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Thursday, June 30, 2011

Links to resources for Western Legal History

Things are a bit slow news-wise for Canadian Legal History, as for other types of history, and it's not even the dog-days of summer. Puppy days, I guess.

So a good time to do a post on some links sent me a while ago by Sarah Hamill of the University of Alberta Faculty of Law (thanks again, Sarah!)

Hi Mary,

Here are some links that might be of interest for you in regard to western legal history 

This is a subscription site but perhaps you could mention it to a librarian!
I checked out the sites she suggests. The law section of Our Future Our Past is great--much better than Early Canadiana Online (though kudos to the latter, which has improved of late. Still a ways to go, unfortunately.)

The other sites are not law-focused, but that is just as well for the purposes of students of legal pluralism--since legal pluralists find law everywhere, the more ostensibly non-legal the sources the better. I was quite impressed by the digital images available through the Our Future Our Past site. And the Peel Library site which Sarah recommends is even more drool-worthy, especially for Ontario-ists. The images seem of excellent quality and very searchable, unlike the Globe and Mail Heritage site, for example.

Thursday, June 23, 2011

Osgoode Society AGM (with pictures!)


Jonathan Penney and Jim Phillips
Daniel Rueck and Jim Phillips

Doug Harris and Jim Phillips

The AGM of the Osgoode Society for Canadian Legal History, held at Osgoode Hall in Toronto Tuesday evening, was as always, an entertaining and convivial experience. Here are some highlights of the event. (Thanks to Trish McMahon for providing some of the pics.)

Jim Phillips (in a tie, no less) handed out prizes on behalf of the society:

Doug Harris of UBC ws awarded the John T. Saywell Prize for Constitutional Legal History (awarded in alternate years) for Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925 (UBC Press, 2008) He spoke about the similarities between his work and that of the late Professor Saywell.

The R.Roy McMurtry Fellowship was awarded to Daniel Rueck, a McGill University Ph.D. candidate who will soon be a visiting scholar at the University of Western Ontario. During the fellowship, Mr. Rueck will continue researching  Mohawk systems of land tenure and land use. He spoke of the funding gap for students completing their studies which the Fellowship attempts to redress.

The Peter Oliver Prize for best published student writing was awarded to Jonathan Penney, a doctoral student at Balliol College, Oxford for his article Ivan Rand’s Ancient Constitutionalism, published in 2010 (University of New Brunswick Law Journal Vol. 61 No. 1). Mr. Rueck spoke about being inspired by researching Rand's jurisprudence.

Justice Robert Sharpe

Mr. Justice Robert Sharpe of the Ontario Court of Appeal then addressed the meeting on the subject of his forthcoming book, The Lazier Murder: Prince Edward County, 1884. This is the Osgoode Society member's book for the coming year. The book will be an intensive examination of a murder investigation and trial--a "non-leading" case--which speaks to themes of the influence of the community on criminal justice in the nineteenth century, and in turn the impact of the trial and its outcome on the community.

Wednesday, June 15, 2011

Mitchell dissertation on the Persons Case

I was excited to discover that a dissertation on the Persons' Case had been posted on the Proquest Theses & Dissertations database. Wow, thought I, we now have a case with historiography, complete with revisionism! But while we have the former, it sounds as though Kelly L. Mitchell's doctoral dissertation Missing persons: The contested legacy of First Wave Feminism, the Famous Five, and the Persons Case of 1929 does not challenge the Sharpe/MacMahon account, but rather takes the tack of looking at the case as a social-political rather than legal/constitutional phenomenon, and extending the story past the JCPC judgment. Still an exciting contribution to the history of Canadian feminism:

Here's the abstract:
On October 18, 1929, Canadian women were legally recognized as "persons" by the Judicial Committee of the Privy Council in England. This auspicious decision had been the result of a decade-long struggle led by five women from Alberta. Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Emily Murphy, and Irene Parlby, better known simply as the Famous Five, were suffragists, authors, and political activists in the First Wave of the Women's Movement in Canada. This dissertation examines the story of the Famous Five and the Persons Case and charts the process by which women's struggle for personhood has been recognized as a defining moment in the history of Canadian women.
By making use of sources in both feminist and legal history as well as discussing the case's legal precursors and legacy, this study broadens the context in which the Persons Case has traditionally been examined. Unlike other works which situate the case in Canadian constitutional history, this dissertation portrays the Persons Case as a pivotal part of women's struggle for equality. By pointing to the ways that women's organizations have been using the stories of the Famous Five to inspire women and call attention to ongoing feminist concerns since the 1930s, this dissertation explains why the struggle for personhood, unlike other initiatives in the Women's Movement, continues to resonate so strongly with Canadian women.

Monday, June 13, 2011

Osgoode Society award winners announced

From the news release today:

The Osgoode Society for Canadian Legal History is honouring three academics at a special ceremony on June 21, in recognition of the recent contributions they have made to furthering Canadians' understanding of the country's legal history.

At the Osgoode Society’s annual meeting, the following three awards will be presented: the R. Roy McMurtry Fellowship in Legal History, the Peter Oliver Prize in Canadian Legal History and the John T. Saywell Prize for Canadian Constitutional Legal History.

The 2011 winner of the R. Roy McMurtry Fellowship in Legal History is Daniel Rueck, a McGill University Ph.D. candidate who will soon be a visiting scholar at the University of Western Ontario. During the fellowship, Mr. Rueck will continue researching Mohawk systems of land tenure and land use in Kahnawake during the nineteenth century. Mr. Rueck’s research project is of both great historical and contemporary interest, given current debates surrounding the privatization of Aboriginal land.

The 2011 winner of the Peter Oliver Prize in Canadian Legal History is Jonathon Penney, a doctoral student at Balliol College, Oxford. Mr. Penney is recognized for his article Ivan Rand’s Ancient Constitutionalism, published in 2010 (University of New Brunswick Law Journal Vol. 61 No. 1). The article provides considerable context and insight about Justice Ivan Rand’s groundbreaking civil rights decisions of the 1950s.

The 2011 winner of the John T. Saywell Prize for Canadian Constitutional Legal History is Douglas Harris of the University of British Columbia. Professor Harris is recognized for his book, Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925, published by the University of British Columbia Press. Professor Harris’ writing draws on an impressive range of sources to demonstrate the unique and crucial relationship between reserves and fishing rights in British Columbia. Through his book, Professor Harris furthers understanding around Aboriginal rights, federalism and the intra-agency conflicts that exist between federal government officials concerned with Indian affairs and those concerned with fisheries.

The annual meeting will also feature a talk by The Honourable Robert Sharpe on his forthcoming book to be published by the Osgoode Society The Lazier Murder: Prince Edward County, 1884.
For more information, please contact: Marilyn MacFarlane, Administrator, The Osgoode Society for Canadian Legal History at (416) 947- 3321 or

Saturday, June 11, 2011

Mackenzie on the History of Indian Act in Newfoundland

 David Mackenzie of the Department of History, Ryerson University has published "The Indian Act and the Aboriginal Peoples of Newfoundland at the Time of Confederation," in Newfoundland & Labrador Studies Fall 2010, Vol. 25 Issue 2.
The Abstract:

The article presents an in-depth examination into the legal history and status of North American Indian tribes in Newfoundland. Contextual details are given describing the legal actions of the Mi'kmaq Nation in 1989 to gain recognition. Discussion is then offered evaluating why the tribe was not formally recognized at the province's entrance to the Confederation in 1948. Additional analysis is offered examining the status and legal provisions of Native Americans based in the 1867 Constitution. Conclusions are provided explaining why Indian's rights were not more prominent in the province's constitutional history.

Reid on the Doctrine of Discovery (not the procedure)


Also in the Canadian Journal of Native Studies; 2010, Vol. 30 Issue 2 ,"The Doctrine of Discovery in Canadian Law" by Jennifer Reid:

This article will focus on a set of fifteenth-century assumptions regarding sovereignty known as the Doctrine of Discovery. The doctrine was the "legal" means by which Europeans claimed preemptive rights in the New World, and it underlies the relationship between Indigenous and non-Indigenous peoples to this day. This article will explore the Doctrine's development from its inception to its integration into Canadian law. By demonstrating continuity between fifteenth century papal bulls, the Royal Proclamation, the Constitution Act, 1982, and Supreme Court holdings, I will argue that Aboriginal title in Canada was—and continues to be—entrenched in the Doctrine of Discovery.

Luby on Crown and Anishinaabe Understandings of Treaty 3

"The Department is going back on these Promises: An examination of Anishinaabe and Crown Understandings of Treaty" by Brittany Luby (another former classmate of mine) in Canadian Journal of Native Studies (2010) Vol. 30 Issue 2 (no on-line link available.) Here's the abstract:

Indigenous interpretations of treaty are often gleaned from Euro-Canadian documents like Crown publications and correspondence. In her analysis of Treaty #3, Brittany Luby challenges the assumption that Anishinaabe sources are strictly oral and that engaging Anishinaabe perspectives requires an ethnographic (re) reading of Euro-Canadian documents. Using Anishinaabe written sources like Paypom Treaty and petitions to the Crown, Luby examines the Anishinaabe as legal agents and active writers. She highlights that Anishinaabe negotiators-much like Euro-Canadian Commissioners-participated in Treaty #3 to maintain fisheries, protect mineral deposits, and guarantee territorial sovereignty. By explicating treaty participants' conflicting understandings of "rights" and "use," Luby demonstrates that no single document accurately outlines the terms and conditions of Treaty #3.

Friday, June 10, 2011

CFP: White Settler Colonialism and Indigeneity in the Canadian Context

The Canadian Journal of Women and Law (CJWL) is seeking submissions for a special issue 25(1) to be published in Spring 2013 in honour of Patricia Monture, to be guest edited by Sherene Razack. The CFP doesn't mention history specifically, but it seems like an included concept.

White Settler Colonialism and Indigeneity in the Canadian Context
Some time ago Patricia Monture told us that in her thinking equality was not a high enough goal. A feminism that failed to recognize the destructiveness of settler colonialism and to work towards Indigenous sovereignty and well-being was too small a feminism for Patricia. This issue of the Canadian Journal of Women and the Law is dedicated to Patricia Monture, a courageous scholar who led the way for so many of us over the last two decades. To honour her, we invite contributions on white settler colonialism. This issue seeks to profile the work of Indigenous scholars and scholars of colour. In keeping with Patricia Monture’s own contributions, we are especially interested in receiving articles that offer a feminist, anti-racist reading of Canadian settler colonialism in the areas of criminal justice, Aboriginal youth, education, and economic empowerment.

Wednesday, June 8, 2011

Marquis review of Leyton-Brown

The Legal History Blog has a post today by Karen Tami on Greg Marquis' review of The Practice of Execution by Ken Leyton-Brown in Law & Politics Book Reviews.. You can read the post here. But the link in the post to the full review is broken, so I am re-linking to it here.

Tuesday, June 7, 2011

Congratulations (again) to Brad Miller

More prize news from Congress: At the Canadian Historical Association conference, the Political History Group gave its inaugural award for best article to Brad Miller for "A carnival of crime on our border?: International Law, Imperial Power, and Extradition in Canada, 1865-1883," which was published in the Canadian Historical Review vol. 90 no. 4 (December 2009).  Brad won the Peter Oliver prize for best article by a student for this article in 2010.

More info on the political history group prizes here.

In related news, Michel Ducharme of UBC won the Sir John A. Macdonald prize for best academic writing in Canadian History for his book Le concept de liberté au Canada a l’époque des Révolutions atlantiques (1776-1838). Ducharme's differentiation of attitudes toward individual and political rights by American revolutionaries and Canadian loyalists will inform Canadian legal as well as general historiography.

Promotion for Wes Pue

Eminent Canadian Legal HistorianWes Pue has been appointed Provost of UBC Okanagan.

Stern on the Analytical Turn in c19th Legal Thought

Simon Stern of the U of T Faculty of Law continues his breakneck pace of published research with The Analytical Turn in Nineteenth-Century Legal Thought, just posted on SSRN. Here's the abstract:

This essay seeks to account for the introduction of the analytical method into Anglo-American legal thinking in the 19th century and to identify some of the doctrinal consequences of this mode of problem-solving. I focus on a particular sense of analysis – the disaggregation into components of seemingly unified entities, not previously seen as composites. On this view, a discussion of U.S. law as involving federal law and state law does not involve analysis, but a discussion of privacy as including decisional and spatial aspects would involve analysis. The term "analysis" long predates the nineteenth century, but had previously been used by lawyers to mean "investigation" or "classification" rather than disaggregation. Drawing on research by John Pickstone, I show that the technique, though not unheard of before the 19th century, was taken up in a wide array of scientific disciplines circa 1780-1840, particularly in chemistry. This helps to explain its diffusion into other intellectual spheres, including law.
The nineteenth-century analytical revolution had a profound effect on the Anglo-American legal system, its doctrines, and its approach to problem-solving, to such an extent that modern lawyers’ views about their professional competences, and their beliefs about what constitutes a persuasive legal argument, would be radically different without this feature. The analytical approach is evident in contemporary thinking about statutory drafting and interpretation, constitutional law, and administrative law, as well as the common law. Because it is beyond the scope of a single essay to delineate these effects fully, I focus here on the changes associated with the introduction of elements into nineteenth-century jurisprudence, in a pattern that reveals some of the most visible results of the analytical approach.
Part I discusses the rise of analysis in science and the law around the beginning of the nineteenth century. Part II shows how issue preclusion (in res judicata) was reconceived in the course of the nineteenth century, morphing from a doctrine focused on the relitigation of particular facts, to a doctrine concerned with legal issues, now understood as involving legal conclusions based on facts. Part III addresses the reconceptualization of criminal offenses as consisting of "elements," a development that led to new ways of thinking about burdens of proof and the role of mens rea in criminal liability. A concluding section reflects briefly on the implications of this approach to legal science. The argument shows that legal science may be profitably studied not only by looking at the statements of lawyers such as David Hoffman, Simon Greenleaf, and George Sharswood, who took pains to insist that they were being scientific, but also by looking to particular instances in which lawyers adopt scientific methods, even if they do not call attention to this practice, and even if they make no claims about legal science

Legal History at Political History Conference

Thanks to Brad Miller for drawing my attention to the many legal history and legal histor-ish (his term, a good one) papers in the programme of the Political History Conference "Transformation: State, Nation, and Citizenship/Transformation: l’État, la nation et la citoyenneté" to be held October 13-15 at York University.

It's often hard to distinguish what is legal history from what is not in the political history context, but among the papers which would be of particular interest to legal historians are (in no particular order):

Blake Brown, Saint Mary’s University – “We are gradually getting like Chicago”: Gun Control in Interwar Canada
J.L. McNairn, Queen’s University - Roads to Modernity: Trust and Financing the Public Good in Upper Canada
E.A. Heaman, McGill University - Revisiting the Single Tax
S.M. Tillotson, Dalhousie University - Tax Politics and Public Opinion in the Age of Easy Money, 1947-1966
Todd Stubbs, Lakehead University, Orillia - A “Stake in the Country”: Wage-Earning Men and the Income Franchise Debate in Ontario, 1866-1874
Bradley Miller, University of Toronto - Sovereignty, Self-Defence, and International Law in the Rebellion Period Borderlands, 1837-1843
Ashleigh Androsoff, University of Toronto - “The Days of Fooling Around with the Unlawful Doukhobors Are Over”: Solving British Columbia’s ‘Doukhobor Problem’ in the 1950s and 1960s
Gregory P. Marchildon, University of Regina and Nicole O’Byrne, University of New Brunswick - The Last One Aboard: New Brunswick and the Implementation of Medicare
Mark Gulla, McMaster University - The Unemployment Insurance Commission and the Expansion of the Right to Benefit, 1940-1971
John Hillhouse, McMaster University - The Role of the Federal Government in Canada’s Life Insurance Industry
Anthony Hampton, University of Guelph - The Implications of Ad Hoc Activism: The Feminist Citizens' Response to the Meech Lake Accord and its Historiographic Importance

Valerie Lapointe Gagnon, Université Laval  - La consécration de l’expertise et la Commission royale d’enquête sur le bilinguisme et le biculturalisme, 1963-1971
P. E. Bryden, University of Victoria - Intimacy and the Administrative Body: The Federal Civil Service in the Pearson Era
Also of interest to legal historians (and crimnologists):

Round Table/ Table ronde RCMP: What we know, what we don’t know and what we would like to know/ La GRC: ce que nous savons, ce que nous ne savons pas et ce que nous aimerions savoir
Participants/ Participants et participantes
Steve Hewitt, American and Canadian Studies, University of Birmingham
Gary Kinsman, department of sociology, Laurentian University
Christabelle Sethna, Institute of Women’s Studies, University of Ottawa

Monday, June 6, 2011

Freedom's Conditions in the Borderlands

One of the highlights of the CLSA conference last week in Frederiction for me was hearing and chatting with University of Calgary legal historian Lyndsay Campbell

Lyndsay's paper on Oliver Dawsey, member of a gang of thugs who operated in the Hamilton-Dundas area in Canada West (yes, contrary to previous claims we had criminal gangs pre-confederation), was fascinating, (as were the other papers on her panel, the other legal history panel and random history papers on non-history panels.) I can't wait to hear more about this guy and his partners in crime.

Talking with her, I was surprised to hear that the collection of essays on the US-Canada border and borderlands she was editing with Tony Freyer had been published without setting off any of the alerts I have set up so that new Canadian legal history does not escape my notice. I guess the cyber-gremlins have not categorized this as Canadian, and (so far) the bloggers at the American Legal History Blog have not noticed it either. Maybe their cyber-gremlins are also confused.

The collection is called Freedom's Conditions in the U. S.- Canadian Borderlands in the Age of Emancipation  and is published by the the Carolina Academic Press. Here's how the publishers describe it.

In Freedom's Conditions in the U.S.-Canadian Borderlands in the Age of Emancipation, American and Canadian legal historians explore the operation of race in the borderlands in the mid-nineteenth century. The contributors Tony Freyer, Lyndsay Campbell, Aviam Soifer, Gautham Rao, John Wertheimer, Stephen Middleton, and Bradley Miller examine the shadows that legal regimes cast upon each other, as people of African descent, and others, made decisions to move from one place to another in search of better, freer conditions under which to live, work, and raise their families. Legal institutions struggled with commitments to preserving states' rights to govern their own people, to popular sovereignty, to freedom of contract, to liberal ideals of equality and comity, and of course to white supremacy. Tensions ran high among different levels of government - federal-state-local in the United States and imperial-colonial-local in British North America. On the ground, practices of governance, such as policing and slave-catching, were unevenly professionalized: on both sides of the international border, low-level officials without much legal training and vested with considerable discretion were essential state actors. This collection is aimed at both American and Canadian readers interested in the histories of race, inter-state relations, and the development of legal institutions. The introduction and conclusion, by Freyer and Campbell, frame the essays and identify unifying themes and overlapping conclusions. As a whole, the essays in this collection make clear the hope that Canadian legal institutions offered to African Americans: formal equality, though in practice discrimination took place in the implementation of law, through racializing habits that affected exercises of discretion by various state officials. In the United States, the Fugitive Slave Act of 1850, combined with the influx of Irish immigrants in the late 1840s, provoked sharp, tense conflicts over the racialized governance of human mobility in the northern states, conflicts that, ironically, carved out a space for greater rights and autonomy for African Americans even as the fault lines in American federalism deepened. These essays also cast light on the fundamental instabilities in a legal system that accommodated slavery and explicitly entrenched white supremacy.
As well as collaborating on the Introduction and Conclusion, Lyndsay has contributed two chapters to the collection: "Governance in the Borderlands: Upper Canadian Legal Institutions" and "The Northern Borderlands: Canada West." Brad Miller's chapter is entitled "British Rights and Liberal Law in Canada's Fugitive Slave Debate, 1833-1843."

Full disclosure: Lyndsay offered to send me a comp copy, which offer I enthusiastically accepted. Presumably this was on account of my allowing her to use a couple of my yet-unpublished papers on local government in Canada West, and not because I said I planned to blog about the book.

Sunday, June 5, 2011

McLaren and Backhouse featured speakers at Legal History Conference in Brisbane

Here's the announcement and call for papers via Andrew Buck on H-Law:

CFP: Law and History conference

*30th Annual Conference of the Australia and New Zealand Law and History Society*

CFP: The 30th annual conference of the Australia and New Zealand Law and History will be held in Brisbane, Australia, 12-13 December 2011. The 2011 conference theme – “Private Law, Public Lives” - examines the social dimensions of private law in history. Proposals are invited from scholars in the fields of law, history and related disciplines.  Proposals from all jurisdictions are welcome. Proposals on non-theme related topics in legal history also welcomed.

Highlights of this year’s conference include twin keynote speakers: Professor John McLaren, professor emeritus of the Law School, University of Victoria, BC, Canada, and author of the forthcoming *Dewigged, Bothered and Bewildered: British Colonial Judges on Trial *(University of Toronto Press,2011 [ed. note: for the Osgoode Society for Canadian Legal History]), and Professor Rosalind Croucher, President of the Australian Law Reform Commission.

Also, by special arrangement with the American Society for Legal History, we will be including a panel from the ASLH, including, among others, Professor Contance Backhouse, Distinguished University of Professor, University of Ottawa President of the ASLH and Professor Chris Tomlins, chancellor’s Professor of Law, University of California, Irvine.

Further information including expression of interest for proposals is available from the conference website:

Paper proposals, including paper title, abstract (300 words max.) and brief author bio, should be sent by email to the Conference Committee at by 14 July 2011.

Thursday, June 2, 2011

Rotman on Fusion of Law and Equity in Canada

Leonard Rotman of the Faculty of Law, University of Windsor, has posted a working paper on SSRN entitled "The Fusion of Law and Equity: A Canadian Perspective."

This paper looks far more law than legal history, despite the author's keyword choices, but I'm including the abstract here because your mileage may vary, and because of my love for all things equity. Here it is:

Equity, in its broad understanding, has long been a fundamental part of law. Its history may be traced through principles illustrated in the Old Testament and, in various formulations, through Ancient Greek and Roman legal constructs, as well as in Natural Law and Canon Law. While the historic presence of Equity within various systems of law is unquestioned, the jurisdiction of Equity within contemporary legal systems has been a matter of significant debate and confusion. Facilitating a better understanding of the contemporary role of Equity requires knowledge of its meaning and the implications of the historic merger of legal and equitable jurisdictions. This paper establishes a framework for appreciating the contemporary challenges faced by Equity by examining the Supreme Court of Canada’s analysis of the merger of legal and equitable jurisdictions in two major cases involving allegations of breaches of fiduciary duty: Canson Enterprises Ltd. v. Boughton & Co. and Hodgkinson v. Simms. The inconsistent application of equitable principles in these cases demonstrates the court’s confusion over the effects of the historic merger of law and Equity and offers a valuable perspective for the administration of justice in contemporary law.