Hostname: page-component-586b7cd67f-t8hqh Total loading time: 0 Render date: 2024-11-30T20:49:09.794Z Has data issue: false hasContentIssue false
  • English
  • Français

Rethinking ‘the Nation’ in National Legal History: A Canadian Perspective

Published online by Cambridge University Press:  09 May 2011

Philip Girard  and
Jim Phillips
Get access Rights & Permissions [Opens in a new window]

Extract

In 1929, when Lorna Parsons tired of her four-year marriage to a London, Ontario tailor, she decided to seek a divorce—in Reno, Nevada. Even though Lorna's divorce was not generally recognized in Canada, obtaining it was important to her and to the hundreds, if not thousands, of Canadians who similarly sought United States divorces at a time when Canadian law was extremely restrictive. The choices of Parsons and her compatriots should be of interest to legal historians. They problematize the idea of national legal history by reminding us that law does not always remain in the tidy jurisdictional containers constructed by legal authorities and academics. National boundaries are more porous, and the nature of law itself more fluid, than we often admit.

Type
Reflections on Further Research in Comparative Legal History
Information
Law and History Review , Volume 29 , Issue 2 , May 2011 , pp. 607 - 626
Copyright
Copyright © the American Society for Legal History, Inc. 2011

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Lorna Parsons is a pseudonym; her divorce and the general phenomenon of Canadians seeking divorce in the United States are discussed by Snell, James G., In the Shadow of the Law: Divorce in Canada 1900–1939 (Toronto: University of Toronto Press, 1991), 231 et seqCrossRefGoogle Scholar.

2. There are of course exceptions to this generalization: see Karsten, Peter, Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora—The United States, Canada, Australia, and New Zealand, 1600–1900 (Cambridge: Cambridge University Press, 2002)Google Scholar. Michael Burrage, although not a legal historian as such, uses the comparative method to explain differences in the development of the legal profession in three jurisdictions in Revolution and the Making of the Contemporary Legal Profession; England, France, and the United States (Oxford: Oxford University Press, 2006).

3. The Spirit of the Laws, translated by Thomas Nugent (London: Nourse and Vaillant, 1750; New York, 1949), 6.

4. Hibbitts, Bernard, “‘Our Arctic Brethren’: Canadian Law and Lawyers as Portrayed in American Legal Periodicals, 1829–1911,” in Essays in the History of Canadian Law, Volume VIII: In Honour of R.C.B. Risk, eds. Baker, G. Blaine and Phillips, Jim (Toronto: University of Toronto Press and Osgoode Society for Canadian Legal History, 1999), 268Google Scholar.

5. There is a large literature comparing Canadian and United States politics and society, which we do not intend to cite here, but for some recent contributions on the precise point in the text, see Kaufman, Jason, The Origins of Canadian and American Political Differences (Cambridge: Harvard University Press, 2009)Google Scholar; and Girard, Philip, “Liberty, Order, and Pluralism: The Canadian Experience,” in Exclusionary Empire: English Liberty Overseas, 1600–1900, ed. Greene, Jack P. (New York: Cambridge University Press, 2009), 160–90CrossRefGoogle Scholar.

6. Cott, Nancy, Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2000)Google Scholar.

7. Antokolskaia, Masha, “Family Law and National Culture. Arguing Against the Cultural Constraints Argument,” in Debates in Family Law Around the Globe at the Dawn of the 21st Century, ed. Boele-Woelki, Katharina (Antwerp and Oxford: Intersentia, 2009), 37–51Google Scholar.

8. Girard, Philip, “Why Canada Has No Family Policy: Lessons from France and Italy,” Osgoode Hall Law Journal 32 (1994): 579–612Google Scholar.

9. Demos, John, The Unredeemed Captive: A Family Story From Early America (New York: Knopf, 1994)Google Scholar. Williams, who soon lost her mother tongue, visited New England several times but refused to resettle there.

10. See, generally, Brown, Jennifer S.H., Strangers in Blood: Fur Trade Company Families in Indian Country (Vancouver: University of British Columbia Press, 1980)Google Scholar; and Kirk, Sylvia Van, “Many Tender Ties”: Women in Fur Trade Society, 1670–1870 (Winnipeg: Watson & Dwyer, 1999)Google Scholar.

11. Lower Canada Jurist 11 (1867) 197. See, generally, Backhouse, Constance, Petticoats & Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Women's Press and Osgoode Society for Canadian Legal History, 1991), 9–28Google Scholar.

12. Canadian Native Law Cases 2 (1889) 368Google Scholar; 1 Terr. L.R., 211. The validity of the marriages had to be decided in order to determine whether evidence from one or both of the defendant's wives should be accepted.

13. That is, native law would have permitted the husband to take another spouse even though he had not actually done so at the moment in question.

14. Carter, Sarah, The Importance of Being Monogamous: Marriage and Nation Building in Western Canada to 1915 (Edmonton: University of Alberta Press, 2008)Google Scholar.

15. Bethell v. Hildyard (1888), 38 Ch. D. 220.

16. Revisions to the federal Indian Act in 1951 made the transmission of Indian status dependent upon formal legal marriages for the first time, but for other legal purposes (bigamy, for example), native marriages continued to be recognized; see Statutes of Canada 1951, c. 29.

17. As cited in Lacey, Linda, “The White Man's Law and the American Indian Family in the Era of Assimilation,” Arkansas Law Review 40 (1986): 364Google Scholar.

18. Pascoe, Peggy, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009), 94–108Google Scholar.

19. To be precise, a white man who had married a native woman according to the custom of the country could divorce her according to that custom while both parties remained in Indian country. The mistake of Mr. Connolly in Connolly v. Woolrich was to bring his native wife to Montreal and then purport to divorce her there according to native custom; see Brown, Jennifer S. H., “Partial Truths: A Closer Look at Fur Trade Marriage,” in From Rupert's Land to Canada: Essays in Honour of John E. Foster, eds. Binnema, Theodore, Ens, Gerhard J., and McLeod, R.C. (Edmonton: University of Alberta Press, 2001), 59–80Google Scholar.

20. See, for example, the different pattern of development in British Columbia, which did not become a formal part of the British empire until 1846, and many of whose early settlers came from the United States. The colony, and from the early 1870s the province, were unwilling to recognize any law other than English law, a fact that brought the province into conflict with the central government over native title. But by then the native marriage issue had been resolved at the federal level. See Foster, Hamar, “‘The Queen's Law is Better Than Yours’: International Homicide in Early British Columbia,” in Essays in the History of Canadian Law, Volume V: Crime and Criminal Justice, eds. Phillips, Jim, Loo, Tina, and Lewthwaite, Susan (Toronto: University of Toronto Press and Osgoode Society for Canadian Legal History, 1995), 41–111CrossRefGoogle Scholar, and Foster, Hamar, “Letting Go the Bone: The Idea of Indian Title in British Columbia, 1849–1927,” in Essays in the History of Canadian Law, Volume VI: British Columbia and the Yukon, eds. Foster, Hamar and McLaren, John (Toronto: University of Toronto Press and Osgoode Society for Canadian Legal History, 1995), 28–86CrossRefGoogle Scholar.

21. Re Deborah E4-789 (1972), 28 D.L.R. (3d), 488. In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 the Supreme Court of Canada refined this test by suggesting that such customs must have been integral to the cultural life of the nation in question at the time of contact.

22. Casimel v. Insurance Corp. of British Columbia, (1994) 2 C.N.L.R. 22 (B.C.C.A.) (Adoption by grandparents of grandson according to customs of Carrier Nation sufficient to entitle them to insurance benefits as “dependent parents” under provincial insurance statute upon accidental death of grandson.) S. 46 of the British Columbia Adoption Act, R.S.B.C. 1996, c. 5 now provides that “the court may recognize that the adoption of a person effected by the custom of an Indian band or aboriginal community has the effect of an adoption under this Act.” We thank Susan Boyd for this reference. It should be noted that the practice of judging the validity of each custom individually prevents the problems associated with a system of personality of laws, such as that observed in India.

23. Statutes of New Brunswick 1786, c. 11; Statutes of New Brunswick 1851, c. 24; and Oakes v. Oakes (1975), 11 N.B.R. (2d) 170 (S.C.A.D.). On the history of custody law in Canada, see Boyd, Susan, Child Custody, Law, and Women's Work (Don Mills: Oxford University Press, 2003), 20–72Google Scholar.

24. Statutes of Upper Canada 1859, c. 34.

25. Chambers, Lori, Married Women and Property Law in Victorian Ontario (Toronto: University of Toronto Press and Osgoode Society for Canadian Legal History, 1997), 83CrossRefGoogle Scholar.

26. See, generally, Backhouse, Constance, “Married Women's Property Law in Nineteenth-Century Canada,” Law and History Review 6 (1988): 211–57CrossRefGoogle Scholar.

27. On what follows, see Clarkson, Chris, Domestic Reforms: Political Visions and Family Regulation in British Columbia, 1862–1940 (Vancouver: University of British Columbia Press, 2007)Google Scholar. For the prairie provinces, see McCallum, Margaret, “Prairie Women and the Struggle for a Dower Law, 1905–1920,” Prairie Forum 18 (1993): 19–34Google Scholar.

28. Ibid., 32.

29. Girard, Philip, “Land Law, Liberalism, and the Agrarian Ideal: British North America, 1750–1920,” in Despotic Dominion: Property Rights in British Settler Societies, eds. McLaren, John, Buck, A.R., and Wright, Nancy E. (Vancouver: University of British Columbia Press, 2005), 120–43Google Scholar.

30. Friedman, Lawrence, Private Lives: Families, Individuals and the Law (Cambridge: Harvard University Press, 2004), 32Google Scholar.

31. Maynard, Kimberley Smith, “Divorce in Nova Scotia, 1750–1890,” in Essays in the History of Canadian Law, Volume III, Nova Scotia, eds. Girard, Philip and Phillips, Jim (Toronto: University of Toronto Press and Osgoode Society for Canadian Legal History, 1990), 245Google Scholar.

32. The incidence of family breakdown or self-divorce in Canada would of course have been considerably higher than the formal divorce rate, making the contrast between the two countries less stark. The figures on formal divorce come from Snell, Divorce in Canada, 9, and Friedman, Private Lives, 33.

33. On the United States, see Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill and London: University of North Carolina Press, 1985), 234–88Google Scholar; Zainaldin, Jamil, “The Emergence of a Modern American Family Law: Child Custody, Adoption, and the Courts, 1796–1851,” Northwestern University Law Review 73 (1979): 1038–89Google Scholar; and Mason, Mary Ann, From Father's Property to Children's Rights: The History of Child Custody in the United States (New York: Columbia University Press, 1994)Google Scholar. On Canada, see Backhouse, Petticoats & Prejudice, 200–227 and Boyd, Child Custody.

34. For the United States, see Grossberg, Governing the Hearth, 204, 224. There is no convenient survey for Canada, but the earliest statutes in the common law provinces seem to be the Legitimation Act, Statutes of Ontario 1921, c. 53, allowing legitimation per subsequens matrimonium, and Statutes of Nova Scotia, 1924, c. 20, to the same effect, and also allowing a mother to inherit from her illegitimate child (although the converse would not be the case until 1966). Art. 237 of the Civil Code of Lower Canada of 1866 permitted legitimation per subsequens matrimonium.

35. Pascoe, What Comes Naturally.

36. Carter, Being Monogamous, 184. At one point the Canadian state considered criminalizing sexual intercourse between white men and Native American women unless the parties were married: Ibid., 157.

37. Pascoe, , What Comes Naturally, 27–46Google Scholar.

38. See generally Backhouse, Constance, “‘Pure Patriarchy’: Nineteenth-Century Canadian Marriage,” McGill Law Journal 31 (1986): 264–311Google Scholar.

39. Although slavery did exist in eastern Canada, it is generally considered to have died out by about 1810 and did not play the same economic or, with the possible exception of New Brunswick, ideological role as in the United States: Bell, D.G., “Slavery and the Judges of Loyalist New Brunswick,” University of New Brunswick Law Journal 31 (1982): 9–42Google Scholar.

40. See, generally, Mawani, Renisa, Colonial Proximities: Crossracial Encounters and Juridical Truths in British Columbia, 1871–1921 (Vancouver: University of British Columbia Press, 2009)Google Scholar. The author remarks at 174: “Unlike other colonial jurisdictions, the Canadian response to interracial intimacies was remarkably late” but does not interrogate why this should be so.

41. Grossberg, Governing the Hearth, 4–30.

42. Friedman, Private Lives, 32.

43. Pascoe, What Comes Naturally, passim.

44. Snell, Divorce in Canada.

45. See, for example, Backhouse, Constance, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 (Toronto: University of Toronto Press and Osgoode Society for Canadian Legal History, 1999), 173–225 (account of prosecution of Ku Klux Klan members’ attempt to discourage an interracial union in Oakville, Ontario in 1930)Google Scholar; Delmerson, Velma, Incorrigible (Waterloo: Wilfrid Laurier University Press, 2004)Google Scholar (account of white woman whose family had her committed to a refuge under the Juvenile Delinquents Act in the 1930s in order to prevent her marriage to a Chinese man).

46. Brisson, Jean-Maurice and Kasirer, Nicholas, “The Married Woman in Ascendance, the Mother Country in Retreat: From Legal Colonialism to Legal Nationalism in Quebec Matrimonial Law Reform, 1866–1991,” in Canada's Legal Inheritances, eds. Guth, DeLloyd and Pue, W. Wesley (Winnipeg: University of Manitoba Press, 2001), 406–49Google Scholar.

47. Pascoe, What Comes Naturally, 307–10.

48. It is revealing that the issues discussed in Boele-Woelki, ed., Debates in Family Law Around the Globe, relate almost exclusively to parent–child relations (eight chapters) and same-sex marriage (five chapters).

49. Gregory, John DeWitt, Richards, Janet Leach, and Wolf, Sheryl, Property Division in Divorce Proceedings: A Fifty State Guide (New York: Aspen Publishers, 2003), 11–13Google Scholar.

50. McLeod, James G. and Mamo, Alfred A., eds. Matrimonial Property Law in Canada (Toronto: Carswell, 1980)Google Scholar. In some provinces there is a tendency to use judicial discretion to permit postponement of the sale of the matrimonial home to allow the custodial parent to remain in it until any minor children have reached the age of majority. All the statutes contain a long list of factors that can be invoked to justify an unequal division in cases in which an equal division would be unconscionable, but the courts have been consistently unwilling to upset an equal division without a very compelling factual basis such as improvident depletion of marital assets by one spouse, fraud, or an egregious renunciation of the marital relationship.

51. In fact, even in the field of child and spousal support in Canada, where need is a highly relevant consideration, much effort has been put into devising guidelines for support awards that will reduce judicial discretion as much as possible.

52. Ontario Law Reform Commission, Report on Family Law. Part IV, Family Property Law (Ontario: Ministry of the Attorney General, 1974), 52Google Scholar. The Ontario reform in turn became hegemonic across the country.

53. It is conceivable that a system based on judicial discretion may conduce to equality in practice, but United States researchers who investigated empirical outcomes of discretion-based marital property statutes in the 1970s and 80s found that wives were often awarded a third of the family property on the analogy to common law dower: Weitzman, Lenore, “Marital Property: Its Transformation and Division in the United States,” in Economic Consequences of Divorce: The International Perspective, eds. Weitzman, Lenore J. and Maclean, Mavis (Oxford: Clarendon Press, 1992), 85–142Google Scholar. The English model, although still based on judicial discretion, has begun to be more attentive to gender equality concerns since the House of Lords decision in White v. White, (2000) 2 F.L.R. 981, although not going so far as to institute a presumption of equal division. See the discussion in Diduck, Alison and Kaganas, Felicity, Family Law, Gender and the State: Text, Cases and Materials, 2nd ed. (Oxford and Portland, OR: Hart, 2006), 255 et seq.Google Scholar

54. See note 6 above.

55. See, generally, Harding, Sarah K., “Comparative Reasoning and Judicial Review,” Yale Journal of International Law 28 (2003): 409–64Google Scholar.

56. 539 U.S. 558 (2003).

57. Bowers v. Hardwick, 478 U.S. 186 (1986), 196.

58. Report of the Committee on Homosexual Offences and Prostitution (London: Her Majesty's Stationery Office, 1957)Google Scholar.

59. Dudgeon v. U.K. (1981), European Court of Human Rights 5.

60. Lawrence v. Texas, 572–73. Justice Kennedy did not know or chose not to note that Canada (where criminal law is a federal matter) had decriminalized most homosexual acts in 1969: Statutes of Canada 1968–69, c. 38.

61. Baker, G. Blaine, “The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire,” Law and History Review 3 (1985), 219–92CrossRefGoogle Scholar; Reiter, Eric, “Imported Books, Imported Ideas: Reading European Jurisprudence in Mid-Nineteenth-Century Quebec,” Law and History Review 22 (2004): 445–92CrossRefGoogle Scholar.