Creating Order in the Wilderness: Transplanting the English Law to Rupert's Land, 1835–51

Law and History Review

Volumn 17, Issue 2, 1999, Pages 209-246

  Baker, H Robert ^a  

^a NONE

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EID: 84967081515     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/744011     Document Type: Article

References (126)

1. The image of the violent and “lawless” American frontier has not been without its critics. Important in terms of this essay are the differing concepts of law that Americans took with them across the continent. Orderliness was, perhaps, the more common phenomenon in the settling of the west. See John Phillip Reid, Law for the Elephant: Property and Social Behavior on the Overland Trail (San Marino, Ca.: The Huntington Library, 1980). For examples of violence and peace coexisting in the American west, see Richard Maxwell Brown, “Law and Order on the American Frontier: The Western Civil War of Incorporation,” in Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West, ed. John McLaren, Hamar Foster, and Chet Orloff (Regina: Canadian Plains Research Center, 1992), 74-89.
2. Lawrence Friedman, “Legal Culture and Social Development,” Law and Society Review 4 (1969): 29-44. Graham Parker, “Canadian Legal Culture,” in Law and Justice in a New Land: Essays in Western Canadian Legal History, ed. Louis A. Knafla (Toronto: Carswell, 1986), 3-30. For a prodigious article on the subject of writing western legal history, see John Phillip Reid, “The Layers of Western Legal History,” in Law for the Elephant, Law for the Beaver, 23-73. See in particular a cogent example about how “typical” diary entries revealed attitudes about orderliness and law that consumed everyday activity (4CMM).
3. Hamar Foster, “British Columbia: Legal Institutions in the Far West, from Contact to 1871,” Manitoba Law Journal 23 (1996): 293-340. Tina Loo, Making Law, Order, and Authority in British Columbia, 1821-1871 (Toronto: University of Toronto Press, 1994).
4. This was a point raised earlier by Robin Fisher, who argued that the image of the orderly, Canadian frontier did not apply west of the Rockies but was more suited to the prairies. See Robin Fisher, “Indian Warfare and Two Frontiers: A Comparison of British Columbia and Washington Territory During the Early Years of Settlement,” Pacific Historical Review 50 (1981): 31-51.
5. Kathryn Bindon, “Hudson's Bay Company Law: Adam Thom and the Institution of Order in Rupert's Land 1839-54,” in Essays in the History of Canadian Law, ed. David Flaherty (Toronto: The Osgoode Society, 1981), 1:57.
6. Louis Knafla, “From Oral to Written Memory: The Common Law Tradition in Western Canada,” in Law and Justice in a New Land, 31-77. Knafla's survey is helpful because it places the western Canadian provinces in a comparative framework and suggests some chronological periodization. While his formulation is problematic-particularly given the new research on British Columbia and Manitoba-it is an excellent point of departure. See also R. C. Macleod's, “Law and Order on the Western-Canadian Frontier,” in Law for the Elephant, Law for the Beaver, 90-105. Macleod's survey covers the Hudson's Bay Company's general management of its territories, the coming of the Royal Canadian Mounted Police, and the maintenance of order on the Canadian Prairies. But he provides only a cursory survey of the Red River settlement. The most up-to-date survey of Assiniboia's legal institutions and general legal history is Dale Gibson, “Company Justice: Origins of Legal Institutions in Pre-Confederation Manitoba,” Manitoba Law Journal 23 (1996): 247-92, now in Canada's Legal Inheritances, ed. DeLloyd J. Guth and W. Wesley Pue (Winnipeg: Canadian Legal History Project, forthcoming).
7. R. C. Macleod's treatment of the Red River settlement depended almost entirely on Bindon's work and published sources and placed an undue amount of attention on Adam Thom and a few incidents of disorder during the 1860s. Dale Gibson concentrated only on a handful of “big” cases that came through the court. He depended mainly on E. H. Oliver, The Canadian North-West: Its Early Development and Legislative Records, 2 vols. (Ottawa: Government Printing Bureau, 1914), which perhaps led him to ignore much of the valuable information stored in the Hudson's Bay Company Archives and the Provincial Archives of Manitoba. Roy Stubbs, in his classic biographies of the four recorders, wrote mainly about the “watershed” cases and was far more interested in telling the stories of the recorders than the history of the settlement. Roy Stubbs, Four Recorders of Rupert's Land (Winnipeg: Peguis, 1967
8. North West Company officials perceived the colony as a direct threat to their fur trade, particularly in regard to the pemmican supply that was vital to provisioning prairie outposts. See Arthur J. Ray, Indians in the Fur Trade (Toronto: University of Toronto Press, 1974), 128.
9. Concerning the Second Canada Jurisdiction Act of 1821, see Hamar Foster, “Long Distance Justice,” American Journal of Legal History 34 (1990): 1-48.
10. The Company never collected these regulations into a “code” during the seventeenth or eighteenth centuries. Instead, they were scattered through the many letters that accompanied the ship captains and governors to the shores of Hudson's Bay. These letters are collected in Letters Outward 1679-94, ed. E. E. Rich (Toronto: The Champlain Society. 1948).
11. Very little has been written about Company law in the eighteenth century. For an expanded argument on the Company's adherence to the common law governing master-servant relationships, see H. Robert Baker, “Law Transplanted, Justice Invented: Sources of Law for the Hudson's Bay Company in Rupert's Land, 1670-1870” (master's thesis, University of Manitoba, 1996), chapter 3. Cf. Russell Smandych and Rick Linden, “Administering Justice Without the State: A Study of the Private Justice System of the Hudson's Bay Company to 1800,” Canadian Journal of Law and Society 11 (Spring 1996): 21-61.
12. The fur trade depended on Natives, and-to a large degree-on Native trading customs. See Bruce White, ‘“Give Us a Little Milk': The Social and Cultural Meanings of Gift Giving in the Lake Superior Fur Trade,” Minnesota History 48 (1982): 60-71. For an explication of Native influence on marriage customs, see Jennifer Brown, Strangers in Blood: Fur Trade Families in Indian Country (Vancouver: University of British Columbia Press, 1980). See also Sylvia Van Kirk, “Many Tender Ties”: Women in Fur Trade Society, 1670-1870 (Winnipeg: Watson and Dwyer, 1980).
13. Charters, Statutes, Orders in Council Relating to the Hudson's Bay Company (London: Hudson's Bay Company, 1931), 18.
14. For the trials of John Cartwright and William Lilpot, both for theft and conspiracy, see Albany Post Miscellaneous Files, 1694-96, Hudson's Bay Company Archives, Provincial Archives of Manitoba, Winnipeg, Manitoba (hereafter HBCA, PAM), B. 3/z/2, fols. 1-3.
15. For the 1715 case of Thomas Butler, see York Post Journal, 27 December 1715, HBCA, PAM, B. 239/a/2, fols. 75-76d.
16. Albany Post Journal, 26 January 1713, HBCA. PAM, B. 3/a/4, fol. 19d.
17. Colvile to Halkett, 31 May 1822, cited in Oliver, The Canadian North-West, 1:221.
18. Alexander Ross, Red River Settlement (1856; reprint, Minneapolis: Ross andHaines, 1957), 173.
19. R. G. MacBeath, The Selkirk Settlers in Real Life (Toronto: William Briggs, 1897), 66.
20. The Selkirk Settlers in Real Life., 70. MacBeath did not attach a date to the case in question, and it appears that it could have occurred at any time during his father's tenure as a magistrate.
21. Russell Smandych and Karina Sacca, “The Development of Criminal Law Courts in Pre-1870 Manitoba,” Manitoba Law Journal 24 (1996): 201-57.
22. Bulger to Colvile, 1822, cited in Oliver, The Canadian North-West, 1:43.
23. Minutes of the Gpvernor and Council of Assiniboia (hereafter Minutes of Council), 12 February 1835, HBCA, PAM, E. 16/2, fol. 4. This came directly on the heels of the Company reacquiring the district of Assiniboia from the heirs and executors of the earl of Selkirk's estate.
24. Minutes of the Gpvernor and Council of Assiniboia., fol. 6. The Council minutes are all reproduced in Oliver, The Canadian North-West. Since my citations are taken directly from the archives, all my references will be to the original documents.
25. Minutes of Council, 12 February 1835, HBCA, PAM, E. 16/2, fol. 6d.
26. Minutes of Council., 16 June 1837, HBCA, PAM, E. 16/2, fols. 15-15d.
27. Minutes of Council., [no day, month recorded] 1839, HBCA, PAM, E. 16/2, fols. 19d-22d.
28. Minutes of Council., 25 June 1841, HBCA, PAM, E. 16/2, fol. 37d.
29. Commission for Justice of the Peace, 1850, PAM, MG2 B47. Another commission issued in 1852 is located in Council of Assiniboia-Miscellaneous Papers, HBCA, PAM, E. 16/4, fol. 5.
30. Commission for Justice of the Peace, 1850, PAM, MG2 B47.
31. Minutes of Council, 4 June 1839, HBCA, PAM, E. 16/2, fol. 24d.
32. Ross, Red River Settlement, 174.
33. Minutes of Council, 12 February 1835, HBCA, PAM, E. 16/2, fol. 3d.
34. Minutes of Council., fol. 4.
35. London directors to Simpson, 1836, HBCA, PAM, D. 5/4, fol. 160.
36. John S. Galbraith, The Little Emperor: Governor Simpson of the Hudson's Bay Company (Toronto: Macmillan of Canada, 1976). This conclusion is also based on the voluminous correspondence that Simpson kept with London and his frequent trips there to see the governor and committee of the Hudson's Bay Company.
37. Minutes of Council, 12 February 1835, HBCA, PAM, E. 16/2, fol. 5d.
38. Minutes of Council., fol. 7d.
39. Whether this anticipated or followed current trends is unclear. The Irish Royal Constabulary that later served as the model for the RCMP had not yet reached maturity, and it is doubtful whether Simpson employed it as a model. See Richard Hawkins, “The ‘Irish Model’ and the Empire: A Case for Reassessment,” in Policing the Empire: Government, Authority and Control, ed. David Anderson and David Killingray (Manchester: University of Manchester Press, 1991), 31.
40. DeLloyd J. Guth, “The Traditional Common-Law Constable: from Bracton to the Fieldings to Canada,” in Police Powers in Canada, ed. R. Macleod and D. Schneiderman (Toronto: University of Toronto Press, 1994), 5.
41. London directors to Simpson, 15 February 1837, HBCA, PAM, D. 5/4, fol. 237.
42. Simpson to London directors, 21 July 1835, HBCA, PAM, D. 4/101, fol. 4d.
43. Most historians will disagree with my conclusion. See Gibson, “Company Justice,” 270-71. Gibson believed Simpson's claims and concluded that the Volunteer Corps was a necessary establishment. However, he did not cite any evidence of disturbances during or previous to 1835 to back his claim.
44. Alexander Christie to Simpson, 14 December 1835, HBCA, PAM, D. 5/4, fol. 137.
45. Ross, Red River Settlement, 223.
46. Geo. 3, c. 20, f 43. “An Act to explain, amend, and reduce into one Act of Parliament, the several Laws, now in being, relating to the Raising, and Training the Militia, within that Part of Great Britain called England.” Statutes at Large (London: Eyre and Strahan, 1786), 7:392. It is important to note that the Statute “exempted” constables from serving in the militia-it also exempted solicitors, barristers, and other officers of the Court, any man in the British army, peers of the realm, poor men with at least two legitimate children, and others. Concerning peace officers, however, the conceptualization was clear. Officers of the court-in the business of upholding the peace-were not in any way connected with the executive's military or militia.
47. Minutes of Council, 3 July 1843, HBCA, PAM, E. 16/2, fol. 43.
48. Minutes of Council., 19 June 1844, HBCA, PAM, E. 16/2, fol. 45.
49. Minutes of Council., 16 June 1845, HBCA, PAM, E. 16/2, fol. 49d.
50. Bindon, “Hudson's Bay Company Law,” 51.
51. Ross, Red River Settlement, 176.
52. Bindon, “Hudson's Bay Company Law,” 54. See also Knafla, “The Common Law-Tradition in Western Canada,” 38.
53. Simpson to Thorn, 5 January 1838, HBCA, PAM, D. 4/23, fol. 85.
54. London directors to Simpson, 9 March 1836, HBCA, PAM, D. 5/4, fol. 160. London directors to Simpson, 15 February 1837, Simpson to Thorn., fol. 237.
55. Ross, Red River Settlement, 223.
56. Bindon, “Hudson's Bay Company Law,” 51. To her credit, Bindon mentioned as well that the title of recorder also suggested the variety of legal functions that the appointee was supposed to perform. She cited the different roles played by Recorders in mayor's courts in England and colonial courts in America, although she did not pursue either in any depth.
57. Simpson to Barclay (HBC Secretary, London), 8 October 1853, HBCA, PAM, D. 4/ 74, fol. 23.
58. Giles Jacob, A New Law Dictionary, 7th ed. (London: Henry Lintot, 1756).
59. Sidney Webb and Beatrice Webb, English Local Government (Longman: New York, 1908), 2:323.
60. Ross, Red River Settlement, 383.
61. Simpson to Thom, 3 July 1850, HBCA, PAM, D. 4/42, fol. 27d.
62. Simpson to Thom., fols. 27d-28.
63. Colvile to Simpson, 22 May 1851, cited in Eden Colvile's Letters 1849-1852, ed. E. E. Rich (London: The Hudson's Bay Company Record Society, 1956), 208.
64. Dr. John Bunn to Simpson, 4 August 1851, HBCA, PAM, D. 5/31, fol. 220.
65. Adam Thom, “Observations on the Law and Judicature of Rupert's Land,” 1840, HBCA, PAM, E. 16/1, fol. 89.
66. Thom to Simpson, 29 May 1840, HBCA, PAM, D. 5/5, fol. 281d.
67. Thom, “Observations,” 1840, HBCA, PAM, E. 16/1, fols. 91-91d.
68. “Observations,”., fols. 94-94d.
69. “Observations,”., fol. 95.
70. “Observations,”., fol. 97d.
71. “Observations,”., fol. 98d. Benefit of clergy allowed offenders to read from the Book (i.e., the Bible) and thus save themselves from the gallows. It applied mainly to property crimes, almost all of which were punishable by death. Incidentally, Thom was wrong: benefit of clergy applied to women in some cases after the statute of 21 Jac. l,c. 6(1623). See J. M. Beattie, Crime and the Courts of England, 1660-1800 (Princeton: Princeton University Press, 1986), 141-43.
72. Wager of law was abolished in 1833, although it was a dead letter well before then. See S. F. C. Milsom, The Historical Foundations of the Common Law (London: Butterworths, 1969), 292-94.
73. Thom, “Observations,” HBCA, PAM, E. 16/1, fol. 92.
74. “Observations,”.
75. Thom to Simpson, 29 May 1840, HBCA, PAM, D. 5/5, fol. 281.
76. London to Simpson, 1 March 1841, HBCA, PAM, A. 6/25, fol. 121d.
77. Thom to Simpson, 30 May 1840, HBCA, PAM, D. 5/5, fols. 285-85d.
78. Thom to Simpson, 29 May 1840, HBCA, PAM, D. 5/5, fol. 282.
79. London to Simpson, 1 March 1841, HBCA, PAM, A. 6/25, fol. 121d.
80. Thom to Simpson, 31 July 1840, HBCA, PAM, D. 5/5, fol. 301.
81. Thom, “Proposed Penal Code for Rupert's Land,” 1840, HBCA, PAM, E. 16/1, fol. 27.
82. Thom, “Proposed Civil Code for Rupert's Land,” 1840, HBCA, PAM, E. 16/1, fols. 1-19. The “civil code” began with a statement on procedure and ended with a prolonged statement about perjury. Thom concluded that the courts were better off allowing almost everything in rather than placing elaborate restrictions on testimony to guard against perjury. The remainder of his “civil code” (fols. 2016) dealt with intestate property.
83. This conclusion refers only to the usefulness of the civil code in dispensing justice. Thorn's proposed code did anticipate several elements of the court's procedure (e.g., the blending of law and equity in one court, and the inclusion of all witnesses, despite any pretext of inadmissability). “Proposed Civil Code for Rupert's Land,”., fols. 16-17.
84. Smith (HBC Secretary) to Thom, 19 March 1842, HBCA, PAM, A. 6/25, fols. 172-72d.
85. The royal charter gave the Company the “power to judge all persons belonging to the said Governor and Company or that shall live under them in all Causes whether Civill or Criminall according to the Lawes of this Kingdome and to execute justice accordingly.” Cited in Charters, Statutes, Orders in Council Relating to the Hudson's Bay Company, 18. Emphasis added.
86. Smith (HBC Secretary) to Thom, 19 March 1842, HBCA, PAM, A. 6/25, fols. 172-72d.
87. Thom to Simpson, 4 August 1842, HBCA, PAM, D. 5/7, fol. 158d. Presumably the “moral impossibility” of enforcing the criminal law of England in the Red River settlement had to do with the relative harshness of the English law.
88. Thom to Simpson, 29 May 1840, HBCA, PAM, D. 5/5, fol. 282.
89. Thom to Simpson, 4 August 1842, HBCA, PAM, D. 5/7, fol. 159.
90. Thom to Simpson.
91. Minutes of Council, 25 June 1841, HBCA, PAM, E. 16/2, fols. 29-40.
92. Minutes of Council., fols. 29d-30.
93. Stubbs, Four Recorders of Rupert's Land, 42.
94. Bindon, “Hudson's Bay Company Law,” 57-59. Louis Knafia failed to distinguish between Thorn's temporary civil and penal codes and the “local code.” Knafia, “The Common Law Tradition in Western Canada,” 37. Dale Gibson correctly pointed out that Thom merely consolidated existing regulations in 1841. Gibson, “Company Justice,” 273.
95. Minutes of Council, 4 June 1832, HBCA, PAM, E. 16/2, fols. l-2d.
96. Minutes of Council., 25 June 1841, HBCA, PAM, E. 16/2, fol. 32d.
97. Minutes of Council., 13 June 1836, HBCA, PAM, E. 16/2, fol. 13d.
98. Minutes of Council., 8 June 1840, HBCA, PAM, E. 16/2, fol. 27d.
99. Minutes of Council., 15 June 1838, HBCA, PAM, E. 16/2, fols. 17-17d.
100. Minutes of Council., 16 June 1837, HBCA, PAM, E. 16/2, fol. 15d. Minutes of Council., 4 July 1839, HBCA, PAM, E. 16/2, fols. 22-22d.
101. Thorn to Simpson, 27 July 1840, HBCA, PAM, D. 5/5, fol. 293d.
102. Minutes of Council, 4 June 1832, HBCA, PAM, E. 16/2, fol. 1-Id.
103. Minutes of Council., 25 June 1841, HBCA, PAM, E. 16/2, fol. 30. Emphasis in original.
104. Gibson assumed Thorn's dominance of the bench without reference to any primary sources. In one quote, he cited Joseph Hargrave (naming him only as “an observor” and citing him from another secondary source) to prove that the bench was subordinate to recorder Thom. Gibson, “Company Justice,” 272. Hargrave, however, arrived at Red River on 4 August 1861, well after Thom had left the settlement-accordingly, his well-known description was of recorder Black's court. James Joseph Hargrave, Red River (Narol, Manitoba, 1871; second printing 1977), 87. For a positive account of Thorn's attempts to assert his dominance over the court, see Dale Gibson, “Scandal at Red River: The Judge and the Servant Girl,” Beaver 70.5 (Sept. 1990): 30-38. Kathryn Bindon also overrated Thorn's influence on the law as it was practiced in Assiniboia's courts without reference to the court records: Bindon, “Hudson's Bay Company Law,” 44.
105. Thom to Simpson, 29 July 1840, HBCA, PAM, D. 5/5, fol. 297d.
106. Simpson to Thom, 5 January 1838, HBCA, PAM, D. 4/23, fols. 84d-85.
107. Simpson to the London directors, 8 October 1853, HBCA, PAM, D. 4/74, fol. 23.
108. Peace River ran through the Great Slave Lake and then dumped into the Arctic under the name of the Mackenzie River. It was not within the territorial boundaries of Rupert's Land but was within the scope of the Company's trading license.
109. Case of James Calder (17 August 1848), General Quarterly Court of the District of Assiniboia [hereafter GQCA], PAM, MG2 B41, bk. 1, 100-14.
110. Adam Thom, Charge Delivered to the Grand Jury of Assiniboia, 20th February 1845 (London: Printed by E. Couchman, 1848).
111. HBC v. Sayer (17 May 1849), GQCA, PAM, MG2 B41, bk. 1, 151-54. For a compelling and vivid narrative of the trial, see Gibson, “Company Justice,” 248-50.
112. Morin V. Richard (19 February 1846), GQCA, PAM, MG2 B41, bk. 1, 489.
113. Marcellais v. Ploofe (15 May 1845), GQCA, PAM, MG2 B41, bk. 1, 20-22.
114. The word “trespass” at common law meant a personal wrong. See Milsom, The Historical Foundations of the Common Law, 244.
115. Minutes of the Council of Assiniboia, 25 June 1841, HBCA, PAM, E. 16/2, fols. 35-35d. 123.The word “trespass” at common law meant a personal wrong.
116. Marcellais v. Ploofe (15 May 1845), GQCA, PAM, MG2 B41, bk. 1,21.
117. Marcellais v. Ploofe., 22.
118. Knafla, “The Common Law Tradition in Western Canada,” 38. See also Stubbs, Four Recorders of Rupert's Land, for evidence of latter recorders’ popularity and success. For recorder Johnson's innovations, see Baker, “Law Transplanted, Justice Invented,” 124-28.
119. Galbraith, The Little Emperor, 121-22, 167-68.
120. MacDermot V. Breland et al. (18 Feb 1847), GQCA, PAM, MG2 B41, bk. 1, 64. Breland stated that he wanted the court to resolve the dispute between himself (and his colleagues) and MacDermot.
121. Smith (HBC Secretary) to Thorn, 19 March 1842, HBCA, PAM, A. 6/25, Ms. 172-72d.
122. Minutes of Council, 1 May 1851, in Oliver, The Canadian North-West, 1:369-70.
123. Bruce Kercher, An Unruly Child: A History of Law in Australia (St. Leonards, Australia: Allen and Unwin), 43-64.
124. Reid, Law for the Elephant.
125. Loo, Making Law, Order, and Authority in British Columbia, 158-59.
126. The court and the settlers did have Richard Burn, The Justice of the Peace and Parish Officer, 16th ed., 4 vols. (London: A. Strahan and W. Woodfall, 1788), available to them for reference, along with other law books. See Oliver, The Canadian North-West, 2:1291, for a list of the books available to the settlers. At one point, Adam Thorn complained that the settlers were content to reference “Burn's Justice or Blackstone's Commentaries” as relevant legal authority, despite the books being published after 1670. See Thorn to Simpson, 31 July 1840, HBCA, PAM, D. 5/5, fol. 301.