Hudson's Bay Company in Rupert's Land, 1 670-1 870
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Law Transplanted, Justice Invented: Sources of Law for the Hudson's Bay Company in Rupert's Land, 1 670-1 870 Howard Robert Baker II University of Manitoba A Thesis Submitted to the Faculty of Graduate Studies in partial fulfillment of the requirements for the Degree of Master of Arts lnterdisciplinary Studies Faculty of Law, and Departments of History and Sociology University of Manitoba Winnipeg, Manitoba O May 1995 National Library Bibliothèque nationale du Canada Acquisitions and Acquisitions et Bibliographie Services se- bibliogrâphiqu~ 395 WdTiStreet 395. nie Wellington KlAON4 WONK1AW Canada CPnada The author has granted a non- L'auteur a accorde une licence non exclusive licence allowing the exclusive pemiettant a la National LI- of Canada to Bibhotheque nationale du Canada de reproduce, loan, distrî'bute or sen reproduire, prêter, distriiuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. Ia forme de microfiche/nlm, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwjse de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. COPYRIGHT PERMISSION A ThesWncticum submitted to the FacttlQ olGrrdaatc Sîudies of the University of ~Manitobain pa-1 fulnllmeat of the nqoIrrmenb for the degrce of Permission bas ben gmated to the LIBRARY OF THE UNlVERSïTY OF MAMTOBA to lend or HU copies of thh thesirlpracticum, to the NATXONAL LLBRARY OF CANADA to microfilm tbb thesislpmctieurn and to lend or seIl copies of the film, and to UMYERSffY bficR0FfL~MSilK. ta publish an abstract of th3 tbaidpmcticum.. This reproduction or copy of tbis thesis has bten made availabk by authority of the copyright owner solely for the purpose of private study rad researcb, and may only be teproduccd and copiai u permittcd by copyright laws or with express mitten autborizatioa ftom the copyright owner. Upon its creation on 2nd May 1670, the Hudson's Bay Company received temtorial rights to a vast land that would become the Canadian North West These were chartered rights that canied with them the obligations of providing good govemance of the tenitories and maintainhg order throughout 'Xupert's Land", the name given the temitory by the Company's charter. The Hudson's Bay Company remained the overlord of these temtories -both de jure and de facto - for nearly two himdred years. The Company, while it never t*iasplanted the fonnal English common law aU at once, brought bits and pieces of law to Rupert's Land. Some came in the baggage of the Company's servants, such as the common law of master and servant that govemed the lawful employment relatiomhips in the Company's factories and forts during the seventeenth and eighteenth centuries. The Company exercised its legislative power to create rules and regdations for the governance of Rupert's Land. Throughout the eighteenth cennuy, however, this aggregation of laws that governed Company servants, both witten and unvytitten, touched only Company servants. Trading practices and marriage alliances adhered to Aboriginal customs, and the Company did not transplant Criminal and civil law to Rupert' s Land. The judicature established in the colony at Red River, therefore, had no Company mode1 to follow. Sir George Simpson, governor of Rupert's Land in 1835, established in that year the fint regularly convening court of law. Rather than relying on Adam Thom (the fist recorder of Rupert's Land) or his expositions on English law, the men who seedthe courts largely invented justice as they went dong. Contents 1. Introduction 2. Prerogative. Charter, and Cornmon Law The Pfinciples of Incorporation The Premgative and PoliilDiscourse in Tudor-Stuart England Letters Patent and Charters of Incorporation Privileges and Obligations: The Hudson's Bay Company's Charter (1670) 3. Company Servants, Company Law Legal Transplants to Hudson's Bay in the Eighteenth Century 4. The Judicature and Legislative Refmat Red River Law and Justice in the Infant Colony: 1812-1 835 Legislative Refonn and the Court of Assiniboia: 1835-1 841 Adam Thorn and the Sources of Law for Assiniboia 5. Law and Equity in the Court of Assiniboia From Recorder Thorn to Recorder Johnson: 1844-1 854 Francis Johnson's Tenue as Recorder: 1854-1 858 The Last Years of the Court: 1858-1870 6. Conclusion Bibliography Acknowledgements 1 have accumnlated many debts during my one year's research at the Hudson's Bay Company Archives; some I may never be able to discharge. As always, my fdyprovided me with the love and support necessary to travel over 1500 miles away fkom home. The J. William Fulbright Scholarship (operating through the Institute for Educational Exchange between Canada and the U. S.) made my research possible. Every member of my cornmittee deserves my everlasting thanks for his or her time, consideration, and patience. Both Jeder Brown and Russell Smandych helped me wade through an Unfamilliar topic in a short amount of time and challenged my thinking well enough to create what is, 1 hope, a provocative thesis. Glyndwr Williams generously agreed to be my extemal reader, and provided helpful criticisms conceming my work. Bob Woods kindly answered many of my queries regarding legal histoq via e-mail. 1 want to thank Robert Wmters for his comments and reflections, and bis help in choosing a titie. And I could not have done without Gha Paguirigan's meticulous reading of the first copy of the complete manuscript. Of all my debts, two will be particularly bard to repay. First, the archivists at the Provincial Archives of Manitoba and the Hudson's Bay Company Archives are truiy in a class of their owe Helpful, thoughtfui, and a joy to work with - 1 could not have done without them. Second, DeLloyd Guth has served as more than a teacher; he has been both mentor and fiiend during my stay in Winnipeg. To aU those who helped me, and to those 1 forgot to mention here, you have my appreciation. Robert Baker University of Manitoba Chapter 1 Introduction In 17 15, James Knight, the govemor of Rupert's Land. called together bis council at York Fort to try Thomas Butler, a servant of the Hudson's Bay Company, for fe1oniously stealing fkom the Company's storehouse, dandering the Honorable Company, and attempting to subvert the la- govemment of Rupert's Land. Knight and his council thoroughly recorded the trial at every stage. There was a pre-trial process. The commission (granted by the Company) conferring authority on Knight and his council to exercise cnminal jurisdiction was read The ''hi& crimes and misdemeanows" against Butler were iisted. Once the preliminq part of the trial was completed, Knight and his corncil swore in witnesses and examined them under oath, Once this evidence had been laid before the govemor and councii, the accused was allowed to produce his own witnesses and speak in his defense (according to Knight, Butler brought no witnesses fonvard and spoke "but Little in his own defences"). Knight and council pronounced Butler guilty?but did not record bis punishment.l This anecdote illustrating the Hudson's Bay Company's administration of criminal justice in the eighteenth cennuy is deceptive. Taken in isolation, it pomays the Company as an active body politic, concemed with govemance and mindfbl of its responsibility to maintain law and order within its chartered temtories. However, the incident was extraordinary because it was isolated; the resident governors of Rupert's Land rarely called together their councils to exercise criminal or civil jurisdiction. But as an incident, it directly engages the ' York PmJournal. 27 December 1715: B. 239/a/2. fos. 75-77. Hudson's Bay Company Archives. Provincial Archives of Manitoba: Winnipeg. ~Manitoba ().iereafter: HBCA. PM. question asked in this study: what kind of law, and what kind of legal institutions. did the Company transplant to Rupert's Land during itr two-himdred year de? The question eludes a simple answer because the govemor and conunittee, the Company's main goveming body rendent in London, never attempted to transplant a common law legal system to Rupert's Land to govem the fur trade. They had no need to do so; ne* all the permanent residents in the Company's territories until the 1770s were Natives and Company servants. Disputes rarely arose between servants during this tirne, and the Company had other methods at its disposal to maintain order within its ranks. The courts that the Company did cd together during the late-seventeenth and eighteenth centuries took their structural form îiom the dictates laid down by the Company's charter of 1670. It gave the Company the power and "authority to appoint and establish Govemors and all other Officen to govem" Rupert's Land, and gave the appointed governor and his council "power to judge alI perrons belonging to the said Govexnor and Company or that shail live under them in ail Causes whether Cidor CriminaIl according to the Lawes of this Kingdome and to execute Justice accordin@y".2 This rouh&y resembled a conciliar model for procedure: a court composed entirely of executive officers who were judges of both fact and law, without the aid of a jury to corne to a verdict. This, of course, did not exclude the possibiiity of the Company's addition of a juxy to legal proceedhgs - it merely confened power on the resident governor and councif to judge dl cases in the absence of a population fiom which to draw a jury.