Essays in the History of Canadian Law

Essays in the History of Canadian Law

Edited by DAVID H. FLAHERTY
Volume: 2
Copyright Date: 2012
Pages: 612
https://www.jstor.org/stable/10.3138/j.ctt13x1q47
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  • Book Info
    Essays in the History of Canadian Law
    Book Description:

    This volume is the second in the Essays in the History of Canadian Law series, designed to illustrate the wide possibilities for research and writing in Canadian legal history.

    eISBN: 978-1-4426-6291-9
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword THE OSGOODE SOCIETY
    (pp. vii-viii)
    Brendan O’Brien and Peter Oliver

    The purpose of the Osgoode Society 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, Attorney General of Ontario, and officials of The Law Society of Upper Canada. Its efforts to stimulate legal history in Canada include the sponsorship of a fellowship and an annual lectureship, research support programs, and work in the field of oral history. The Society will publish (at the rate of about one a year) volumes which contribute to...

  4. Preface
    (pp. ix-xii)
    David H. Flaherty
  5. Contributors
    (pp. xiii-2)
  6. 1 Instruments of Commerce and Authority: The Civil Courts in Upper Canada 1789–1812
    (pp. 3-48)
    WILLIAM N. T. WYLIE

    Historians of Upper Canada have tended to portray the law as a closed system. According to William Renwick Riddell, the courts developed in response to the input of judges, lawyers, and politicians, all apparently acting without social interests. The present essay seeks to reverse this tendency, it will argue that the early civil courts were largely shaped by the leading merchants and administrators of the province. While the two groups differed on how the courts should be constituted, they agreed on the value of British justice as a powerful unifying force in Upper Canadian society. As one provincial observer remarked,...

  7. 2 Legal Education in Upper Canada 1785–1889: The Law Society as Educator
    (pp. 49-142)
    G. BLAINE BAKER

    In the common law world the bar, together with legislatures, courts, executive branches of government, and the public service, is an essential agency of the law. The ways lawyers structure and utilize law as a form of social intelligence are largely a product of the way they are socialized through law training. In the geographic area now known as Ontario, legal education has been exclusively or principally the prerogative of the Law Society of Upper Canada for almost two centuries. The development of the Society’s role as legal educator in the period between 1785 and 1889 is the focus of...

  8. 3 ‘The Ten Thousand Pound Job’: Political Corruption, Equitable Jurisdiction, and the Public Interest in Upper Canada 1852–6
    (pp. 143-199)
    PAUL ROMNEY

    ‘The Ten Thousand Pound Job’ was a highly profitable speculation in City of Toronto debentures that was undertaken in 1852 by Francis Hincks, premier and finance minister of the Province of Canada, and John George Bowes, mayor of Toronto. It has most often been noticed as one of several scandals that marred Hincks’ premiership (1851–4). Upon close investigation, it illuminates various subjects: the practical and ethical problems posed by the advent of business enterprise on an unprecedented scale in the form of railways; the nature of politics and public morality in Upper Canada, and above all in Toronto, its...

  9. 4 Nineteenth-Century Canadian Rape Law 1800–92
    (pp. 200-247)
    CONSTANCE B. BACKHOUSE

    In his history of English criminal law Sir James Fitzjames Stephen, the eminent Victorian, slighted important aspects of women’s legal history: ‘I pass over many sections punishing particular acts of violence to the person, and in particular the whole series of offences relating to the abduction of women, rape, and other such crimes. Their history possesses no special interest and does not illustrate either our political or our social history’¹ Contrary to Stephen’s claim, nineteenth-century rape law provides a wealth of rich information about the roles assumed by men and women, attitudes towards sexuality, and changing views about a woman’s...

  10. 5 Law and Ideology: The Toronto Police Court 1850–80
    (pp. 248-307)
    PAUL CRAVEN

    Out of an interest in the history of labour law, I began some time ago to investigate the Ontario Master and Servant Act of 1847. I completed what was essentially a statutory history of that act and an interpretation of its policy, and then turned to examine its administration by the Toronto Police Court, a tribunal that had both a large caseload and an extensive group of surviving records.¹ Part of this research involved looking in the local newspapers for accounts of master and servant cases, and it quickly became apparent that the Toronto press devoted a great deal of...

  11. 6 The Kamloops Outlaws and Commissions of Assize in Nineteenth-Century British Columbia
    (pp. 308-364)
    HAMAR FOSTER

    On 31 January 1881 four young men were hanged at the prison in New Westminster, British Columbia, for the murder of John Ussher, a constable. Alex Hare and the McLean boys, Allan, Charlie, and Archie had been tried and found guilty nearly a year earlier, but the Supreme Court of British Columbia had declared that trial a nullity because no commission to hold a court of assize had been issued to the presiding judge. So the prisoners had to be tried, condemned again and, finally, executed. Those who watched, said a local newspaper, breathed a sigh of relief, and so...

  12. 7 Private Rights and Public Purposes in the Lakes, Rivers, and Streams of Ontario 1870–1930
    (pp. 365-417)
    JAMIE BENIDICKSON

    Government involvement in regulating the social and economic life of Ontario expanded dramatically in the final decades of the last century and the early decades of the twentieth. Legislative intervention and bureaucratic initiatives both at the departmental level and in the form of administrative agencies and commissions were increasingly frequent and varied in nature. The courts experienced severe challenges to their stature as principal institutions for resolving legal conflicts as a consequence of these developments, which included extensive legislation and the introduction of such agencies as the Hydro Electric Power Commission, workers’ compensation boards, and railway regulation tribunals. An apparent...

  13. 8 ‘This Nuisance of Litigation’: The Origins of Workers’ Compensation in Ontario
    (pp. 418-491)
    R.C.B. RISK

    When the province of Ontario enacted the Workmen’s Compensation Act in 1914, theIndustrial Banner,a labour paper, proclaimed it to be ‘the inauguration of real social legislation’ and ‘the most far-reaching legislation that has ever been enacted by any government in Canada in the interests of the workers.’¹ This enthusiasm was justified. The act was an important expression of fundamental changes in attitudes about individual and social responsibility and about the functions and structure of government. During the nineteenth and early twentieth centuries a worker had a right to compensation for an injury suffered at work only if it...

  14. 9 The Evolution of the Ontario Courts 1788–1981
    (pp. 492-572)
    MARGARET A. BANKS

    Figure 1 shows, in outline, the structure of the Ontario court system today. Some of its components are relatively new; for instance, the Divisional Court of the High Court of Justice was established in 1972 and the Provincial Offences Courts as recently as 1980.¹ Others are much older, going back to the early days of Upper Canada and having their origins in still earlier English practice. The Small Claims Courts, at the foot of the civil hierarchy, have been called by this name since 1971, but that was not the beginning of their history. They are the successors of the...

  15. Table of Cases
    (pp. 573-574)
  16. Index
    (pp. 575-594)
  17. Back Matter
    (pp. 595-598)