A History of Law in Canada, Volume One: Beginnings to 1866

A History of Law in Canada, Volume One: Beginnings to 1866

A History of Law in Canada, Volume One: Beginnings to 1866

A History of Law in Canada, Volume One: Beginnings to 1866


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A History of Law in Canada is an important three-volume project. Volume One begins at a time just prior to European contact and continues to the 1860s, Volume Two covers the half century after Confederation, and Volume Three covers the period from the beginning of the First World War to 1982, with a postscript taking the account to approximately 2000.

The history of law includes substantive law, legal institutions, legal actors, and legal culture. The authors assume that since 1500 there have been three legal systems in Canada – the Indigenous, the French, and the English. At all times, these systems have co-existed and interacted, with the relative power and influence of each being more or less dominant in different periods.

The history of law cannot be treated in isolation, and this book examines law as a dynamic process, shaped by and affecting other histories over the long term. The law guided and was guided by economic developments, was influenced and moulded by the nature and trajectory of political ideas and institutions, and variously exacerbated or mediated intercultural exchange and conflict. These themes are apparent in this examination, and through most areas of law including land settlement and tenure, and family, commercial, constitutional, and criminal law.

Product Details

ISBN-13: 9781487530594
Publisher: University of Toronto Press
Publication date: 12/21/2018
Series: Osgoode Society for Canadian Legal History , #1
Sold by: Barnes & Noble
Format: eBook
Pages: 928
File size: 3 MB

About the Author

Philip Girard is a professor of law at Osgoode Hall Law School at York University.

Jim Phillips is a professor in the Faculty of Law and the Department of History at the University of Toronto.

R. Blake Brown is a professor of history at Saint Mary’s University.

Table of Contents



1 Introduction
Legal Pluralism in Empires and Nations
Indigenous Law in History: Methodological and Theoretical Issues
Liberty and Order
Overview: Historiography and Periodization

2 Roots: Indigenous Legal Traditions
Indigenous Legal Traditions: Basic Features
Indigenous Law: Process and Content

3 Roots: French Legal Traditions
The Roman Legacy
The Emergence of the French Customs
Institutional Development
Legal Education, the Legal Professions, and the Role of Doctrine
The Constitution

4 Roots: British Legal Traditions
The Anglo-Saxon Legacy
Institutional Development after 1066 and the Emergence of the Common Law
Legal Education, the Legal Professions, and the Role of Doctrine
The Constitution


5 Early Contacts, Early Charters

6 Law and Governance in the French Possessions: Public Law and the Growth of Institutions
From Seigneurial Fief to Royal Colony: Institutional Development
Seigneurial Law
Civil Procedure
Criminal Procedure

7 Law and Governance in the English Possessions
Newfoundland: From Company to Proprietorship to Anti-Colony
Rupert’s Land: The Emergence of a Company-State

8 The Interface of European and Indigenous Law

9 French Private Law
The French Customs
The Law of Marriage and the Family
The Law of Family Property: Matrimonial Regimes and Succession
The Law of Obligations

10 The Early Modern Legacy


11 Constitutional Law in the Long Eighteenth Century
The Politico-Military Context
The Legal Contexts
Slavery, Race, and the Constitution

12 New France/Quebec/Lower Canada: Political Institutions, Courts, and Relations with Indigenous Peoples
New France before 1760
Quebec/Lower Canada after 1760
Relations with Indigenous Peoples

13 The British Colonies of Settlement: Political Institutions, Courts, and Relations with Indigenous Peoples
Nova Scotia, New Brunswick, and Prince Edward Island
Upper Canada

14 The British Commercial Territories: Newfoundland and Rupert’s Land
Justice beyond the Settlement Frontier: The Challenge of Remoteness
Rupert’s Land

15 The Legal Professions

16 Criminal Law and Criminal Justice
English Criminal Law in the Eighteenth Century
The Reception of English Criminal Law in British North America
Punishment in Practice
Bringing an Offender to Court: Policing and Prosecution
The Criminal Courts: Pretrial Procedures
The Criminal Trial

17 Indigenous Law

18 Private Law: The Civil Law 320
The Civil Law to 1760: Canada, Acadia, Louisbourg 320
The Civil Law after 1760: The Emergence of a Mixed
Legal Tradition 324

19 Private Law: The Common Law

20 The Early Modern Legacy


21 Law in British North America, 1815–1866: Introduction

22 Court Systems and Judicial Personnel
The Development of a British North American Judiciary
Separation of Powers, Appointment and Removal of Judges, and Judicial Remuneration
Circuit Systems: Bringing the Centre to the Hinterland
Chancery Courts
The Rise of Inferior Tribunals
New Superior Courts and Professional Courts of Appeal in the Canadas
Procedural Reform

23 Sources of Law and Law Reform
Sources of Law in Common Law Jurisdictions
Sources of Law: The Civil Law
Sources of Law: The Civil Code of Lower Canada
Statutes: Making and Remaking Local Laws and Societies

24 Indigenous Law in British North America
Indigenous Governance in an Age of Settler Political Reform
Legal Personality and Indigenous Agency
Land Use and Citizenship

25 The Legal Professions
Entry and Governance
The Business of Lawyering
The Emergence of University Legal Education
Legal Literature
Law Reporting

26 Constitutional Developments I: European-Indigenous Relations, the Old Colonial System, and the Rebellions, 1815–ca 1839
Indigenous Peoples, Treaties, and the Constitution in Eastern British North America
The Settler Constitution: Executives, Councils, and Assemblies
Rebellion and Repression in the Canadas

27 Constitutional Developments II: The Act of Union, Responsible Government, and the Origins of Acculturation Policy, ca 1840–1866
The Settler Constitution after the Rebellions: The Union of the Canadas and Responsible Government
The Settler Constitutions and Responsible Government
Indigenous Peoples and the ‘Civilizing Mission’
Settlement and Colonization in the West

28 Criminal Justice I: Criminal Law, Punishment, and Policing
The Age of Reform: The Demise of Capital and Corporal Punishment
Dissatisfaction with Physical Punishments
The Search for Penal Reform and the Rise of the Penitentiary

29 Criminal Justice II: The Criminal Trial
The Criminal Process: Judges, Juries, and Procedure
Prosecution by Counsel for the Crown
Defence Counsel before the Mid-1830s
The Prisoners’ Counsel Acts and Their Effect

30 Land Law and Policy: Titles, Tenure, Squatters, Indigenous Dispossession, and the Rights and Obligations of Ownership
Upper Canada: Clergy Reserves and Aliens’ Titles
Lower Canada: Competing Land Law Systems and Seigneuralism
Prince Edward Island: Landlordism
Land Titles and Squatters in Nova Scotia and New Brunswick
Newfoundland: The Formalization of Possessory Title
Indigenous Peoples’ Continued Dispossession
The Rights and Obligations of Land Ownership

31 Law and the Economy I: Common Law, Statutes, and the Emergence of the Corporation
Judges, Private Law, and the Economy
Colonial Statutes and the Market
The Emergence and Growth of Corporations to 1850
The 1850s and 1860s: Corporate Growth and Sectoral Incorporation
Limited Liability and the Morality of the Corporation

32 Law and the Economy II: Debtor-Creditor Law
Imprisonment for Debt
Bankruptcy Laws
Insolvency: A Clash of Ideologies

33 Less Favoured by Law I: Blacks and Workers
Blacks and the Law: Not Slaves, but Not Equal
Segregated Schools
Fugitive Former Slaves and Extradition
Labour and the Law

34 Less Favoured by Law II: Women and the Law
Common Law Married Women’s Property: Equity and Statutory Change
The Common Law: Unmarried Parents
The Civil Law: Married Women’s Property
The Civil Law: Unmarried Parents

35 Law and Legal Institutions on the Eve of Confederation: The British North American Legacy

Illustration Credits
Statutory and Proclamation Index
Name Index

Topical Index
history of law in canada

What People are Saying About This

Brian Young

'A History of Law in Canada is an ambitious study that skilfully brings together the legal history of regions, of peoples, and, indeed, of both western European and Indigenous civilizations. The legal histories of Acadia, Newfoundland, and other regions are treated with "sérieux" and are integrated with the legal history of central Canada in a fascinating, original fashion.'

John McLaren

'As is appropriate in a pioneering work of descriptive history, the authors deliberately avoid seeking broad theoretical explanations of trends in legal development in Canadian history and instead relate the evolution of law and the growth of legal institutions to the broader political, economic, social, cultural, and moral contexts that inspired debate around issues of legal change.'

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