A History of Law in Canada, Vol. 1: Beginnings to 1866

By Philip Girard, Jim Phillips, and R. Blake Brown

© 2018

This book is the first of two volumes devoted to the history of law in Canada. This volume begins at a time just prior to European contact and continues to the 1860s, while volume two will start with Confederation and end at approximately 2000. The history of law includes substantive law, legal institutions, legal actors and legal culture. The book assumes that since 1500 there have been three legal systems in Canada – the Indigenous, the French, and the English. At all times, these systems have co-existed and interacted, with the relative power and influence of each being more or less dominant in different periods.

The history of law cannot be treated in isolation, and this book examines law as a dynamic process, shaped by and affecting other histories over the long term. The law guided and was guided by economic developments, was influenced and moulded by the nature and trajectory of political ideas and institutions, and variously exacerbated and mediated by inter-cultural exchange and conflict. These themes are apparent in this examination, and through most areas of law including family law, constitutional, commercial, land settlement and tenure, and criminal.

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Product Details

  • Series: Osgoode Society for Canadian Legal History
  • Division: Scholarly Publishing
  • World Rights
  • Page Count: 928 pages
  • Dimensions: 6.0in x 0.0in x 9.0in
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SKU# SP005412

  • PUBLISHED NOV 2018

    From: $90.00

    Regular Price: $120.00

    ISBN 9781487504632
  • AVAILABLE DEC 2018

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    Regular Price: $120.00

Quick Overview

This volume presents a history of the development of three legal traditions in Canada – the Indigenous, the French, and the English.

A History of Law in Canada, Vol. 1: Beginnings to 1866

By Philip Girard, Jim Phillips, and R. Blake Brown

© 2018

This book is the first of two volumes devoted to the history of law in Canada. This volume begins at a time just prior to European contact and continues to the 1860s, while volume two will start with Confederation and end at approximately 2000. The history of law includes substantive law, legal institutions, legal actors and legal culture. The book assumes that since 1500 there have been three legal systems in Canada – the Indigenous, the French, and the English. At all times, these systems have co-existed and interacted, with the relative power and influence of each being more or less dominant in different periods.

The history of law cannot be treated in isolation, and this book examines law as a dynamic process, shaped by and affecting other histories over the long term. The law guided and was guided by economic developments, was influenced and moulded by the nature and trajectory of political ideas and institutions, and variously exacerbated and mediated by inter-cultural exchange and conflict. These themes are apparent in this examination, and through most areas of law including family law, constitutional, commercial, land settlement and tenure, and criminal.

Continue Reading Read Less

Product Details

  • Series: Osgoode Society for Canadian Legal History
  • Division: Scholarly Publishing
  • World Rights
  • Page Count: 928 pages
  • Dimensions: 6.0in x 0.0in x 9.0in
  • Reviews

    ‘As is appropriate in a pioneering work of descriptive history, the authors deliberately avoid seeking broad theoretical explanations of trends in legal development in Canadian history and instead relate the evolution of law and the growth of legal institutions to the broader political, economic, social, cultural, and moral contexts that inspired debate around issues of legal change.’


    John McLaren, Faculty of Law, University of Victoria

    A History of Law in Canada is an ambitious study that skilfully brings together the legal history of regions, of peoples, and, indeed, of both western European and Indigenous civilizations. The legal histories of Acadia, Newfoundland, and other regions are treated with "sérieux" and are integrated with the legal history of central Canada in a fascinating, original fashion.’


    Brian Young, James McGill Professor of Canadian History, emeritus, McGill University
  • Author Information

    Philip Girard is a professor at Osgoode Hall Law School, York University.


    Jim Phillips is a professor in the faculty of law at the University of Toronto.


    R. Blake Brown is a professor in the Department of History and Atlantic Canada Studies at Saint Mary’s University.
  • Table of contents

    Foreword
    Acknowledgments

    PART ONE: INTRODUCTION

    1 Introduction
    Legal Pluralism in Empires and Nations
    Indigenous Law in History: Methodological and Theoretical Issues
    Liberty and Order
    Overview: Historiography and Periodization

    2 Roots: Indigenous Legal Traditions
    Indigenous Legal Traditions: Basic Features
    Indigenous Law: Process and Content

    3 Roots: French Legal Traditions
    The Roman Legacy
    The Emergence of the French Customs
    Institutional Development
    Legal Education, the Legal Professions, and the Role of Doctrine
    The Constitution

    4 Roots: British Legal Traditions
    The Anglo-Saxon Legacy
    Institutional Development after 1066 and the Emergence of the Common Law
    Legal Education, the Legal Professions, and the Role of Doctrine
    The Constitution

    PART TWO: EUROPEAN CHARTERED ENTERPRISE, NEW FRANCE, AND THE ENCOUNTER WITH INDIGENOUS LAW, 1500–1701

    5 Early Contacts, Early Charters

    6 Law and Governance in the French Possessions: Public Law and the Growth of Institutions
    From Seigneurial Fief to Royal Colony: Institutional Development
    Seigneurial Law
    Notaries
    Civil Procedure
    Criminal Procedure

    7 Law and Governance in the English Possessions
    Newfoundland: From Company to Proprietorship to Anti-Colony
    Rupert’s Land: The Emergence of a Company-State

    8 The Interface of European and Indigenous Law

    9 French Private Law
    The French Customs
    The Law of Marriage and the Family
    The Law of Family Property: Matrimonial Regimes and Succession
    The Law of Obligations

    10 The Early Modern Legacy

    PART THREE: THE LONG EIGHTEENTH CENTURY, 1701–1815

    11 Constitutional Law in the Long Eighteenth Century
    The Politico-Military Context
    The Legal Contexts
    Slavery, Race, and the Constitution

    12 New France/Quebec/Lower Canada: Political Institutions, Courts, and Relations with Indigenous Peoples
    New France before 1760
    Quebec/Lower Canada after 1760
    Relations with Indigenous Peoples

    13 The British Colonies of Settlement: Political Institutions, Courts, and Relations with Indigenous Peoples
    Nova Scotia, New Brunswick, and Prince Edward Island
    Upper Canada

    14 The British Commercial Territories: Newfoundland and Rupert’s Land
    Justice beyond the Settlement Frontier: The Challenge of Remoteness
    Newfoundland
    Rupert’s Land

    15 The Legal Professions

    16 Criminal Law and Criminal Justice
    English Criminal Law in the Eighteenth Century
    The Reception of English Criminal Law in British North America
    Punishment in Practice
    Bringing an Offender to Court: Policing and Prosecution
    The Criminal Courts: Pretrial Procedures
    The Criminal Trial

    17 Indigenous Law

    18 Private Law: The Civil Law 320
    The Civil Law to 1760: Canada, Acadia, Louisbourg 320
    The Civil Law after 1760: The Emergence of a Mixed
    Legal Tradition 324

    19 Private Law: The Common Law

    20 The Early Modern Legacy

    PART FOUR: BRITISH NORTH AMERICA, 1815–1860s

    21 Law in British North America, 1815–1866: Introduction

    22 Court Systems and Judicial Personnel
    The Development of a British North American Judiciary
    Separation of Powers, Appointment and Removal of Judges, and Judicial Remuneration
    Circuit Systems: Bringing the Centre to the Hinterland
    Chancery Courts
    The Rise of Inferior Tribunals
    New Superior Courts and Professional Courts of Appeal in the Canadas
    Procedural Reform

    23 Sources of Law and Law Reform
    Sources of Law in Common Law Jurisdictions
    Sources of Law: The Civil Law
    Sources of Law: The Civil Code of Lower Canada
    Statutes: Making and Remaking Local Laws and Societies

    24 Indigenous Law in British North America
    Indigenous Governance in an Age of Settler Political Reform
    Legal Personality and Indigenous Agency
    Land Use and Citizenship

    25 The Legal Professions
    Entry and Governance
    The Business of Lawyering
    The Emergence of University Legal Education
    Legal Literature
    Law Reporting

    26 Constitutional Developments I: European-Indigenous Relations, the Old Colonial System, and the Rebellions, 1815–ca 1839
    Indigenous Peoples, Treaties, and the Constitution in Eastern British North America
    The Settler Constitution: Executives, Councils, and Assemblies
    Rebellion and Repression in the Canadas

    27 Constitutional Developments II: The Act of Union, Responsible Government, and the Origins of Acculturation Policy, ca 1840–1866
    The Settler Constitution after the Rebellions: The Union of the Canadas and Responsible Government
    The Settler Constitutions and Responsible Government
    Indigenous Peoples and the ‘Civilizing Mission’
    Settlement and Colonization in the West

    28 Criminal Justice I: Criminal Law, Punishment, and Policing
    The Age of Reform: The Demise of Capital and Corporal Punishment
    Dissatisfaction with Physical Punishments
    The Search for Penal Reform and the Rise of the Penitentiary
    Policing

    29 Criminal Justice II: The Criminal Trial
    The Criminal Process: Judges, Juries, and Procedure
    Prosecution by Counsel for the Crown
    Defence Counsel before the Mid-1830s
    The Prisoners’ Counsel Acts and Their Effect

    30 Land Law and Policy: Titles, Tenure, Squatters, Indigenous Dispossession, and the Rights and Obligations of Ownership
    Upper Canada: Clergy Reserves and Aliens’ Titles
    Lower Canada: Competing Land Law Systems and Seigneuralism
    Prince Edward Island: Landlordism
    Land Titles and Squatters in Nova Scotia and New Brunswick
    Newfoundland: The Formalization of Possessory Title
    Indigenous Peoples’ Continued Dispossession
    The Rights and Obligations of Land Ownership

    31 Law and the Economy I: Common Law, Statutes, and the Emergence of the Corporation
    Judges, Private Law, and the Economy
    Colonial Statutes and the Market
    The Emergence and Growth of Corporations to 1850
    The 1850s and 1860s: Corporate Growth and Sectoral Incorporation
    Limited Liability and the Morality of the Corporation

    32 Law and the Economy II: Debtor-Creditor Law
    Imprisonment for Debt
    Bankruptcy Laws
    Insolvency: A Clash of Ideologies

    33 Less Favoured by Law I: Blacks and Workers
    Blacks and the Law: Not Slaves, but Not Equal
    Segregated Schools
    Fugitive Former Slaves and Extradition
    Labour and the Law

    34 Less Favoured by Law II: Women and the Law
    Common Law Married Women’s Property: Equity and Statutory Change
    The Common Law: Unmarried Parents
    Divorce
    The Civil Law: Married Women’s Property
    The Civil Law: Unmarried Parents

    35 Law and Legal Institutions on the Eve of Confederation: The British North American Legacy

    Abbreviations
    Notes
    Illustration Credits
    Statutory and Proclamation Index
    Name Index

    Topical Index
    history of law in canada