Legislating professionals: Private bills for entry to practise professions in Ontario, 1868-1914

Journal of Historical Sociology

Volumn 18, Issue 3, 2005, Pages 173-201

  Adams, Tracey L ^a  

^a NONE

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EID: 24044441627     PISSN: 09521909     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1467-6443.2005.00254.x     Document Type: Article

References (124)

1. Elizabeth MacNab, A Legal History of Health Professions in Ontario (Toronto: Committee on Healing Arts, 1970), pp 12-33.
2. J.T.H. Connor, "A Sort of Felo-de-se: Eclecticism, Related Medical Sects and Their Decline in Victorian Ontario," in Alternative Health Care in Canada, eds. JK Crellin, RR Anderson and JTH Connor (Toronto: Canadian Scholars Press, 1997).
3. The act did, however, prevent Zielinski from practising midwifery and surgery. Statutes of Ontario, chap 122, 62 Vict (2). Additional information on Zielinski was gleaned from the 1901 Census of Toronto,
4. and the following: "Petition of Jacob Zielinski of the City of Toronto," Archives of Ontario (AO) RG49-38-2, Petitions 1899 #42, Box 68;
5. AO RG49-39, Original Bills, Bill 26, 1899, Box 82, "An Act to authorize Jacob Zielinski to Practice the Eclectic System of Medicine in the Province of Ontario." Neither the petitions nor the bills specifies the exact nature of Zielinski's training, nor precisely why he was unable to obtain a license through more conventional means.
6. Canada's professional legislation tended to grant more sweeping powers to professions than did legislation in the United States, and therefore was more likely to give rise to private petitions for professional privileges. For a comparison of US and Canadian legislation regulating medicine see Joseph F. Kett, The Formation of the American Medical Profession: The Role of Institutions, 1780-1860 (New Have and London: Yale University Press, 1868);
7. Joseph F. Kett, "American and Canadian Medical Institutions, 1800-1870" Journal of the History of Medicine and Allied Sciences, Vol. 22 (1967), 343-56.
8. In this Ontario was not alone, and other Canadian provinces also passed such legislation in the late nineteenth and twentieth centuries.
9. For example, Gidney and Millar, Professional Gentlemen (Toronto: University of Toronto Press, 1990);
10. Andrew Abbott, "The Order of Professionalization: An Empirical Analysis." Work and Occupations 18 (1991), 355-384;
11. David Coburn, G. Torrance and J.M. Kaufert, "Medical Dominance in Canada in Historical Perspective: the rise and fall of medicine?" International Journal of Health Services 13 (1983), 407-432;
12. Thomas Goebel, "Professionalization and State Building: The State and Professions in Illinois, 1870-1920" Social Science History 18 (1994), 309-337;
13. Corinne Lathrop Gilb, Hidden Hierarchies: The professions and government (New York: Harper and Row Publishers, 1966).
14. Keith Macdonald, The Sociology of Professions (London: Sage Publications, 1995), pp. 66-123;
15. Thomas Goebel, "Professionalization and State-Building;"
16. Terry Johnson "The state and the professions: Peculiarities of the British." in Social Class and the Division of Labour, ed. A. Giddens and G. MacKenzie (Cambridge University Press, 1982), pp. 186-208,
17. and "Expertise and the State," in Foucault's New Domains, ed. M. Gane and T. Johnson (Routledge, 1993) pp. 139-152;
18. David Coburn, "Phases of Capitalism, Welfare States, Medical Dominance, and Health Care in Ontario," International Journal of Health Services 29 (1999), 833-851;
19. David Coburn, "State Authority, Medical Dominance and Trends in the Regulation of Health Professions: The Ontario Case," Social Science and Medicine 37 (1993), 841-850.
20. Rachael McKendry and Tom Langford, "Legalized, Regulated but Unfunded: Midwifery's Labourious Professionalization in Alberta, Canada, 1975-99," Social Science and Medicine 53 (2001), 531-542;
21. Corrine Gilb, Hidden Hierarchies; Arnold J. Heiden-heimer, "Professional knowledge and state policy in comparative historical perspective: law and medicine in Britain, Germany and the United States," International Social Science Journal 41 (1989), 529-554;
22. Julia Evetts and Robert Dingwall, "Professional Occupations in the UK and Europe: Legitimation and Governmentality," International Review of Sociology 12 (2002), 159-171;
23. R. Rudy Higgens-Evenson, 'The Political Asylum: State Making and the Medical Profession in Oregon, 1862-1900," Pacific Northwest Quarterly 89 (1998), 136-148.
24. Eliot Freidson, Professionalism: The Third Logic (Chicago: University of Chicago Press, 2001);
25. Eliot Freidson. Professionalism Reborn: Theory, Prophecy and Policy (Chicago: University of Chicago Press, 1994).
26. Freidson, Professionalism: The Third Logic, pp. 127-9.
27. Freidson, Professionalism Reborn, p. 173.
28. As discussed in Evetts and Dingwall, "Professional Occupations in the UK and Europe," 161-163.
29. Emile Durkheim, "Preface to the Second Edition: Some Remarks on Professional Groups," The Division of Labour in Society, trans. W.D. Halls (New York: The Free Press, 1984), xxxi-lix; see especially pages li-liv. The quote is taken from page liv.
30. Johnson, "The State and the Professions," p. 190.
31. Ibid., p. 207.
32. Johnson, "Expertise and the State;"
33. Michel Foucault, Discipline and Punish (New York: Vintage, 1977);
34. Michel Foucault, "On governmentality," Ideology and Consciousness 6 (1979), 5-22.
35. Foucault, Discipline and Punish, p. 136.
36. Johnson, "Expertise and the State," p. 142. While helpful, Johnson's analysis cannot explain why governments have been willing to legislate for some "experts," but not others, nor precisely how governments' reliance on expertise may change across time and place.
37. For instance, Halliday documents how the state's reliance on the legal profession has increased over the twentieth century: Terence C. Halliday. Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment (Chicago: University of Chicago Press, 1987). A number of works explore variations in state-profession relations across time and place. Notable is the analysis of Arnold Heidenheimer who illustrates that the nature of profession-state relations varies depending on a nation's level of "stateness". Countries like Britain have low -stateness in that their government has been less centralized historically. In such locales professions are allied with the state, but not closely inter-penetrated with them. In contrast, in countries like Germany with higher levels of "stateness" the professions have been virtually "absorbed into the state bureaucracy" (531).
38. Arnold J. Heidenheimer, "Professional knowledge and state policy in contemporary historical perspective;"
39. Also see Rolf Torstendahl and Michael Burrage, The Formation of Professions: Knowledge, State and Strategy (London: Sage Publications, 1990). Recent studies have also explored how the relationship between governments and states has changed over time, with changes in states and their needs.
40. See for instance, Julia Evetts, "New directions in state and international professional occupations: discretionary decision-making and acquired regulation," Work, Employment and Society 16 (2002), 341-353;
41. Mike Dent, "Professionalism, educated labour and the state: hospital medicine and the new managerialism" The Sociological Review 41 (1993), 244-273;
42. Evetts and Dingwall, "Professional Occupations in the UK and Europe".
43. MacNab, A Legal History of Health Professions;
44. R.D. Gidney and W.P.J. Millar, Professional Gentlemen: The Professions in Nineteenth-Century Ontario (Toronto: Ontario Historical Studies Series/University of Toronto Press, 1994), especially pages 80 to 81 on changes to the legislation governing the legal profession.
45. A. Margaret Evans and C.A.V. Barker, Century One: A History of the Ontario Veterinary Association, 1874-1974 (Guelph Ont: The Authors 1976). Unlike the other professions, which were self-regulating, veterinary surgery was granted a "restricted title" only.
46. Providing further support for this argument is Bruce Curtis's recent work documenting that in the mid to late-nineteenth centuries, Canadian governments were attempting to improve their ability to govern the population, by improving their knowledge of the population. Professionals could serve as intermediaries in this process. Bruce Curtis, The Politics of Population: State Formation, Statistics, and the Census of Canada, 1840-1875 (Toronto: University of Toronto Press, 2002). Although Curtis, does not focus on the role of professionals, he does note that professionals could assist the state by providing valuable information on the population and country. See in particular, pages 257-260.
47. For instance, at the time, professions in the United States were largely unregulated, and while Britain had legislation regulating medicine and law, it did not extend sweeping powers to newer occupations like dentistry. Canada's diligence in regulating professions may have represented, in part, a reaction against the American situation. As Joseph Kett notes, there were those in Canada who feared an influx of poorly trained American medical practitioners, as well as American republicanism more generally, and these sentiments may have encouraged legislators' willingness to regulate the medical profession. Hence, he argues, Canadian medical legislation sought not only "safeguards for health but guarantees of stability" (p. 348):
48. Jospeh F. Kett, "American and Canadian Medical Institutions".
49. For a discussion of state structure and professional regulation, see Heidenheimer, "Professional knowledge and state policy. . ." pp. 530-532.
50. Terrie M. Romano, "Professional Identity and the Nineteenth-Century Ontario Medical Profession," Histoire sociale/ Social History 28 (1995), 77-98.
51. In the US, such a plurality led to a decline in medical licensing earlier in the century: Kett, Formation of the American Medical Profession.
52. Coburn, Torrance and Kaufert, "Medical Dominance in Canada;"
53. Adams, A Dentist and a Gentleman: Gender and the Rise of Dentistry in Ontario (Toronto: University of Toronto Press, 2000), especially pp. 76-89.
54. Copies of the successful legislation were obtained through the published Statutes of Ontario for the years 1868 through 1914. Copies of many of the bills that failed to proceed through the legislature, and copies of the various drafts of some bills that were substantially revised before finally passing and becoming law, were obtained through the archives' Original Bills collection (AO RG-49-39). The petition documents are found in AO RG 49-38 (RG49-38-3, petition register books; RG 39-38-2 original petitions). The archives had a copy of all but 6 petitions for entry into professions.
55. The on-line versions of the 1881 Ontario census and the 1871 Ontario census householders index were helpful sources for tracking down petitioners. The manuscript census rolls from 1881, 1891 and 1901 were also useful. Information on petitioners' date of birth, nationality, family structure, occupation, and when possible, father's occupation was gathered. The demographic characteristics of petitioners are explored in more detail in a separate paper.
56. A number of individuals petitioned for bills more than once. Most of these repeat petitioners were people who did not succeed in obtaining legislation the first time, and returned another year to try again. The man with the most petitions, George MacGregor Gardiner, was a Scotsman with little legal training, who sought an act to make him a solicitor in 1889, 1890, 1891, and finally, successfully, in 1899. He petitioned again in 1906 (successfully) for an act to enable him to practise as a barrister as well. Repeat petitioners sometimes withdrew proposed legislation in response to bargains made with professional regulatory bodies, only to return to the legislature again when these compromises failed to result in a license to practise.
57. Canada had followed the lead of Britain in establishing two distinct branches of law with two corresponding types of practitioners: barristers and solicitors or attorneys. The former were more formally educated and possessed a higher status than the latter. Nevertheless, typically "lawyers could not make a living as barristers alone and thus they routinely qualified and practised as both barristers and attorneys, so that the two branches of the profession were in effect united": Gidney and Millar, Professional Gentlemen, p. 31-2. Many practitioners had some difficulty with qualifying for both branches, and hence, petitioned the Ontario legislature.
58. "Petition of Abraham J.B. Halford of Sandwich East praying that an Act my pass to authorize him to practise as a Provincial Land Surveyor," AO RG 49-38-2, Petitions, 1885, #16, Box 42;
59. AO RG 49-29, Bill 18, "An Act to enable the Board of Examiners for the admission of Provincial Land Surveyors for Ontario to admit Abraham Halford as a Provincial Land Surveyor," Box 38; Statutes of Ontario, chap. 98, 48 Vic.
60. "Petition of Walter D. Coate of the town of Rat Portage praying that an Act may pass to authorize him to practise as an apothecary or chemist and druggist," AO RG-49-38-2, petitions, 1886, #1, Box 43.
61. "Draft Bill to authorize Walter D. Coate to practise as a Chemist," AO RG 49-39, Original Bills, Box 41, Bill 9. Statutes of Ontario, chap 92, 49 Vic.
62. "Petition of George W. Ross of Strathroy praying that an Act may pass to authorize the Law Society to admit him to practise as a solicitor in the High Court of Justice," AO RG 29-38-2, Petitions, 1883, #78, Box 39;
63. RG 49-39, Bill #16, 1883, Box 34, original bill of "An act to authorize the Supreme Court of Judicature for Ontario to admit George William Ross to practise as a solicitor." Statutes of Ontario, chap 72, 46 Vic.
64. "Petition of John Robertson Miller of Goderich praying that an Act may pass to authorize the High Court of Judicature to admit him to practise as a Solicitor therein;" AO RG-49-38-2, Petitions, 1884, #243, Box. 41.
65. RG 49-39, Bill16, 1884, Box 36, "An Act to authorize the Supreme Court of Judicature for Ontario to admit John Robertson Miller to practise as a Solicitor."
66. "Petition of Delos Rogest Davis, of South Colchester, praying that an Act may pass to authorize the Supreme Court of Ontario to admit him to practise as a solicitor," AO, RG 49-38-2, Petitions, 1884, #198, Box 41. Original Bills Series, RG 49-39, Bill 37, An act to authorize the Law Society of Ontario to admit Delos Rogest Davies as a Barrister at Law, Box 41;
67. Statutes of Ontario, chap. 94, 47 Vic.
68. "Petition of Delos Rogest Davis . . ."
69. Regulations varied across profession and time. For instance, the Ontario medical profession discouraged US degrees but were more open to those from the UK. Ontario dentists accepted no degrees from outside Ontario, and were especially disdainful of US training. However, Ontario pharmacists tended to recognize licenses issued in Great Britain, Quebec and Philadelphia. See Terrie Romano, "Professional Identity and the Nineteenth-Century Ontario Medical Profession," 89-91;
70. Tracey L. Adams, A Dentist and a Gentleman, 58-9, 69-70;
71. Elizabeth MacNab, A Legal History of Health Professions in Ontario, p. 92.
72. Most foreign-trained petitioners seeking entrance into law came from England, and they were typically eligible to practise one branch of law, but sought concessions with respect to their eligibility to practise the other.
73. Statutes of Ontario, chap 115, 2 Edw. VII.
74. An Act to empower Owen B. Van Epp to practice Medicine in the Township of Pelee, Statutes of Ontario, Chap 107, 4 Edw. VII.
75. Crease's legislation enabled him to practise in Simcoe County, without additional examination: "An Act to authorize Horatio C. Crease to practise Dentistry," Statutes of Ontario, 1905, chap 129, 5 Edw. VII;
76. "Petition of Horatio C. Crease . . . " AO RG 49-38-2, Petitions, 1899, #251, Box 69;
77. AO RG 49-38-2. Petitions, 1905, #103, Box 81. Crease's conflicts with the dental board are noted in the Proceedings of the Royal College of Dental Surgeons of Ontario (Toronto, RCDS, 1898), pp. 4-5;
78. Ibid. 1899, p. 9;
79. Ibid. 1896, pp. 4-6.
80. Another petitioner, John Henry German, could not meet the RCDS's matriculation standards, even though he had a degree from the University of Ottawa in commerce and a Doctor of Dental Surgery degree from the Pennsylvania Dental College. In 1904 he petitioned parliament, successfully, to have the matriculation requirement waived. AO RG 49-39, Bill 53, 1904, Box 102, draft of an 'Act enabling and directing the Royal College of Dental Surgeons for Ontario to admit John Henry Gorman as a student in his final year;' Statutes of Ontario, chap. 105, 4 Edw. VII. Gorman completed his dental education and received a license to practise in 1905.
81. Quotations taken from the draft bill: AO RG 49-39, Bill 11, 1891, "An Act to authorize the board of Directors of the Royal College of Dental Surgeons of Ontario to admit Daniel Patterson to practise Dental Surgery in Ontario;" 1881 Census of Canada, Lucknow, Bruce County, C-13275, District 176, page 13.
82. Two petitioners who were successful (Sadie Holmes and Lewis Riggs) had to complete the senior year at the dental school and pass the final examinations; Riggs had to matriculate as well.
83. Statutes of Ontario, chap 147, 6 Edw. VII, "An Act to authorize William J. Church to Practise as Veterinary Surgeon.";
84. "The Petition of William J. Church of the Village of Arthur in the County of Wellington," AO RG49-38-2, Petitions, 1906, #356, Box. 83.
85. I b i d.
86. "An Act to authorize Jerry Brisson to practise as a Veterinary Surgeon," Statutes of Ontario, chap 123, 7, Edw. VII.
87. "An Act to authorize Thomas Johnston to practise as Veterinary Surgeon.," Statutes of Ontario, Chap 125, 7 Edw. VII.
88. th, 1906, AO Microfilm B32, roll #7.
89. Solicitors seeking to practise as barristers typically had to pass the final examinations of the Law Society, while generally those barristers wanting to practise as solicitors required no further examination.
90. Petition of Frederick Colquhoun of the Village of Waterloo, Attorney at Law, AO RG49-38-2, Petitions, 1875-6, #40, Box 21.
91. Gidney and Millar, Professional Gentlemen, 168.
92. th, 1874, AO Microfilm B32, roll #2.
93. The legislature's Committee on Standing Orders was charged with ensuring that sufficient notice of all petitions was made. Petitioners had to give public notice of their petition in the Ontario Gazette and in a local newspaper for a period of four weeks. This procedure provided an opportunity for all interested parties to respond and comment. Only once the Committee on Standing Orders had reported (positively) on a petition could legislation be introduced. Once a private bill received its first reading, it was referred to the Committee on Private Bills (PBC) where the form and nature of the bill were considered and debated. The PBC met with the interested parties (the petitioners and representatives from professional groups), and discussed the merits and veracity of the contents of the bill. At this stage, bills were either withdrawn, or reported, sometimes with amendments. Once reported, a bill received its second reading, and was referred to the Committee of the Whole House where it was discussed and sometimes amended. Once it passed through this stage (and if amended, an additional reading), a bill received its third and final reading and was voted on. Successful bills received royal assent (from the Lieutenant Governor), and became law.
94. Bethune, Newspaper Hansard, Feb. 25, 1874, AO Microfilm B32, roll #2.
95. Cameron, Newspaper Hansard, Feb 25, 1874, AO Microfilm B32, roll #2.
96. MacDougall, Newspaper Hansard, Jan. 17, 1875, AO Microfilm B32, roll #2. Such comments underscore legislators' commitment to licensing professionals, during a period when their counterparts in the US were reluctant to regulate professional practice.
97. Mowat, Ibid.
98. Gidney and Millar, Professional Gentlemen, pp. 311-321.
99. th, 1906.
100. I b i d.
101. I b i d.
102. Petition of Richard Massey Tuthill of Toronto, AO RG49-38-2, Petitions, 1907, #5, Box. 84.
103. th, 1901, pg. 1.
104. th, 1907, AO microfilm B32, reel #7.
105. "Sadie Holmes Opposed by Dentists." Tillsonburg Observer, March 7, 1907, pg. 1.
106. Since Holmes was the only woman to petition for individual professional legislation, many MPPs were willing to make an exception for her, as well as for Jerry Brisson whose bill went through the house at the same time. As articulated by MPP Mackay, a vocal opponent of Redman's bill, "the legislature had left the door open for applicants to come in and this [Holmes'] was not the case in which to close it." "She is Now a Dentist, Newspaper Hansard, April 12, 1907, AO microfilm B32, reel #7.
107. "This Bill was Killed." Newspaper Hansard (the Globe), Feb 28, 1908, p. 27;
108. "Will not make Lawyers by Act of Parliament: Applications refused from South African Lawyer and London Clerk," Newspaper Hansard (The Globe), March 15, 1912. AO microfilm B32, reel #8.
109. It is also noteworthy that, despite this decision to reject individual professional legislation on principle, the legislature passed 9 more such bills between 1915 and 1927. These bills, however, were quite restrictive in terms of the concessions granted to applicants. No bills after Holmes and Brisson's facilitated entry to practice for those who lacked any formal training.
110. It seems unlikely that changes in government can explain the shift. Leadership of the Ontario government changed in 1905, when, after decades of Liberal rule, the Conservative Party formed the government. While it was under the latter's term of office that opposition to private bills for entry into professions grew, there is no clear evidence of division on the issue along party lines. Moreover, the Conservative Whitney government (1905-1914) passed more individual professional legislation (11 acts) than the preceding Liberal government headed by George Ross (between 1899 and 1905), himself a recipient of such legislation (only 6 acts). The fact that professions already seemed somewhat 'overcrowded' may have further encouraged legislators' decision to stop passing individual professional legislation. On overcrowded professions see Gidney and Miller, Professional Gentlemen, pp. 248-67.
111. Gidney and Miller, Professional Gentlemen, 152-179;
112. R.D. Gidney, '"Madame How' and 'Lady Why': Learning to Practise in Historical Perspective." In Learning to Practise: Professional Education in Historical and Contemporary Perspective, R. Heap, W. Millar and E. Smyth, eds. (Ottawa: University of Ottawa Press, forthcoming).
113. Even some formal education was not deemed sufficient for medicine. Both Archibald Montgomery (petitioner 1901) and Lester McDonnel Coulter (1910) had medical degrees, additional training and practice experience, and Coulter had been previously licensed by the CPSO. Nevertheless, the CPSO refused to grant either a license to practise without further training and examination. Montgomery's bill failed to proceed, but Coulter's bill did pass in 1910, although it required him to take the examinations he had been trying to avoid. "No Diploma, no Practice: No short cut to the privilege to sign M.D,. " Toronto Star, March 21, 1901, pg. 1;
114. AO RG 49-39, Bill 46 1901, Box 90, "An Act to enable Archibald Montgomery to Practise Medicine and Surgery;"
115. "An Act to authorize Lester McDonell Coulter to Practise Medicine in the Province of Ontario," Statues of Ontario, chap 166, 10 Edw. VII, 1910.
116. Some early bills motivated by errors, oversights and extenuating circumstances do not appear to have been opposed by the Law Society of Upper Canada or the Board of Examiners for Land Surveyors. Most of the petitions from the 1880s on, however, were fought strongly by professional bodies, as is evident in the amended bills, the reports of the Private Bills Committee, and the reports of the professional bodies themselves. Dentists were particularly active in opposing private bills for entry into their profession: Royal College of Dental Surgeons of Ontario, Proceedings, 1893-1899.
117. Statues of Ontario, 1887, Chap 99, 50 Vic.
118. Statutes of Ontario, chap. 94, 47 Vie. Similar sentences were contained in the legislation passed on others' behalf as well.
119. This passage is taken from "An Act enabling and directing the Royal College of Dental Surgeons for Ontario to admit John Henry Gorman as a Student in his final year," Chapter 105, 4 Edw. VII, 1904.
120. Indeed, in the early twentieth century, Canadian governments began to rely more heavily on professional expertise, and professions helped to shape government policy: C. David Naylor, ed. Canadian Health Care and the State (Montreal and Kingston: McGill-Queens Press, 1992),
121. see especially the chapter by Colin D. Howell, "Medical Science and Social Criticism, pp. 16-37. In contrast, Gidney and Millar suggest, Ontario professions only had limited success in shaping social policy directly affecting their own regulation in the late nineteenth century, let alone broader social policy.
122. See for example, Gidney and Millar, Professional Gentleman, 298-321.
123. For Halliday, the ability of professions to aid governance is predicated upon their establishment of expert authority (and their ability to translate this into moral authority), their ability to exercise influence in their sphere of competence and then beyond, and "the success with which a profession can build an organizational vehicle to carry its influence to government in the various spheres" (p. 139):
124. Halliday, Beyond Monopoloy.