History of Law in Canada, Volume One

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

"[This] is the best synthesis of a field I have ever seen and should be required reading for all historians of Canada. It is astonishingly all-encompassing, examining not just the history of the evolution of the Canadian constitution, […] derived from France and Britain, but also the history of the Indigenous system of law."- Philip Buckner, University of New Brunswick (British Journal of Canadian Studies)

• ForewordAcknowledgmentsPART ONE: INTRODUCTION1 IntroductionLegal Pluralism in Empires and NationsIndigenous Law in History: Methodological and Theoretical IssuesLiberty and OrderOverview: Historiography and Periodization2 Roots: Indigenous Legal TraditionsIndigenous Legal Traditions: Basic FeaturesIndigenous Law: Process and Content3 Roots: French Legal TraditionsThe Roman LegacyThe Emergence of the French CustomsInstitutional DevelopmentLegal Education, the Legal Professions, and the Role of DoctrineThe Constitution4 Roots: British Legal TraditionsThe Anglo-Saxon LegacyInstitutional Development after 1066 and the Emergence of the Common LawLegal Education, the Legal Professions, and the Role of DoctrineThe ConstitutionPART TWO: EUROPEAN CHARTERED ENTERPRISE, NEW FRANCE, AND THE ENCOUNTER WITH INDIGENOUS LAW, 1500–17015 Early Contacts, Early Charters6 Law and Governance in the French Possessions: Public Law and the Growth of InstitutionsFrom Seigneurial Fief to Royal Colony: Institutional DevelopmentSeigneurial LawNotariesCivil ProcedureCriminal Procedure7 Law and Governance in the English PossessionsNewfoundland: From Company to Proprietorship to Anti-ColonyRupert’s Land: The Emergence of a Company-State8 The Interface of European and Indigenous Law9 French Private LawThe French CustomsThe Law of Marriage and the FamilyThe Law of Family Property: Matrimonial Regimes and SuccessionThe Law of Obligations10 The Early Modern LegacyPART THREE: THE LONG EIGHTEENTH CENTURY, 1701–181511 Constitutional Law in the Long Eighteenth CenturyThe Politico-Military ContextThe Legal ContextsSlavery, Race, and the Constitution12 New France/Quebec/Lower Canada: Political Institutions, Courts, and Relations with Indigenous PeoplesNew France before 1760Quebec/Lower Canada after 1760Relations with Indigenous Peoples13 The British Colonies of Settlement: Political Institutions, Courts, and Relations with Indigenous PeoplesNova Scotia, New Brunswick, and Prince Edward IslandUpper Canada14 The British Commercial Territories: Newfoundland and Rupert’s LandJustice beyond the Settlement Frontier: The Challenge of RemotenessNewfoundlandRupert’s Land15 The Legal Professions16 Criminal Law and Criminal JusticeEnglish Criminal Law in the Eighteenth CenturyThe Reception of English Criminal Law in British North AmericaPunishment in PracticeBringing an Offender to Court: Policing and ProsecutionThe Criminal Courts: Pretrial ProceduresThe Criminal Trial17 Indigenous Law18 Private Law: The Civil Law 320The Civil Law to 1760: Canada, Acadia, Louisbourg 320The Civil Law after 1760: The Emergence of a MixedLegal Tradition 32419 Private Law: The Common Law20 The Early Modern LegacyPART FOUR: BRITISH NORTH AMERICA, 1815–1860s21 Law in British North America, 1815–1866: Introduction22 Court Systems and Judicial PersonnelThe Development of a British North American JudiciarySeparation of Powers, Appointment and Removal of Judges, and Judicial RemunerationCircuit Systems: Bringing the Centre to the HinterlandChancery CourtsThe Rise of Inferior TribunalsNew Superior Courts and Professional Courts of Appeal in the CanadasProcedural Reform23 Sources of Law and Law ReformSources of Law in Common Law JurisdictionsSources of Law: The Civil LawSources of Law: The Civil Code of Lower CanadaStatutes: Making and Remaking Local Laws and Societies24 Indigenous Law in British North AmericaIndigenous Governance in an Age of Settler Political ReformLegal Personality and Indigenous AgencyLand Use and Citizenship25 The Legal ProfessionsEntry and GovernanceThe Business of LawyeringThe Emergence of University Legal EducationLegal LiteratureLaw Reporting26 Constitutional Developments I: European-Indigenous Relations, the Old Colonial System, and the Rebellions, 1815–ca 1839Indigenous Peoples, Treaties, and the Constitution in Eastern British North AmericaThe Settler Constitution: Executives, Councils, and AssembliesRebellion and Repression in the Canadas27 Constitutional Developments II: The Act of Union, Responsible Government, and the Origins of Acculturation Policy, ca 1840–1866The Settler Constitution after the Rebellions: The Union of the Canadas and Responsible GovernmentThe Settler Constitutions and Responsible GovernmentIndigenous Peoples and the ‘Civilizing Mission’Settlement and Colonization in the West28 Criminal Justice I: Criminal Law, Punishment, and PolicingThe Age of Reform: The Demise of Capital and Corporal PunishmentDissatisfaction with Physical PunishmentsThe Search for Penal Reform and the Rise of the PenitentiaryPolicing29 Criminal Justice II: The Criminal TrialThe Criminal Process: Judges, Juries, and ProcedureProsecution by Counsel for the CrownDefence Counsel before the Mid-1830sThe Prisoners’ Counsel Acts and Their Effect30 Land Law and Policy: Titles, Tenure, Squatters, Indigenous Dispossession, and the Rights and Obligations of OwnershipUpper Canada: Clergy Reserves and Aliens’ TitlesLower Canada: Competing Land Law Systems and SeigneuralismPrince Edward Island: LandlordismLand Titles and Squatters in Nova Scotia and New BrunswickNewfoundland: The Formalization of Possessory TitleIndigenous Peoples’ Continued DispossessionThe Rights and Obligations of Land Ownership31 Law and the Economy I: Common Law, Statutes, and the Emergence of the CorporationJudges, Private Law, and the EconomyColonial Statutes and the MarketThe Emergence and Growth of Corporations to 1850The 1850s and 1860s: Corporate Growth and Sectoral IncorporationLimited Liability and the Morality of the Corporation32 Law and the Economy II: Debtor-Creditor LawImprisonment for DebtBankruptcy LawsInsolvency: A Clash of Ideologies33 Less Favoured by Law I: Blacks and WorkersBlacks and the Law: Not Slaves, but Not EqualSegregated SchoolsFugitive Former Slaves and ExtraditionLabour and the Law34 Less Favoured by Law II: Women and the LawCommon Law Married Women’s Property: Equity and Statutory ChangeThe Common Law: Unmarried ParentsDivorceThe Civil Law: Married Women’s PropertyThe Civil Law: Unmarried Parents35 Law and Legal Institutions on the Eve of Confederation: The British North American LegacyAbbreviationsNotesIllustration CreditsStatutory and Proclamation IndexName IndexTopical Indexhistory of law in canada