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Girard Philip - A History of Law in Canada

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Girard Philip A History of Law in Canada

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A History of Law in Canada is the first of two volumes. Volume One begins at a time just prior to European contact and continues to the 1860s, while Volume Two will start with Confederation and end at 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.

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A HISTORY OF LAW IN CANADA Volume One Beginnings to 1866 PATRONS OF THE - photo 1
A HISTORY OF LAW IN CANADA
Volume One
Beginnings to 1866

PATRONS OF THE SOCIETY

Blake, Cassels & Graydon LLP

Chernos, Flaherty, Svonkin LLP

Hull & Hull LLP

The Law Foundation of Ontario

McCarthy Ttrault LLP

Osler, Hoskin & Harcourt LLP

Paliare Roland Rosenberg Rothstein LLP

Torys LLP

WeirFoulds LLP

The Osgoode Society is supported by a grant from

The Law Foundation of Ontario.


The Society also thanks The Law Society of Ontario for its continuing support - photo 2

The Society also thanks The Law Society of Ontario

for its continuing support.

A HISTORY OF LAW IN CANADA

Volume One

Beginnings to 1866

PHILIP GIRARD, JIM PHILLIPS, AND R. BLAKE BROWN

Published for The Osgoode Society for Canadian Legal History by University of Toronto Press

Toronto Buffalo London

Osgoode Society for Canadian Legal History 2018
utorontopress.com
osgoodesociety.ca
Printed in Canada

ISBN 978-1-4875-0463-2

Picture 3
Printed on acid-free paper

Publication cataloguing information is available from Library and Archives Canada.

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario.
Contents Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY This book - photo 4

Contents

Foreword
THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY

This book is a major achievement in Canadian legal history. It is the first of two volumes by three of Canadas leading legal historians, our editor-in-chief, Jim Phillips, our associate editor, Philip Girard, and R. Blake Brown, the author of two previous Osgoode Society publications. This volume presents the history of law in what is now Canada, from the first European contacts with northern North America in the very early sixteenth century to the period immediately before Confederation. The authors examine the roots of Canadas three legal traditions, Indigenous, French, and English. Indigenous people are central to the narrative throughout, including after 1815 when their influence waned as their land base was largely lost in central and eastern Canada. The book is principally a legal history, set against and integrated with the well-known major political, military, social, and economic transformations of the pre-Confederation period. Court systems, the judiciary, and the legal professions for each of the legal traditions at each stage of development are carefully considered. The areas of law covered include criminal, family, constitutional, commercial, land, succession, and civil and criminal procedure. This volume combines new research with a synthesis of the remarkable scholarship on Canadian legal history, so much of it fostered and published by the Osgoode Society over the past thirty-five years.

The purpose of the Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry and officials of the Law Society of Upper Canada. The Society seeks to stimulate the study of Canadian legal history by supporting researchers, collecting oral histories, and publishing collections of essays and monographs. This years books bring the total published to 107 since 1981, in all fields of legal history the courts, the judiciary, and the legal profession, the history of crime and punishment, women and law, law and economy, the legal treatment of ethnic minorities, and famous cases and significant trials in all areas of the law.

Current directors of the Osgoode Society for Canadian Legal History are Heidi Bohaker, Bevin Brooksbank, Shantona Chaudhury, David Chernos, Linda Silver Dranoff, Michael Fenrick, Timothy Hill, Ian Hull, Trisha Jackson, Mahmud Jamal, Virginia MacLean, Waleed Malik, Rachel McMillan, Roy McMurtry, Malcolm Mercer, Caroline Mulroney, Dana Peebles, Paul Reinhardt, William Ross, Paul Schabas, Robert Sharpe, Jon Silver, Alex Smith, Lorne Sossin, Mary Stokes, and Michael Tulloch.

The annual report and information about membership may be obtained by writing to the Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N6. Telephone: 416-947-3321. Email: .

Robert J. Sharpe
President

Mary Stokes
Director

Acknowledgments

When you spend as long on a book project as we have on this one you incur many and varied debts, material and personal. We should begin by thanking the institutions that funded the research the Social Sciences and Humanities Research Council of Canada in particular, and also the Law Foundation of Ontario, Osgoode Hall Law School, the Osgoode Society for Canadian Legal History, and the University of Toronto Faculty of Law.

Individually or collectively we presented aspects of this book at a variety of fora, and always received a generous reception and stimulating and helpful critiques. We thank those in attendance at meetings of the Canadian Law and Society Association, the American Society for Legal History, the Australia/New Zealand Legal History Society, the Canadian Legal History conference at the University of Calgary, and the Osgoode Society Legal History Workshop. We also thank the law schools at Queens, Manitoba, Victoria, and Lakehead Universities, and the Centre for Criminology and Sociolegal Studies at the University of Toronto, for invitations to speak and the attendees there for their helpful comments.

In the summer of 2016 we held a one-day workshop on a draft of this manuscript, and thank all the attendees for taking the time to read the manuscript and improve it greatly. A particular debt of thanks goes to those who travelled to Toronto for that workshop: Constance Backhouse from Ottawa, Lori Chambers from Thunder Bay, Michael Grossberg from Indiana, and Michel Morin from Montreal.

Because two of us are officers of the Osgoode Society for Canadian Legal History other people from the Society had to perform the roles normally played by the Editor-in-Chief and Associate Editor. We are indebted to Justice Robert Sharpe, President of the Society, and Dr Mary Stokes, a director, for shepherding the manuscript through the external review process with aplomb, and for reading and commenting on it themselves. Amanda Campbell, Administrator of the Osgoode Society, was instrumental in making this process run smoothly. We also are most grateful to the two anonymous reviewers for their very perceptive reading of, and detailed comments on, the manuscript.

A number of colleagues read parts of this manuscript in its final stages and provided very useful suggestions. We are grateful to Don Fyson, Douglas Hay, Jacquie Briggs, Carolyn Podruchny, Naiomi Metallic, and, especially, Jeff McNairn for their assistance and encouragement. Lori Chambers deserves special mention here, for she read not parts but the entire manuscript.

Nobody does academic publishing as well as the University of Toronto Press, and we were greatly assisted in getting this book out by Len Husband, Canadian history editor, and Wayne Herrington, associate managing editor. All of us have worked with Len and Wayne before, and again they did a superb job. The copy editor tasked by the Press with doing this book, Ian MacKenzie, was new to us, and excellent in every way. The index was prepared by Dr Justin Irwin, a student at the University of Toronto Faculty of Law.

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