborate passwords, rituals, and secret

oaths that bound members to a fraternity of

associates; in many cases the forms were taken

directly from organizations like the Knights of

Labor or the Masons.68 […]

*****

[…] The history of whitecapping was

an intensely local affair. Indeed, one early

commentator noted the importance of the

terrain in southern Indiana in facilitating the

growth of the White Caps: the hilly, forested

land serving as a haven for those who sought

to impose their own brand of rough justice,

keeping their distance from the law. 69 Bald

knobbing, the Missouri variant of whitecapping,

drew its name from the “balds” and “knobs”

of the mountains in the southwestern corner of

the state, the home of the masked regulators of

Taney, Christian, Stone, and Douglas counties.70

Madelein Noble has argued that this regional

context even affected the direction which

whitecapping took: in the mid-west and border

states the phenomenon was directed against

moral improprieties, while the south and far

west witnessed the dominance of whitecapping

directed against economic ills.71 She has a point,

for this certainly seems to be the case, but the

dichotomy is drawn a little too rigidly, and the

Canadian material complicates the issue further.

But what emerges, in spite of local differences,

is the way in which whitecapping was used as

an American form of rough music. […]

Consider, for instance, the home of

whitecapping, Indiana, where the movement

had precursors in the mid 1850s, attained

prominence in the mid and late 1880s, and

gained a place in the popular literature of the

times with Booth Tarkington’s first novel.72 Of

the 80 instances of whitecapping or White Cap

warnings, uncovered by Noble in Crawford

and Harrison counties in the years 1873–1893,

56 Crime and Deviance in Canada: Historical Perspectives

most were directed against those who neglected

their family, engaged in wife- or child-beating,

exhibited a marked laziness, or stepped

outside of the boundaries of appropriate sexual

behaviour. Sally Tipton was whipped in July

1884 for giving birth to a child out of wedlock.

She claimed to have seen Cornelius Grable in

the White Cap party, the man she had previously

named in a paternity suit. […] On 13 December

1888, the Wooster Republican warned those

citizens who “continually practice adultery” to

desist or suffer a visit from the White Caps. […]

Aaron Bitner, John Hilderbrandt, and Fielding

Berry were all whitecapped in October 1887,

drawing the ire of the White Caps for their ill

treatment of wives, daughters, stepchildren, and

neighbouring youths.73

This kind of community regulation of sexual

behaviour and family standards reminds one

of forms of the English charivari, and the

uses to which they were put in the nineteenth

century. 74 If the White Caps lacked the

traditional mock processions and instruments

of rough music characteristic of the English

charivari, they replaced them with appropriate

ritual, depositing a bundle of hickory switches

containing a threatening letter on the doorstep

of the offender. If the warning was not heeded,

a whipping followed. And public shame, so

crucial in all European forms of the charivari,

was also central in the history of whitecapping.75

From Indiana, whitecapping spread quickly

to Ohio, and by 1889 had attained a foothold

across North America.76 […]

*****

These highly organized forms of whitecapping,

prominent in the midwest and border states,

were supplemented by activities in the south

and far west, where the ritual was directed

against economic ills, often complicated by

the issue of race. 77 Mississippi’s White Caps,

active in the years 1902–1906, directed their

anger against black tenant farmers, scapegoats

in the battle between small dirt farmers and

the mercantile elite that controlled credit and

dictated land policy. 78 In North Texas, too,

blacks were frequent targets of White Cap

gangs. 79 Perhaps the most interesting case of

whitecapping emerged in New Mexico, in the

mid to late 1880s, led by Juan José Herrera, a

migrant from Colorado or Utah. Dominated

by small squatters of Mexican-American

descent, Las Gorras Blancas fought large cattle

ranchers and landowners who began fencing

the best pasturing and watering lands. As they

burned fences, cut barbed wire, and terrorized

the cattle men, the New Mexico White Caps

proclaimed their platform: “To Protect the

Lives and Property of Our People. Lawyers and

judges be fair and just as we are or suffer the

consequences.”80

This kind of structured movement remained

rare in Canada, although whitecapping was

frequently practiced, often in an organized

fashion. White Cap gangs battled other youth

groups and police in turn-of-the-century

Hamilton, Ontario. 81 But the most impressive

documentation comes from Georgetown,

Ontario, where the White Caps were led by E.

Copeland, “an American desperado, who carried

on the same business in the United States, and

defies the officers of the law to arrest him.” Like

their counterparts in Indiana, Georgetown’s

White Caps drew on the nineteenth-century

community’s distaste for wife-beaters. 82 Their

first victim was a Mr. Crowe, notorious for his

acts of cruelty to his wife. In mid February

1889 Crowe was sent a warning. On a Saturday

evening, in early March, a dozen armed and

masked men attacked Crowe’s house, seized

the wife-beater, stripped him naked, switched

him, and rolled him in the snow. Crowe left

town shortly after. From this beginning, the

White Caps broadened their activity, sending

threatening letters and bundles of hickory

switches to a number of persons known for

their laziness or social indiscretions. But the

Georgetown group took particular delight

in tormenting the Salvation Army, penning

obscene and threatening letters to the Captain of

the religious band and his female officers. Their

anger seemed to have been directed against

the Salvation Army’s tendency to “run on the

Discordant Music 57

boys,” probably a resentment of the religious

body’s attacks on irreligious behaviour. Then,

too, a letter warned the Captain “to be careful

what he says about the Catholics, as we would

White-Cap him quick.’’ Tensions finally erupted

in an attack on the Salvation Army’s barracks:

shutters were torn off the building, windows

broken, and a meeting loudly disrupted. Three

leaders—Copeland, Jack Hume, and Fred

Board—were eventually incarcerated, the

movement broken. But for days the White

Caps had defied the police, pelting them with

stones, avoiding arrest, stalking the streets with

impunity, accosting innocent women. Like the

charivari, whitecapping could reveal vividly the

fragile basis of social order in the nineteenth-

century community. 83

These forms of whitecapping, from the highly

structured bands of Indiana, Tennessee, Missouri,

and New Mexico, to the less cohesive groupings

of the southern states and Georgetown, Ontario,

were but the most visible peak of the movement.

They have survived historical oblivion because

they are entrenched in local folklore, because

their presence spanned a number of weeks, at

least, if not a number of years. But it is entirely

likely that the phenomenon of whitecapping

was most prominent as a spontaneous, sporadic

effort to enforce standards and traditional rights.

Like the charivari, it would be used on the spur

of the moment, when local outrage exploded at

one final transgression.

[…] In Berlin, Ontario, two Germans

received three-year prison terms for their role

in whitecapping a Mrs. Koehler. On 20 May

1896, Mrs. Koehler, who had recently subjected

a stepchild to considerable abuse, was aroused

from sleep by cries that a neighbour was ill.

As she opened her door she was seized by four

men. Then followed the ritualistic enactment

of rough justice: her bed-clothes were violently

torn from her body; she was ridden on a rail for

a certain distance; and, finally, she was tarred

and feathered.84 […]

White Cap actions against wife-beating,

probably the single transgression against social

propriety most often punished, were also likely

to be spontaneous affairs. […] In Lambton,

Ontario, near London, four or five neighbours

whitecapped William Lawson in 1889. On the

night of 26 November they rushed up to him,

grabbed him, and accused him of mistreating his

wife. They then took him to the pump where,

according to Lawson, they “half-drowned”

him. When Lawson refused to beg his wife’s

forgiveness, the men forced a large pole

between his legs and danced him about the yard.

They concluded this version of rough justice by

parading the offender up and down the town’s

streets.85 […]

[…] In both its highly structured, organized

forms, and in its more spontaneous instances,

whitecapping could be turned to distinctly

working-class purpose, a threatening tactic

employed to enrich the process of class struggle.

[…] During the building of the Sante Fe

Railroad, whitecappers stopped sectionmen

hauling ties, burned the ties, and proclaimed

that the railroad was setting wage-rates below

an acceptable standard. A blunt note was posted

on railroad buildings:

All section foremen and operators are advised to

leave at once or they will not be able to do so.

Signed,

White Caps 86

This kind of threat, relying on the fear

inspired by the White Cap name, may well

have been common in nineteenth-century labour

struggles. […] In Hamilton, Ontario, during

an iron moulders’ strike in 1892, a non-union

moulder, Clendenning, was prosecuted by a

constable for carrying firearms. Clendenning

attempted to justify possession of the weapon,

arguing that whenever he went out, he was

followed by union men. He noted that another

strikebreaker, a French Canadian named Fleury,

had received a threatening letter, headed by a

skull and cross-bones, a whip, and a club:

Scabs, beware! We have formed an association

to go and club the life out of scoundrels if you

don’t cleare this town before Wednesday night.

58 Crime and Deviance in Canada: Historical Perspectives

Ye will a lashing such as white man never got

before what you are looking for badly.

The communication bore the sinister signature,

“WHITE CAPS.” Clendenning was bound to

hold the peace for six months, or forfeit $50. But

the strikebreaker’s fear was hardly pacified by

the judge’s restraining order. “If the union men

get their way,” he complained, “I won’t be here

for six months.87

Whitecapping, then, like the charivari, was

a ritualized form of enforcing community

standards, appropriate behaviour, and traditional

rights. As part of a long tradition of extra-

legal authority, it drew on a rich and complex

heritage. As a force directed against immoral,

illicit, or unjustifiable behaviour, it shared an

essential place, along with North American

forms of rough music, in the history of popular

culture. But what are we to make of these two

ritualized manifestations of rough justice?

V

*****

In the case of the charivari the question as to

who participated is a complex one, although

a pattern does seem to emerge from the data.

The ritual was apparently practised by all social

groupings and classes in the first half of the

nineteenth century, each stratum subjecting its

own members to the discordant sounds of rough

music. Hudson Valley skimetons, for instance,

were utilized by rich and poor alike.88 While the

weight of the evidence indicates clearly that the

plebeian world was the more appropriate setting

for the charivari, upper-class figures could

also be drawn to the customary wedding-night

celebrations. The involvement of the well-to-do,

perhaps, testifies to the social acceptability of the

practice; a complex web of legitimation seemed

to encase both the participants and the victims.

But this legitimation had its limits. Even in the

opening decades of the century, plebeian crowds

gathered to charivari their social betters seldom,

if ever, received endorsement. The custom was

not meant to cross class lines.

It was in this context that the ritual thrived

in early nineteenth-century North America.

Even when opposed, it was recognized as an

established institution. […] As late as 1837,

a Kingston editor could defend charivaris,

arguing that magisterial authority had no

place interfering in such popularity sanctioned

assemblies:

Charivari parties may be unlawful, and much

mischief may at times be committed by them,

but the custom is an ancient one and cannot

easily be suppressed. It is the only way in which

the public can shew their distaste of incongruous

or ill-assorted marriages. The interference of

the magistrates on this occasion we fear is

injudicious, since if we know anything of the

spirit of the young gentlemen of Kingston, the

more they endeavour to preserve the fair lady

from annoyance, the more they will subject her

to insult. 89

*****

[…] Even if the charivari was not exclusively

a patrician affair, […] a plebeian following could

be led by an upper-class element, Kingston’s

Henry Smith, Jr., of the 1830s being a prime

example.90

[…] Patrician acquiescence, and even

occasional participation, undoubtedly

legitimized the ritual in plebeian eyes, but it was

a fragile foundation of support. While European

charivaris of the sixteenth and seventeenth

centuries may have been instigated by patrician

elements, willingly sanctioned by constituted

authority, recognized as “according to custom”

and “in some sort necessairie,” there is little

indication that North American forms of rough

music were ever given the formal blessings of

the socially superior. 91 […] As the Montreal

magistrates well knew, as early as 1823,

charivaris had to be suppressed, like all “riots,

bruits, troubles ou réunions tumultueses.”92

This understanding gradually permeated

the consciousness of patrician elements. From

mid-century on, one must look long and hard to

find an upper-class element involved in some

Discordant Music 59

variant of rough music. And as patrician forces

departed, the complex legitimation encasing the

custom melted into the background: charivaris

were more vigorously suppressed; victims

began to respond to the insulting taunts of the

crowd with hostility rather than good humour;

and violent confrontations often developed.

As the charivari became exclusively an affair

of the lower orders, men, the ritual came to be

associated with the barbarism and savagery of

the masses. What had once been defended was

to be harshly condemned. It is this process of the

proletarianization of a cultural form that marks

the charivari as a ritual of particular concern to

those interested in an autonomous, working-

class culture, and explains the fear and loathing

with which bourgeois elements perceived that

development.

*****

With the custom linked explicitly to the

lower orders, and as any form of legitimation,

however mild, collapsed, the charivari drew

attack from many quarters. […] The terrain of

the rough, unpolished multitude, the shivaree

was, in Alice T. Chase’s words, “a Survival of

semi-barbaric times; the curious point to note

is how nearly this barbarous custom touches

our advanced civilization of the present day.” 93

And barbarity, of course, was not of the genteel,

bourgeois world. Neither, apparently, were the

practitioners of rough music, who instead were

denigrated, condemned, and persistently held up

to the ridicule of the defenders of public virtue:

“... lunatics assaulting a man’s house after dark

and making the night hideous with their howls”;

“... a collection of wild, ignorant, howling

savages, whatever may be the particular colour

of their skins or the depth and variety of their

gutturals”; “... the abolition of horning would

be very cheaply purchased by the sacrifice

of a horner in every community in which the

disgusting practice survives.”94

[…] The large urban centres were apparently

the first to succumb, followed by the smaller

cities, towns, and villages, trailed by the

frontier regions, the outposts of North American

civilization. Where bourgeois consciousness

matured earliest, the charivari was first attacked;

where such consciousness was developing

weakly it tended to survive longest. It was in this

context that the ritual came to be monopolized

by the lower orders. Although certain working-

class trades, organized and enamoured of

their skilled status, understandably attracted

to more respectable, rational forms of protest,

may have shied away from the custom as

it drew increasing hostility, other members

of the plebeian community retained their

allegiance: immigrants new to America’s shores;

agricultural labourers; the urban armies of the

unskilled; decimated crafts like shoemaking,

weaving, and blacksmithing; small farmers;

rural tradesmen; timberworkers, socially,

culturally, and geographically on the margins

of society; miners in isolated communities; and

the underclass town and country. […]

The practice of whitecapping proves similarly

elusive, defying a precise analysis of those

involved in the organized and spontaneous

manifestations of the movement. Many

histories of whitecapping, including Madelein

Noble’s recent assessment, argue that the White

Caps drew upon respectable elements of the

community, prominent citizens organizing

and leading the crusade against immorality,

lewdness, vice, and general social impropriety.95

And, yet, many of these same sources attribute

the decline of whitecapping, especially its

legal suppression, to the degeneration of

the movement, its take-over by rougher

elements, and the increasingly insignificant

role of men of position. 96 The transition from

patrician to plebeian control, however, is never

satisfactorily explained. Moreover, there is

more than a hint that historians have been blind

to the not inconsequential role that the lower

orders played in the beginnings of the local

movements of whitecapping. […] In Hamilton,

Ontario, the leaders of the White Cap gang

were Robert and George Ollman, the Macklin

Street brickmakers. 97 […] Whitecapping,

like the charivari, was never a process totally

dominated by men of property and standing.

Both forms of enforcing community standards

60 Crime and Deviance in Canada: Historical Perspectives

and appropriate behaviour were the terrain of

the menu peuple.

[…] Charivaris, and their persistent use

throughout the nineteenth century thus lend force

to an interpretation of culture stressing continuity

in the midst of change. […] Whitecapping,

too, drew on cultural continuities: the long

tradition of violent enforcement of morality

characteristic of American vigilante groups;

the southern heritage of resistance to black

emancipation (“The people of the ‘White Cap’

belt [of Indiana] ... ,” claimed the Chicago

Record, “came originally from the South.” 98 ).

But it, also, could be turned to new purpose,

continuing in the footsteps of the charivari,

moving forcefully against social impropriety, or

adapting to the economic needs of the working-

class community.

*****

[I]n nineteenth-century North America there

were obscure corners of everyday life where the

rule of law could or would not intervene, where,

by the law’s very concerns—in which property

always figured centrally 99 —it had little place.

Domestic discord, appropriate marital unions,

and immoral behaviour were hardly the concern

of the law, except in exaggerated cases of gross

cruelty or sexual “deviance,” as in infanticide,

incest, or rape. But these extremes suggest

the point. The mundane wife-beater, or the

old widower coming to life in the midst of his

unnatural marriage, remained outside the rule

of law. So, too, was the employer who refused

the just demands of “manly” workers, or the

strikebreaker imported to break the resistance of

working-class forces. Yet, in the plebeian world,

such behaviour seemed a serious transgression,

a violation of time-honoured conceptions of

appropriate behaviour.

In the absence of any recourse to law, the

lower orders turned instinctively to custom,

posing the discipline of the community against

the perceived deficiencies of legal authority. As

a force within the plebeian world, custom was

obeyed because it was “intimately intertwined

with a vast living network of interrelations,

arranged in a meticulous manner.”100 “It posed

an order, an authority, that was, in contradiction

to the law, spontaneous, traditional, personal,

commonly known, corporate, and relatively

unchanging.”101 […]

*****

[…] The cultures of the working-class and

plebeian worlds clashed with constituted

authority: in border, seaside, and river-

towns, where smuggling was a way of life;

in the settlement of petty scores, where

the rule of law was forsaken for the more

immediate satisfaction of barn burning, fence

destruction, or animal maiming; in urban

crowds, purposively directing their anger

against perceived threats and recalcitrant

employers; in the backwoods and obscure

valleys in the shadows of North American

civilization, where law always played second

fiddle to brute force.

*****

Notes

This is a version of a paper presented to the Canadian

Historical Association meetings, London, Ontario,

2 June 1978. I would like to thank the many individuals

who directed me to sources, replied to my letters,

and shared materials with me. I have acknowledged

the aid of a number of friends and scholars who

shared specific sources with me in the footnotes. This

paper benefitted greatly from a reading by Russell

Hann, who suggested a number of revisions. Michael S.

Cross graciously shared research with me, and Edward

Shorter offered early encouragement at a time when

I needed it most. The Canada Council supported the

research in its initial stages. Finally, it is a pleasure to

acknowledge two other debts. Donald Swainson, whose

knowledge of 19th

-century Ontario is truly encyclopedic,

directed me to many important sources of information.

Gregory S. Kealey, who critically assessed a crude first

draft, also shared his notes from Toronto’s Globe with

me, allowing me to enrich my presentation.

Discordant Music 61

1. See Eloi-Chrisiophe Bassinet, Histoire Morale,

Civile, Politique et Littiraire du charivari ... (Paris

1833); Ruth Mellinkoff, “Riding Backwards:

Theme of Humiliation and Symbol of Evil,” Viator:

Medieval and Renaissance Studies, 4 (1973), pp.

152–177.

2. As an introduction to the charivari, see Edward

Shorter, The Making of the Modern Family (New

York 1975), pp. 46, 64, 217–228; Roger Pinon,

“Qu’est-ce q’un charivari? Essai en vue d’une

definition operatorie,” in Kontakete und Frenzen.

Probleme der Volks-. Kultur- und Sozialforschung

(Göttingen 1969), pp. 393–405.

3. Robert Chambers, The Book of Days: A Miscellany

of Popular Antiquities (Edinburgh 1864), II, p.

510; Francis Grose, A Classical Dictionary of the

Vulgar Tongue (London 1785), p. 291; Brewer’s

Dictionary of Phrase and Fable, revised by Ivor H.

Evans (London 1970), p. 937; Frank Hugget, A Day

in the Life of a Victorian Farm Worker (London

1972), p. 64; Rev. William H. Cope, A Glossary

of Hampshire Words and Phrases (London 1883),

p. 75; Enid Porter, Cambridgeshire Customs and

Folklore (London 1969), pp. 8–10; Porter, The

Folklore of East Anglia (London 1974), pp. 27–28;

Christina Hole, English Folklore (London 1940),

p. 23; Joseph Wright, ed., The English Dialect

Dictionary (New York 1905), V, pp. 156–157.

4. Elizabeth Mary Wright, Rustic Speech and

Folklore (London 1914), pp. 276–277; Mrs. Gutch,

County Folk-lore: Examples of Printed Folklore

Concerning the East Riding of Yorkshire (London

1912), VI, pp. 130–133; William Henderson,

Notes on the Folklore of the Northern Counties

of England and the Borders (London 1967), pp.

29–30; Notes and Queries (London), 5 th ser., V

(25 March 1876), p. 253; 6th ser., VI (25 November

1882), pp. 425–426.

5. Hole, English Folklore, 23; Theo Brown, “The Stag

Hunt in Devon,” Folklore, 63 (December 1952),

pp. 104–109.

6. Chambers, Book of the Days, I, p. 360; William

S. Walsh, Curiosities of Popular Customs

(Philadelphia 1907), p. 156. The Butcher’s

Serenade is depicted in Hogarth’s “The Industrious

’Prentice Out of His Tune and Married to His

Master’s Daughter,” the sixth print in the Industry

& Idleness series.

7. A.L. Rowse, A Cornish Childhood: Autobiography

of a Cornishman (New York 1947), pp. 8–9, where

Rowse questions whether the “shivaree” was an old

Cornish custom, or whether it was brought to the

region by miners returned from America.

8. E.P. Thompson has outlined the English charivari’s

increasing concern with wife-beating in the 19 th

century in “Rough Music: Le Charivari anglais,”

Annales: E.S.C., 27 (1972), esp. p. 297.

9. Notes and Queries (London), 2 nd ser., X (15

December 1860), pp. 476–477. See also Thompson,

“Rough Music,” p. 297; Shorter, Modern Family,

pp. 224–225.

10. Gutch, County Folk-Lore .... Yorkshire, VI, 132–

133. On other folk-rhymes directed against wife-

beaters, see G.F. Northall, English Folk-Rhymes

(London 1892), pp. 253–257, all of which were

recited in the midst of subjecting an offender to

“riding the stang.”

11. Van Gennep, Manuel de folklore, I, p. 626, quoted

and translated in Shorter, Modern Family, p. 221.

12. Nicole Caston, “La Criminality familiale dans le

ressoit du Parlement de Toulouse, 1690–1730,”

in A. Abbiatecci et al., ed., Crimes et Criminality

en France sous I’Ancien Regime, 17e–18e siecles

(Paris 1971), p. 106.

13. P. Saintyves, “Le charivari de l’Adultere et les

courses a corps nus,” L’Ethnographie, 31, new

ser., (1935), pp. 7–36; Shorter, Modern Family, pp.

219–220; Eugen Weber, Peasants into Frenchmen:

The Modernization of Rural France, 1870–1914

(Stanford 1976), pp. 400–401.

14. Natalie Zemon Davis, “The Reasons of Misrule,”

in Society and Culture in Early Modern France

(Stanford 1975), pp. 97–123.

15. Weber, Peasants into Frenchmen, p. 403; Rolande

Bonnain-Moerdyk et Donald Moerdyk, “A propos

du charivari: discours bourgeois et coutumes

populaires,” Annales: E.S.C., 32 (1977), pp.

381–398; Yves-Marie Bercé, Fête et Révolte: Des

Mentalités populaires du XVIe au XVIIIe siecle

(Paris 1976), pp. 40–44.

16. Weber, Peasants into Frenchmen, p. 404. On

similar uprisings by prostitutes in England in the

1860s and 1880s, see Andrew Chier, Plymouth

and Plymouthians: Photographs and Memoirs

(Plymouth 1974), n.p., an account of prostitutes

besieging a workhouse, seeking shelter, “beating

tin kettles and blowing tin whistles’’; and “Report

of the House of Commons Select Committee on

the Administration, Operation, and Effects of

the Contagious Diseases Acts of 1866–1869,”

Parliamentary Papers, 1882, IX, p. 340. A later

account, in which prostitutes again use rough

music against efforts to suppress their activities,

is found in Sarah Robinson, The Soldier’s Friend:

A Pioneer’s Record (London 1913), p. 148. I am

indebted to Judith R. Walkowitz, whose continuing

studies of prostitution and the Contagious Diseases

62 Crime and Deviance in Canada: Historical Perspectives

Acts promise much, for bringing these sources to

my attention.

17. See E.J. Hobsbawm, Primitive Rebels: Studies in

Archaic Forms of Social Movements in the 19th and

20 th Centuries (Manchester 1971).

18. Note the discussions in J.M.S. Careless, “Limited

Identities in Canada,” Canadian Historical Review,

50 (March 1969), pp. 1–10; Brian Stock, “English

Canada: The Visible and Invisible Cultures,”

Canadian Forum, LII (March 1973), pp. 29–33.

19. On the French origins of the term, see William

J. Fielding, Strange Customs of Courtship and

Marriage (Philadelphia 1942), pp. 50–51; Susanna

Moodie, Roughing It in the Bush (Toronto 1962),

p. 145; The Charivari; or Canadian Poetics: A

Tale After the Manner of Beppo (Montreal 1824),

p. 49. [This source has recently been republished

in the “Early Canadian Poetry Series,” authorship

attributed to George Longmore, edited and

introduced by Mary Lu Macdonald. See Longmore,

The Charivari or Canadian Poetics (Ottawa 1977).

See, also, Carl F. Klinck, ed., Literary History of

Canada (Toronto 1976), 1, pp. 140–141, 145, 147.]

John S. Farmer, Americanisms—Old and New

(London 1889); William S. Walsh, Curiosities of

Popular Customs (Philadelphia 1898), pp. 209–

213; Walsh, Handy-Book of Literary Curiosities

(Philadelphia 1892) p. 149; Sylvia Clapin, A New

Dictionary of Americanisms (New York n.d.);

American Notes & Queries, 1 (27 October 1888),

pp. 311–312; III (15 June 1889), p. 82. Hereafter

A. N. & Q.

20. A. N. & Q., I (27 October 1888), pp. 311–312;

Smith’s Falls News, 23 July 1875; 16 August 1875;

Globe, 2 May 1877; Pembroke Observer, cited in

Smith’s Falls News, 4 May 1877.

21. On the practice of the charivari in Louisiana and

Alabama see A. N. A Q., I (20 October 1888),

pp. 296–297; E. Bagby Atwood, “Shivarees and

Charivaris: Variations on a Theme,” in Moody C.

Boatright, Wilson M. Hudson, and Allen Maxwell,

ed., A Good Tale and a Bonnie Tune (Dallas 1964),

pp. 68–70; Roy V. Hoffpauir, “Acadian Marriage

Customs,” Attakapas Gazette, III (December

1968), pp. 3–19: James Hall, Tales of the Border

(Philadelphia 1835), pp. 121–124. An excellent

discussion is found in the different editions of

George W. Cable, Old Creole Days (New York

1883), Part ii, pp. 54–55: Cable, Old Creole Days

(New York 1890), pp. 220–221. The quote is from

John F. Watson, “Notilia of Incidents at New

Orleans in 1804 and 1805,” American Pioneer, II

(1843), p. 229.

22. Alice T. Chase, “The ‘Shivaree,’” A. N. & Q., I

(29 September 1888), pp. 263–264, also in Walsh,

Curiosities of Popular Customs, pp. 209–213.

23. Miles L. Hanley, “Charivaria II: ‘Serenade’ in New

England,” American Speech, VIII (April 1933), pp.

24–26.

24. Lincoln Nebraska Daily State Journal, 22

November 1874;1 January 1878, quoted in Mamie

Meredith, “Charivari I: ‘Belling the Bridal Couple’

in Pioneer Days,” American Speech, VIII (April

1933), pp. 22–24.

25. Robert S. Thurman, “Twas Only a Joke,” Tennessee

Folklore Society Bulletin, XXXV (September

1969), pp. 86–94.

26. A. N. & Q., I (20 October 1888), pp. 296–297.

27. Nils Flaten, “Notes on American-Norwegian

with a Vocabulary,’’ Dialect Notes, II (1900), pp.

115–126; V. Stefanson, “English Loan-Nouns Used

in the Icelandic Colony of North Dakota,” Dialect

Notes, II (1903), pp. 354–362; George T. Flom,

“English Loanwords in American Norwegian,

as Spoken in the Koshkonong Settlement (Dane

County, Wisconsin),” American Speech, I (July

1926), pp. 541–548.

28. See the discussion of the charivari in Bryan D.

Palmer, “Most Uncommon Common Men: Craft,

Culture, and Conflict in a Canadian Community,

1860–1914,” Unpublished Ph.D. dissertation,

SUNY at Binghamton, 1977, pp. 184–192.

29. Hans Kurath, A Word Geography of the Eastern

United States (Ann Arbor 1949), p. 78 and Fig.

184; Gordon R. Wood, Vocabulary Change: A

Study of Variation in Regional Words in Eight of

the Southern States (Carbondale 1971), p. 39; Time

(Canadian edition), 25 July 1949, p. 41; Walter

S. Avis et al., A Dictionary of Canadianisms: On

Historical Principles (Toronto 1967), pp. 141, 656,

689.

30. British Whig, 18 March 1834; 11 March 1837;

31 July 1835. A Kingston charivari of 1877,

complete with costumes and effigy is noted in E.Z.

Massicotte, “Le Charivari au Canada,” Bulletin des

Recherches Historiques, XXXII (November 1926),

p. 717.

31. Hamilton Board of Police, Minutes, 1841–1842

(22 March 1842), p. 50.

32. The above account draws on Montreal Gazette,

7 June 1823; 14 June 1823; 6 September 1823;

Canadian Courant and Montreal Advertiser, 4

June 1823; 7 June 1823; 11 June 1823; 30 August

1823; Quebec Gazette, 16 June 1823.

33. Moodie, Roughing It in the Bush, p. 147.

34. An early eighteenth-century reference is Diary of

Simeon Perkins, Liverpool, Nova Scotia, 9 October

Discordant Music 63

1766, reprinted in S.D. Clark, Social Development

of Canada (Toronto 1942), p. 160.

35. Globe, 9 July 1868.

36. Note the discussions in Robert Goulet, Le Charivari

(Paris 1960), translated as The Violent Season (New

York 1961), esp. pp. 33, 89, 93, 168–169, 171–174,

314–315, 331–332; Jerome Hart, A Vigilante Girl

(Chicago 1910), pp. 326–327; Sarnia Observer, 24

April 1885.

37. Globe, 15 December 1881.

38. Sarnia Observer, 31 October 1884; 7 November

1884.

39. Hamilton Times, 13 January 1868.

40. Public Archives of Canada, RG8 C 316, Cathcart et

al., to the Magistrates, St. John’s. Lower Canada,

27 August 1841:24 August 1841; 25 August 1841,

219–223. On the charivari in the Maritimes in the

twentieth century, where it was often known as

saluting, see Monica Morrison, “Wedding Night

Pranks in Western New Brunswick,” Southern

Folklore Quarterly, 38 (December 1974), pp.

285–297; Ernest Buckler, The Mountain and

the Valley (New York 1952); Avis, Dictionary of

Canadianisms, p. 656.

41. J.E. Collins, Life and Times of the Right Honourable

Sir John A. Macdonald, Premier of the Dominion

of Canada (Toronto 1883), pp. 311–312. My

thanks to James Hiller for providing me with this

reference.

42. Farmer, Americanisms; John Russell Bartlett,

Dictionary of Americanisms: A Glossary of

Words and Phrases (Boston 1877), p. 93. The

Callithumpians were also active in the American

west as late as the 1880s. See Mitford M. Mathews,

ed., A Dictionary of Americanisms: On Historical

Principles (Chicago 1951), I, p. 248, citing cases

from Glendale, Montana (1879) and Reinbeck,

Iowa (1881).

43. Hill’s Yankee Story Teller’s Own Book; and

Reciter’s Pocket Companion (New York 1836), p.

9.

44. On the American use of the term and its relationship

to the charivari, see New York Times, 25 May 1904;

M. Schele de Vere, Americanisms: The English of

the New World (New York 1872), p. 589; Craigie

and Hurlbert, A Dictionary of American English:

On Historical Principles (Chicago 1938), I., p. 393;

Sylvia Clapin, New Dictionary of Americanisms;

The Century Dictionary (New York 1897), I, p.

769; Mathews, Dictionary of Americanisms, I, p.

248; Atlantic Monthly, XV (March 1865), p. 300;

Harper’s Magazine (July 1886), p. 213.

45. Harry Middleton Hyatt, Folk-Lore from Adams

County, Illinois (Hannibal, Missouri, 1965), pp.

468–469.

46. See Thompson, “Rough Music,” pp. 304–308, for

a brief introduction.

47. See D.G.C. Allan, “The Rising in the West,

1628–1631,” Economic History Review, 2 nd ser.,

V (1952–1953), pp. 76–85.

48. Richard B. Morris, Government and Labour in

Early America (New York 1965), p. 147.

49. Bryan D. Palmer, “‘Give Us the Road and We

Will Run It’: The Social and Cultural Matrix of

an Emerging Labour Movement,” in Gregory S.

Kealey and Peter Warrian, ed., Essays in Canadian

Working Class History (Toronto, 1976), p. 122;

Ottawa Evening Journal, 17 September 1891

(my thanks to Russell Hann for directing me to

this reference); F.P. Grove, The Master of the

Mill (Toronto 1967), pp. 155–162. The Chaudière

conflict is discussed in more detail, although

this incident is ignored, in Edward McKenna,

“Unorganized Labour Versus Management: The

Strike at the Chaudière Lumber Mills, 1891,”

Histoire Sociale/Social History, V (November

1972), 186–211. See also H. Ferns and B. Ostry,

The Age of Mackenzie King (Toronto 1976), p.

79.

50. The strike is discussed in Palmer, “Most Uncommon

Common Men,” pp. 190–192.

51. Hamilton Spectator, 4, 5, 9, 10 June 1890.

52. See Harold Wentworth, American Dialect

Dictionary (New York 1944), pp. 550–551.

53. George Rawlyk, A.R.M. Lower, Donald Swainson,

and Peter Goheen all had some personal knowledge

of the ritual. My grandmother remembered it

practised near Hawkesbury, Ontario. A student tells

me that it is still common in Listowel, Ontario. John

Weaver witnessed a charivari in Madoc, Ontario,

north of Belleville, in 1963, the groom being tied to

a rocking chair, and driven around the town in the

back of a flat-bed truck. Neil Rosenberg, Director

of the Memorial University of Newfoundland

Folklore and Language Archive, tells me that

the practice is known in Newfoundland, but

that the ceremony does not have a standard

name. Lawrence Stone, relying on a colleague’s

recollections, contends that the charivari was still

practised in Oregon in the twentieth century. See

Lawrence Stone, The Family, Sex, and Marriage

in England, 1500–1800 (New York 1977), fn. on

p. 504. As late as 1958 Edmonton passed a law

prohibiting charivaris. See Edmonton Journal, 30

October 1958.

54. Windsor Evening Record, 13, 14 January 1896.

Craig Heron has recently informed me that

charivaris in St. Catharines, Ontario and Lacrosse,

Wisconsin were documented in the Hamilton

64 Crime and Deviance in Canada: Historical Perspectives

Spectator, 11 August, 9 June 1904. The St.

Catharines event, in which the victim drove off

his tormentors with the spray from a garden hose,

hints at a changed twentieth century context which

makes the violent clashes of the previous century a

thing of the past. But note, too, the violent charivari

at Bishop’s Mills (near Brockville) described in

Hamilton Spectator, 15 November 1906.

55. Hyatt, Folk-Lore from Adams County, p. 468.

56. Farmer, Americanisms, p. 557.

57. Clapin, New Dictionary of Americanisms; Century

Dictionary, VIII, p. 6910.

58. “White Caps,” The Americana: A Universal

Reference Library (New York 1911), p. XX.

59. See James Elbert Cultler, Lynch-Law: An

Investigation into the History of Lynching in the

United States (Montclair, N.J., 1969, original

1905), pp. 46–72; R.S. Longley, “Mob Activities

in Revolutionary Massachusetts,” New England

Quarterly, VI (March 1933), pp. 112–114; Frank

W.C. Hersey, “Tar and Feathers: The Adventures

of Captain John Malcolm,” Colonial Society of

Massachusetts Publications, Transactions, XXXIV

(1937–1942), pp. 429–473; Richard Maxwell

Brown, “Violence and the American Revolution,”

in Stephen G. Kurt and James H. Hutson, Essays

on the American Revolution (Chapel Hill 1973),

pp. 103–112; Alfred F. Young, “Pope’s Day,

Tarring and Feathering, and Cornet Joyce, jun.:

From Ritual to Rebellion in Boston, 1745–1775.”

Unpublished manuscript prepared for the Anglo-

American Conference of Labor Historians, Rutger’s

University, 1973; Carl Bridenbaugh, Cities in

Revolt: Urban Life in America, 1743–1776 (New

York 1955), pp. 121–122. Tarring and feathering,

of course, did borrow heavily from the English

experience, as many of these sources indicate, and

continued well into the nineteenth and twentieth

centuries. For the use of tarring and feathering in

early Upper Canada, see Josephine Phelan, “The

Tar and Feather Case, 1827,” Ontario History,

LXVIH (March 1976), pp. 17–23. Cases of the

use of tar and feathers in late nineteenth-century

Milan, Monroe County, Michigan, and St. Thomas,

Ontario, are outlined in Ottawa Citizen, 11 May

1871; Globe, 11 November 1886. For popular

punishment of sexual offenders in Puritan New

England, see Arthur W. Calhoun, A Social History

of the American Family from Colonial Times to the

Present (Cleveland 1917–1919), I, pp. 129–152.

60. See Richard Maxwell Brown, The South Carolina

Regulators (Cambridge, Massachusetts, 1963);

George R. Adams, “The Carolina Regulators: A

Note on Changing Interpretations,” North Carolina

Historical Review, XLIX (1972), pp. 345–352;

James P. Whittenburg, “Planters, Merchants, and

Lawyers: Social Change and the Origins of the

North Carolina Regulation,” William and Mary

Quarterly, XXXIV (April 1977), pp. 215–238.

61. Mary Floyd Williams, History of the San Francisco

Committee of Vigilance of 1851: A Study of Social

Control on the California Frontier in the Days of

the Gold Rush (New York 1969, original 1921);

Hubert Howe Bancroft, Works: Popular Tribunals,

in Two Volumes (San Francisco 1887); Thomas J.

Dimsdale, The Vigilantes of Montana, or Popular

Justice in the Rocky Mountains (Norman 1953,

original 1866). A fascinating account is Josiah

Royce, California from the Conquest in 1846 to

the Second Vigilance Committee in San Francisco:

A Study of American Character (Boston 1886),

pp. 271–376. See also, Frederick Jackson Turner,

The Frontier in American History (New York

1920), p. 212; J.D. Hill, “The Early Mining Camp

in American Life,” Pacific Historical Review, I

(1932), pp. 303–306; Alexandre Barde, Histoire

des comites de vigilance aux Attakapas (Saint-

Jeane-Baptiste, Louisiana, 1861).

62. The standard treatment is Cultler, Lynch-Law. See

also, Ottawa Citizen, 3 February 1872; 3, 4 August

1871; 22 February 1872; 27 May 1871; 1 June

1871; 3 May 1871; Perth Courier, 18 December

1868; 3 April 1868; Globe, 2 September 1868;

Hastings Chronicle (Belleville), 23 April 1862;

John W. Caughey, ed., Their Majesties the Mob

(Chicago 1960), esp. p. 98.

63. Melvyn Dubofsky, We Shall Be All: A History of the

Industrial Workers of the World (Chicago 1969);

A. Ross McCormack, Reformers, Rebels, and

Revolutionaries: The Western Canadian Radical

Movement, 1899–1919 (Toronto 1977), p. 161.

64. Hamilton Spectator, 3 April 1882; Edward

M c K e n n a , “ U n o rg a n i z e d L a b o u r Ve r s u s

Management: The Strike at the Chaudière Lumber

Mills, 1891,” Histoire Social/Social History, V

(November 1972), p. 204; Barry Broadfoot, Ten

Lost Years, 1929–1939: Memories of Canadians

Who Survived the Depression (Don Mills 1975),

pp. 338–348. John L. Lewis supporters tarred and

feathered an insurgent miner in Indiana in 1930.

See Melvyn Dubofsky and Warren Van Tine, John

L. Lewis: A Biography (New York 1977), p. 165.

65. Note the comment in Theodore Watts-Dunton,

“Bret Harte,” Athenaeum (24 May 1902), p.

659. The best brief, accessible introduction to

whitecapping is Hugh Graham and Ted Robert

Gurr, eds., Violence in America: Historical and

Comparative Perspectives (Washington 1969), pp.

70–71, 806.

Discordant Music 65

66. B.F. DeCosta, The White Cross: Its Origins and

Progress (Chicago 1887); Ellice Hopkins, The

White Cross Army (London 188?).

67. E.W. Crozier, The White-Caps: A History of

the Organization in Sevier County, Tennessee

(Knoxville 1899), p. 31; Nettie H. Pelham, The

White Caps (Chicago 1891).

68. Corzier, White-Caps, pp. 12–13.

69. Henry Clay Duncan, “White Caps in Southern

Indiana,” paper presented before the Monroe

County Historical Society, 1900, pp. 4–6, cited in

Madelein M. Noble, “The White Caps of Harrison

and Crawford Counties, Indiana: A Study in the

Violent Enforcement of Morality,” unpublished

Ph.D. dissertation, University of Michigan, 1973,

p. 65.

70. Clyde Edwin Tuck, Bald Knobbers: A Romantic

and Historical Novel (Indianapolis 1910), pp.

7–8.

71. Noble, “While Caps,” p. 6.

72. Background on the Indiana White Caps is found

in New York Times, 12 October 1887; Duncan,

“White Caps in Southern Indiana,” p. 9; Journal

of the Indiana State Senate, 38 th session of the

General Assembly, 4 January 1855, p. 34, quoted in

Noble, “White Caps,” p. 65. See Booth Tarkington,

The Gentleman from Indiana (New York 1899);

James Woodress, “Popular Taste in 1899: Booth

Tarkington’s First Novel,” in Max F. Schulz,

ed., Essays in American and English Literature

Presented to Bruce Robert McElderry, Jr. (Athens,

Ohio 1967), pp. 111–112, 119–120; Woodress,

Booth Tarkington: Gentleman from Indiana (New

York 1955), p. 82; David Graham Phillips, Old

Wives for New: A Novel (New York 1908), p. 68;

Meredith Nicholson, The Hoosiers (New York

1916), pp. 43–45, for the impact on literature.

73. Noble, “White Caps,” pp. 10, 72–76, 165, and esp.

the list on pp. 177–190.

74. Thompson, “Rough Music,” pp. 285–312.

75. On the importance of ritual and public shame, see

Noble, “White Caps,” pp. 70–71, 88; Crozier, The

White Caps, pp. 10–11.

76. On the emergence of whitecapping in Ohio, see

Biographical and Historical Souvenir for the

Counties of Clark, Crawford, Harrison, Floyd,

Jefferson, Jennings, Scott and Washington: Indiana

(Chicago 1890), p. 35; Ohio State Journal, 26,

29 November 1888, 1, 3, 5, 10, 12, 21 December

1888.

77. In Indiana White Caps occasionally directed

their attacks against blacks that had defied their

authority. See Appleton’s Annual Cyclopaedia and

Register of Important Events of the Year 1888,

new serv., XIII (New York 1889), p. 441; Noble,

“White Caps,” pp. 177–190; Mathews, Dictionary

of Americanisms, II, p. 1865.

78. William F. Holmes, “Whitecapping: Agrarian

Violence in Mississippi, 1902–1906,” Journal

of Southern History, XXXV (May 1969), pp.

165–185; New York Evening Post, 21 December

1904.

79. Noble; “White Caps,” pp. 156–158; Samuel

L. Evans, “Texas Agriculture, 1880–1930,”

Unpublished Ph.D. dissertation, University of

Texas, 1960, pp. 320–321. See also, C. Vann

Woodward, The Strange Career of Jim Crow (New

York 1966), p. 87; Cultler, Lynch-Law, p. 154.

80. C.M. Graham, “Have You Ever Heard of the White

Caps?” New Mexico Genealogist, 6 (December

1967), pp. 3–8; Robert W. Larson, “The White

Caps of New Mexico: A Study of Ethnic Militancy

in the Southwest,” Pacific Historical Review,

XLIV (May 1975), pp. 171–185; Andrew Bancroft

Schiesinger, “Las Gonras Blancas, 1889–1891,”

Journal of Mexican American History, I (Spring

1971), pp. 87–143. An early instance of fence-

cutting is described in Pembroke Observer and

Upper Ottawa Advertiser, 30 January 1885.

81. Hamilton Spectator, 2 May 1900; 19 June 1900.

82. Note the comments on wife-beating in Hastings

Chronicle, 30 July 1862; Perth Courier, 27

October 1871; Palladium of Labor (Hamilton), 17

October 1885.

83. This account draws on sketches in the Globe, 8,

23, 30 March 1889; 1 April 1889. These sources

also document the emergence of White Cap bands

in other, nearby towns.

84. Napanee Star, 29 May 1896; Hamilton Spectator,

10 June 1896.

85. Globe, 8, 9 April 1890.

86. See Graham, “Have You Ever Heard of the White

Caps?” pp. 3–8; Larson, “White Caps of New

Mexico,” pp. 171–185; Charles A. Siringo, Cow-

Boy Detective: An Autobiography (New York

1912), pp. 120–122.

87. Hamilton Spectator, 11 April 1892.

88. A. N. Q., I (13 October 1888), p. 288.

89. British Whig, 11 March 1837.

90. Smith, the patrician leader of the plebeian crowd,

perhaps had a counterpart in Peter Aylen, leader

of the Shiners in the Ottawa Valley in the 1830s.

See Michael S. Cross, “The Shiners’ Wars: Social

Violence in the Ottawa Valley in the 1830’s”

Canadian Historical Review, LIV (March 1973),

pp. 1–25.

91. See, especially, Bernard Capp, “English Youth

Groups and The Pinder of Wakefield,” Past &

66 Crime and Deviance in Canada: Historical Perspectives

Present, 76 (August 1977), pp. 132–133; Davis,

“The Reasons of Misrule,” pp. 97–123; E.P.

Thompson, “Patrician Society, Plebeian Culture,”

Journal of Social History, VII (Summer 1974), pp.

382–405.

92. Jean-Claude Robert, “Montréal, 1821–1871:

Aspects de l’urbanisation,” Thesis de doctorate en

histoire, 3 cycles, Université de Paris, 1977, I, p.

197.

93. A. N. & Q., I (29 September 1888), p. 264.

94. Globe, 9 July 1868; 2 May 1877; A. N. & Q., 01

(14 December 1889), p. 81.

95. Noble, “White Caps,” pp. 5, 67–68, 83–86; New

York Times, 28 April 1887; 12 October 1887;

Lucille Morris, Bald Knobbers (Caldwell, Idaho

1939), pp. 19–20, 52.

96. A.H. Haswell, “The Story of the Bald Knobbers,”

The Missouri Historical Review, 18 (October

1923–July 1924), p. 27; Tuck, Bald Knobbers,

pp. 8–9. Noble argues that the White Caps of

Indiana declined because of an accommodation

to the transformation of society and economy that

occurred in the 1890s, marking a shift away from

the resistance characteristic of the 1880s. The

argument is far from persuasive. See Noble, “White

Caps,” p. 148.

97. Hamilton Spectator, 19 June 1900; Hamilton City

Directory (Hamilton 1902).

98. Chicago Record, 13 April 1894, cited in Mathews,

Dictionary of Americanisms II, p. 1865.

99. In the words of Jeremy Bentham: “Property and

law are born together and die together.”

100. Paul Radin, The World of Primitive Man (New York

1953), p. 233.

101. The best brief treatment of this subject, to my mind,

is Stanley Diamond’s “The Rule of Law Versus

the Order of Custom,” in Diamond, In Search

of the Primitive: A Critique of Civilization (New

Brunswick, N.J. 1974), pp. 255–280.

CHAPTER 5

Railing, Tattling, and General Rumour:

Gossip, Gender, and Church Regulation

in Upper Canada

Lynne Marks

In November 1844 the St. Catharines Baptist

Church heard that “there were very evil reports

in circulation respecting our Brother William

H.” The congregation did not ignore the

rumours, but appointed “Brethren E. and D.

to investigate the matter.” In February 1845

“William H.’s case was considered, he was

present, confessed himself guilty, the charge

being fornication.” While William H. expressed

contrition, the church members decided that

“the honour of the church and the glory of God”

required that he be expelled from the church.

A few years later Wicklow’s Baptist Church

also dealt with issues of rumour and sexual

misconduct when “Sister Nancy F. charge[d]

Sister Matilda G. with having carnal connection

with Hiram C. in the same bed that she was in

and she had told it before the world and it had

become public talk.” Church members called

both women before them to determine whether

Matilda G. was guilty of “fornication” or Nancy

F. of slander and falsehood, both serious charges

in the context of Upper Canadian evangelical

life. The church ultimately acquitted Matilda

G., claiming there was no proof of fornication,

while condemning Nancy F. for slander.1

These cases point to some of the many

ways in which speech was part of the church

discipline process in Upper Canada. While

gossip and rumour were a means of regulating

the behaviour of church members, they could

also be the basis for calling sinners to account.

“Improper” speech, which included gossiping,

spreading false rumours, “tattling,” “railing,”

and lying, were strongly censured by the

evangelical churches of Upper Canada. Gossip

is perhaps the most difficult form of speech

to define. I define it here broadly as talk

among people who know each other about the

behaviour of other people. 2 The way in which

gossip could (and can) be used as a means of

social control, and could also be viewed as a

socially disruptive force, has been explored

by a number of scholars of the subject.3 Social

historians of medieval and early modern Europe

and of colonial America have analyzed church

use and church regulation of gossip, rumour,

and other forms of speech,4 but this topic has not

yet received scholarly attention in the context

of Upper Canada.5 This paper will look at how

various forms of speech were both used and

regulated by Upper Canadian churches. Such a

study not only illuminates the social and moral

values and practices of the churches but can also

reveal much about the larger society in which

these churches were situated, a world about

which we still know very little.

This world was quite different from our own.

In early Ontario three major denominations,

the Methodists, Baptists, and Presbyterians, all

68 Crime and Deviance in Canada: Historical Perspectives

regulated spheres of life that we would today

consider far beyond the purview of religious

control. In addition to regulating “improper”

speech, other areas such as family life, leisure

activities, business practices, sexuality, and

private quarrels could all come under church

scrutiny. Only church members were subject

to this discipline. By joining an evangelical

church and declaring their faith in Jesus,

individuals agreed to live according to their

denomination’s definition of biblically ordained

Christian behaviour. If they strayed from such

behaviour, they were expected to submit to

church discipline. In subjecting each other

to “fraternal” correction, church members

believed they were adhering to the rules of

the early Christian church. 6 The sanctions of

church discipline varied. Behaviour that was

considered too heinous, or too frequently

repeated, could result in either temporary

suspension or permanent expulsion from the

church. In most cases, however, confession

of sin and other evidence of sincere contrition

allowed members to be retained in or restored

to full membership.7

Methodists subjected their members to church

discipline, but they did not keep records of such

cases. As a result, the Baptists and Presbyterians,

who did so, are the focus of this article. The latter

two denominations together made up about

a quarter of all Upper Canadians in the first

half of the nineteenth century. 8 Both Baptists

and Presbyterians were divided into various

subdenominations, which further divided and

reunited over the period. While Baptists were

all strongly evangelical, Presbyterians divided

along evangelical and non-evangelical lines.

Until 1843 both evangelicals and “moderates”

could be found within the Presbyterian Church of

Scotland, although evangelicals appear to have

dominated in Upper Canada.9 After the division

of 1843, evangelicals formed the Free Church,

but the nature of discipline does not appear to

have differed significantly between this group

and “Old Kirk” Presbyterians. The focus of

discipline and the structures of regulation did,

however, differ considerably between Baptists

and Presbyterians. Among Presbyterians, the

behaviour of members was overseen exclusively

by the minister and church elders (the Session),

who had the power to demand public confession

or to excommunicate erring members. Ministers

were male, as were the elders. Male Baptist

deacons and ministers also had particular power

in enforcing discipline, but Baptist discipline

cases were discussed, and voted on, at monthly

covenant meetings attended by all members,

women and men.10

This study is based on the church records

of forty Presbyterian and twenty-six Baptist

churches from various regions of what is now

southern Ontario and includes all surviving

records available in major church archives.11 It

encompasses churches in large communities,

small towns, and rural areas for the period

from 1798 to 1860. Surviving records of

discipline cases are included among accounts

of other church events in church minute books.

Depending on the diligence of church clerks

and the interest of the local congregations, the

recording of these cases ranges from very brief

notations to detailed descriptions of the issues

involved, the testimony of participants and

witnesses, and the outcome of the case. […]

Most inhabitants of Upper Canada lived in

rural communities or in small towns, where

people knew their neighbours—and their

neighbours’ business. 12 The accepted use of

gossip and rumour to regulate behaviour points

to the face-to-face nature of this society and to

the centrality of oral communication within it.

It also demonstrates that distinctions we take

for granted today—particularly the distinction

between public and private—appear to have

had little relevance in the colony. Although

historians have suggested that a public/private

“separate spheres” paradigm was beginning

to gain currency among the middle and upper

classes of Upper Canadian towns in the 1840s

and 1850s, 13 the continued legitimate use of

gossip and rumour by the churches to regulate

what we would define as private, personal

behaviour suggests that this distinction remained

blurred for many. I argue that the lines between

Railing, Tattling, and General Rumour 69

public and private remained blurred not only

because the concept of “the private” was just

beginning to emerge in mainstream discourse

but also because of the particular relationship

between the meanings of public/private and

sacred/secular among evangelicals in this

period. For evangelicals, the secular world was

the world of the unconverted, the “ungodly.”

The converted renounced the secular world for

the sacred, and henceforward for them nothing

was truly private. […]

Once Upper Canadians experienced

conversion, they were expected to transform

their lives as individuals, and to enter into

a community of believers, whose members

saw themselves as united with each other in

brotherly and sisterly Christian bonds. It was

also a community very much separate from the

outside, secular world. As American historian

Curtis Johnson has put it, such evangelical

congregations saw themselves as “islands

of holiness” in a surrounding world of sin. 14

Although the majority of Upper Canadian

Presbyterians appear to have been evangelical,

this ethos of separation from “the world” within

a community of “saints” was particularly

powerful among Baptists. Historians have

noted a contradiction at the heart of such

strongly evangelical churches: the preservation

of the community was central, but it was

cemented primarily by the fragile bonds of

faith. 15 Family ties often supplemented ties of

faith, but the ethnically diverse Upper Canadian

Baptists, who could be of American, English,

or Scottish origins, were less likely to share

the further tie of a common ethnicity. 16 It is

perhaps not surprising, then, that maintaining

community cohesion was a central concern of

Baptist congregations. Within the churches,

considerable attention was paid to the regulation

of community harmony, which included the

regulation of speech that could rupture such

harmony.

Speech was also regulated within the

Presbyterian churches, but it was not so central

a focus of discipline. The less evangelical nature

of the Presbyterian Church, and the legacy of

having been a state church in Scotland, meant

that the things of the world, including secular

hierarchies and connections, were more visible.

Ethnicity was another bond uniting Presbyterian

congregations, as most church members were

Scottish, with some Irish congregations.

The inequalities of the world—including the

inequalities of gender—entered more firmly

into Presbyterian congregations than Baptist

ones, but gender differences in the regulation

of “improper speech” existed within both

denominations. At the same time, gender

inequalities could be transcended by a concern to

preserve community, so that “improper speech,”

particularly slander, lying, and other speech

that was considered a threat to the community,

was regulated regardless of the gender of the

perpetrator. Although the stereotype of the

female gossip and “tattler” is not absent from

church records, men within both denominations

were more likely to be charged with sins of

“improper speech.” Men more commonly used

such speech to challenge the harmony of the

church community.

While the extent to which the churches

regulated “improper speech” can be determined

in the church records, the nature of the records

make it impossible to know just how common

it was for the churches to use rumour or gossip

as a means of identifying cases of apparent sin.

In some cases the church records specifically

refer to rumour as the source of information.

[…] In other cases Presbyterians simply noted

that reports were circulating about an individual

or a couple. Among Baptists this was the

common way of referring to the use of gossip as

a source of information. For example, in March

1828 Boston Baptist Church sent a committee

to “labour with” Brother T. “respecting some

reports in circulation of his drinking.”17

[…] Although only a minority of cases were

clearly brought forward on the basis of gossip,

many more may have been. When the minute

books of Brantford’s Baptist Church noted

tersely in September 1843 that it be “resolved

that John L. be excluded from being a member

of this Church for the sin of drunkenness,” it

70 Crime and Deviance in Canada: Historical Perspectives

is impossible to know how the church came

to know of his drunkenness. 18 It seems likely

that, in small communities, many cases of such

behaviour would have come to the attention of

church members through some form of gossip

or rumour, even when specific information is

not provided to this effect.

Among those cases where church records

demonstrate definitively that rumour or gossip

was the source of information, it is clear that

certain sins were more likely to come to the

attention of the churches on this basis than

others. Drinking “to excess” was often the

subject of “general rumour” or “evil reports.”

However, of all the offences dealt with in the

church records, sexual offences and domestic

conflicts were the most likely to come to the

attention of the churches through rumour or

gossip. 19 This is not surprising. Scholars have

noted that gossip focuses particularly on more

personal issues.20 Tales of sexual infidelity and

family conflicts have been the stuff of gossip

for centuries, remaining central within current

gossip networks.

Although we still gossip about sex and family

conflict, something has changed. Today there is

at least some acknowledgment that such topics

belong within the personal “private” sphere—

even as we violate such privacy through our

gossip. The fact that, in Upper Canada, gossipers

were assumed to have a relatively accurate

knowledge of such activities within particular

local communities suggests that there was much

less of a sense of a public/private separation in

this society. People were assumed to know about

the sexual and family lives of their neighbours.

These aspects were not part of a hidden, private

world. The fact that the churches made use of

such gossip in an official capacity reflects not

only the blurring of any public/private division

in the larger “worldly” society but also the

nature of evangelical communities, where no sin

was “private” and all aspects of life were to bear

witness to “the power of the Spirit.”21

The use of gossip and rumour as legitimate

sources of information also reinforces the

extent to which Upper Canadian society, and

particularly local communities, were still very

much face-to-face communities, in which oral

communication was of central importance. Not

all Upper Canadians could read, but existing

evidence suggests that, by the 1830s, most

Upper Canadians had attained at least a basic

literacy, and newspapers certainly provided

a textual medium for spreading information

throughout the colony. 22 The written church

records themselves point to the value placed on

text-based discourse at this time. Nonetheless,

it is clear that among the majority of the

population, and indeed within institutions of

authority such as the churches, an alternative

form of discourse—the spread of information

through oral communication, or “word of

mouth”—retained considerable importance,

as well as legitimacy, particularly at the local

level.23

Today we see gossip and rumour as informal,

almost irrational, sources of information. 24

This assessment is based partly on the greater

legitimacy we accord to text-based, as compared

with word-of-mouth, communication. More

broadly, in making judgments about the churches’

use of rumour in regulating behaviour, we are

comparing such approaches to what we see

as the more rational, formalized, bureaucratic

approaches to social control of the modern

state.25 During this period, however, institutions

of the state—such as the secular legal system—

were only gradually gaining legitimacy within

the colony.26 More informal, extra-legal forms

of regulation and social control still existed.

Church discipline was one such form, but

others, such as charivaris and duelling, also

retained a certain legitimacy in this period,

like the churches, both of the latter also relied

on gossip—community talk or rumour about a

situation—as the basis for regulatory action.

Charivaris allowed local inhabitants to

express their disapproval of certain behaviour,

particularly behaviour within what we now

define as the private sphere of the family. For

example, an old widower who married a much

younger woman could expect to be “charivaried”

by members of the community, who would

Railing, Tattling, and General Rumour 71

surround the house of the unlucky couple

after the wedding, making a huge din until

they received some payment. [...] Information

about local wife beaters or unacceptable sexual

relationships was spread through the medium of

rumour or “public talk” While charivaris were

popular largely among the “common people”

of Upper Canada, duelling was practised by

the men of the colonial elite—or those aspiring

to that status. Many challenges to a duel were

issued in reaction to deliberate insult, but others

occurred in response to gossip that circulated

within Upper Canadian high society—gossip

that was seen to damage the reputation of the

challenger or a female relative.27

The reason for such challenges was the

assertion that the circulating tale was in fact

not true. This uncertainty was the chief danger

in using gossip and rumour as a means of

regulation and the churches were well aware

of the problem. They used “general rumour”

or “evil reports” as the basis for calling sinners

before them, but once the case was heard by

the session or church meeting, they tried to

determine the facts of the case—though in a less

formal manner than was true of the secular legal

system. If those charged failed to confess their

guilt, the churches often summoned witnesses

to shed more light on the case. If it was decided

that the suspect was innocent and that the

charges were based on lies or slander, then the

slanderers could, in turn, find themselves subject

to disciplinary proceedings.

The desire to avoid false accusations helps to

explain the churches’ vigilance in calling church

members before them on a range of speech-

related offences. In both denominations, slander

and lying were the most common speech-related

offences.28 The desire to regulate the means of

regulation was certainly part of the churches’

motivation in seeking to control speech, but

other issues are also involved. […]

Although members of Presbyterian churches

saw themselves as part of Christian communities

of faith, their sense of separation from the world

was weaker than was the case among Baptists.

The Baptists’ strong evangelicalism drew them

apart from the world into a separate community

of believers. At the same time that the notion of

community was important to Baptists, it was

also fragile—in part because such communities

were held together primarily by belief. Unlike

the Presbyterian congregations, Baptists had

no previous state tradition to buttress them

and were linked less firmly by ethnicity. 29 As

well, the evangelical focus of the Baptists,

with their emphasis on individual conversion

experiences and the direct relationship between

an individual and God, left more space for

distinctive interpretations of God’s word and

could result in conflict within the community

of “saints.”30

Specific entries within Baptist Church records

point to the emphasis these churches placed

on attempting to maintain harmony within the

church community. For example, in November

1844 the Port Burwell Baptist Church voted

that “a standing committee of three persons

be appointed in each Church whose duty it

shall be to promote peace and harmony. If any

member ... shall be found stirring up strife they

shall be dealt with as offenders.”31 Any conflict

between members was seen as damaging to the

larger church community. The church records of

Woodstock’s Baptist Church note, for example,

that in September 1825 the entire church was

harmonious “except for Brother P. and Sister

H. who were somewhat at variance, Sister H.

having reported some unfavourable stories

respecting Brother P. which are not so.” The

records note that the church members “humbly

trust and pray that matters may be arranged so

as not to wound the feelings of the body of the

Church.” Matters in this case were brought to

a satisfactory conclusion when “Sister H. ...

confessed to Brother P. and acknowledged her

faults publicly.” 32

A quantitative analysis of the nature of

offences brought before the Baptist churches

makes it clear that the primary focus of church

discipline was to preserve community harmony.

Over 42 per cent of offences involved family

quarrels, personal or business quarrels, or

church-related quarrels. Church-related quarrels,

72 Crime and Deviance in Canada: Historical Perspectives

such as disputes over doctrine, or challenges to

ministers or deacons, alone made up almost

a quarter of all offences dealt with by the

Baptist churches. In contrast, only 17 per cent

of Presbyterian offences focused on any form

of quarrelling or community disharmony. Less

than 6 per cent of offences among the more

hierarchical and less evangelical Presbyterians

involved quarrels over doctrine or challenges

to the minister or elders.33 Most Presbyterians

were charged with “sins of the flesh” such as

sexuality and drinking.

The Baptists’ particular focus on preserving

community harmony helps to explain why

they were much more likely to regulate speech

than were Presbyterians. Speech itself can

be a potent means of stirring up community

disharmony. As the eighteenth-century New

England Baptists studied by Susan Juster noted,

“It is the rash using of the Tongue that greatly

enflames our differences. Surely the Tongue

is an unruly Member.” 34 The concern of the

Upper Canadian Baptists with speech-related

offences is reflected in the fact that they made

up a higher proportion of the church discipline

case-load than was true among Presbyterians,

and also in the fact that more types of speech-

related charges can be found within the Baptist

records. For example, “tattling” and “railing”

were both offences among Baptists, but were

not found in Presbyterian records. Tattling is

certainly a speech-related offence that would

be likely to undermine community peace and

harmony, and thus would be of concern to

the Baptists. Railing—speaking out against

or insulting someone—was also a concern.

Some Baptist accusations of railing focused on

quarrels between members, which in themselves

would have undermined church harmony. A

number of other cases focused on railing in the

context of church quarrels, which would have

been even more disruptive. For example, in May

1836 Port Burwell Baptist Church excluded

William E. from church membership. He had

accused the local minister of preaching false

doctrine, and was “excluded for railing against

the Church and refusing to obey the voice of

the said Church.”35

The more hierarchical and less evangelical

Presbyterians appear to have faced fewer such

disruptions, or certainly focused less regulatory

attention upon them. Nonetheless, the 17 per

cent of charges in the Presbyterian Church

discipline records which involved personal,

family, or church quarrels, and the 13 per cent

of charges focusing on speech-related offences,

point to the fact that maintaining community

harmony was not irrelevant to these churches.

While maintaining harmony within the church

community was important, the Presbyterians

were also concerned with upholding the image of

the church community in the larger community

context. Here again gossip, rumour, and “public

talk” were important—but in this case it was the

public talk of non-Presbyterians that worried

the elders. In some of the more serious cases of

wrongdoing that came before the Presbyterian

churches, the session noted that the wrongdoing

here was not just the particular sin involved but

also the damage done to the church’s reputation

in the larger community. For example, when

the Picton Presbyterian Church charged John

D. with forging a signature on a contract and a

bank note, the church decided that “whereas it

would bring scandal on the cause of religion and

on the standards and discipline of this church

in particular were the said John D. to remain in

communion ... we do now declare the said John

O. to be no longer a member of this church.”

In a case brought against an elder of Dundas

Presbyterian Church, the concern was clearly

not just with his public drinking, but with the

fact that such drinking brought “scandal upon

the congregation and upon the character and

discipline of the Church.” In Smith’s Falls,

when rumours circulated that an elder was guilty

of “fornication” and procuring an abortion for

the woman involved, the session was not only

concerned with the sins themselves but with the

fact that “the report was generally believed, and

was thus calculated to cause serious detriment

to the interests of religion in this place.”36 The

Presbyterian elders were very well aware of

the potentially damaging impact of gossip and

rumour on the public reputation of the church.

Railing, Tattling, and General Rumour 73

The fact that the majority of cases of session

discipline focused on “sins of the flesh” such

as drinking and sexual matters may reflect a

particular Presbyterian approach not only to

sin but also a particular Presbyterian concern

with broader public opinion, since these kinds

of transgressions would be the ones most likely

to bring the church into disrepute within the

larger community.

*****

The Upper Canadian experience points

to the danger of over-generalizing about the

relationship between women and “improper”

speech. The gender breakdown of speech-

related charges reveals that, among both

Baptists and Presbyterians, almost three-

quarters of all charges involved men, while

only a quarter involved women. This apparent

reversal of gendered assumptions is not quite

what it seems: the gender breakdown differed

significantly depending on the category of

speech-related offence. Male predominance in

certain categories actually reinforces certain

traditional gendered norms. Women’s failure to

predominate in most other categories points less

to gender equality within the churches, and more

to the significance that congregations placed on

speech, and the dangers of its misuse, regardless

of the gender of the speaker.

In some cases the gendered breakdown of

particular speech-related offences seems readily

explicable. For example, in the case of swearing,

twenty-eight out of thirty of those charged

with this sin were male. The newer ideals of

pure, virtuous, pious womanhood which were

gradually gaining currency in Upper Canada

in this period certainly had no place for female

swearing.37 […]

Lying and slander were other significant

categories of speech-related offences. “Bearing

false witness” is obviously a sin in the Christian

context. As well, given the stress that the

churches placed on the use of rumour in

regulating behaviour, it is not surprising that

they placed considerable emphasis on censuring

those who lied or spread false rumours. Over

three-quarters of Presbyterian speech-related

charges fall into this category, as do half of

Baptist ones. What is perhaps more surprising

here is the predominance of male offenders—

with 82 per cent of Presbyterian cases of lying

and slander involving men, as do 69 per cent

of Baptist cases. Although the stereotype of the

female rumour-monger does not fit with such

figures, the reality of men’s greater involvement

in the public sphere helps to explain the

churches’ focus on male slander and falsehood.

Many of these cases involved quarrels about

business—and most business matters occurred

among men, outside the household. In the small

face-to-face communities of Upper Canada, a

person’s business reputation could be readily

made or lost through “public talk.” 38 Those

who felt their reputations had been unfairly

besmirched readily turned to the churches for

remedy. […]

While men were generally overrepresented

in cases of slander and lying, they were

particularly likely to be charged with such sins

in church-related cases—cases that involved

quarrels with deacons, elders, or ministers,

or disagreements about doctrine or church

practices. In church-related cases, Baptist

men were also overrepresented in another

speech-related offence—railing—though in

non-church-related cases both men and women

were equally likely to be accused of railing.

The Baptist records include a number of

lengthy reports, such as the case of Brother C.

of St Catharines Baptist Church, who, among

other things, was charged with “interrupting

and breaking up a covenant meeting” and

“slandering the Church among members and

others.” […] As we know, the Baptist Church,

in particular, sought to retain harmony among

members and placed considerable emphasis on

regulating speech that could undermine church

harmony. […]

Why might women be less likely to use

their legendary “wicked tongues” against the

churches? For Baptist women, the days when

the denomination’s radical evangelical focus on

the power of the Spirit within each individual,

74 Crime and Deviance in Canada: Historical Perspectives

a gift that had even justified female challenges

to church doctrine and leadership, was largely

past. 39 In fact, within Presbyterian and many

Baptist congregations, women were not allowed

to speak in church. 40 Although this restriction

did not prevent women from expressing their

concerns informally outside church walls,

many women may have internalized the newly

emerging ideas about women’s particular piety,

passivity, and morality. 41 Or perhaps older

ideas about womanly obedience remained

powerful. Women may also have been less

likely to challenge the churches for their

own reasons. The Baptist and Presbyterian

churches closely regulated and constrained

women’s behaviour, as they did that of men,

but they offered something to women beyond

the power and solace of faith they also offered

to men. Churches provided women with one of

their only options for community. If expelled

from their church, men had other options for

fellowship within the larger world and were also

more mobile, able to leave behind disapproving

neighbours. 42 Women, particularly mothers,

were much less mobile. For poor women, or

those facing the possibility of destitution in old

age and widowhood, the churches also offered

some minimal financial protection. In an era

when state welfare was almost non-existent,

and private charity grudging and demeaning at

best, many churches provided some assistance

to poorer members, usually widows.43 As well

as the possibility of material aid, the churches,

particularly the Baptist Church, provided women

with some protection from wife abuse. The

churches also advocated a code of appropriate

sexual behaviour that at least attempted to hold

men to the same standard of sexual purity as

women, and was thus less hostile to women’s

interests than were the sexual norms of the

larger society.44

We should not, however, overstate the

extent of female passivity and piety within the

churches. Although men were overrepresented

among those who spoke out against the church,

or were accused of circulating reports against it,

women were not absent from such cases. Some

of women’s speech-related offences against the

church suggest an active open defiance, again

countering stereotypes of feminine behind-the-

scenes rumour-mongering. […]

While women who railed against the church

or slandered it were a small minority, a larger

minority of those slandering other church

members were female, particularly among

Baptists. Women were accused of slandering

each other, and male church members, on

a number of issues. Some cases of women

slandering other women involved sexual

reputations, as in the case that began this

article, where Nancy F. accused Matilda G.

of “having carnal connection with Hiram C.

... and it had become public talk.” Other cases

in which a woman’s sexual reputation was

challenged involved a married couple, or a man.

For example, in February 1812 Sister Polly A.

of Boston Baptist Church complained to the

church that Joseph B. had made “a request to

her to the violation of her chastity against her

husband.” When she refused his advances, he

apparently circulated reports that she was guilty

of adultery. 45

The stereotypical gossiping woman is not

entirely absent from these records. The Baptist

and Presbyterian records each include two

charges of gossiping—all four of which were

levelled at women. Of the seven charges of

“tattling” in the Baptist records, six involve

women. Three of the charges are found in one

entry in Brantford’s Baptist Church records. In

July 1840 it was resolved that “Brother M. and

Brother N. shall visit Sister T., Sister R. and

Sister C. and inform them that tattling shall

not exist amongst us that we expect them to

bury it and bring it up no more amongst us.”46

Although the image of mischief-making female

tongues was not entirely absent from church

concerns, cases of gossip made up 4 per cent

of Presbyterian speech-related cases, and gossip

and tattling, 6 per cent of Baptist ones. Gossip

appears to have been defined fairly narrowly

here. Charges that we might see as related

to gossip, such as lying and slander, were of

far greater concern to the churches, and were

Railing, Tattling, and General Rumour 75

more likely to focus on male offenders. In an

era when speech really mattered—when the

business reputation of an individual, or the

reputation of a church could be destroyed by

“public talk,” and when the harmony of church

communities relied on the absence of strife and

disharmony that could be created by “unruly”

tongues—the regulation of all such speech was

essential. The fact that men’s speech was much

more likely to be regulated than women’s may

reflect men’s more active role in the public

world, or it may suggest that male words were

considered more powerful and dangerous, and

thus in need of regulation. Or it may simply

point to the fact that in communities that took

all forms of improper speech very seriously,

men’s tongues were in fact more unruly than

those of women.

By the middle of the nineteenth century, the

churches gradually moved away from efforts

to constrain either male or female speech. In

most Baptist and Presbyterian churches, efforts

to oversee all aspects of what we would define

as private life declined significantly after mid

century. By the 1880s, references to such cases

almost disappeared from church records.47 The

reasons for this decline in church discipline

are complex and not yet fully understood.

Social forces such as urbanization, class-

stratification, and industrialization, which

fostered a growing public/private division,

particularly among the middle classes, may

have had significant implications for the practice

of church discipline. […] Businessmen, who

in earlier years readily turned to the churches

to mediate disputes or restore reputations,

came to resent religious interference in an

increasingly large scale and complex capitalist

workplace. 48 These broader social forces also

affected the evangelical discourse of sacred and

secular which had legitimized church discipline

practices. Historians have found that over the

second half of the nineteenth century, a range of

more secular, materialistic values and hierarchies

became integrated into the world view of most

evangelicals. 49 As the firm distinction between

“islands of holiness” and the secular world gave

way to greater accommodation to things of the

world, Christians became less concerned with

the cohesion of separate church communities,

and thus had less need to police the speech

of those who might fracture it. Also, with the

boundaries between the churches and the secular

world becoming more permeable, middle-class

Christians could adopt mainstream “separate

spheres” discourse and the increasingly powerful

discourse of individualism to insist that some

facets of their lives were indeed private and

personal and so should be left to individual

conscience, rather than being subject to the

“fraternal oversight” and community gossip of

fellow Christians.50

W h i l e a r a n g e o f s o c i a l f o r c e s a n d

accompanying shifts in discourses of public/

private and sacred/secular played a significant

role in the decline of church discipline, the

growing power and legitimacy of the secular

legal system may provide the most potent

reason for its demise. The legal system provided

an alternative model of regulation to that of

the churches, a model that was formalized,

“rational,” and text-based. Indeed, this system

was associated with the rational masculine

virtues of the Victorian age, providing a

potent challenge to the legitimacy of older

church traditions with their emphasis on more

informal—even feminine—verbal forms of

regulation.

We should not, however, create too firm a

distinction between an old-fashioned informal

church system of regulation, which accepted

the legitimacy of gossip, and a formal, rational

state, which did not. Gossip appears to have

remained a resource—albeit an unofficial

one—particularly for social welfare branches of

the state in the twentieth century. The popularity

of welfare “snitch lines,” which encourage

people to inform on neighbours who they

believe are “cheating” on welfare, is the most

recent manifestation. 51 However, a significant

difference between state-sponsored snitch lines

and earlier church regulation is that it is now

only the powerless—the poor, the young—who

are subject to such regulation. Today, a dominant

76 Crime and Deviance in Canada: Historical Perspectives

discourse of liberal individualism, with its clear

separation of public and private, protects those

with resources from official regulation through

neighbourhood gossip. While most in our society

would not wish to return to the prying eyes of

early nineteenth-century church communities, it

is illuminating to recognize that the current use

of gossip to control the poor does not include

earlier community-based understandings that

if gossip is to be taken seriously as a means of

regulation, there must be means of controlling

the “incorrect speech” of all.

Notes

1. Canadian Baptist Archives (CBA), St Catharines

Baptist Church, Church Minutes, 30 Nov. 1844

and 1 Feb. 1845; Wicklow Baptist Church,

Church Minutes, 22 July and 20 Sept 1849. Full

names have not been used in order to preserve

anonymity.

2. For definitions of gossip, see Karen V. Hansen,

“The Power of Talk in Antebellum New England,”

Agricultural History 67, 2 (1993): 43–64; Melanie

Tebbutt, Women’s Talk? A Social History of

“Gossip” in Working-Class Neighbourhoods,

1880–1960 (Aldershot, England: Scolar Press

1995).

3. See Hansen, “The Power of Talk”; Tebbutt,

Women’s Talk?; Mary Beth North, “Gender and

Defamation in Seventeenth-Century Maryland,”

William and Mary Quarterly (1987): 3–39;

Robert F. Goodman and Aaron Ben Ze’ev, Good

Gossip (Lawrence: University Press of Kansas

1994); Steve Hindle, “The Shaming of Margaret

Knowsley: Gossip, Gender and the Experience of

Authority in Early Modern England,” Continuity

and Change 9, 3 (1994): 391–419.

4. See, for example, L.R. Poos, “Sex, Lies, and the

Church Courts of Pre-Reformation England,”

Journal of Interdisciplinary History 25, 4 (1995):

585–608; Laura K. Deal, “Widows and Reputation

in the Diocese of Chester, England, 1560–1650,”

Journal of Family History 23. 4 (1998): 382–93;

Susan Juster, Disorderly Women: Sexual Politics

and Evangelicalism in Revolutionary New England

(Ithaca and London: Cornell University Press

1994); Jane Kamensky, Governing the Tongue:

The Politics of Speech to Early New England

(New York and Oxford: Oxford University Press

1997); Mary Beth Norton, Founding Mothers

and Fathers: Gendered Power and the Forming

of American Society (New York: Vintage Books

1996).

5. The few existing examinations of Upper Canadian

church discipline have focused on it in the context

of church history. See, for example, Duff Willis

Crerar, “Church and Community: The Presbyterian

Writ-Session in the District of Bathurst, Upper

Canada” (MA thesis, University of Western Ontario

1979), and Crerar, “‘Crackling Sounds from

the Burning Bush’: The Evangelical Impulse in

Canadian Presbyterianism before 1875,” in G.A.

Rawlyk, ed., Aspects of the Canadian Evangelical

Experience (Montreal and Kingston: McGill-

Queen’s University Press 1997), 123–36.

6. Jean E. Friedman, The Enclosed Garden: Women

and Community in the Evangelical South, 1830–

1900 (Chapel Hill and London: University of North

Carolina Press 1985), II.

7. Among Presbyterians, church members could be

excommunicated only by the higher level of church

court, the Presbytery. See Crerar, “Church and

Community,” 25.

8. The Presbyterians were far more numerous, at

about 20 per cent of the population, while the

Baptists always made up less than 5 per cent of the

total population in this period. See John Webster

Grant, A Profusion of Spires (Toronto: University

of Toronto Press 1988), 224.

9. Crerar, “Crackling Sounds from the Burning

Bush,” 127. Some Presbyterian evangelicals (the

United Presbyterians) had left the church before to

1843. See Grant, A Profusion of Spires, 123–4.

10. Female participation may not have been the norm

in all churches, but it was certainly the case in most

smaller communities. See Judith Colwell, “The

Role of Women in the Nineteenth-Century Church

of Ontario” (unpublished paper, 1985, CBA), 8–9.

See also Gregory A. Wills, Democratic Religion:

Freedom. Authority and Church Discipline in the

Baptist South, 1785–1900 (New York: Oxford

University Press 1997).

11. Among Baptists, church discipline cases are to be

found in the congregational minutes. Presbyterian

discipline cases are found in the minutes of the Kirk

sessions. The church records examined include

surviving church records for the 1798–1860 period

from Presbyterian and Baptist churches found

Railing, Tattling, and General Rumour 77

in the United Church Archives, the Canadian

Presbyterian Archives, the Canadian Baptist

Archives, the National Archives of Canada, and

the Family History Archives of the Church of

the Latter Day Saints. All records found in these

archives that began before 1850 were examined

for all years up to 1860, while some records that

existed for only the 1850s and later years were

not included. As well, this study includes records

generously given to me by Duff Crerar, based

on his research on eastern Ontario Presbyterian

churches.

12. For recent work on Upper Canadian social and

gender history, see Cecilia Morgan, Public Men

and Virtuous Women: The Gendered Languages of

Religion and Politics in Upper Canada, 1791–1850

(Toronto: University of Toronto Press 1996); Jane

Errington, Wives and Mothers, Schoolmistresses

and Scullery Maids: Working Women in Upper

Canada, 1790–1840 (Montreal: McGill-Queen’s

University Press 1995); Katherine McKenna, A Life

of Propriety: Anne Murray Powell and Her Family,

1755–1849 (Montreal: McGill-Queen’s University

Press 1994); and Janice Potter-MacKinnon, While

the Women Only Wept: Loyalist Refugee Women

in Eastern Ontario (Montreal: McGill-Queen’s

University Press 1993).

13. See Morgan, Public Men and Virtuous Women, and

Errington, Wives and Mothers. For an excellent

discussion of the concept of separate spheres, see

Leonore Davidoff and Catherine Hall, Family

Fortunes: Men and Women of the English Middle

Class, 1789–1850 (Chicago: University of Chicago

Press 1987). Certain feminist scholars have begun

to challenge the concept of “separate spheres.”

See Linda Kerber, “Separate Spheres, Female

Worlds, Woman’s Place: The Rhetoric of Women’s

History,” Journal of American History 75, I (1988):

9–39. This critique is useful in reminding us that

these spheres were not inviolable and that both

men and women moved between public and private

worlds. However, the emergence of the concept

of a private sphere that was somehow “personal”

and less open to community gaze and intervention

remains worthy of further historical study.

14. Curtis O. Johnson, Islands of Holiness: Rural

Religion in Upstate New York, 1790–1860 (Ithaca

and London: Cornell University Press 1989).

See also Randolph A. Roth, The Democratic

Dilemma: Religion, Reform and the Social Order

in the Connecticut River Valley of Vermont,

1791–1850 (Cambridge: Cambridge University

Press 1987), and, in the Upper Canadian context,

William Westfall, Two Worlds: The Protestant

Culture of Nineteenth-Century Ontario (Montreal

and Kingston: McGill-Queen’s University Press

1989).

15. See Juster, Disorderly Women, chap. 3.

16. Daniel C Goodwin, “‘The Footprints of Zion’s

King’: Baptists in Canada to 1880,” in Rawlyk, ed.,

Aspects of the Canadian Evangelical Experience,

197. Many Baptist congregations were originally

based around one or another of the American,

English, or Scottish ethnic groups, but such

patterns changed over time. Particularly in the case

of Americans, who made up the majority of Upper

Canadian Baptists, ethnicity did not appear to

provide the same basis for tightly knit communities

as was true of Scottish and Irish Presbyterians.

17. CBA, Boston Baptist Church, Church Minutes, 8

March 1828, Murray Meldrum notes.

18. CBA, Brantford Baptist Church, Church Minutes,

16 Sept 1843. Also see, for example, PCA,

Stamford Presbyterian Church, Niagara Falls,

Session Minutes, 22 June 1837.

19. Among Presbyterians 12 per cent of drink cases

were clearly reported through gossip (n. 77), and

among Baptists, 5 per cent were reported this

way (n. 62). Among Presbyterians, 11 per cent

of speech-related offences were reported through

gossip (n. 47), while among Baptists, 5 per cent

were reported in this way. Among Presbyterians

33 per cent of cases of family conflict were

reported through gossip (n. 12), while among

Baptists, 7 per cent (n. 27) were reported this

way. Among Presbyterians, 13 per cent of sexual

misdemeanours were reported through gossip (n.

166), while among Baptists, 14 per cent of such

cases were reported this way (n. 21).

20. See, for example, Hansen, “The Power of Talk.”

21. Juster, Disorderly Women, 82.

22. Regarding literacy, see Susan Houston and Alison

Prentice, Schooling and Scholars in Nineteenth-

Century Ontario (Toronto: University of Toronto

Press 1988), 84–5.

23. Also see Kamensky, Governing the Tongue,

and Mary Beth Norton, Founding Mothers and

Fathers, for discussions of American colonial

cultures where face-to-face communities were the

norm and oral communication was central.

24. See, for example, Lorraine Code, “Gossip, or in

Praise of Chaos,” in Goodman and Ben-Ze’ev, eds.,

Good Gossip.

25. Of course, we should not set up firm dichotomies

here. Gossip and rumour have been, and are still,

used informally by agents of the state—such as

social workers. Nonetheless, gossip and rumour

are not used in the same official way within state

78 Crime and Deviance in Canada: Historical Perspectives

institutions, such as the legal system, as they were

within church courts.

26. See Susan Lewthwaite, “Violence, Law, and

Community in Rural Upper Canada,” in Jim

Phillips, Tina Loo, and Susan Lewthwaite, eds.,

Essays in the History of Canadian Law, vol. 5:

Crime and Criminal Justice (Toronto: University of

Toronto Press 1994), 353–86. Also see Allan Greer

and Ian Radforth, eds., Colonial Leviathan: State

Formation in Mid Nineteenth-Century Canada

(Toronto: University of Toronto Press 1992).

27. Cecilia Morgan, “‘In Search of the Phantom

Misnamed Honour’: Duelling in Upper Canada,”

Canadian Historical Review 76, 4 (1995): 536,

543.

28. Among Presbyterians, such charges made up 72 per

cent of all speech-related offences (n. 72), while

among Baptists they made up 49 per cent of all

such offences (n. 165). In both denominations they

were the largest category of such offences. [...]

29. See note 16.

30. See Juster, Disorderly Women, and George Rawlyk,

The Canada Fire: Radical Evangelicalism in

British North America, 1775–1812 (Kingston

and Montreal: McGill-Queen’s University Press

1994).

31. CBA, Port Burwell Baptist Church, Church

Minutes, 1 Nov. 1844.

32. CBA, Woodstock Baptist Church, Church Minutes,

24 Sept. 1825.

33. However, these numbers do not include the serious

charge of heresy, which was generally referred to

the higher-level court of the Presbytery. See Crerar,

“Church and Community,” 25. It is also possible

that more quarrels were mediated privately by

minister or elders among Presbyterians than among

Baptists, and thus did not find their way into the

church records.

34. Cited in Juster, Disorderly Women, 88.

35. CBA, Port Burwell Baptist Church, Church

Minutes, May 1836.

36. PCA, Picton Presbyterian Church, Session Minutes,

28 Dec. 1845; Dundas Presbyterian Church,

Session Minutes, 20 Jan. 1846; National Archives

of Canada (NA), Smiths Falls Westminister

Presbyterian Church, 2 April 1858. Such concerns

about public opinion occasionally appear in

Baptist records, but are much more common in

Presbyterian session minutes.

37. See Morgan, Public Men and Virtuous Women, and

Davidoff and Hall, Family Fortunes.

38. See also Kamensky, Governing the Tongue, and

Norton, Founding Mothers and Fathers.

39. See Rawlyk, The Canada Fire, and Juster,

Disorderly Women, for a discussion of women’s

roles within radical evangelical communities.

40. Women spoke and voted at many Baptist covenant

meetings. See Colwell, “The Role of Women.”

Women’s right to speak in church was more

contested, with congregations clearly having

different perspectives on this issue. See, for

example, CBA, Woodstock Baptist Church, Church

Minutes, 28 Dec. 1844, and Wicklow Baptist

Church, Church Minutes, Sept. 1811.

41. In this period, women were rarely allowed to

speak on public platforms, even beyond church

walls. However, there would have been many more

informal public and private spaces where women

could make their views of church members and

church practices known.

42. For a discussion of men’s alternative options in a

slightly later period, see Lynne Marks, Revivals

and Roller Rinks: Religion, Leisure, and Identity

in Late Nineteenth-Century Small-Town Ontario

(Toronto: University of Toronto Press 1996).

43. Crerar, “Church and Community,” 113. For poor

relief to widows among Baptists, see Colwell,

“The Role of Women,” 4. Also see CBA, Oxford

Baptist Church, Church Minutes, 1808, and

Brantford Baptist Church, Church Minutes, 1

April 1855. For a discussion of the limitations of

secular social welfare in this period, see David R.

Murray, “The Cold Hand of Charity: The Court of

Quarter Sessions and Poor Relief in the Niagara

District, 1828–1841,” in W. Wesley Pue and Barry

Wright eds., Canadian Perspectives on Law and

Society: Issues in Legal History (Ottawa: Carleton

University Press 1988), 179–206.

44. See Lynne Marks, “Christian Harmony: Family,

Neighbours, and Community in Upper Canadian

Church Discipline Records,” in Franca Iacovetta

and Wendy Mitchinson, eds., On the Case:

Explorations in Social History (Toronto: University

of Toronto Press 1998), and Lynne Marks, “No

Double Standard? Leisure, Sex, and Sin in Upper

Canadian Church Discipline Records, 1800–1860,”

in Kathryn Macpherson, Cecilia Morgan, and

Nancy Forestell, eds., Gendered Pasts: Essays in

Masculinity and Femininity (Toronto and Oxford:

Oxford University Press 1999), 48–64.

45. CBA, Boston Baptist Church, Church Minutes, 1

Feb. 1812, Murray Meldrum notes. Also see FHL,

Iona Station Baptist Church, Church Minutes, 2

Dec. 1847.

46. CBA, Brantford Baptist Church, Church Minutes,

July 1840.

Railing, Tattling, and General Rumour 79

47. Duff Crerar argues that the Free Church Presby-

terians retained church discipline practices into

the 1860s, after they had been largely abandoned

among other Presbyterians, but that even within

the Free Church these practices declined by the

1870s. See Crerar, “‘Crackling Sounds from

the Burning Bush,’” 134. Neil Semple argues

that Methodists also largely abandoned church

discipline practices after mid-century. See Semple,

The Lord’s Dominion: the History of Canadian

Methodism (Kingston and Montreal: McGill-

Queen’s University Press 1996), 228–30. By the

1880s the occasional reference to cases of excessive

drinking can be found in some Presbyterian and

Baptist records, but other sins are not recorded.

48. See, for example, Semple, The Lord’s Dominion,

218–19. Also see Goodwin, “‘The Footprints

of Zion’s King,’” 202, and Johnson, Islands of

Holiness, 169.

49. See Semple, The Lord’s Dominion, chap. 13;

S.D. Clark, Church and Sect in Canada (Toronto:

University of Toronto Press 1948), chap. 7; and

Marks, Revivals and Roller Rinks, chap. 3.

50. This respect for the private sphere does not

mean that evangelicals abandoned the moral

concerns of Christianity. Personal piety remained

important See, for example, Van Die, “The Marks

of a Genuine Revival.” As well, evangelicals

increasingly focused attention on the sins of those

outside their church communities—on the poor

and the immigrants—who became the focus of

evangelical reform movements for temperance and

sexual purity.

51. See Margaret Little, “He Said, She Said: The

Role of Gossip in Ontario Mothers’ Allowance

Administration,” paper presented at the Canadian

Historical Association meeting, St. Catharines,

Ontario, June 1996. Also see Franca Iacovetta,

“Gossip, Contest, and Power in the Making

of Suburban Bad Girls Toronto, 1945–1960,”

Canadian Historical Review 80, 4 (1999): 585–

623.

Critical Thinking Questions

Chapter 1: Administering Justice without the State: A Study of the Private

Justice System of the Hudson’s Bay Company to 1800, Russell Smandych

and Rick Linden

1. The authors outline the private system of justice the Hudson’s Bay Company

enjoyed. How did this private system develop? What are the advantages and

disadvantages of this system compared to a public system?

2. The private system of justice applied to employees of the company, those who

traded with the Company, and individuals who lived in the area. What problems

did company officials experience in attempting to control such a disparate group

of individuals? What authority did the company possess to ensure compliance?

3. The Hudson’s Bay Company received their authority to carry out trade from the

English monarchy, but they were ultimately responsible to stockholders in the

company. How did this dual responsibility affect decisions that were made in the

territory? Did governors feel they owed a greater allegiance to one group more

than the other?

Chapter 2: Criminal Boundaries: The Frontier and the Contours of Upper

Canadian Justice, 1792–1840, David Murray

1. Prior to the development of the criminal justice system we know today, our

forefathers had to resort to different methods to control crime. What were some

of these methods? How do they compare to modern responses to crime?

2. How did proximity to the border affect frontier justice? Consider the role the border

played in decisions about whether or not to extradite “problem” citizens.

3. Murray uses the term “banishment” to refer to sentences where the offender was

required to leave the country—with the assumption that she or he would relocate

to the United States. How does this use of the idea compare to the English use

of banishment? Why does Murray suggest that our neighbours to the south did

not appear to have a problem with such sentences?

Critical Thinking Questions 81

Chapter 3: The Mounties as Vigilantes: Perceptions of Community and

the Transformation of Law in the Yukon, 1885–1897, Thomas Stone

1. Who participated in the miners’ meeting, and how did the organization deal with

problems prior to the arrival of the Mounties? How did the Mounties undermine

the authority of the miners’ meeting? Did the majority of miners appear to support

or oppose the role of the Mounties?

2. The author presents evidence that suggests that crime was not a significant

problem in the Yukon. If this is the case, why did the Canadian government

dispatch the North West Mounted Police to the Yukon in the summer of 1897?

What was the real purpose for the presence of the Mounties?

3. Why does Stone compare the Mounties to vigilantes? How did the Mounties act

like vigilantes? How were they different? What factor, if any, did the distance

between the Yukon and Ottawa affected how the Mounties were able to respond

to less serious problems?

Chapter 4: Discordant Music: Charivaris and Whitecapping in Nineteenth-

Century North America, Brian D. Palmer

1. What are the differences between charivaris and whitecapping? What role did

charivaris and whitecapping play in community cohesion? Were charivaris always

detrimental? In what instances might they be beneficial?

2. Why did local residents sometimes resort to the charivari rather than the law to

resolve a problem in the community? Over time, the charivari appears to have

fallen out of favour. Why did this occur, and why might rural communities be slower

to abandon the tradition of the charivari? How did the nature of the charivari

change over time?

3. According to Palmer, most historians who have studied the ritual of the charivari

have tended to ignore the reality that most participants came from the working

class. How might such an examination help us to better understand the

phenomenon of the charivari? Does such a perspective present an unrealistic

ideal of the culture of the working class?

Chapter 5: Railing, Tattling, and General Rumour: Gossip, Gender, and

Church Regulation in Upper Canada, Lynne Marks

1. How did churches of the day use gossip to control improper conduct? What are

some of the problems the author cites in attempting to determine whether the

gossip was actually true? How did authorities within the church deal with this

dilemma?

2. How was gossip gender-specific? Were women more or less likely to

repeat unfounded rumours than men? Was this the case in the different

denominations?

3. Marks indicates that gossip, as a mechanism to control church conduct, fell out of

favour by the mid nineteenth-century. Why did this happen? What other recourse

was available to the church to censure inappropriate behaviour?

Further Readings

Pioneer Policing in Southern Alberta: Deane of the Mounties, 1880–1914 by

William M. Baker (Calgary: Historical Society of Alberta, 1993).

This book is about Richard Burton Deane, and is a collection of reports written

during his years as a Mounted police officer from 1883 to 1914. This was a significant

period prior to the establishment of the RCMP and in the opening of the West. Deane

was instrumental in supervisory positions in quelling unrest by insurgents, and the

portrait drawn here gives an insight into the past. With stories ranging from booze to

murder, the book provides revealing insights into social history and administration of

justice in pioneer Alberta.

The North West Mounted Police and Law Enforcement, 1873–1905 by R.C.

McLeod (Toronto: University of Toronto Press, 1976).

The book makes for good stories, such as how in 1877, 11 months after Custer’s

disaster, NWMP Major James M. Walsh, a sergeant, and three troopers followed an

Indian trail that led to Sitting Bull, who had fled persecution in the U.S. They were

able to convince the Sioux that peace could be had if they obeyed the law.

Canadian State Trials, Volume Two: Rebellion and Invasion in the Canadas,

1837–1839, edited by F. Murray Greenwood and Barry Wright (Toronto: Osgoode

Society for Canadian Legal History, University of Toronto Press, 2002).

The late F. Murray Greenwood was associate professor emeritus of history at the

University of British Columbia, and Barry Wright is a professor of legal studies and

director of criminology at Carleton University. This second volume of the Canadian

State Trials series focuses on the largest state security crisis in nineteenth-century

Canada: the rebellions of 1837–1838 and patriot invasions in Upper and Lower

Canada (Ontario and Quebec). Over 350 men were tried for treason in connection

with the rebellions. The essays, written by historians, legal scholars, and archivists,

examine trials and court martial proceedings in their political, social, and comparative

contexts; the passage of emergency legislation; the treatment of women; and the

plight of political convicts transported to the Australian penal colonies.

Essays in the History of Canadian Law: Volume Five—Crime and Criminal

Justice, edited by Jim Phillips, Tina Loo, and Susan Lewthwaite (Toronto: University

of Toronto Press and Osgoode Society for Canadian Legal History, 1994).

Jim Phillips is the director of the Centre of Criminology and professor in the

Faculty of Law at the University of Toronto; Tina Loo is a professor of history at

Further Readings 83

Simon Fraser University; Susan Lewthwaite is with the Law Society of Upper Canada

Archives Department. This stellar collection is a tribute to R.C.B. (Dick) Risk, who has

been writing about Canadian legal history since the 1960s. His articles on law and

the economy, and legal-historical studies stand as a model for others. The articles

gathered here point to how legal history is situated in place and time, and how the law

is indigenous, both influencing and influenced by its environment. Some of the articles

include the “Racially Motivated Murder of Gus Ninham, Ontario, 1902” by Constance

Backhouse; “Ontario Water Quality, Public Health, and the Law, 1880–1930” by Jamie

Benidickson; “Taking Litigation Seriously: The Market Wharf Controversy at Halifax,

1785–1820” by Philip Girard; “‘Our Arctic Breathren’: Canadian Law and Lawyers as

Portrayed in American Legal Periodicals, 1829–1911” by Bernard J. Hibbitts; “Race

and the Criminal Justice System in British Columbia, 1892–1920: Constructing Chinese

Crimes” by John McLaren; “Power, Politics, and the Law: The Place of Judiciary in the

Historiography of Upper Canada” by Peter Oliver; “The Criminal Trial in Nova Scotia,

1749–1815” by Jim Phillips; and “‘The Disquisitions of Learned Judges’: Making

Manitoba Lawyers, 1855–1931” by W. Wesley Pue.

A Few Acres of Snow: Documents in Post-Confederation Canadian History

and

A Country Nourished on Self-Doubt: Documents in Post-Confederation

Canadian History, both by Thomas Thomer (Peterborough: Broadview Press,

2003).

Thomas Thomer is a member of the Department of History at Kwantlen University

College. These books amalgamate many documentary sources on pre- and post-

Confederation Canadian history. Each chapter offers source materials on significant

themes and events, such as the trial of Louis Riel, residential schools, the FLQ, and

the Royal Commission on the Status of Women. Writings by Nellie McClung, Grey

Owl, René Lévesque, and David Suzuki are among the many contributions that look

at the history of Canada’s various regions, the experiences of women, Native peoples,

immigrants, and the working class.

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With the move toward nationhood, the criminal justice system that we know today

began to take shape. This section presents an overview of some of the issues that

confronted Canada throughout the nineteenth and early twentieth centuries as it struggled with

urbanization, immigration, and the development of a modern criminal justice system. While there

were serious offences to deal with, such as rape and homicide, authorities began to concern

themselves increasingly with more mundane matters, including vagrancy and drunkenness.

Homicide, although serious, was relatively rare. More troublesome was the question of how to

control a strong working class given the temptations city life had to offer. It is no accident then

that youth courts and police develop to control the growing juvenile underclass.

Dispelling the notion that murder and mayhem are modern phenomena, May and Phillips

examine homicide rates in Nova Scotia between the mid-eighteenth and early nineteenth

century. From the extant records of the Supreme Court, they uncovered evidence of 133 people

prosecuted for 89 murders. The findings indicate that homicides were both quantitatively and

qualitatively different in and around the port of Halifax compared to the rest of the colony. In

Halifax, a strong military and marine presence meant a continuous influx of young, unattached

men who lacked any real social bonds in the community. Both soldiers and civilians could be

victims, but the offenders were more likely to be military men; during this period, there were

only two known cases in which civilians killed military men. In both instances, the civilians

were pardoned on the grounds that they had acted in self-defence. In contrast, there were

only 17 documented homicides outside Halifax, generally involving victims who knew their

assailants—either kin or neighbours.

The next reading examines “women’s worth at the end of the Victorian era.” This chapter

provides an insight into how the law reflects and resists the changing role of women. Backhouse

pulls together pieces of legislation to illustrate the relative lack of power for women, from laws

on infanticide, abortion, divorce, and whether they could control their own property. Using

a story of infanticide, the author weaves together a panoramic picture of how criminal law

reflected societal prejudice against single women, especially when they were confronted with

an unwanted pregnancy. For these women, condemned to poverty and servitude, infanticide

must have often seemed the only option, unenviable as it was. Remarkably, defendants were

treated with much more understanding than they were in the timeframe of the previous chapter

when, 100 years earlier, proof of murder was not even required in such cases.

In the next reading, we see how research on gender differences in criminal sanctions

generally finds a pattern of more lenient outcomes for female offenders, while noting that the

effect of gender varies in relation to a number of contextual influences. As yet, however, little

attention has been paid to how the relationship of gender to court outcomes varies across

A Working Criminal

Justice System

PART II

86 Crime and Deviance in Canada: Historical Perspectives

different historical periods. This paper examines the issue, using data from female and male

offenders committed to Middlesex County Jail, Ontario, during the Urban Reform era (1871–

1920). The findings reveal an overall pattern of more severe dispositions for female offenders

in the past. At the same time, there is considerable variability in the impact of gender across

different measures of sanction severity, various offender and offence attributes, and for the late

nineteenth to early twentieth century. The study highlights the need for research in this area

to be sensitive to the historically specific nature of the relations among gender roles, formal

and informal control mechanisms, and criminal sanctions.

The following two readings deal with the systemic regulation of girls and young women.

Through a review of the Juvenile Delinquents’ Court in Montreal in 1918, Myers underscores

the participatory process parents, particularly mothers, played in the social, moral, and sexual

control of their recalcitrant daughters. While the majority of cases came from the working class,

the active role the parents played in the process demonstrates that this was no mere passive

acceptance of the power of the state in the lives of the less privileged. The family courts served

as an extra-familial arena for conflict resolution. The institutionalization of maternal guidance

was also evident in prisons for women as well. In this case, rehabilitation meant encouraging

chastity before marriage and developing domesticity afterwards. Ironically, this was achieved

through the hiring practices in women’s prisons, whereby female officers were hired to achieve

the broader goal of encouraging maternal, nurturing instincts in women prisoners.

In his article, Menzies discusses how more than 5,000 immigrants were deported from

British Columbia between Confederation and World War II on the basis of being “insane”

and “feebleminded.” This paper examines the role of the British Columbian government in

immigration and the subsequent deportation of the individuals they felt to be unfit for residence

within Canada. It also examines how the federal government’s legislation, the Immigration Act,

helped support this deportation. The process of screening individuals immigrating to British

Columbia evolved from a poorly organized system that allowed many unsuitable immigrants

into the country who then had to be placed in asylums, to a hybrid medicalized screening

process that attempted to block unsuitable immigrants at their home ports. At the height of

deportation in British Columbia, the eugenics movement helped support deportation, and the

era was dubbed the “golden age” of deportation.

The final reading analyzes the policing of morality and public order. Utilizing a data set from

the Police Department’s Annual Reports for the period 1859–1955, Boritch and Hagan note

a similar trend in Toronto. Moving from a “class-control” model of policing to a more modern

“crime-control” system, findings suggest tensions between controlling vice and developing a

more modern police force.

CHAPTER 6

Homicide in Nova Scotia,

1749–1815

Allyson N. May and Jim Phillips

On the last day of August 1749, a few weeks

after Edward Cornwallis arrived with some

2500 settlers, the first criminal trial was held

in the newly established settlement of Halifax.

Peter Cartcel, a settler of Swiss origin, was

tried and convicted for the murder of Abraham

Goodsides, mate of the Beaufort transport,

and hanged two days later. 1 Cartcel was the

first of at least 133 men and women, mostly

men, who were brought to court in mainland

Nova Scotia between 1749 and 1815 because

they allegedly killed, or assisted in the killing

of, another human being.2 This does not mean

that there were 133 victims of homicide, for

some cases involved multiple defendants and

a small number had multiple victims; the 133

homicide prosecutions represented eighty-nine

“incidents” of homicide and at least ninety-three

victims. 3 As we will demonstrate, the profile of

homicide in the second half of the eighteenth

and the early nineteenth centuries was markedly

different between Halifax and the rest of the

colony. In the capital, prosecutions for homicide

were frequent occurrences, with homicides

often the result of spontaneous acts of violence

directed against strangers. […] Elsewhere in the

colony, homicide occurred much less frequently

and was much more likely to involve violence

within the family or community.

The Law of Homicide

*****

[…] The English criminal law, both common

law and statute, was received in Nova Scotia

after 1749. […] Many of the principal aspects

of English statutory law were enacted as local

law by the colony’s first assembly in 1758,

including a variety of homicide provisions.

Although statutory law played an important

role, the fundamental precepts were those of

the common law.4

At common law, “homicide” included suicide,

murder, and manslaughter. 5 By English and

local law, murder was always punishable

by death, whereas a person convicted of

manslaughter could claim “benefit of clergy”

for a first offence. 6 The essential distinction

between murder and manslaughter […] was that

the former was a killing committed “with malice

aforethought.” This definition did not mean that

premeditation was required, but, rather, that the

killing was deliberate. 7 […] Murder included

deliberate homicides that could be justified or

excused. A person who committed homicide

while acting lawfully—for example, in making

an arrest or in preventing a person from escaping

prison—was “in no kind of fault whatsoever.”

[…] Excusable homicide included acts of self-

defence or accidents; the latter meant that a

88 Crime and Deviance in Canada: Historical Perspectives

death resulted from a lawful act, including the

act of punishment of a servant or child.8 Nova

Scotia’s Treasons and Felonies Act placed

justifiable and excusable homicide together

in a general exempting provision. 9 It should

be stressed, however, that the exemption was

from punishment; the common law theoretically

required all justifiable or excusable homicide

cases to be prosecuted as murder. This was

hardly ever done in accident cases, but it was the

common practice in self-defence cases. 10

Manslaughter, while still culpable homicide,

was […] a killing “without malice,” […] one that

“resulted from a spontaneous outburst.”11 When

[…] John Bruff was indicted for manslaughter

in Halifax in 1791, he was accused of killing

“in the fury of his mind.” […] Murder might be

reduced to manslaughter when there had been

sufficient provocation. […]

The statute law of both England and Nova

Scotia also contained a special provision to deal

with the deaths of children born to unmarried

women. A married woman, or a man, who killed

a new-born child would be charged with murder

in the regular way and found guilty only if the

prosecution could bring evidence to show that

the child had been killed. But if an unmarried

woman gave birth secretly and then sought to

conceal the death of the child, she would “suffer

death as in case of murder” unless she could

prove by the testimony of at least one witness

that the child had in fact been born dead.12 While

the theory of the presumption of innocence was

rarely voiced until the late eighteenth century,

the prosecution was required to present a case

to the court, and it was notoriously difficult to

do that in these kinds of cases. 13 The English

Infanticide Act of 1624, a statute intended to

prevent “immorality,” obviated the need to

provide evidence of a murder. In Nova Scotia

the provision remained in force until 1813, when

it was repealed and replaced with legislation

modelled on an English statute of 1803, which

provided that infanticide had to be proved in

the same way as any other murder. Because

it was very difficult to find evidence that a

child had been born alive, this change was

accompanied by a measure making concealment

of the birth a separate offence punishable by

imprisonment. 14

The Nova Scotia Data

The figures of 133 homicide prosecutions and

89 incidents of homicide cited above are derived

from court records and represent only those

cases brought to court.15 The lack of consistent

coroners’ inquest records means that suspicious

deaths that did not lead to prosecution have not

been included. Of the 133 prosecutions, 124

involved indictments for murder, two were

manslaughter charges, and seven came under the

special infanticide provision discussed above.

One hundred and nine of the persons charged

(82 per cent), and 72 of the incidents (81 per

cent), derived from Halifax, with the remainder

emanating from elsewhere in the colony. […]

It is most unlikely that the data presented in

Table 1 includes all incidents of homicide in

Nova Scotia between 1749 and 1815, for the

surviving records are incomplete. […] Three

volumes of court proceedings have survived,

recording between them almost every serious

criminal case brought between 1749 and the

1804 Hilary (January) Term in the General

Court (until 1754) and the Supreme Court of

Nova Scotia (after 1754) sitting in Halifax. 16

Image not available

Homicide in Nova Scotia, 1749–1815 89

[…] The cases listed under “other communities”

in Table 1 are mentioned in a variety of disparate

sources. […]

Homicide in Halifax

Incidents of homicide in Halifax occurred at

the rate of 1.16 per annum, with persons being

charged at the rate of 175 per annum. Using

an average population figure of 9000, this

number works out to rates of 12.9 and 19.4

per 100,000 per annum (the standard measure

used in historical and contemporary studies of

homicide). 17 […]

[…] In England, the American colonies/states,

and British North American jurisdictions, in the

years between approximately 1700 and 1850, it

is rare to find rates of more than 2 per 100,000

per annum, and many places had rates lower

than that.18 […]

Across the Atlantic, the eighteenth- and

nineteenth-century eastern seaboard colonies

and states saw rates rather higher than in

England as well as significant regional variation.

Rates ranged from 0.90 in later eighteenth-

century New Hampshire and Vermont to 74 in

the Philadelphia of the 1760s.19 On the whole the

New England states had the lowest rates, with

the South somewhat higher but still generally

below Halifax levels; a notable exception was

Louisiana, which in the second half of the

nineteenth century had a rate much higher

than that of Halifax. 20 For Canada, historians

have posited a rate of 3.9 prosecutions per

100,000 per annum in New France, 21 1.9 in

Upper Canada/Canada West between 1806 and

1848,22 and between 1.7 and as high as 7.5 for

Quebec/Lower Canada. 23 […]

Nonetheless, conclusions about social

behaviour based on court records are always

open to two related critiques: that too many

cases go unreported or unprosecuted to make

the figures reliable indicators, and that the

figures tend to represent prosecutorial practices

at least as much as homicidal behaviour.

There were certainly plenty of unprosecuted

homicides in eighteenth-century Halifax, 24 but

two points should be made here. First, while it is

undoubtedly true that many offences—assault,

drug offences, prostitution, and the like—

are subject to dramatic changes in criminal

definitions, in individual willingness to report,

and in societal interest in prosecution, homicide,

at least in the modern period, is not. Indeed,

it is generally accepted by historians and by

contemporary criminologists that homicide

statistics provide the most reliable correlation

between prosecution and actual behaviour. 25

Second, we are less concerned with establishing

a “correct” rate for homicide occurrences than

with offering a comparison between Nova

Scotia and other societies. It is highly unlikely

that the gap between unlawful killings and

reported and prosecuted unlawful killings was

notably different from one place to another.

There is a third reason for accepting these

comparative homicide figures as a reasonably

reliable indicator that Halifax was a violent city:

Halifax experienced unusually high levels of

prosecution for other violent offences. Between

1791 and 1815, the period for which reliable

figures are available for most years, the assault

prosecution rate in Halifax was 148 charges

per annum per 100,000, much higher than in

eighteenth-century England or mid nineteenth-

century Massachusetts.26 […]

*****

Explaining the high rate of homicidal violence

in Halifax requires a closer examination of the

circumstances in which killings took place,

set against the background of the nature of

this eighteenth-century city. Established in

1749 primarily for strategic reasons, Halifax’s

fortunes for its first half century or more were

inextricably linked to the ebb and flow of

continental warfare. It prospered or fell on

hard times according to the levels of British

government spending, its population fluctuated

dramatically as large numbers of soldiers and

sailors moved in and out (see the appendix),

and the military involvement and dependence

gave the city a particular character. 27 It was

[…] an authoritarian society. […] The military

90 Crime and Deviance in Canada: Historical Perspectives

presence made its impact in a host of small

ways on a daily basis. Its naval yard dominated

the waterfront, the fortifications on Citadel Hill

overlooked the streets below running down to

the harbour, and the area around the Citadel Hill/

barracks region was full of taverns, brothels,

and cheap boarding houses. “The business of

one half of the town is to sell rum, and the other

half to drink it,” ran one oft-quoted quip from

1760.28 […]

Having delineated the setting, we turn to an

analysis of the nature of homicide in Halifax.

[…]

[…] The most notable feature […] was

the extent to which men in the armed forces

were involved as perpetrators. Thirty-six of

the fifty-nine males accused of murder or

manslaughter who can be identified as either

civilian or military were soldiers or sailors

(61 per cent). Thus, as in the garrison town

of Quebec, soldiers were responsible for a

disproportionate amount of criminal activity. 29

Most of the military defendants were, as one

might expect, from the lower ranks. The total

of thirty-six comprised twenty-seven private

soldiers or NCOS, six naval personnel, and

only three officers. These figures are probably

slightly misleading; officers likely caused the

deaths of others through duelling, which was

not prosecuted. They may also have caused

death by excessive punishment and/or restraint,

but in only one case did such conduct lead to a

prosecution in the civilian courts.30

The link between military presence and

homicide is also demonstrated through a

closer examination of the temporal distribution

of homicide. Table 3 shows that there was

substantial fluctuation in that distribution,

which can in a number of cases be linked to

periods of war and thus to an enhanced military

presence. For example, the sixteen incidents in

the decade after 1756 correlate largely with the

Seven Years’ War, during which large numbers

of soldiers and sailors visited the city for weeks

and months at a time. Following a decade which

saw just two incidents, the revolutionary war

period, one of substantial immigration and

expanded military activity, witnessed a tenfold

increase. Similarly, after a few years of no

prosecutions, there were a number of homicides

in the 1790s, a decade marked by wars with

revolutionary France.

The correlation between military presence

and a high homicide rate was the result of a

number of factors. First, the military presence

meant large numbers of young, unattached

males in the city, men prone to drink heavily

and who belonged to a “manly” culture in

which honour was defended and insults refuted

through violence. Military misconduct was a

frequent source of concern in the eighteenth-

and nineteenth-century Anglo-American

world. 31 […] The army itself supplied some of

the drink, issuing daily rations of spirits or wine

to troops stationed abroad. Drunkenness often

led to violent behaviour, and military practice

with respect to discipline—flogging was the

punishment of choice into the nineteenth

century32

—contributed to a culture of violence,

perhaps ultimately serving to encourage rather

than curtail violent behaviour among enlisted

men.

Image not available

Homicide in Nova Scotia, 1749–1815 91

[…] It is also evident that violent disputes that

might not otherwise have led to homicide often

did so because military men had ready access

to weapons. When Royal Fencible American

corporal John Boyar got into an argument with

marine corporal John Corns in a drunken fight

over money in 1760, death might not have been

the result had Boyar not had his bayonet with

him and chosen to use it to make his point.

Two years later Thomas Evans met his end

from a three-inch-deep stab wound inflicted

by private William Reach. Owen Kervan was

shot by Cornelius Driscoll or David Lawlor in

1765, and, when three soldiers set out to burgle

a farm in 1776, they took with them the musket

that killed farmer Christopher Schlegal. The

soldiers who attacked and killed wharf labourer

Henry Publicover were likewise armed, with

bayonets.33

We are not suggesting that it was the military

presence alone that accounted for the deadly

violence in Halifax, given that some 40 per cent

of male homicides and all the female homicides

were committed by civilians. Indeed, the civilian

rate by itself was high, approximately 6.6

incidents per annum per 100,000, similar to the

figures for Philadelphia, New Orleans, Quebec,

and Montreal cited above.34 This pattern suggests

that the urban environment was partially

responsible for Halifax’s rate. Presumably

such factors as the relative anonymity of the

city, the generally greater potential for people

living close together to become involved in

deadly disputes, and the tensions caused by

periods of immigration all contributed to an

enhanced rate, although it is hard to test such an

hypothesis.35 But while urbanism played a role,

it was the military presence that gave Halifax its

particular character and raised the rate to almost

thirteen, far above that of other contemporary

communities, even urban ones. […]

The unruly soldiery was a factor in at least

some of the homicides committed by civilians, a

point illustrated by the case of William Andrews.

On the night of 16 October 1756 half-a-dozen

grenadiers tried to gain access to the house of

Andrews, a mason and one of the first settlers of

Halifax. Believing that they could obtain drink

there, the soldiers noisily demanded entry and

were refused more than once. Eventually two of

them, Jonathan Montgomery and John Connor,

forced their way in the back door. Andrews

pointed his gun at them and ordered them to

leave. According to a boarder in the house,

Charles Parkinson, Montgomery told Connor

that the gun was not loaded and suggested he

rush Andrews. Montgomery was wrong, and

Connor paid the price for that mistake.36

*****

Generally the victims of soldiers’ and sailors’

violence were civilians. […] George Osborne,

a sailor from HMS Assistance, was charged

with the 1797 murder of Bridget Eacott. With

Image not available

92 Crime and Deviance in Canada: Historical Perspectives

her husband, Eacott had tried to expel a group

of sailors who entered the house demanding

“grogg”; in the ensuing melee she received a

blow from Osborne, lingered a couple of days,

and died.37 Henry Publicover was also a victim

of military violence. He was one of a group

of wharf labourers attacked, on very slight

provocation, by some soldiers on the night of

25 January 1813, and he died from stab wounds

three days later. Of three soldiers tried for the

murder, only Richard Hart was found guilty, and

he was later pardoned in a highly unpopular act

of executive clemency.38

A few prosecutions involved homicides

in connection with robberies or burglaries.

Marines James Goff, John Ward, and John Scarr

left barracks on 20 October 1776 and went into

the country to steal some poultry. They broke

into a barn and, when surprised by Christopher

Schlegal and his son, Goff shot the farmer. The

three escaped with nothing more than a few

potatoes. While the evidence of the Halifax

courts is that homicides committed during

robberies and burglaries were uncommon, it

does seem that they were viewed with special

foreboding. When Goff and his colleagues

were apprehended, the Supreme Court had

adjourned. The authorities elected not to wait

until the Easter Term to deal with the offence,

but issued a special commission of “oyer and

terminer” (to hear and determine) to try them

and also “to prevent as far as may be possible

the Commission of such horrid offences.” 39

[…] Military men were killed by civilians in

only two known cases—the shootings of John

Connor by William Andrews (discussed above)

and of John Collins by Thomas Leathum—

and in both the accused was convicted and

pardoned on the grounds that he had killed

in self-defence. 40 Otherwise military victims

were slain by other members of the forces.

Examples included Thomas Evans, a sailor off

HMS Intrepid, who was murdered by William

Reach of the Highland Regiment in 1762, and

sailor George Hackett, killed by four soldiers

in 1782.41 […]

[…] Most of the civilian perpetrators were

men. In Halifax, of the twenty-three non-

military men charged with homicide, six were

unskilled labourers and seven are best described

as artisans. A further three had slightly higher

social status; James Connor was clerk to a navy

captain; James Leonard was a shopkeeper; and

Thomas Bambridge was a small farmer.42 Three

of the civilians charged were “gentlemen.”

Interestingly, none of these three was convicted

of murder. John Neal’s indictment was returned

ignoramus; Nicholas Olding, JP and the coroner

for Halifax County, was acquitted; and Abraham

Van Buskirk, a Loyalist from New Jersey who

had served as an officer in the British Army,

was found guilty of “manslaughter in his own

defence” and sentenced to give a recognizance

for good behaviour for a year.43 […]

[…] Soldiers and civilian men killed women in

what were probably sexual assaults or the result

of male-female sexual and power relations. […]

Where homicide was committed by women, the

offender and the victim were likewise generally

well known to each other. […]

[…] Although the sources do not often give

precise locations, taverns, lodging houses, and

brothels feature frequently in the cases reviewed

above, with the area around the wharfs also a

common site of deadly violence. […]

Homicide outside Halifax

Homicide in the other communities scattered

throughout mainland Nova Scotia in many

respects presented a mirror image of homicide in

the capital. […] We know of seventeen incidents

between 1754 and 1815 which involved the

prosecution of twenty-four individuals. Four of

these incidents (seven people) were prosecuted

in Halifax, and thirteen (seventeen people) in

the communities in which they occurred. Five

incidents led to trials in Liverpool, Queen’s

County, and three to proceedings at Annapolis.

Two occurred in King’s County, one of which

was tried at Halifax. Otherwise no other

community appears more than once in the

database. Sixteen of the seventeen incidents

involved murder charges, and one was an

infanticide case.

Homicide in Nova Scotia, 1749–1815 93

[…] The database is thus partial, based

only on cases that appear in sources other

than systematic court records, which have

not survived for any community other than

Halifax. 44

*****

[…] Two general observations about homicide

can be made. First, it was much less prevalent

outside the capital than within it, the rate being

something in the region of 1.09 (incidents) and

1.37 (persons charged) per annum per 100,000

population. 45 […]

*****

Another feature of homicide outside Halifax

was its domination by the killing of people at least

reasonably well known to the accused—family

members, neighbours, or other acquaintances

[…] [such as] John and Amy Pomp, who were

tried at Annapolis in 1813 for the death of their

young boy, and of Frances Shannon, a nine-

year-old girl from Windsor, who was tried in

Halifax for killing her four-year-old sister. 46

The latter group includes the case of Walter

Lee, whose dispute with a neighbour and

business customer turned ugly enough for Lee

to fire a gun at Nicholas Wright. He apparently

intended only to frighten Wright, but ended up

fatally shooting him.47 Patrick Holland similarly

killed his near neighbour Samuel Allen in the

course of an argument, and Peter Manning of

Falmouth killed his neighbour Malachi Caigin,

who had successfully sued Manning for £16. 48

Alexander Mclntosh’s victim had stood bail

for Mclntosh’s court appearance in a civil case;

Dougall MacDonald was one of three men who

went to Mclntosh’s house to try to force him

to appear in court, presumably because he was

concerned about forfeiting the bail money.49

Not all the non-Halifax cases were neighbourly

disputes or family killings. Two which attracted

substantial public attention, both locally and

in Halifax, were murders committed for gain

in the course of robberies. John and James

Woodrow and Lauchlin Gallagher were tried

for the murder of Thomas Gordon at Liverpool

in 1765, and John and George Boutelier for the

triple murder of Frederick Eminaud, his wife,

and niece at Lunenburg in 1791. Both cases

represented the type of homicide most feared by

contemporaries—deliberate killing for money.

John Woodrow and Gallagher were convicted

and hanged, and the publicity surrounding the

case stressed the heinous nature of the crime. 50

The other robbery/murder, the case of John

and George Boutelier, was perhaps the most

notorious and well-publicized case of the

period, and produced the only published trial

account. […] The fact that […] the murderers

tried to hide the evidence of their crime by

burning the house and the bodies […] riveted

public attention on what Chief Justice Strange

told the Halifax County grand jury was a

“dreadful crime” and a “horrid murder.” The

legal system also gave the defendants its full

attention, with Strange and Supreme Court

judge James Brenton sailing to Lunenburg to

preside over the trial.51 […]

Women and Homicide

Women’s involvement in homicide is considered

separately here for two reasons. First, many

of the women charged were subject to the

special infanticide provision. Second, women

as victims are of special interest, for the

evidence suggests that lower-class women

were especially vulnerable in Halifax to deadly

violence from men.

Women constituted a distinct minority of

offenders. There were only three females among

the twenty-four people charged in non-Halifax

cases. […] Halifax had approximately the same

representation of women (Table 4),52 although,

if the infanticide cases are extracted from the

count to give a sense of women’s involvement

in the killing of someone other than a newborn,

the figure is much smaller: 87 per cent of

incidents and 6.8 per cent of charges. Very low

rates of female involvement in both non-violent

and violent serious crime are a staple of both

historical and contemporary studies. 53 […]

Excluding infanticide, there were six incidents

over sixty-six years.

94 Crime and Deviance in Canada: Historical Perspectives

Biological explanations for the gender gap

in prosecuted crime have long given way to

arguments that emphasize social structure. In

the patriarchal world of the eighteenth century,

women were expected to cultivate the female

virtue of selflessness, to defer to male authority,

and to eschew confrontational behaviour.

Social conditioning functioned to limit female

participation in crime, especially violent

crime.54 The informal social controls exercised

by patriarchy, however, were less effective in

urban areas; 55 patriarchal controls were also

weaker among the marginalized population,

loosened by economic necessity.

Attempts to explain female criminality […]

are hampered by our lack of knowledge about

the history of women in the province. We

know that some women lived independently in

Halifax: as midwives, storekeepers, teachers,

even undertakers. 56 But these women appear

to have been exceptional. Lower down the

social scale the employment opportunities

were doubtless more limited, given the lack of

nascent manufacturing, with domestic service

and/or prostitution prominent among the

alternatives. […] Women, like men, generally

stole what they could easily lay their hands on

and carry away, and these goods fell by and

large into the “basic food and clothing” category.

[…] Women were rarely charged with breaking

and entering, and, when they were, the premises

in question were private homes rather than

warehouses, whereas men routinely targeted

various government depots.57

The record of female participation in homicide

in eighteenth-century Nova Scotia is likewise

consistent with that of other jurisdictions, within

the norm, one might say, of a patriarchal society.

Excluding the infanticide cases, in two of the

homicides documented here the women charged

were acting not alone, but in the company of

their husbands. 58 Again excluding infanticide

cases, where women killed on their own, their

victims were another woman, and a child.59 In

only one case did a woman alone kill an adult

male, John Murphy. Murphy was probably an

innkeeper; unfortunately, no record remains of

the circumstances of the case. 60 Of the seven

women charged with homicide who did not kill

a new-born infant, we can identify four as being

of humble social origin. Judy Philpot was the

madame of a brothel; Margaret Murphy was

a domestic servant and part-time prostitute;

Martha Orpin was the wife of a small trader; and

Mary Collins was the wife of a dock labourer.

Murphy was Irish; the ethnic identity of the

other women remains unknown.61

The remaining six female offender cases

in Halifax, and the Nancy O’Neal case from

Liverpool, all involved the killing of new-born

children. Five of these women were tried under

the special infanticide law, two after it had

been repealed in 1813. A number of studies

have shown a consistent pattern in infanticide

cases: the offenders were young, often in

domestic service, and ran the risk of losing

both employment and future marriage prospects

if their pregnancies were discovered. They

concealed first the pregnancy, then the birth,

and destroyed the evidence.62 Nancy O’Neal’s

case fi ts this characterization in many respects.

She was a young, unmarried woman whose

employer, James Barss, apparently suspected

she was pregnant very shortly after she had

Image not available

Homicide in Nova Scotia, 1749–1815 95

taken up a position in his household. O’Neal

denied it, but when a body was discovered in the

privy by a workman in September, six local JPs

questioned her. She confessed to giving birth,

but claimed the baby was stillborn. O’Neal

benefited from the recent change in the law

and was convicted of concealment only; a year

before she could well have been convicted of

murder.63 […]

[…] While female victims were clearly a

minority, their presence is significant for two

reasons. First, because of the military presence

in the city, women constituted no more than

one-third of its population. Second, half of the

twenty-two known adult male victims were

soldiers or sailors: women therefore represented

nine of twenty adult civilian victims.64

The victims of a number of the military

murderers were women resisting soldiers’

sexual advances. Mary Pinfold was assaulted so

violently by three soldiers in 1760 that she died

shortly afterwards. Mary Burt, a lodger in the

house of William Peters, met her end in March

1761. Sergeant John Taylor had been invited to

eat supper at the house. […] At some point [he]

complained that water had fallen on him from

above. He was told that it might have come from

Burt’s room and went upstairs to investigate.

He came down again a few minutes later

complaining of being attacked simply because

he had asked Burt for a kiss. But Burt was seen

later that evening with her mouth bleeding, and

the following morning she complained that

Taylor had been “very rude to her and “used

her very ill” when she refused him, She later

complained of pain in her side and died within

a few days. Taylor was acquitted, presumably

because there was no direct evidence.65 […]

Of the ten female homicide victims, four

appear to have been prostitutes or “camp

followers, perhaps looking for temporary

liaisons, while another was a single woman

of slender means living in a lodging house,

beyond the protection of family and friends. 66

[…] Another woman’s body was discovered in

December 1796, “in a very indecent posture, on

her back, her clothes thrown up over her breasts,

her lower parts entirely naked.” According to

the person who found her, “there was a great

number of footsteps of men leading to the place

the body lay, and ... the snow was much trodden

down as though many persons had been with

the deceased.” Suspicion fell on private Charles

Collins, […] but he was never indicted.67 […]

In two cases the victims were killed by

intimate partners.68 The precise circumstances in

which shoemaker Gotlieb Seidler killed his wife,

Catherine, in their Dartmouth house in 1771 are

unknown, although there is some indication that

he was exercising his “right” to chastise her and

overstepped the bounds. 69 The court records

speak in greater detail of the circumstances of

Thomas Bambridge’s murder of Mary Russell.

Bambridge, a young Dartmouth farmer, had

been rejected as a suitor. Presumably enraged by

this rejection, he burst into the Russell house on

the night of 27 September 1798 demanding to

speak to Mary; when permission was refused, he

stabbed her in the chest with a butcher’s knife,

killing her more or less immediately. 70

Outside Halifax, only four victims can be

identified as female. Two were killed in the

robbery perpetrated by the Boutelier brothers;

two were wives killed by their husbands. The

circumstances in which Michael Hayes of

Liverpool killed his wife in 1786 cannot be

determined from the records. 71 The records

speak fulsomely, however, with respect to

Gad Sanders’s murder of his wife, Jude. Again

male jealousy and possessiveness—as well as

alcohol—were involved. Sanders was a black

man from Yarmouth. After a day out, from

which they both returned “much intoxicated,”

the Sanders spent the evening at home with

their twenty-year-old daughter and one John

Williams, a man of whom Gad Sanders was,

according to his daughter, “jealous.” At some

point Gad went to sleep; shortly afterwards so

did Jude, but with her head resting on Williams’s

knee having, according to her daughter’s

account, “fallen accidentally there.” The

furious attack that followed shortly afterwards

is best reproduced as it was described in the

trial report’s summary of Sanders’s daughter’s

testimony:

96 Crime and Deviance in Canada: Historical Perspectives

being apprehensive her father might be angry

if he saw it she went to her mother and lifted

her head up. Soon after ... her father asked

her where John was. She answered there he

is on the floor, on which her father arose and

going to Williams said “go you home John” ....

Williams immediately got up and went out of

the house, her father following him to the door

and fastening it after him. Her father then said

to her mother “you damn bitch do you want

to steal more things and give to John” … and

immediately taking an ... axe from the corner

of the room gave ... three or four blows on

her back as she sat on the floor with the blunt

end or eye of the axe, holding the handle with

both his hands .... [T]he blows were so hard

that she heard the bones crack as he struck. As

the prisoner was going to strike the deceased

the witness called out “Mammie, Daddy will

kill you,” to which the deceased answered “let

him kill me if he will.” The witness ran to her

father and endeavoured to take the axe from

him on which he said to her, if you are not quiet

I will serve you so. She was frightened and

desisted. There was a good fire .... Her mother

lay along the hearth after she had received the

blows and the prisoner took coals of fire and

burned her face and hands. The witness said

to him “Daddy pray don’t do so.” He replied

“Damn her I will burn her up.” He dragged her

legs to the fire to burn them and the witness

endeavoured to prevent him. He then desisted

and went to bed.

Sanders was not hanged. Although convicted,

his contrition and a belief that he had acted

“under derangement of mind” made him appear,

to the male presiding judge and governor, fit

for mercy, and a pardon was duly issued for

him. Given this description of the crime, it is

difficult to imagine a more obvious case of a

deliberate attempt to kill, and one suspects that

only the killing of a wife in such circumstances

could evince such judicial sympathy. In this

period a charge of murder could be reduced to

manslaughter if the accused was provoked by