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Administering Justice Without the State: A Study of the Private Justice System of the Hudson's Bay Company to 1800*

Published online by Cambridge University Press:  18 July 2014

Russell Smandych  and
Rick Linden
Russell Smandych
Affiliation:
Department of Sociology, University of Manitoba
Rick Linden
Affiliation:
Department of Sociology, University of Manitoba
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Abstract

In 1670, a royal charter granted by the English monarchy gave the Hudson's Bay Company the exclusive right to rule over an area that encompasses most of what is now the western part of Canada. As part of its original charter, the Hudson's Bay Company was given the power to enact any laws and regulations not repugnant to the laws of England that were deemed necessary to govern its relations with its servants and to maintain social order throughout the vast territory known as Rupertsland. This paper examines the development of the “private” legal system of the Hudson's Bay Company to 1800. Particular attention is given to examining the specific methods of legal ordering and social control that were used within the Company to discipline Company employees. The data examined in the study provide an empirical foundation for broader theorizing about the nature of non-state forms of governance, legal pluralism, and social control. Specifically, the study provides evidence which shows the complex and varied ways in which legal ordering and social control occur outside the state

Résumé

Par une charte royale de 1670, la monarchie anglaise octroyait à la Compagnie de la baie d'Hudson les droits exclusifs d'exploitation sur un territoire comprenant la quasi-totalité de ce qui constitue aujourd'hui l'Ouest canadien. Dans sa charte d'origine, la Compagnie de la baie d'Hudson s'était vu accorder le pouvoir d'adopter toutes les lois et les règlements en accord avec le lois d'Angleterre jugés nécessaires afin de régir ses rapports avec ses commettants et d'assurer l'ordre social sur la vaste Terre de Rupert. Dans cet article, l'auteur fait l'étude historique du système juridique «privé» élaboré par la Compagnie de la baie d'Hudson de ses débuts à l'an 1800. Il étudie certains dispositifs d'ordonnancement juridique et moyens de contrôle social mis en place par la Compagnie afin d'assurer la discipline de ses employés. Ces données empiriques constituent la base d'une théorie sur la nature du gouvernment privé, du pluralisme juridique et du contrôle social. Cette étude est une démonstration de la complexité et de la variété des systèmes juridiques et des modes de contrôle social élaborés en dehors des cadres de l'État.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 11 , Issue 1 , Spring/printemps 1996 , pp. 21 - 61
Copyright
Copyright © Canadian Law and Society Association 1996

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Footnotes

*

An earlier version of this paper was presented at the Law and Society Association Annual Meeting, Toronto, Ontario, June, 1995. We would like to thank the anonymous reviewers and editorial board of the CJLS/RCDS for their constructive reviews and editorial advice, and the Social Sciences and Humanities Research Council of Canada for funding the research undertaken for this paper.

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11. The Hudson's Bay Company Archives [hereinafter HBCA] now exist as part of the Provincial Archives of Manitoba in Winnipeg. The HBCA contain a detailed historical record of the operation of the Hudson's Bay Company in western Canada from the 1670s to the end of the 19th century.

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14. Moreover, during the period considered in this study, the Hudson's Bay Company, and other existing chartered companies—like the English and Dutch East India Companies and the Royal Africa Company—were not companies that acted simply as additional “arms of the state,” by supposed virtue of the fact that they catered to the interests of the monarchs who granted them their law-making powers. Rather, other studies have suggested that, far from subservient to the state, these companies likely used the powers they were delegated by the state to pursue their own economic interests. See, for example, Adams, Julia, “Principals and Agents, Colonialists and Company Men: The Decay of Colonial Control in the Dutch East Indies” (1996) 61 Amerian Sociological Review 12 CrossRefGoogle Scholar; Brenner, Robert, Merchants and Revolution: Commençai Change, Political Conflict, and London's Overseas Traders, 1550–1653 (Princeton: Princeton University Press, 1993).Google Scholar

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23. Makahonuk, supra note 19 at 1.

24. Foster, Hamar, “Mutiny on the Beaver: Law and Authority in the Fur Trade Navy, 1835–1840” (1991) 20 Man. L. J. 15 Google Scholar; Foster, Hamar, “Killing Mr. John: Law and Jurisdiction at Fort Stikine, 1842–1846” in McLaren, J., Foster, H. & Orloff, C., eds., “Law for the Elephant, Law for the Beaver”. Essay s in the Legal History of the North American West (Regina: Canadian Plains Research Center, 1992)Google Scholar; Foster, Hamar, “British Columbia: Legal Institutions in the Far West, from Contact to 1871” (1995) 23 Man. L. J. 293.Google Scholar

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26. Ibid. at 7, 39.

27. The shift in the nature of HBC labour relations that occurred in the period from the 1690s to the 1790s appears to have occurred more or less simultaneously with the transition to capitalism and corresponding changes in the nature of social class relations that occurred in England during the same period. The shift toward a “free labour” market economy in England, and the manner in which it was linked to both the transformation of master-servant relations and changes in institutions used to control “problem populations” like the poor, the criminal, and the insane, is given detailed attention in the work of revisionist historians like Ignatieff, Michael, A Just Measure of Pain: The Penitentiary and the Industrial Revolution (New York: Pantheon Books, 1978)CrossRefGoogle Scholar, and Scull, Andrew, Museums of Madness: The Social Organization of Insanity in the Nineteenth Century (London: Allen Lane, 1979).Google Scholar More recently, Linebaugh, Peter, The London Hanged: Crime and Civil Society in the Eighteenth Century (Cambridge: Cambridge University Press, 1992)Google Scholar has argued similarly that the punishment of the labouring poor for crimes in 18th-century London must be understood within the broader context of structural changes in the economy that affected the labour market and the nature of social class relations.

28. Rediker, Marcus, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700–1750 (Cambridge: Cambridge University Press, 1987) at 206.Google Scholar

29. Ibid. at 211.

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31. Rich, E. E., ed., Minutes of the Hudson's Bay Company 1671–1674, vol. 5 (London: Hudson's Bay Record Society, 1942) at 38.Google Scholar

32. Ibid. at 67, 75.

33. The problem of private trading persisted until at least the mid–19th century. Indicatively, as late as 1834, the London Committee ordered the printing of a new “Deed Poll” respecting the rights and duties of Chief Factors and Chief Traders conducting trade on behalf of the Company in Rupertsland and the Indian territories, which contained an article prohibiting private trading. See Hudson's Bay Company, Deed Poll, by the Governor and Company of Hudson's Bay, With Respect to their Chief Factors and Chief Traders for Conducting their Trade in Rupert's Land and North America; And for Ascertaining the Rights and Prescribing the Duties of Those Officers (London: Printed by Henry Kent Causton, 1834).Google Scholar Specifically, Article XIV of the “Deed Poll” of 1834 read that: ‘The Chief Factors and Chief Traders shall not on their separate account, distinct from the said trade, enter into any trade, business or commerce whatsoever, either directly or indirectly, or be in any wise [sic] concerned or interested therein, neither with Indians nor with any other person whomsoever; and every such Chief Factor or Chief Trader so offending, shall for each such offence, pay the sum of 1,000 (pounds) to the Governor and Company as stated, or liquidated damages.”

34. Francis, Daniel & Morantz, Toby, Partners in Furs: A History of the Fur Trade in Eastern James Bay 1600–1870 (Kingston & Montreal: McGill-Queen's University Press, 1983) at 90–91.Google Scholar

35. Brown, supra note 22 at 153–54.

36. Kirk, Sylvia Van, “Many Tender Ties”: Women in Fur Trade Society in Western Canada 1670–1870 (Winnipeg: Watson & Dwyer, 1980) at 38–5.Google Scholar

37. Robson, supra note 17 at 38

38. Ibid. at 49.

39. Ibid. at 76.

40 Ibid. at 17.

41. Supra note 25.

42. “Report to the Governor and Committee by John Nixon 1682” in Rich, E. E., ed., Minutes of the Hudson's Bay Company 1679–1682, vol. 8 (London: Hudson's Bay Record Society, 1946) at 239–304.Google Scholar Brown, supra note 22 at 14, has noted that Nixon's “report” of 1682 is the earliest surviving account of the fur trade sent back to London from Hudson Bay.

43. Ibid. at 244. One of the recommendations Nixon made to the London Committee was that more trustworthy and reliable men be sent to meet the ships that were arriving from England, in order to prevent bayside Company servants and HBC seamen from engaging in private trading.

44. Ibid. at 244–45.

45. Ibid. at 256.

46. Ibid. at 272–73.

47. Rich, E. E., ed., Hudson's Bay Company Letters Outward, 1679–169, vol. 11, (London: Hudson's Bay Record Society, 1948) at 39–40, 79–80, 111–12, 149, 179–80, 195, 233, 239.Google Scholar

48. Rich, E. E., ed., Hudson's Bay Copy Booke of Letters, Commissions, Instructions Outward, 1688–1696, vol. 20 (London: Hudson's Bay Record Society, 1957) at 101, 121, 125, 147, 149.Google Scholar

49. For an overview and documents concerning this Anglo-French rivalry, including a chronology of battles between the French and English over HBC posts, see Rich, ed., supra notes 47 and 48.

50. Rich, ed., supra note 42 at 301–02.

51. Rich, ed., supra note 48 at 144–48, 164–65.

52. Supra note 47 at 146.

53. ibid. at 147.

54. Ibid.

55. Ibid. at 147–48.

56. Hudson's Bay Company Archives [HBCA], B.3/z/2, fos., 1–3, Albany Fort, Miscellaneous files, 1694–1696. The HBCA miscellaneous files pertaining to Albany Fort are a series of documents that contain depositions of Company servants, Post accounts, Men's accounts, Indian's accounts, lists of Day and Night Watches, and Memoranda. All of these documents appear to have been placed in the Albany Fort miscellaneous files because they were not part of the post journal itself.

57. HBCA, B.3/Z/2, fo. 1.

58. HBCA, B.3/z/2, fo. 2. It is beyond the scope of this paper to undertake a detailed comparison of the type and severity of punishments administered by officers of the HBC and the captains of merchant ships or officers in the British military. However, a number of studies have been completed that provide a good starting point for such a study. See generally, the data and literature discussed in Braithwaite, John, “Shame and Modernity” (1993) 33 British Journal of Criminology 1 CrossRefGoogle Scholar; Cockburn, J. S., “Punishment and Brutalization in the English Enlightenment” (1994) 12 Law and History Review 155.Google Scholar

59. HBCA, B.3/Z/2, fo. 3.

60. Ibid.

61. HBCA, “York Factory Councils” B.239/a/2, fos. 75–78.

62. The five councillors who participated in the trial were Henry Kelsey (who was then Deputy Governor), Alexander Apthorp, David Vaughan, John Carruthers and Fotherby Jackson.

63. HBCA, B.239/a/2, fo. 75.

64. HBCA, B.239/a/2, fo.76.

65. Although the recorded post council meetings that were held at York Factory between 1714 and the mid–1720s contain no examples of other criminal trials, it is evident from the council minutes that they were also convened to make collective decisions on how disobedient and dishonest Company servants should be dealt with. For example, at the council held at York Factory on 1 September 1725, presided over by Governor Henry Kelsey, a decision was made to extend the contracts of a number of bayside servants for an additional year because the crew and men who arrived on the “Whalebone Sloop” from England in the summer refused to stay over the winter and take the place of the men who were scheduled to return. The members of Henry Kelsey's council also took steps at the meeting to deal with a case involving the suspected theft of Company furs by a servant by the name of Hall. Specifically, it was reported that the Governor ceased “all M:r Halls papers and Furrs that he Could find in his Cabbbin, Chest or elsewhere, tyed them up on a Bundle and afterwards Open:d them before the S:d Councell (but) found No papers Materiall & of Furrs, (except) one black Beav:r the Gov:r gave him 10 Marins (and) one Red Fox, he Catcht in the Winter.” However, the council stated that “we are (still) Senceable he Caught more.” HBCA, B.239/b/, fo. 9.

66. Lake became the Governor of the Hudson's Bay Company in 1712 (when he was around 28 years old), and remained the Governor without a break until his death in 1743, a total of 29 years. This was the longest term served by any Governor of the Hudson's Bay Company prior to 1949. Lake was also “a Sub-Governor of the Africa Company.” He was also actively involved in buying and selling stocks and annuities, including “East India stocks of various denominations.” See Rich, E. E., ed., Introduction to James Isham's Observations and Notes, 1743–49 vol. 12 London: Hudson's Bay Record Society, 1949 at xix.Google Scholar Lake was a key member of the Board of Governors of the Company until his death, and he is said to have exerted a great deal of influence and control over the Company's activities in North America. According to Rich: “During the period of the recovery (following the Treaty of Utrecht and the return of HBC posts to the control of the Company) the dominant personality was undoubtedly the Governor, whose character pervaded not only the London Committee meetings but also the councils of the remote forts on the Bay; a subtle, reasonable influence, apparently unenterprising except in matters of accountancy but yet keen, shrewd and utterly reliable.” Ibid. at 14.

67. These data were collected during two years of research in the Hudson's Bay Company Archives and the Dafoe Library at the University of Manitoba, during which time we were assisted by several research assistants: Gloria Lee, James Muir, Paul Nigol, Tannis Peikoff, Joanne Reid, Ruth Swan. Each of these graduate student research assistants—from the disciplines of history, sociology, and law—made important contributions to the research through searching out new data sources, answering many of the questions we had about the Hudson's Bay Company, and transcribing literally hundreds of pages of relevant post journal entries and other unpublished primary sources.

68. Robson, supra note 17.

69. Williams, Glyndwr, “Arthur Dobbs and Joseph Robson: New Light on the Relationship between Two Early Critics of the Hudson's Bay Company” (1959) 40 Canadian Historical Review 132.CrossRefGoogle Scholar

70. Williams, Glyndwr, ed., Hudson's Bay Miscellany 1670–1870 (Winnipeg: Hudson's Bay Record Society, 1975) at 5.Google Scholar

71. “Captain John Fullartine, Governor of Albany Fort in Hudson's Bay, to Governor and Committee of the Hudson's Bay Company, 2 August 1703” in Davis, K. G., ed., Letters from Hudson Bay 1703–1740 (London: Hudson's Bay Record Society, 1965) at 5–14.Google Scholar Fullartine returned to Albany in 1708 and successfully defended the post against the French in 1709. Fullartine was not a novice at fighting with the French, as he had participated in earlier military campaigns in the Bay in the 1680s and 1690s, and on two of these occasions, he was captured and taken prisoner. Fullartine finally returned to England in 1711, where he became a member of the London Committee until shortly before his death in 1738. Ibid. at 10, note 1.

72. Williams, supra note 70 at 5; Davis, ibid. at 355–61.

73. Williams, ibid. at 10–65.

74. HBCA, A.6/3, fo. 69, cited in Williams, ibid. at 15. The copy of the Piracy Act sent by the Committee was enacted in 1701 (11 & 12 William III, c.vii.). This act was modelled after, and made specific reference to, the Piracy Act of 1536, enacted during the reign of Henry VIII.

75. HBCA, Albany Post Journal, 2 May 1706, cited in Williams, supra note 70 at 50.

76. HBCA, B.3/a/4, Albany Post Journals, 4, 15, and 16, May 1713.

77. HBCA, B.3/a/4, Albany Post Journal, 26 January 1713.

78. HBCA, A.l 1/2 fos. 14–25, Inward Correspondence, Anthony Beale, Albany Fort, to the Honourable Governor and Committee of the Hudson's Bay Company, residing in London, 23 July 1706, 1 August 1712, 10 September 1712, 2 August 1714, published in Davis, supra note 71 at 15–33.

79 Ibid. at 22–23.

80. HBCA, A.11/2, fos. 26–33, 34–41, Inward Correspondence, Thomas Macklish, Albany Fort, to the London Committee, 16 July 1716, 12 September 1716, 20 August 1717, 31 August 1719.

81. HBCA, A.11/2, fos. 38–41, Thomas Macklish, Albany Fort, to the London Committee, 31 August 1719.

82. HBCA.A.11/2, fos. 42–5.

83. HBCA, A.11/2, fos., 56–57, cited in Davis, supra note 71 at 113–16.

84. HBCA, A.6/5. fo. 2–2d, London Committee to Joseph Myatt, 25 May 1727, cited in Davis, supra note 71 at 114.

85. Davis, supra note 71 at 323.

86. HBCA, Search file, Joseph Isbister.

87. Kirk, Sylvia Van, “Joseph Isbister” 6 Dictionary of Canadian Biography at 381.Google Scholar

88. HBCA, A.6/7, Outward Correspondence, London Committee to Mr. Joseph Isbister and Council at Albany Fort, 5 May 1742. Specifically, the London Committee told Isbister: “We Expect a due Performance of your Promise by your Vertuous example, not only to prevent immoderate drinking and other vices that did occasion M:r Waggoners Death, but that you will take care to hinder as much as Possible the detestable Sin of Whoring w:ch we are informed is practiced in the Factory notwithstanding what we have so often ordered in our former letters to the Contrary.”

89 HBCA, B.59/a/1–4, Eastmain Journals, December 1736 to April 1740.

90. HBCA, B.3/a/33, Albany Post Journal, 16 September 1741 [emphasis added].

91 HBCA, B.3/b/1, Albany Correspondence Books, Copy of letter sent to Mr. Duffield, 13 September 1742.

92. HBCA, B.3/b/1, Albany Correspondence Books, Copy of Mr. Duffield's letter, Moose Fort, 24 September 1742.

93. HBCA, B.3/b/1, Albany Correspondence Books, Copy of Mr. White's letter, York Fort, 29 June 1742.

94. HBCA, B.3/a/30, Albany Post Journal, 22 August 1740.

95. HBCA, B.3/a/30, Albany Post Journal, 2 September 1740.

96. HBCA, B.3/a/30, Albany Post Journal, 5 September 1740.

97. HBCA, B.3/a/30, Albany Post Journal, 8 September 1740.

98. HBCA, B.3/a/30, Albany Post Journal, 25 September 1740. A second slightly different account of this incident was written down by Isbister's Deputy Governor, George Spence, in the journal he kept during 1740–1741 (HBCA, B.3/a/31, George Spence's Journal, 26 August 1740 to 6 September 1741). Spence's journal entry for 25 September 1740, states: “Thurs:dy Last Night as usual y:e Mast:r having order'd me I went down and sett y:e Watch att 5 o'clock and order'd the Rest of y:e people to Bed & likewise put out their Lights, afterwards I went out and walkt a top of y:e Sheeds till such Time as I saw no Light in their Windows, then I went in y:e Guard Room saw no Body there but Tho:s Nelthorpe who was Master of y:e Watch and his Watch Mates, having staid there some time I went to my Cabin, about a quarter of an hour afterwards y:e Master came down, & walking round y:e House, see'd a Light in Tho:s Nelthorpe's Cabin, went in and found him in Company with 2 or 3 more drinking, y:e Master reprimanded those in Company with him for not being gone to Bed, and likewise Nelthorp for Neglecting his Watch, to which he replyed that it was apprentice Hours to make one go to Bed at 8 o'Clock and that he did not come into y:e Country to watch, but to keep a Journal and to do the Company as much Service that way as he could, and likewise asked the Master a great many impertinent Questions.”

99. HBCA, B.3/a/30, Albany Post Journals, 29 November 1740, 20 and 25 December 1740, Hand 18 March 1741, 10 and 11 August 1741.

100. HBCA, B./a/30, Albany Post Journal, 20 December 1740. In the journal he kept as Deputy Governor, George Spence offered the following slightly different description of the incident: “Satur:dy The Taylor at work as Yesterday, y:e Hunters killd 29 Partridges, two of the People brewed to Day, and some carrying Snow out of the Yard, this Evening Tho:s Nelthorpe being fuddled, challenged one of y:e People to fight him, viz. Henry Smith they imediatly went to y:e Wood Pile (a Place ussual for deciding of Manhood) the Mast:r being Informed of it, went out to them, being both stript ready to engage and John Geenaway Armourer, who was likewise drunk striping in order to assist Nelthorpe his Reason for challenging the Fellow, he not y:e Armourer could give no Satisfactory one, wherefore the Mast.r ordeR'd them all to put on their Cloaths, and get within Doors, and told Nelthorpe never to Challenge any of the people for if they affronted him, to acquaint him of it & he would punish them, Nelthorpe not being satisfied with this, swore that he would beat the Fellow whether the Mast.r would, or not, or according to his Expression, for all the Gov:r as he was pleased to title him, however the Mast:r told them they should not fight and made them go with:in Doors: after this y:e Armourer & Nelthorpe, had the Impudence to come up to y:e Mast:r that Night and ask for Brandy, but they had none: Wind SE a moderate breeze with clear cold weather.” HBCA, B3/a/31, George Spence's Journal, 20 December 1740.

101. HBCA, B.3/a/30, Albany Post Journal, 10 August 1741.

102. HBCA, B.3/a/33, Albany Post Journal, 25 December 1741.

103. HBCA, B.3/a/33, Albany Post Journals, 28 December 1741, 6 January 1742 [emphasis added].

104. HBCA, B.3/a/33, Albany Post Journals, 9 and 14 January 1742.

105. HBCA, B.3/a/33, Albany Post Journals, 5, 6, and 7 February 1742.

106. HBCA, B.3/a/33, Albany Post Journal, 7 February 1742.

107. HBCA, B.3/a/33, Albany Post Journal, 28 March 1742.

108. Isbister also had awful spelling, even in comparison to his 18th-century peers.

109. HBCA, Albany Post Journals, 1742–1748, 1753–1756; Smandych & Linden, supra note 10.

110. HBCA, B.3/a/34, Albany Post Journal, 11 August 1742.

111. In the sense in which these terms have been used by Foucault, Governmentality, supra note 1.

112. Ignatieff, supra note 27; Scull, supra note 27; Linebaugh, supra note 27.

113. Supra note 25.