At the end of the trial, a guilty verdict now in hand, Roe asked Josiah Cutan if he knew any reason why the court’s sentence should not be carried out. Cutan said no, so Roe continued:
Josiah Cutan, you have been found guilty by the verdict of twelve good and impartial men upon the plain evidence of your own voluntary confession in addition to other proof, of having committed on the
eighteenth of October last a burglary in the house of Jos. Campeau. This crime is so much more atrocious and alarming to society as it is committed by night, when the world is at repose and that it cannot be guarded
against without the same precautions which are used against the wild beasts of the forest who, like you, go prowling about by night for their prey. A member so hurtful to the peace of society, no good laws will permit to continue in it, and the Court in obedience to the law, has imposed upon it the painful duty of pronouncing its sentence, which is that you be taken from hence to the gaol, from whence you came, and from thence to the place of execution, where you are to be hanged by the neck until you are dead. And the Lord have mercy upon your soul. (Cited in Riddell 1926:354-355.)
On the surface, this verdict assigns a sentence of death, according to law, and thus brings an end to Cutan’s life. But Cutan is not merely sentenced to death here. This summation of issues at stake in the trial could not be starker in its
actions separate from the trial, his intercession concerned the sentence, not the evidence in trial, which thus remained intact and unquestioned. This clarity supports Mealing’s suggestion that “Powell’s primary loyalty was always to English common law, not to the provincial administration of Upper Canada.” (Cited online on 4 March 2011 at http://www.biographi.ca/009004-119.01-e.php?BioId=37202.
construction of a boundary between society and wilderness, and its distinction of inhabitants on either side. By conflating the nighttime hour of the deed and a moral/geographic space antithetical to society, and through liberal use of feral imagery, Cutan is banished to a savage world outside society where wild animals and burglars at night ranked the same. On the civilized side of the boundary is a particular sense of order, embodied in the productive trades of the jurors (armourer, trader, shoemaker, schoolmaster, innkeeper, tailor, cooper, joiner and blacksmith). Order also resided in the sense of fair procedure available to everyone including criminals, and the institutions of law and government that serve the interests of settlement.
This condemnation of Cutan appears in greater relief when compared to a second verdict in the early court. Jack York, another black slave, convicted in 1800 of a burglary in the court of William Powell, also landed a death sentence, but the crimes of which he was convicted suggest a whole different level of threat, for in addition to forcible entry by night, the conviction included assault and rape of the home owner’s wife, itself a capital offense. The violence of York, in other words, far exceeded that of Cutan, who stole but attacked no one as part of the felony defining his actions as a burglary, and he cooperated fully leading up to and during the trial. He also did not “fly for it”, or flee, which Riddell (1926:457) notes carried formal punishment of its own: even if the accused is proved innocent and acquitted, having fled would mean he loses all his possessions. As a slave, of course, Cutan had no possessions anyway, but this
definition of flight and its consequences state formally that he did nothing to aggravate his situation in the eyes of the court. In one sense, a death sentence on both cases erases what seem like important differences about willingness to threaten someone’s life. Given English law’s basic protection of a person’s right to security, as explained by Blackstone, it is not surprising that the defining element of another capital crime, robbery, is fear, threat against a person’s sense of security. On the amount taken in a robbery, the Manual (401) notes that “The gist of the offense being the force and terror used by the offender, the value of the property stolen is quite immaterial.” Clarifying this relationship between fear and violence, the Manual goes on to explain:
The principle of robbery being violence, some degree of force is therefore
necessary to constitute the offence. But there may be a constructive, as well as an actual force, for where such terror is impressed on the mind as not to leave the party a free agent, and in order to get rid of that terror he delivers his money, this is a sufficient force in law. And where actual violence is used, there need not be actual fear, for the law will presume it. (402)
Just this element of force, fear and duress, it turns out, define the crime of rape, of which Jack York was convicted. Defining rape as “carnal knowledge of a woman, forcibly and against her will, and above the age of ten years”, the
Manual (374) stresses: “The offence of rape is in no way mitigated by shewing that the woman at last yielded to the violence, if such her consent was forced, by fear of death or of duress.”83 In a system where fear and terror have such
83
Rape of a girl under age ten bypasses the issue of consent since, “by reason of her tender years, she is incapable of judgment and discretion” (374). Issues of consent aside, the Manual adds that rape could be difficult to prosecute because “it is an accusation easily to be made, and hard to be proved, and harder to be
capacity to raise the punishable stakes of violence, it seems odd to punish Cutan and York equally. If one of these two sets of actions deserves condemnation as beastly, the perpetrator removed from society as an irredeemable menace, it would have to be Jack York. On the other hand, given a death sentence already in place for Cutan, there’s no way to kill Jack York more. The real question
becomes, what was it about Cutan’s actions that required a death sentence? In what way does Roe’s extreme recasting of the event make sense?
Two threads of British tradition can help illuminate the specific feral metaphors Roe uses: the practice of dueling, represented in the early court of O&T by four cases, and the practice of game hunting. Both practices had deep histories overseas, and in certain important circles at least, were at least tolerated both socially and legally.