Essays in the History of Canadian Law

Essays in the History of Canadian Law: In Honour of R.C.B. Risk

G. BLAINE BAKER
JIM PHILLIPS
Copyright Date: 1999
Pages: 606
https://www.jstor.org/stable/10.3138/j.ctt130jvz4
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  • Book Info
    Essays in the History of Canadian Law
    Book Description:

    The collected essays in this volume represent the highlights of legal historical scholarship in Canada today. All of the essays refer back in some form to Risk?s own work in the field.

    eISBN: 978-1-4426-2079-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. ix-x)
    R. Roy McMurtry and Peter N. Oliver

    The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, a former attorney general for Ontario, now chief justice of Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support program, a graduate student research assistance program, and work in the fields of oral history and legal archives. The...

  4. Acknowledgments
    (pp. xi-xii)
    G. Blaine Baker and Jim Phillips
  5. Special Acknowledgment
    (pp. xiii-xiv)
  6. Contributors
    (pp. xv-2)
  7. 1 Richard C.B. Risk: A Tribute
    (pp. 3-16)
    ROBERT W. GORDON and DAVID SUGARMAN

    Dick Risk is arguably the most respected academic authority on Canadian legal history. To appreciate his impact on the field we need only consider what the world of Canadian legal history looked like before Dick Risk transformed it. In Canada, as in England, legal history was a Cinderella subject. Many students, law teachers, and legal practitioners found it dull, technical, and largely irrelevant to the ‘real world’ and it was not typically taught within law schools in any thoroughgoing fashion. Insofar as it manifested itself within the curriculum, legal history was normally confined within ‘Introduction to Law’– type courses. When...

  8. 2 R.C.B. Risk’s Canadian Legal History
    (pp. 17-60)
    G. BLAINE BAKER

    The Osgoode Society’s first academic conference was held in Toronto in the spring of 1980. Convened by David Flaherty, the purposes of that gathering were to take stock of early scholarship in Canadian legal history and to canvass support for the society’s projected anthology of essays.¹ At Flaherty’s urging, I prepared a presentation for that meeting, ‘R.C.B. Risk’s Canadian Legal History.’ It is surely a mark of Risk’s enduring prominence in his field, rather than a badge of my slow learning, that almost twenty years later I am writing another paper on the same subject. I am humbler and more...

  9. 3 ‘Your Conscience Will Be Your Own Punishment’: The Racially Motivated Murder of Gus Ninham, Ontario, 1902
    (pp. 61-114)
    CONSTANCE BACKHOUSE

    Shortly before midnight on 21 June 1902, Gustus ‘Gus’ Ninham, a fortyone-year-old Aboriginal man, was brutally beaten to death by a group of drunken, white, working-class men. The murder took place several miles south of the outskirts of London, Ontario, near Sharkey’s Hotel on Pipe Line Road (now Springbank Drive) where the white men had been drinking and carousing late into the evening.

    The murder of Gus Ninham, together with the resulting coroner’s inquest, preliminary inquiry, and criminal trial, offers a particularly salient window into the history of racism in central Canada at the turn of the century. Although Canadian...

  10. 4 Ontario Water Quality, Public Health, and the Law, 1880–1930
    (pp. 115-141)
    JAMIE BENIDICKSON

    In 1882 a select committee of the Ontario legislature found that in threequarters of the eighty municipalities that responded to its inquiries the water supply was being polluted by privies. Remedial efforts were virtually non-existent and disease was widespread. Legislators concluded that locally designated administrative officials were ‘too subject to local influences to act efficiently’ and called for a provincially appointed agency.¹ Thus, in response to the apparent inability of individuals or the disinclination of local officials to address such public health problems as sewage and contaminated water supplies, a provincewide solution was elaborated in the form of a Provincial...

  11. 5 ‘The Modern Spirit of the Law’: Blake, Mowat, and the Breaches of Contract Act, 1877
    (pp. 142-170)
    PAUL CRAVEN

    There were on the Statute books of several of the Provinces – Quebec, Ontario, and Prince Edward Island – certain labour laws framed upon the antiquated models in England, in which breaches of contracts of service were made criminal offences punishable by fine and imprisonment. The modern spirit of the law was not to treat such offences as criminal, but to deal with them, as in point of fact they were, as civil matters.

    The Breaches of Contract Act, 1877¹ purported to repeal certain pre-Confederation enactments prescribing fines or imprisonment for workers who quit their jobs or disobeyed their employers, declaring instead...

  12. 6 A Romance of the Lost: The Role of Tom MacInnes in the History of the British Columbia Indian Land Question
    (pp. 171-212)
    HAMAR FOSTER

    It is a pleasure to contribute to a volume honouring someone who has done so much to transform Canadian legal history from professional pastime into academic discipline. Not of course that the former is of no account – it is – but the latter moves the study of the past beyond anecdote and professional loyalty toward the placing of law and legal culture in a wider context.¹ Dick Risk deserves a goodly share of the credit for accomplishing this transformation, and for doing it in the spirit of the Shakespearean injunction to be as lawyers are: strive mightily, but eat and drink...

  13. 7 Taking Litigation Seriously: The Market Wharf Controversy at Halifax, 1785–1820
    (pp. 213-240)
    PHILIP GIRARD

    In addressing the topic of judicial salaries in a speech to the Nova Scotia House of Assembly in the spring of 1830, the young lawyer Beamish Murdoch observed that ‘he could speak feelingly, as he had all that he was worth in the world, at one time depending upon [the judges’] decision.’¹ He did not need to elaborate. Provincial society was still small enough that most of the men in the chamber would have known instantly that he was referring to a cause célèbre in the provincial Court of Chancery involving a valuable wharf property, which had ended a decade...

  14. 8 ‘Our Arctic Brethren’: Canadian Law and Lawyers as Portrayed in American Legal Periodicals, 1829–1911
    (pp. 241-280)
    BERNARD J. HIBBITTS

    Canadians are very good – perhaps too good – at intellectually ‘burying their grandfathers.’ Dick Risk has described how Alfred Henry Fraser Lefroy did so to Chief Justice John Beverley Robinson.¹ He has similarly demonstrated how, in a less familial but no less substantial sense, Chief Justice William Ralph Meredith performed that role for Chancellor William Hume Blake.² In doing all this he has greatly enriched our understanding of mid-nineteenth-century Canadian legal culture. Here I do not wish to bury Risk; rather, on the occasion of his retirement, I seek to follow in his footsteps and undertake the kind of invaluable excavation...

  15. 9 Conservative Insurrection: Great Strikes and Deep Law in Cleveland, Ohio, and London, Ontario, 1898–1899
    (pp. 281-334)
    R.W. KOSTAL

    In the summer of 1899 the street railway workers of London, Ontario and Cleveland, Ohio were engaged in prolonged, popularly supported, and frequently violent labour conflicts. This chapter provides a comparative social and legal history of these ‘great’ strikes,¹ describing the collision of an archetypal Gilded Age business tycoon with two well-organized workforces and their communities. It also has a less conventional aim. To examine how the legal systems of Ontario and Ohio shaped the contours and outcomes of the conflicts.

    A number of factors make the London and Cleveland street railway strikes of 1899 a promising case study in...

  16. 10 Gooderham & Worts: A Case Study in Business Organization in Nineteenth-Century Ontario
    (pp. 335-357)
    C. IAN KYER

    Gooderham & Worts was one of Canada’s most important nineteenthcentury businesses. It operated a very profitable, vertically integrated milling, distilling, shipping, and cattle operation. For fifty years, from its inception in 1832 until its incorporation in 1882, the business was run as a partnership (initially of William Gooderham and James Gooderham Worts and later of W. Gooderham, J.G. Worts, and George Gooderham). The partners consistently rejected incorporation of their business, although they did invest their profits in a series of incorporated businesses, including the Toronto and Nipissing and the Toronto, Grey and Bruce railroads as well as the Bank of...

  17. 11 The Sacred Rights of Property: Title, Entitlement, and the Land Question in Nineteenth-Century Prince Edward Island
    (pp. 358-397)
    MARGARET E. McCALLUM

    ‘To cultivate land is one thing, to own it is another, and these two things must not be confused.’ So commented the monk Bulloch on observing a murder inPenguin Island, Anatole France’s satirical account of the development of civil society among a flock of penguins transformed into humans after being baptized by a near-sighted Christian abbot. The abbot is appalled at the violence, but Bulloch applauds it, because thereby the murderer establishes ownership of the fields of the victim and lays the foundations for law, property, and social order.¹ E.P. Thompson taught us to think of class as a...

  18. 12 Race and the Criminal Justice System in British Columbia, 1892–1920: Constructing Chinese Crimes
    (pp. 398-442)
    JOHN McLAREN

    Dick Risk, in his path-breaking and inspirational article, ‘A Prospectus for Canadian Legal History,’ recognized ‘unity and diversity’ as one of the historical themes ripe for investigation by scholars. More particularly, after discussing the co-existence of the civil and common law systems and their legal cultures in Canada, he referred to ‘[t] he continuing existence of other religious, national or ethnic groups [as] an element of diversity in Canadian life.’¹ Professor Risk added that the legal record of this diversity was ‘difficult to assess,’ and doubted whether, apart from protection afforded to them for freedom of association, freedom of worship,...

  19. 13 Power, Politics, and the Law: The Place of the Judiciary in the Historiography of Upper Canada
    (pp. 443-468)
    PETER OLIVER

    As its title suggests, this chapter is an exercise in historiography and is not based primarily on my own research. It probes the significance of a powerful body of recent legal/historical scholarship to argue that this new work has successfully challenged the long-standing interpretation of Upper Canada’s political culture offered by such scholars as Dunham, Craig, and Wise, rejecting their primarily conservative approach and elevating legal conflict to pride of place in a generally persuasive revisionist synthesis.

    But in its sweeping condemnation of the elite’s manipulation of Upper Canadian legal-judicial structures, recent scholarship raises but does not resolve several critical...

  20. 14 The Criminal Trial in Nova Scotia, 1749–1815
    (pp. 469-511)
    JIM PHILLIPS

    In the mid-eighteenth-century, when a new imperial order was introduced into Nova Scotia with the founding of Halifax and the establishment of government there, the colony received English criminal law and procedure, including what criminal justice historians have termed the ‘old form’ of trial.¹ Criminal trial proceedings in eighteenth-century England were largely conducted without lawyers and tended to be rapid affairs. Accusation was quickly followed by evidence and refutation, with judge and jurors able to interrupt and ask questions. The trial was largely dominated by the drama of a quick and direct confrontation between victim and accuser.

    The old form...

  21. 15 ‘The Disquisitions of Learned Judges’: Making Manitoba Lawyers, 1885–1931
    (pp. 512-560)
    W. WESLEY PUE

    When the history of lawyer’s education in common law Canada comes to be written it will probably be noted that Manitoba has often marched to its own drummer: sometimes at the forefront of national developments, often not. Paradoxically, the home of one of common law Canada’s first university-affiliated schools was also the last Canadian province to adopt a system of full time university legal education.²

    This paper explores the rise and fall of Manitoban legal education from 1885 to 1931. For much of this period Manitoba, the ‘keystone province,’ held a central place in the aspirations and plans of English...

  22. 16 The Law of Evolution and the Evolution of the Law: Mills, Darwin, and Late-Nineteenth-Century Legal Thought
    (pp. 561-582)
    ROBERT VIPOND and GEORGINA FELDBERG

    ‘The tendency, of late, has been to extend the domain of science into regions which lie wholly beyond its own domain,’ the lawyer and politician David Mills wrote in 1894. ‘But such regions science cannot expect to hold.’¹ Mills’s reservations about ‘science,’ or more aptly Darwinian science, were common to his time. By 1894, when he published his no-holdsbarred attack on Darwinism inThe Canadian Monthly, under the title, ‘The Missing Link In The Hypothesis of Evolution, or Derivative Creation’ the debate over Darwinian science had been raging in Canada for over three decades. The main lines of Mills’s argument...

  23. R.C.B. Risk Bibliography
    (pp. 583-586)
  24. PUBLICATIONS OF THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. 587-588)