by J. M. Bumsted
University of Manitoba
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One of the least well known developments in the research and writing of modern Canadian history is the veritable explosion of work on the development of the law in Canada. Legal history is no longer at the margins of events, but at their very centre. Ironically enough, however, many Canadians historians and certainly most Canadians, have little appreciation of what has been happening. Most of us appreciate that the introduction of British institutions and concepts of the law constitute an important constitutional development in Canada, but do not understand either that there are other sources of the law besides common law, or how deeply the law bites into our everyday life. The law is deeply embedded in Canadian society, and cannot be understood in isolation from that society; the reverse is equally true, of course. One of the major impetuses for the “new legal history” has been the need to understand the status under the law of various minority groups, such as women, immigrants, and aboriginals. It is no accident that the Charter of Rights has pushed legal history forward in unanticipated directions.
There are several reasons why legal history remains relatively underpublicized. One is the association of the law with the constitution, and the view of constitutional history as dry and uninteresting, however important it may be. Another problem has been the way in which legal historians typically present their findings. The number of broadly-based studies in book form or in mainline historical journals can be counted on the fingers of two hands. Most publications in legal history occur in the law journals of the various law schools in Canada and the United States, or alternatively in collections of essays and articles published in small quantities by specialist presses. Laws and Societies in the Canadian Prairie West is a fairly representative example of a collection of essays, better focused than many because of its regional approach. The book comes in two sections, the first dealing with First Peoples, mainly in the period before 1870, and the second with everybody in the period between 1870 and 1940.
It is the first section that is probably the most informative and provocative. In the years before 1870 there was beyond the Red River Settlement no codified system of law or justice in the prairie territories of the Hudson’s Bay Company. The relevant questions therefore are: what kind of law was in existence and how was it practiced? Three of the four scholars here respond with essays to this question. All of them have published fairly extensively on the matter. Their collective answer is that is that the pre- Canadian Prairie West was contested ground between the forces of English/British legal culture and aboriginal legal culture, as well as between concepts of public and private law.
Hamar Foster, who has devoted many years to the legal history of the early Canadian west, emphasizes that, contrary to those who have seen a great legal vacuum in the region, “there definitely was a distinctive legal regime north of the forty-ninth parallel and west of the Canadas.” (p. 63) He offers five features of the law on the Prairies before Canadianization. The first is the importance of the aboriginals, whose legal traditions dominated most of the territory. The second is the legal rights of the Hudson’s Bay Company, and the third that system of private justice administered to its officers and servants. Fourth is a legal regime administered by the imperial Parliament—the Canada Jurisdictions Act and its successors—and the last the legal system of Red River, operative only in a small area but both influential and important. The footnotes for this survey are extensive, and demonstrate that early law has not been neglected by recent scholarship.
Russell Smandych explores the problem of the indigenous peoples and English law in the West. For the most part, the indigenous peoples were regarded as being outside the law. One curious exception of European justice meted out to an aboriginal was the execution in 1845 at Red River of a Saulteaux named Capinesseweet. The principle that aboriginals were brought under the purview of European justice when they committed crimes in territory ruled by European law was fairly well established. The problem with this execution was that Recorder Adam Thom knew perfectly well that he was specifically denied by imperial statute the authority to execute in capital crimes. At the same time, under his view of how justice should operate in the West, his actions were quite legitimate. Smandych does not explore whether Thom’s illegal actions constituted any kind of a legal precedent.
The HBC’s private justice system is considered by Paul C. Nigol. This system was outside the English legal system for several reasons. It was private, and like most legal systems administered in the early West, it was run by untrained officials. Its conceptual basis was that of the household, one of the primary socio-economic relationships in Britain at the time, extended to a trading post. The system excluded the First Nations most of the time, although capital justice was extended to them on a few occasions.
Sidney Harring, who has written one of the few books on early law in Canada, transfers his attention from the Canadas to the west in an essay that extends his earlier findings geographically. Harring emphasizes the inconsistency of the Indian Act with the treaty-making process. If the aboriginals were children to be cared for by a paternal government, how could they possibly behave as adults to surrender their land in treaties?
The first four essays in this book have a considerable coherence. The remainder, regretfully, do not. They deal with a variety of interesting topics, but even co-editor Louis Knafla in his editorial introduction is hard-pressed to find much in common among them. As a result, some very important essays on topics as varied as the origins of the Royal North-West Mounted Police, Canada’s water laws between 1870 and 1940, and the law and public nudity, are likely to become virtually lost in the thickets. A pity.
Page revised: 29 June 2012
