A History of Law in Canada, Volume Two: Law for a New Dominion, 1867-1914

A History of Law in Canada, Volume Two: Law for a New Dominion, 1867-1914

A History of Law in Canada, Volume Two: Law for a New Dominion, 1867-1914

A History of Law in Canada, Volume Two: Law for a New Dominion, 1867-1914


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This is the second of three volumes in an important collection that recounts the sweeping history of law in Canada. The period covered in this volume witnessed both continuity and change in the relationships among law, society, Indigenous peoples, and white settlers. The authors explore how law was as important to the building of a new urban industrial nation as it had been to the establishment of colonies of agricultural settlement and resource exploitation. The book addresses the most important developments in the seventeenth, eighteenth, and nineteenth centuries, including legal pluralism and the co-existence of European and Indigenous law. It pays particular attention to the Métis and the Red River Resistance, the Indian Act, and the origins and expansion of residential schools in Canada.

The book is divided into four parts: the law and legal institutions; Indigenous peoples and Dominion law; capital, labour, and criminal justice; and those less favoured by the law. A History of Law in Canada examines law as a dynamic process, shaped by and affecting other histories over the long term.

Product Details

ISBN-13: 9781487545673
Publisher: University of Toronto Press
Publication date: 11/14/2022
Series: Osgoode Society for Canadian Legal History
Pages: 800
Product dimensions: 6.20(w) x 9.10(h) x 2.00(d)
Age Range: 18 Years

About the Author

Jim Phillips is a professor in the Faculty of Law and the Department of History at the University of Toronto.
Philip Girard is a professor of law at Osgoode Hall Law School at York University.
R. Blake Brown is a professor of history at Saint Mary’s University.

Table of Contents


1. Introduction

Part One: The Law and Legal Institutions

2. The Constitution: Confederation, The British North America Act, and Post-1867 Developments
The Making of Confederation. A Very Brief Survey
The BNA Act: The Senate
The BNA Act: The Division of Powers
The BNA Act: The Judiciary Provisions
The BNA Act: Disallowance
A Constitution Similar in Principle: Canadianizing the Crown?
The Meaning of Dominion: Imperial and International Questions
Extending Confederation: British Columbia, Prince Edward Island, Alberta, Saskatchewan, and the North
The Courts and the Remaking of the Division of Powers
The Demise of Disallowance in the Era of Provincial Rights

3. Creating and Staffing the Dominion Court System
Establishing and Integrating Court Systems in the West
The Founding and Early Decades of the Supreme Court of Canada
Provincial Courts of Appeal
The Fusion of Common Law and Equity
Professional County and District Courts
Lower Courts and Specialised Courts
Judicial Numbers and Remuneration
Judicial Appointments
Public Perceptions of the Judiciary and Judicial Scandals

4. Sources of Law: Statutes, Codes, and Case Law
Federal and Provincial Statutory Revisions
Federal and Provincial Statutes: Cross-Border Borrowings
Case Law
The Civil Code of Lower Canada
The Civil Code: Structure and Scope
The Civil Code: Reform and Amendment

5. The Civil Law: A Mixed Legal System in Confederation
Family Law
Employers' Liability for Workplace Injuries

6. The Legal Professions, Legal Education, and Legal Literature
The Emergence of the "Large" Law Firm
Lawyers and Business Practices
University Legal Education
Legal Literature
Professional Governance: The "Canadian Model" Established
Towards Diversity?

Part Two: Indigenous Peoples and Dominion Law

7. Canadian Law and Indigenous Peoples I: The Métis, the Numbered Treaties, British Columbia, and The Rebellion
The Métis, the Red River Resistance, and the Founding of Manitoba
The Numbered Treaties, 1871–1907
British Columbia: Federal-Provincial Disputes over Indigenous Title
The 1885 Rebellion and the Criminal Law
The Trial and Execution of Louis Riel

8. Canadian Law and Indigenous Peoples II: The Indian Act, the Reserve System, and Assimilation
The Law and Practice of Reserve Protection
External and Internal Governance of Indigenous Reserves
The Criminalization of Cultural and Religious Practices

9. Canadian Law and Indigenous Peoples III: The Origins and Expansion of the Residential School System
The School System for Indigenous People, 1867–1883
The Origins and Growth of the Residential School System to 1900
The Operation of Residential Schools
Why Were Residential Schools Not Abolished or Drastically Reformed?

10. Indigenous Law and European Law: Adaptation, Resistance, Avoidance
The Gitxsan
The Six Nations
The Métis

Part Three: Areas of Law

11. Law and the Economy: Corporate and Commercial Law
Corporation Law: General Incorporation
Corporation Law: Special Act Incorporations
Debtor-Creditor Law: Imprisonment for Debt, Bankruptcy, and Insolvency
The Regulatory State: Banking, Mining, Railways

12. Criminal Justice: Criminal Law, Criminal Procedure, and Punishment
Making a National Criminal Law
Criminal Procedure: Introduction and the Northwest Territories
Criminal Procedure: The Decline of Juries
Criminal Procedure: Trial and Appeal Rights
Imprisonment: The Federal Penitentiary System
Capital Punishment General
Capital Punishment: Women and Indigenous Peoples

13. Labour and Employment Law
Employment Law: Master and Servant
Labour Law: Trade Unions and Workplace Dispute Resolution
State Intervention in Labour Law: Arbitration and Conciliation
Workplace Health and Safety
Compensation for Workplace Injuries

14. Property Law
Métis Land Rights in Manitoba
Homestead Settlements: The Canada Land Survey, the Dominion Lands Act, and
Provincial Homestead Laws
Title Registration: The Torrens System
Resolving the Prince Edward Island Land Question
Land Use Planning and Regulation: Public and Private Law
Nuisance: The Shifting Boundary between Public and Private Law
Succession Law

Part 4: Less Favoured by Law

15. Women, the Family, and the Law
Married Women's Property in Common Law Provinces
Divorce Law, Divorce Courts and the Sanctity of Marriage
Parliamentary Divorce
Child Custody in Common Law Provinces

16: Civil Rights and Minorities
The Chinese and Japanese in British Columbia: Discriminatory Legislation,
International Relations, and the Courts and the Rule of Law
Provincial and Federal Asian Exclusion Acts
Anti-Chinese Legislation in Other Provinces: White Women's Labour Laws
South Asians: Indirect Exclusion and the Empire
Black Canadians
Rekindling an Old Fire: Religious and Linguistic Minorities

17. Conclusion


What People are Saying About This

Barrington Walker

"Building upon the crucial insights offered in Volume One, this is a lucidly written and impressively researched synthesis and analysis of Canadian law and its institutions from early Confederation to the First World War. It adeptly weaves the political, social, and cultural contours of these histories, paying close attention to carcerality, Indigeneity, coloniality, race, gender, and the experiences of various minorities and workers under Canadian law. This is an invaluable work."

Constance Backhouse

"The pivotal decades from Confederation to the Great War offer a brilliant vista for three of Canada's most renowned legal historians to work their magic. Volume Two of A History of Law in Canada offers us a remarkable window into the history of Canada's elites, as well as its Indigenous peoples and racialized minorities — men and women who crafted a stunning legal framework to transform a new country."

Lori Chambers

"A History of Law in Canada Volume Two provides a comprehensive and compelling review of the development of law — common, civil, and Indigenous — in what we now know as Canada. The authors relate law to broader social, cultural, economic, and moral contexts, identify gaps in our knowledge, and raise questions for further academic inquiry. Like its predecessor, this book is required reading and a critical reference work for all legal historians in Canada. It will also provide inspiration for many new projects in legal history."

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