Essays in the History of Canadian Law, Vol. X

Essays in the History of Canadian Law, Vol. X: A Tribute to Peter N. Oliver

JIM PHILLIPS
R. ROY MCMURTRY
JOHN T. SAYWELL
Copyright Date: 2008
Pages: 480
https://www.jstor.org/stable/10.3138/9781442689510
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  • Book Info
    Essays in the History of Canadian Law, Vol. X
    Book Description:

    Covering a broad range of topics, this volume examines developments over the last two hundred years in the legal profession and the judiciary, nineteenth-century prison history, as well as the impact of the 1815 Treaty of Paris.

    eISBN: 978-1-4426-8951-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. xi-xii)
    Jim Phillips and R. ROY McMurtry

    This collection of essays in Canadian legal history honours Professor Peter Oliver, who led the Osgoode Society as editor-in-chief from its establishment until his death in 2006. The essays are written by Osgoode Society authors and/or by students and colleagues of Peter’s at York University, and include almost all the major figures working in the field of Canadian legal history today. Reflecting Peter’s own scholarship and his encouragement of a wide variety of approaches to legal history, the essays are diverse in nature, covering topics from nineteenthcentury prison history to the judiciary, the legal profession, and the impact of the...

  4. Introduction: Peter Oliver and the Osgoode Society for Canadian Legal History
    (pp. 1-30)
    JIM PHILLIPS, R. ROY MCMURTRY and JOHN T. SAYWELL

    This volume is a tribute to the late Peter Nesbitt Oliver, professor of history at York University for more than forty years and, for twenty-seven years, from 1979 to 2006, editor-in-chief of the Osgoode Society for Canadian Legal History. The contributors are mostly authors or editors of Osgoode Society books, plus others who were colleagues or students of Professor Oliver at York University. All would also count themselves as his good friends, for friendship with those he worked with came naturally to Peter Oliver. Although Peter Oliver contributed in many ways to the Canadian academic world – as a teacher and...

  5. PART ONE: Criminal Justice:: Law, Policy, and the Limits of the Criminal Sanction

    • 1 Rape in the House of Commons: The Prosecution of Louis Auger, Ottawa, 1929
      (pp. 33-66)
      CONSTANCE BACKHOUSE

      Seventeen-year-old Laurence Martel mounted the massive marble staircase of the House of Commons and made her way toward Room 417. The former convent pupil had been boarding with an aunt in Ottawa for the past five months. A Franco-Ontarian from Alfred Township near Hawkesbury, Martel had her sights on a secretarial career. In September, she had enrolled at Henry’s Shorthand School, a business college on Bank Street. She was two weeks away from completing her course, and hoped to obtain a clerical position with the federal government.¹

      It was Friday afternoon, 15 February 1929. Prime Minister William Lyon Mackenzie King...

    • 2 Wardens and Prisoners: Aspects of Prison Culture in Ontario, 1874–1914
      (pp. 67-106)
      JOSEPH ASHLEY BERKOVITS

      There is now an extensive literature about the origins and purposes of the penitentiary and reformatory institutions. The early histories of the penal institutions are also well known to us, as are the philosophies of many of the reformers and government officials who helped create and shape them.¹ For Ontario, Peter Oliver’s ‘Terror to Evil-Doers’provides a definitive account of the many components that made up the province’s early penal system.² But while the narrative of the prison as an institution is well documented, we still know little about what daily life inside that institution entailed, nor do we know...

    • 3 ‘Perverts a Menace’: The Development of the Criminal Sexual Psychopath Offence, 1948
      (pp. 107-128)
      PATRICK BRODE

      In 1948, the Canadian Parliament enacted one of the most remarkable criminal statutes of the twentieth century. In a piece of legislation that contained several amendments to the Criminal Code, the 1948 act defined an entirely new kind of offender – the ‘criminal sexual psychopath.’ These were individuals who, through a ‘course of misconduct in sexual matters,’ had displayed an inability to control their sexual impulses, and as a result were liable to ‘inflict loss, injury, pain or other evil’ on another person.¹ Once identified by proper psychiatric evidence, offenders could be subject to an indeterminate sentence and, in addition to...

    • 4 The Law of Rules: Prosecuting Railway Workers in Mid-Nineteenth-Century Ontario
      (pp. 129-166)
      PAUL CRAVEN

      One July evening in 1860, Charles and Elizabeth Ham were returning by wagon from Toronto to the farm they rented near Pickering. As Elizabeth told it later, they took especial care as they approached the Kingston Road railway crossing, for they had narrowly escaped being run down there that very morning. A deep cut obscured their view of the line as they approached from the west, but as they entered the crossing they saw an eastbound locomotive gaining rapidly on them. Charles leapt up and whipped the horses, but the train was upon them before the wagon cleared the track....

  6. PART TWO: The Judiciary:: Ideology, Legitimacy, and Politics

    • 5 Politics, Promotion, and Professionalism: Sir Wilfrid Laurier’s Judicial Appointments
      (pp. 169-199)
      PHILIP GIRARD

      The controversy in early 2007 over the Harper government’s alteration of the composition of judicial selection committees reminds us that the manner of appointment of superior court judges is a perennial issue in Canadian political and legal history. Two examples, a century apart, will suffice. When the defeated Alexander Mackenzie appointed several ‘midnight judges’ in October 1878, the day before he handed power back to Sir John A. Macdonald, an outcry erupted, but nothing could be done. When Pierre Trudeau injudiciously showered judgeships on friends and faithful as he left office in 1984, however, he saddled his successor with an...

    • 6 ‘High above the Generality of the People’: The Ideological Origins of the Nova Scotia Supreme Court Circuit
      (pp. 200-221)
      JIM PHILLIPS

      Two decades after its founding in 1754 the Nova Scotia Supreme Court (NSSC) first ventured out of the capital of Halifax and visited other communities on circuit. In doing so it adopted a long-established feature of the English court system, the assizes, and, as in many other British North American colonies in the eighteenth and nineteenth centuries, circuits became an important aspect of judicial administration. In pre-Confederation Canada only the Supreme Court of Prince Edward Island did not have some sort of circuit system, and the territories and provinces added after 1867 also made their superior courts itinerant. The Northwest...

    • 7 Judicial Scandal and the Culture of Patronage in Early Confederation, 1867–78
      (pp. 222-254)
      JONATHAN SWAINGER

      In the midst of the political picnic season of late September 1877, Edward Blake addressed a large gathering of Liberal party supporters at a political rally at Teeswater, Ontario. Touching upon the topic of judicial appointments, the former minister of justice declared,

      The man who is appointed a judge, and as such may at any time hold in his hands the fate, whether as fortune, freedom, or good name, of any one of us, this man holds his office by a tenure practically not far removed from life. He may be a blessing, but again he may be a curse,...

  7. PART THREE: Legal Thought and the Legal Profession:: Contested Conceptions of Law and Lawyers

    • 8 Strategic Benthamism: Rehabilitating United Canada’s Bar through Criminal Law Codification, 1847–54
      (pp. 257-319)
      G. BLAINE BAKER

      On Tuesday 21 May 1850, William Badgley introduced to the Legislative Assembly of United Canada at Toronto’s Saint Lawrence Hall two private member’s bills to codify provincial criminal law and procedure.¹ One of those codes was loosely derived, at least stylistically, from Thomas Babington Macaulay’sIndia Penal Codeof 1838. The other was modelled after Edward Livingston’s unenacted 1826Louisiana Code of Criminal Procedurefiltered through David Dudley Field’s 1849New York Code of Criminal Procedure.² Badgley’sAct to Establish a Criminal Codeand hisAct to Establish a Code of Criminal Proceduretogether comprise nearly 400 pages of folio-sized,...

    • 9 The Rule of Law and Irish Whig Constitutionalism in Upper Canada: William Warren Baldwin, the ‘Irish Opposition,’ and the Volunteer Connection
      (pp. 320-350)
      JOHN MCLAREN

      The Baldwin family from Knockmore, County Cork, crossed the Atlantic to start a new life in Upper Canada in 1799. It comprised father Robert, a widower with six children, including twenty-four-year-old William Warren Baldwin, the subject of this essay.¹ It was not only the members of the family and their material effects that were transported to the newly founded colony, so were their ideas about government and law – the influence on their thought, values, and practices of the political and legal culture in which they had lived and worked. The Baldwins’ departure from Ireland was directly related to the adverse...

  8. PART FOUR: New Directions in Legal History – Private Law, International Law, Low Law, and Informal Law

    • 10 Diplomacy, International Law, and Foreign Fishing in Newfoundland, 1814–30: Revisiting the 1815 Treaty of Paris and the 1818 Convention
      (pp. 353-387)
      RAINER BAEHRE

      A recent study of nineteenth-century international law and state transformation notes that ‘treatises of international law were on every diplomat’s reference shelf.’¹ In the writing of Canadian legal history, however, we know very little about the role of international law and its application, except in relation to Aboriginal issues. In particular, nobody has examined at any length the diplomatic and legal context of two important treaties: the Treaty of Paris of 1815² and the Convention of 1818. The former (hereafter the Treaty of Paris) established peace and economic relations between Britain and France. The latter (the Convention) was signed between...

    • 11 Social Workers, Courts, and the Implementation of the Children of Unmarried Parents Act, 1921–69
      (pp. 388-409)
      LORI CHAMBERS

      In 1921, legislation was passed in Ontario that was ostensibly intended to mitigate the worst social and economic consequences of illegitimacy for children. Lauded internationally as an advanced and humane approach to child welfare, Ontario legislation served as a model for reform in other provinces and in several American states. Surprisingly, however, the legislation has not been studied by historians; this essay is part of a larger project that fills this lacuna.¹ After outlining the reforms of 1921, this essay uses case files amassed by the Children’s Aid Society to explore the implementation of reform measures. While the case files...

    • 12 The David Fasken Estate: Estate Planning and Social History in Early Twentieth-Century Ontario
      (pp. 410-445)
      C. IAN KYER

      When David Fasken died on 2 December 1929, after a lengthy illness, his death was front-page news. ‘David Fasken, KC, Dies at Home After Long Illness’¹ said theGlobe. ‘David Fasken, Wealthy Mining Magnate Dies’² reported theToronto Daily Star. Each noted his many achievements as a lawyer and managing partner of an important law firm, as president of the Excelsior Life Insurance Company, the Nipissing Mining Company Limited, the Northern Ontario Light and Power Company Limited, and the Northern Canada Power Company Limited, and as a major benefactor of the Salvation Army and the Toronto Western Hospital.

      On 4...

    • 13 Squatters’ Rights and the Origins of Edmonton Settlement
      (pp. 446-468)
      BRUCE ZIFF and SEAN WARD

      As long as Canada is a free country every Canadian has an inherent right to a share of the public domain, for his own use, whether he obtains it by conforming with the ordinary government regulations or by squatting on it in advance of survey, and it will be a dark day for the North West and for Canada when the exercise of that right is prohibited.¹

      Possession, it must be remembered, is nine points of the law ...²

      The 1931 Academy Award–winning epicCimaranbegins with a reenactment of the extraordinary Oklahoma land rush of 1889. At the...

  9. Contributors
    (pp. 469-472)
  10. Back Matter
    (pp. 473-476)