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Creating Order in the Wilderness: Transplanting the English Law to Rupert's Land, 1835–51

Published online by Cambridge University Press:  28 October 2011

H. Robert Baker
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The legal history of the western Canadian frontier has received renewed attention in recent years. Much of the work readdresses the question of “law and order,” challenging older assumptions about Canada's orderly frontier culture—orderly particularly in contrast to the United States’ violent settlement of the west. At issue is not just a revision of whether violence occurred on the Canadian frontier but a fundamental reinterpretation of what the concepts of “law” and “order” had really meant. Indeed, conflict between legal cultures has become a major theme as historians attempt to rewrite the history of the Canadian west. They understand that this conflict—whether violent or not—shaped the formation of Canada's legal culture before 1870. Methodological prescriptions for writing this type of history have emphasized the need for historians to widen their base of sources, particularly to exploit “nonlegal” sources (such as diaries, journals, and letters), and to consider the workings of what Lawrence Friedman has called the “cultural” component of a legal system: what suits were brought to court, what notions came into play there, what expectations people brought with them. Important studies on the colonial settlement of British Columbia in the nineteenth century have focused on the relationships between the Hudson's Bay Company, colonists, and Natives to demonstrate that conflict over resources and competing definitions of liberalism and law often shaped legal discourse. These rich accounts have, among other things, called into question the idea of an orderly, peaceful Canadian frontier. They have also provided a much more complex picture of the interactions between Native and European, and the uses of law and the legal system by settlers, Company men, and Aboriginals.

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Articles
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Law and History Review , Volume 17 , Issue 2 , Summer 1999 , pp. 209 - 246
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Copyright © the American Society for Legal History, Inc. 1999

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References

1. The image of the violent and “lawless” American frontier has not been without its critics. Important in terms of this essay are the differing concepts of law that Americans took with them across the continent. Orderliness was, perhaps, the more common phenomenon in the settling of the west. See Reid, John Phillip, Law for the Elephant: Property and Social Behavior on the Overland Trail (San Marino, Ca.: The Huntington Library, 1980)Google Scholar. For examples of violence and peace coexisting in the American west, see Brown, Richard Maxwell, “Law and Order on the American Frontier: The Western Civil War of Incorporation,” in Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West, ed. McLaren, John, Foster, Hamar, and Orloff, Chet (Regina: Canadian Plains Research Center, 1992), 74–89.Google Scholar

2. Friedman, Lawrence, “Legal Culture and Social Development,” Law and Society Review 4 (1969): 29–44CrossRefGoogle Scholar. Parker, Graham, “Canadian Legal Culture,” in Law and Justice in a New Land: Essays in Western Canadian Legal History, ed. Knafla, Louis A. (Toronto: Carswell, 1986), 3–30Google Scholar. For a prodigious article on the subject of writing western legal history, see John Phillip Reid, “The Layers of Western Legal History,” in Law for the Elephant, Law for the Beaver, 23-73. See in particular a cogent example about how “typical” diary entries revealed attitudes about orderliness and law that consumed everyday activity (40-44).

3. Foster, Hamar, “British Columbia: Legal Institutions in the Far West, from Contact to 1871,” Manitoba Law Journal 23 (1996): 293–340Google Scholar. Loo, Tina, Making Law, Order, and Authority in British Columbia, 1821-1871 (Toronto: University of Toronto Press, 1994)Google Scholar.

4. This was a point raised earlier by Robin Fisher, who argued that the image of the orderly, Canadian frontier did not apply west of the Rockies but was more suited to the prairies. See Fisher, Robin, “Indian Warfare and Two Frontiers: A Comparison of British Columbia and Washington Territory During the Early Years of Settlement,” Pacific Historical Review 50 (1981): 31–51CrossRefGoogle Scholar.

5. The territory received its name from Prince Rupert, the Company's first governor and also cousin to Charles II who granted the Company its charter of incorporation and monopoly in 1670.

6. The judicature established at the Red River settlement was formally known as the “General Quarterly Court of Assiniboia” and had jurisdiction over the whole of the district of Assiniboia. I use the terms “Red River's judicature” and “Assiniboia's judicature” inter-changeably: they were one and the same thing.

7. Bindon, Kathryn, “Hudson's Bay Company Law: Adam Thom and the Institution of Order in Rupert's Land 1839-54,” in Essays in the History of Canadian Law, ed. Flaherty, David (Toronto: The Osgoode Society, 1981), 1:57.Google Scholar

8. Louis Knafla, “From Oral to Written Memory: The Common Law Tradition in Western Canada,” in Law and Justice in a New Land, 31-77. Knafla's survey is helpful because it places the western Canadian provinces in a comparative framework and suggests some chronological periodization. While his formulation is problematic—particularly given the new research on British Columbia and Manitoba—it is an excellent point of departure. See also R. C. Macleod's, “Law and Order on the Western-Canadian Frontier,” in Law for the Elephant, Law for the Beaver, 90-105. Macleod's survey covers the Hudson's Bay Company's general management of its territories, the coming of the Royal Canadian Mounted Police, and the maintenance of order on the Canadian Prairies. But he provides only a cursory survey of the Red River settlement. The most up-to-date survey of Assiniboia's legal institutions and general legal history is Gibson, Dale, “Company Justice: Origins of Legal Institutions in Pre-Confederation Manitoba,” Manitoba Law Journal 23 (1996): 247–92Google Scholar, now in Canada's Legal Inheritances, ed. Guth, DeLloyd J. and Pue, W. Wesley (Winnipeg: Canadian Legal History Project, forthcoming)Google Scholar.

9. R. C. Macleod's treatment of the Red River settlement depended almost entirely on Bindon's work and published sources and placed an undue amount of attention on Adam Thom and a few incidents of disorder during the 1860s. Dale Gibson concentrated only on a handful of “big” cases that came through the court. He depended mainly on Oliver, E. H., The Canadian North-West: Its Early Development and Legislative Records, 2 vols. (Ottawa: Government Printing Bureau, 1914)Google Scholar, which perhaps led him to ignore much of the valuable information stored in the Hudson's Bay Company Archives and the Provincial Archives of Manitoba. Roy Stubbs, in his classic biographies of the four recorders, wrote mainly about the “watershed” cases and was far more interested in telling the stories of the recorders than the history of the settlement. Stubbs, Roy, Four Recorders of Rupert's Land (Winnipeg: Peguis, 1967)Google Scholar.

10. This was according to the normal rules of reception, which fixed the date of reception at the date of possession, in this case the granting of the 1670 charter.

11. North West Company officials perceived the colony as a direct threat to their fur trade, particularly in regard to the pemmican supply that was vital to provisioning prairie outposts. See Ray, Arthur J., Indians in the Fur Trade (Toronto: University of Toronto Press, 1974), 128Google Scholar.

12. Concerning the Second Canada Jurisdiction Act of 1821, see Foster, Hamar, “Long Distance Justice,” American Journal of Legal History 34 (1990): 1–48CrossRefGoogle Scholar.

13. The Company never collected these regulations into a “code” during the seventeenth or eighteenth centuries. Instead, they were scattered through the many letters that accompanied the ship captains and governors to the shores of Hudson's Bay. These letters are collected in Letters Outward 1679-94, ed. Rich, E. E. (Toronto: The Champlain Society, 1948)Google Scholar.

14. Very little has been written about Company law in the eighteenth century. For an expanded argument on the Company's adherence to the common law governing master-servant relationships, see Baker, H. Robert, “Law Transplanted, Justice Invented: Sources of Law for the Hudson's Bay Company in Rupert's Land, 1670-1870” (master's thesis, University of Manitoba, 1996), chapter 3Google Scholar. Cf. Smandych, Russell and Linden, Rick, “Administering Justice Without the State: A Study of the Private Justice System of the Hudson's Bay Company to 1800,” Canadian Journal of Law and Society 11 (Spring 1996): 21–61CrossRefGoogle Scholar.

15. The fur trade depended on Natives, and—to a large degree—on Native trading customs. See White, Bruce, ‘“Give Us a Little Milk’: The Social and Cultural Meanings of Gift Giving in the Lake Superior Fur Trade,” Minnesota History 48 (1982): 60–71.Google Scholar For an explication of Native influence on marriage customs, see Brown, Jennifer, Strangers in Blood: Fur Trade Families in Indian Country (Vancouver: University of British Columbia Press, 1980)Google Scholar. See also Kirk, Sylvia Van, “Many Tender Ties”: Women in Fur Trade Society, 1670-1870 (Winnipeg: Watson and Dwyer, 1980)Google Scholar.

16. Charters, Statutes, Orders in Council Relating to the Hudson's Bay Company (London: Hudson's Bay Company, 1931), 18Google Scholar.

17. For the trials of John Cartwright and William Lilpot, both for theft and conspiracy, see Albany Post Miscellaneous Files, 1694-96, Hudson's Bay Company Archives, Provincial Archives of Manitoba, Winnipeg, Manitoba (hereafter HBCA, PAM), B. 3/z/2, fols. 1-3.

18. For the 1715 case of Thomas Butler, see York Post Journal, 27 December 1715, HBCA, PAM, B. 239/a/2, fols. 75-76d.

19. Albany Post Journal, 26 January 1713, HBCA. PAM, B. 3/a/4, fol. 19d.

20. The significant exceptions, of course, are Joseph Lamothe in 1802 and John Mowat in 1809. Both committed murder within the Company's territories and thus within the Company's jurisdiction. The Company did not try either individual—in both cases trials were held in Montreal. For a treatment of both the Lamothe and the Mowat cases and the jurisdictional uncertainties they raised for both the Hudson's Bay Company and for the imperial Parliament, see Foster, “Long Distance Justice,” 8-27.

21. For the formal records of the trial, see Alexander Christie to the London directors, 18 June 1835, HBCA, PAM, D. 4/102, fols. 5-8. It is worth noting that there seems to be little correlation between the seriousness of the issues involved and the decision to take those issues to trial. For instance, the serious issue of murder (in the cases of Joseph Lamothe in 1802 and John Mowat in 1809) was never taken to trial. Thomas Butler was taken to trial for theft, but the four men that Anthony Beale whipped for theft never went to trial. These are questions that remain unanswered largely because they have not been asked. The subject of the Hudson's Bay Company's administration of justice before the establishment of a formal judiciary in 1835 is a topic that deserves more explication by legal historians.

22. One must draw a distinction here between Company discipline—even when it invoked the law or legal measures—and formal, legal proceedings. The Company had many occasions to exercise its authority over its servants, but no formal machinery in the Canadian West until 1835. For an example of Company discipline and the problems that the Company's lack of formal judicature raised, see Foster, Hamar, “Mutiny on the Beaver: Law and Authority in the Fur Trade Navy, 1835-1840,” Manitoba Law Journal 20 (1991): 37Google Scholar.

23. Kathryn Bindon asserted that this was the standing penal code for the colony. See Bindon, “Hudson's Bay Company Law,” 45. However, as Louis Knafla pointed out, the code pertained mainly to factory regulations involving Company servants and was not a comprehensive list of penal laws that would apply to colonists. See Knafla, “The Common Law Tradition in Western Canada,” 36. The code of penal laws can be found in Oliver, The Canadian North-West, 2:1287.

24. Colvile to Halkett, 31 May 1822, cited in Oliver, The Canadian North-West, 1:221.

25. Ross, Alexander, Red River Settlement (1856; reprint, Minneapolis: Ross and Haines, 1957), 173Google Scholar.

26. MacBeath, R. G., The Selkirk Settlers in Real Life (Toronto: William Briggs, 1897), 66.Google Scholar

27. Ibid., 70. MacBeath did not attach a date to the case in question, and it appears that it could have occurred at any time during his father's tenure as a magistrate.

28. Smandych, Russell and Sacca, Karina, “The Development of Criminal Law Courts in Pre-1870 Manitoba,” Manitoba Law Journal 24 (1996): 201–57Google Scholar.

29. Bulger to Colvile, 1822, cited in Oliver, The Canadian North-West, 1:43.

30. Minutes of the Gpvernor and Council of Assiniboia (hereafter Minutes of Council), 12 February 1835, HBCA, PAM, E. 16/2, fol. 4. This came directly on the heels of the Company reacquiring the district of Assiniboia from the heirs and executors of the earl of Selkirk's estate.

31. Ibid., fol. 6. The Council minutes are all reproduced in Oliver, The Canadian North-West. Since my citations are taken directly from the archives, all my references will be to the original documents.

32. Minutes of Council, 12 February 1835, HBCA, PAM, E. 16/2, fol. 6d.

33. Ibid., 16 June 1837, HBCA, PAM, E. 16/2, fols. 15-15d.

34. Ibid., [no day, month recorded] 1839, HBCA, PAM, E. 16/2, fols. 19d-22d.

35. Ibid., 25 June 1841, HBCA, PAM, E. 16/2, fol. 37d.

36. Commission for Justice of the Peace, 1850, PAM, MG2 B47. Another commission issued in 1852 is located in Council of Assiniboia-Miscellaneous Papers, HBCA, PAM, E. 16/4, fol. 5.

37. Commission for Justice of the Peace, 1850, PAM, MG2 B47.

38. Minutes of Council, 4 June 1839, HBCA, PAM, E. 16/2, fol. 24d.

39. Ross, Red River Settlement, 174.

40. Minutes of Council, 12 February 1835, HBCA, PAM, E. 16/2, fol. 3d.

41. Ibid., fol. 4.

42. London directors to Simpson, 1836, HBCA, PAM, D. 5/4, fol. 160.

43. Galbraith, John S., The Little Emperor: Governor Simpson of the Hudson's Bay Company (Toronto: Macmillan of Canada, 1976)Google Scholar. This conclusion is also based on the voluminous correspondence that Simpson kept with London and his frequent trips there to see the governor and committee of the Hudson's Bay Company.

44. Minutes of Council, 12 February 1835, HBCA, PAM, E. 16/2, fol. 5d.

45. Ibid., fol. 7d.

46. Whether this anticipated or followed current trends is unclear. The Irish Royal Constabulary that later served as the model for the RCMP had not yet reached maturity, and it is doubtful whether Simpson employed it as a model. See Hawkins, Richard, “The ‘Irish Model’ and the Empire: A Case for Reassessment,” in Policing the Empire: Government, Authority and Control, ed. Anderson, David and Killingray, David (Manchester: University of Manchester Press, 1991), 31Google Scholar.

47. Guth, DeLloyd J., “The Traditional Common-Law Constable: from Bracton to the Fieldings to Canada,” in Police Powers in Canada, ed. Macleod, R. and Schneiderman, D. (Toronto: University of Toronto Press, 1994), 5Google Scholar.

48. London directors to Simpson, 15 February 1837, HBCA, PAM, D. 5/4, fol. 237.

49. Simpson to London directors, 21 July 1835, HBCA, PAM, D. 4/101, fol. 4d.

50. Most historians will disagree with my conclusion. See Gibson, “Company Justice,” 270-71. Gibson believed Simpson's claims and concluded that the Volunteer Corps was a necessary establishment. However, he did not cite any evidence of disturbances during or previous to 1835 to back his claim.

51. Alexander Christie to Simpson, 14 December 1835, HBCA, PAM, D. 5/4, fol. 137.

52. Ross, Red River Settlement, 223.

53. 2 Geo. 3, c. 20, 43. “An Act to explain, amend, and reduce into one Act of Parliament, the several Laws, now in being, relating to the Raising, and Training the Militia, within that Part of Great Britain called England.” Statutes at Large (London: Eyre and Strahan, 1786), 7:392Google Scholar. It is important to note that the Statute “exempted” constables from serving in the militia—it also exempted solicitors, barristers, and other officers of the Court, any man in the British army, peers of the realm, poor men with at least two legitimate children, and others. Concerning peace officers, however, the conceptualization was clear. Officers of the court—in the business of upholding the peace—were not in any way connected with the executive's military or militia.

54. Minutes of Council, 3 July 1843, HBCA, PAM, E. 16/2, fol. 43.

55. Ibid., 19 June 1844, HBCA, PAM, E. 16/2, fol. 45.

56. Ibid., 16 June 1845, HBCA, PAM, E. 16/2, fol. 49d.

57. Bindon, “Hudson's Bay Company Law,” 51.

58. Ross, Red River Settlement, 176.

59. Bindon, “Hudson's Bay Company Law,” 54. See also Knafla, “The Common Law-Tradition in Western Canada,” 38.

60. Simpson to Thorn, 5 January 1838, HBCA, PAM, D. 4/23, fol. 85.

61. London directors to Simpson, 9 March 1836, HBCA, PAM, D. 5/4, fol. 160. London directors to Simpson, 15 February 1837, ibid., fol. 237.

62. Ross, Red River Settlement, 223.

63. Bindon, “Hudson's Bay Company Law,” 51. To her credit, Bindon mentioned as well that the title of recorder also suggested the variety of legal functions that the appointee was supposed to perform. She cited the different roles played by Recorders in mayor's courts in England and colonial courts in America, although she did not pursue either in any depth.

64. Simpson to Barclay (HBC Secretary, London), 8 October 1853, HBCA, PAM, D. 4/74, fol. 23.

65. Jacob, Giles, A New Law Dictionary, 7th ed. (London: Henry Lintot, 1756)Google Scholar.

66. Webb, Sidney and Webb, Beatrice, English Local Government (Longman: New York, 1908), 2:323.Google Scholar

67. Ross, Red River Settlement, 383.

68. Simpson to Thom, 3 July 1850, HBCA, PAM, D. 4/42, fol. 27d.

69. Ibid., fols. 27d-28.

70. Colvile to Simpson, 22 May 1851, cited in Eden Colvile's Letters 1849-1852, ed. Rich, E. E. (London: The Hudson's Bay Company Record Society, 1956), 208Google Scholar.

71. Dr. John Bunn to Simpson, 4 August 1851, HBCA, PAM, D. 5/31, fol. 220.

72. Adam Thom, “Observations on the Law and Judicature of Rupert's Land,” 1840, HBCA, PAM, E. 16/1, fol. 89.

73. Thom to Simpson, 29 May 1840, HBCA, PAM, D. 5/5, fol. 281d.

74. Thom, “Observations,” 1840, HBCA, PAM, E. 16/1, fols. 91-91d.

75. Ibid., fols. 94-94d.

76. Ibid., fol. 95.

77. Ibid., fol. 97d.

78. Ibid., fol. 98d. Benefit of clergy allowed offenders to read from the Book (i.e., the Bible) and thus save themselves from the gallows. It applied mainly to property crimes, al-most all of which were punishable by death. Incidentally, Thom was wrong: benefit of clergy applied to women in some cases after the statute of 21 Jac. l,c. 6(1623). See Beattie, J. M., Crime and the Courts of England, 1660-1800 (Princeton: Princeton University Press, 1986), 141–43Google Scholar.

79. Wager of law was abolished in 1833, although it was a dead letter well before then. See Milsom, S. F. C., The Historical Foundations of the Common Law (London: Butterworths, 1969), 292–94Google Scholar.

80. Thom, “Observations,” HBCA, PAM, E. 16/1, fol. 92.

81. Ibid.

82. Thom to Simpson, 29 May 1840, HBCA, PAM, D. 5/5, fol. 281.

83. London to Simpson, 1 March 1841, HBCA, PAM, A. 6/25, fol. 121d.

84. Thom to Simpson, 30 May 1840, HBCA, PAM, D. 5/5, fols. 285-85d.

85. Thom to Simpson, 29 May 1840, HBCA, PAM, D. 5/5, fol. 282.

86. London to Simpson, 1 March 1841, HBCA, PAM, A. 6/25, fol. 121d.

87. Thom to Simpson, 31 July 1840, HBCA, PAM, D. 5/5, fol. 301.

88. Thom, “Proposed Penal Code for Rupert's Land,” 1840, HBCA, PAM, E. 16/1, fol. 27.

89. Thom, “Proposed Civil Code for Rupert's Land,” 1840, HBCA, PAM, E. 16/1, fols. 1-19. The “civil code” began with a statement on procedure and ended with a prolonged statement about perjury. Thom concluded that the courts were better off allowing almost everything in rather than placing elaborate restrictions on testimony to guard against perjury. The remainder of his “civil code” (fols. 20-16) dealt with intestate property.

90. This conclusion refers only to the usefulness of the civil code in dispensing justice. Thom's proposed code did anticipate several elements of the court's procedure (e.g., the blending of law and equity in one court, and the inclusion of all witnesses, despite any pretext of inadmissability). Ibid., fols. 16-17.

91. Smith (HBC Secretary) to Thom, 19 March 1842, HBCA, PAM, A. 6/25, fols. 172-72d.

92. The royal charter gave the Company the “power to judge all persons belonging to the said Governor and Company or that shall live under them in all Causes whether Civill or Criminall according to the Lawes of this Kingdome and to execute justice accordingly.” Cited in Charters, Statutes, Orders in Council Relating to the Hudson's Bay Company, 18. Emphasis added.

93. Smith (HBC Secretary) to Thom, 19 March 1842, HBCA, PAM, A. 6/25, fols. 172-72d.

94. Thom to Simpson, 4 August 1842, HBCA, PAM, D. 5/7, fol. 158d. Presumably the “moral impossibility” of enforcing the criminal law of England in the Red River settlement had to do with the relative harshness of the English law.

95. Thom to Simpson, 29 May 1840, HBCA, PAM, D. 5/5, fol. 282.

96. Thom to Simpson, 4 August 1842, HBCA, PAM, D. 5/7, fol. 159.

97. Ibid.

98. Minutes of Council, 25 June 1841, HBCA, PAM, E. 16/2, fols. 29-40.

99. Ibid., fols. 29d-30.

100. Stubbs, Four Recorders of Rupert's Land, 42.

101. Bindon, “Hudson's Bay Company Law,” 57-59. Louis Knafla failed to distinguish between Thom's temporary civil and penal codes and the “local code.” Knafla, “The Common Law Tradition in Western Canada,” 37. Dale Gibson correctly pointed out that Thom merely consolidated existing regulations in 1841. Gibson, “Company Justice,” 273.

102. Minutes of Council, 4 June 1832, HBCA, PAM, E. 16/2, fols. 1-2d.

103. Ibid., 25 June 1841, HBCA, PAM, E. 16/2, fol. 32d.

104. Ibid., 13 June 1836, HBCA, PAM, E. 16/2, fol. 13d.

105. Ibid., 8 June 1840, HBCA, PAM, E. 16/2, fol. 27d.

106. Ibid., 15 June 1838, HBCA, PAM, E. 16/2, fols. 17-17d.

107. Ibid., 16 June 1837, HBCA, PAM, E. 16/2, fol. 15d. Ibid., 4 July 1839, HBCA, PAM, E. 16/2, fols. 22-22d.

108. Thom to Simpson, 27 July 1840, HBCA, PAM, D. 5/5, fol. 293d.

109. Minutes of Council, 4 June 1832, HBCA, PAM, E. 16/2, fol. 1-1d.

110. Ibid., 25 June 1841, HBCA, PAM, E. 16/2, fol. 30. Emphasis in original.

111. Gibson assumed Thom's dominance of the bench without reference to any primary sources. In one quote, he cited Joseph Hargrave (naming him only as “an observor” and citing him from another secondary source) to prove that the bench was subordinate to recorder Thom. Gibson, “Company Justice,” 272. Hargrave, however, arrived at Red River on 4 August 1861, well after Thom had left the settlement—accordingly, his well-known description was of recorder Black's court. Hargrave, James Joseph, Red River (Narol, Manitoba, 1871; second printing 1977), 87.Google Scholar For a positive account of Thom's attempts to assert his dominance over the court, see Gibson, Dale, “Scandal at Red River: The Judge and the Servant Girl,” Beaver 70.5 (Sept. 1990): 30–38.Google Scholar Kathryn Bindon also overrated Thom's influence on the law as it was practiced in Assiniboia's courts without reference to the court records: Bindon, “Hudson's Bay Company Law,” 44.

112. Thom to Simpson, 29 July 1840, HBCA, PAM, D. 5/5, fol. 297d.

113. Simpson to Thom, 5 January 1838, HBCA, PAM, D. 4/23, fols. 84d-85.

114. Simpson to the London directors, 8 October 1853, HBCA, PAM, D. 4/74, fol. 23.

115. Peace River ran through the Great Slave Lake and then dumped into the Arctic under the name of the Mackenzie River. It was not within the territorial boundaries of Rupert's Land but was within the scope of the Company's trading license.

116. Case of James Calder (17 August 1848), General Quarterly Court of the District of Assiniboia [hereafter GQCA], PAM, MG2 B41, bk. 1, 100-14.

117. Thom, Adam, Charge Delivered to the Grand Jury of Assiniboia, 20th February 1845 (London: Printed by E. Couchman, 1848).Google Scholar

118. HBC v. Sayer (17 May 1849), GQCA, PAM, MG2 B41, bk. 1, 151-54. For a compelling and vivid narrative of the trial, see Gibson, “Company Justice,” 248-50.

119. Morin v. Richard (19 February 1846), GQCA, PAM, MG2 B41, bk. 1, 48-49.

120. Marcellais v. Ploofe (15 May 1845), GQCA, PAM, MG2 B41, bk. 1, 20-22.

121. The word “trespass” at common law meant a personal wrong. See Milsom, The Historical Foundations of the Common Law, 244.

122. Minutes of the Council of Assiniboia, 25 June 1841, HBCA, PAM, E. 16/2, fols. 35-35d.

123. Ibid.

124. Marcellais v. Ploofe (15 May 1845), GQCA, PAM, MG2 B41, bk. 1, 21.

126. Knafla, “The Common Law Tradition in Western Canada,” 38. See also Stubbs, Four Recorders of Rupert's Land, for evidence of latter recorders’ popularity and success. For recorder Johnson's innovations, see Baker, “Law Transplanted, Justice Invented,” 124-28.

127. Galbraith, The Little Emperor, 121-22, 167-68.

128. MacDermot v. Breland et al. (18 Feb 1847), GQCA, PAM, MG2 B41, bk. 1, 64. Breland stated that he wanted the court to resolve the dispute between himself (and his colleagues) and MacDermot.

129. Smith (HBC Secretary) to Thom, 19 March 1842, HBCA, PAM, A. 6/25, Ms. 172-72d.

130. Minutes of Council, 1 May 1851, in Oliver, The Canadian North-West, 1:369-70.

131. Kercher, Bruce, An Unruly Child: A History of Law in Australia (St. Leonards, Australia: Allen and Unwin), 43–64.Google Scholar

132. Reid, Law for the Elephant.

133. Loo, Making Law, Order, and Authority in British Columbia, 158-59.

134. Desmond Brown argued that the criminal law of the Canadian West was largely a mystery—"unpredictable and uncertain"—primarily because the division of land into Hudson's Bay Company territory and British North America meant that the reception date of law differed and different jurisdictions applied. Though his essay is valuable for sorting out the confused morass of jurisdictions, statutes, and common law, he reached his conclusions without one reference to an actual criminal case. See Brown, Desmond, “Unpredictable and Uncertain: Criminal Law in the Canadian North West Before 1886,” Alberta Law Review 17 (1979): 507–8.Google Scholar

135. The court and the settlers did have Burn, Richard, The Justice of the Peace and Parish Officer, 16th ed., 4 vols. (London: A. Strahan and W. Woodfall, 1788)Google Scholar, available to them for reference, along with other law books. See Oliver, The Canadian North-West, 2:1291, for a list of the books available to the settlers. At one point, Adam Thom complained that the settlers were content to reference “Burn's Justice or Blackstone's Commentaries” as relevant legal authority, despite the books being published after 1670. See Thorn to Simpson, 31 July 1840, HBCA, PAM, D. 5/5, fol. 301.