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Essays in the History of Canadian Law

Essays in the History of Canadian Law: Two Islands, Newfoundland and Prince Edward Island

Volume: 9
Copyright Date: 2005
Pages: 320
  • Book Info
    Essays in the History of Canadian Law
    Book Description:

    This volume, which includes a number of essays examining women's legal status and access to the courts, is a comprehensive and fascinating examination of legal history in two Canadian provinces.

    eISBN: 978-1-4426-5699-4
    Subjects: Law, History

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
    (pp. ix-x)
    R. Roy McMurtry and Peter N. Oliver

    This volume of essays on the legal histories of Prince Edward Island and Newfoundland opens with innovative studies of the historiography of the two ‘island’ provinces of Atlantic Canada. Eleven essays examine a variety of legal themes, developments, and disputes drawn from the distinctive jurisdictions investigated by the contributors. The essays offer a framework for comparison of the administration of justice through the courts and examine contested cases in common law (criminal, libel, property, and inheritance), and in chancery, with a comparative excursion into New South Wales. Several pose intriguing questions about women’s legal status and their access to the...

  4. Acknowledgments
    (pp. xi-xii)
  5. Contributors
    (pp. xiii-2)
  6. Introduction
    (pp. 3-16)

    Those who know the Atlantic provinces may wonder at the twinning of essays on two jurisdictions whose geography, climate, economic history, ethnic background, and relations with Ottawa and the Canadian Confederation may seem quite different. And why describe them asTwo Islandswhen mainland Labrador is twice the area of the island of Newfoundland? One answer is that, in each province, the emergence of legal history is a fairly recent phenomenon and practised by relatively few people. Publication might prove a huge challenge for either to achieve alone.

    But more important, islands are often very different places from ‘the mainland.’...

  7. Part One: Historiography

    • 1 The Legal Historiography of Newfoundland
      (pp. 19-38)

      Three pre-eminent markers signal the historiography of an emerging discipline of legal history in Newfoundland. The first is John Reeves’sHistoryof 1793. The second, appearing a century later, is Daniel Woodley Prowse’sHistory(1895). And the third is Keith Matthews’s influential 1960s critique of the Whiggish school to which Reeves and Prowse contributed mightily, a critique that pioneered the present professional and academic study of the legal history of the island. The largely resident successors of Matthews and their students recognize the strengths of these three titans as they in turn pursue the answers to new and reformulated questions.¹...

    • 2 The Legal Historiography of Prince Edward Island
      (pp. 39-46)
      J.M. BUMSTED

      Prince Edward Island is an island province of Canada with a small population (less than 150,000 people). Although established and settled for more than two hundred years, it has virtually no profile in Canadian national history and is often neglected in histories of the Atlantic region as well. The Island acquired a university only in the 1960s, and this university until recently has offered little advanced study in history and has no law faculty (and hence no law journal). Island legal precedents are seldom cited outside the province. As a result, there has been virtually no encouragement for the sort...

  8. Part Two: The Administration of Justice

    • 3 Politics and the Administration of Justice on Early Prince Edward Island, 1769–1805
      (pp. 49-78)
      J.M. BUMSTED

      Over the past generation, our understanding of the early development of legal institutions in British America has been transformed by detailed new studies. They have reflected a shift from history in which political and constitutional development was supplemented by accounts of the law and its practice to one in which law and practice are supplemented by political and constitutional concerns.

      Two themes stand out in this new literature.¹ One is that all jurisdictions transplanted English law and legal institutions into the New World regardless of whether there was direction from the imperial authorities or whether particular colonies had the trained...

    • 4 Surgeons and Criminal Justice in Eighteenth-Century Newfoundland
      (pp. 79-114)

      This chapter explores the role of surgeons in criminal trials in Newfoundland before 1792. It considers the use of forensic medicine in perhaps the most ‘backward’ of English possessions, where official colonial status was granted in 1825, over a century after permanent settlement began. The remarkably rich accounts of the island’s court records reveal much about surgeons in homicide trials and the impact of forensic medicine.¹ Data from the minutes of Newfoundland’s quarter session and assize courts indicate that surgeons often testified in eighteenth-century criminal trials. Contemporary sources also suggest that surgeons occupied a prominent position in Newfoundland society – they...

    • 5 The Supreme Court on Circuit: Northern District, Newfoundland, 1826–33
      (pp. 115-144)

      Isolation, distance, and geography have traditionally challenged attempts to provide public services to Newfoundland and Labrador, where the population has rarely exceeded half a million people in an area two-thirds the size of Alberta. Today, residents have local access to the judicial system without having to travel huge distances. Air and ground transportation has improved, reducing the traditional dependence on coastal boats, and conference calls and video links are being experimented with for court hearings. But in the nineteenth century all this was in the future. Magistrates had been appointed since 1729, and, from the mid-eighteenth century to 1824, disputes...

  9. Part Three: Property Law and Inheritance

    • 6 Formal and Informal Law in Two New Lands: Land Law in Newfoundland and New South Wales under Francis Forbes
      (pp. 147-191)

      In the first quarter of the nineteenth century, Britain had two very odd overseas possessions at almost exactly opposite ends of the earth. One was Newfoundland, a damp, cool island off the east coast of North America. The other was New South Wales, which at that time covered more than half of the hot, dry continent of Australia. Neither place fitted the normal pattern of colonization, Newfoundland being officially a fishing base rather than a place of settlement, and New South Wales a penal colony. In each place, the governors allowed loose methods of landholding to develop, and at crucial...

    • 7 Defining Property for Inheritance: The Chattels Real Act of 1834
      (pp. 192-216)

      In August 1819 Chief Justice Francis Forbes¹ ruled on the case ofR. v.Kough, which involved the defendants’ claim to ‘adverse possession’² of property adjacent to Fort William in St John’s. Forbes decided in favour of the defendants’ claim and barred the crown to right of land, thereby, in effect, recognizing the existence of private ownership of land in the colony.³ In his ruling, the chief justice stated dramatically, ‘Of all evils in society uncertainty in the law is amongst the greatest, and there cannot be any uncertainty more distressing than that of the right by which a man holds...

    • 8 ‘The Duty of Every Man’: Intestacy Law and Family-Inheritance Practice in Prince Edward Island, 1828–1905
      (pp. 217-234)

      Early Canadian studies of nineteenth-century inheritance practices offer a grim portrait whereby sons inherit burdens, daughters inherit little, and wives inherit restrictions.¹ In Prince Edward Island, however, this description captures only the contours of inheritance patterns. Island wills evidence not only economic considerations but also concern for the well-being of all family members, regardless of gender. Sons were often ‘burdened’ with responsibilities, but these burdens were usually attempts to equalize the inheritance. Daughters often did inherit unequally, but this was not always to their disadvantage. Wives were limited in their control of real estate, but the language of wills suggests...

  10. Part Four: Legal Status and Access to the Courts by Women

    • 9 ‘Now You Vagabond [W]hore I Have You’: Plebeian Women, Assault Cases, and Gender and Class Relations on the Southern Avalon, 1750–1860
      (pp. 237-271)

      On 22 July 1822 Ellen Veal (also Vail) appeared before the justice of the peace at St Mary’s to lodge a complaint of assault against her neighbour Mary Bowen. Two days earlier, Mary had been entertaining her friends Nell Tobin and Mary Molly in her home. The women had been chatting companionably while hostess Mary nursed her baby and puffed contentedly on her pipe. Suddenly, Ellen appeared in the doorway and demanded to know why Mary ‘shou[l]d have car[r]ied Lyes and storys up the harb[our]’ about her deceased husband and a Mrs Bishop, and why she was spreading rumours that...

    • 10 Women in the Courts of Placentia District, 1757–1823
      (pp. 272-299)

      This essay explores how Newfoundland women living on either side of Placentia Bay in the southeastern corner of the island participated in the local legal system during seven decades down to 1823. The surviving court records indicate that women on their own account were parties in a wide variety of suits. This evidence challenges a long-standing historiography, which has prevailed until recently, that describes women as either non-participants in, or victims of, the legal system in Newfoundland.¹ In addition, the records highlight a broader theme, raising the question of what law was ‘ received’ in Newfoundland. Did English matrimonial law...

    • 11 ‘Out of Date in a Good Many Respects’: The Legal Status and Judicial Treatment of Newfoundland Women, 1945–9
      (pp. 300-320)

      In the sixty years that preceded Confederation with Canada in 1949, ‘local Newfoundland newspapers continually reported cases of physical assault and mental cruelty committed by men, usually husbands, on women, usually their wives. Beatings, assaults, threats of violence, arguments resulting in assault, ill treatment – all appear in the public record. Doubtless many more remained unreported.’¹

      In our post-Charter era, we emphasize personal rights and the sanctity of the individual’s right to dignity and personal security. Though violence against women has not been eradicated, the police, the courts, and the public generally agree on an attitude of zero tolerance towards it....

  11. Part Five: Litigation in Chancery and at Common Law

    • 12 Bowley v. Cambridge: A Colonial Jarndyce and Jarndyce
      (pp. 323-356)

      When John Cambridge’s London solicitor wrote the above statement in 1814, the matter at issue between Cambridge and William Bowley, Sr had consumed twenty years. It had outlived Bowley, as it would his son, William Bowley, Jr, who carried on the case, and John Cambridge himself, who died in 1831. And there was still no final decision² until 1841, forty-seven years after Cambridge had hailed Bowley before the bar of the Supreme Court of St John’s Island (PEI), alleging trespass on the case for money advanced on Bowley’s behalf and not repaid.

      In addition to outliving its original adversaries, in...

    • 13 The Judges Go to Court: The Cashin Libel Trial of 1947
      (pp. 357-390)

      Libel cases are a staple of the popular press, known for their allegations, often of a very personal nature, exchanged in court, and the windfall damages that may be awarded the successful party.Emerson, Winter and Winter v. Cashin, in 1947, shared some of these elements although they did not play out in typical fashion. It did not raise new issues of law. The precedent pre-Victorian case had been decided in 1834.² It lasted one day, comprising roughly six hours of testimony and legal argumentation, followed by the judge’s lengthy evening charge to the jury. After several hours of deliberation,...

  12. Index
    (pp. 391-420)
  13. Back Matter
    (pp. 421-423)