Faculty of / The University of

SYLLABUS CANADIAN History 3780/Law 3410 WINTER 2013

DeLloyd J. Guth, Ph.D. Professor of Law and Legal History

Office: 305/I, Robson Hall: Thursdays 2:00-4:00 p.m. and by appointment (474-6149 or 488-7477 or email = [email protected])

Class Meets: Thursdays 5:00-8:00 p.m., Room 205, Robson Hall (or occasionally at Guth's home).

MISSION: TO EXPAND YOUR SELF-SUFFICIENT PRIMARY RESEARCH-WRITING SKILLS AND YOUR SELF-CONFIDENCE, FOR THE BENEFIT OF FUTURE CLIENTS AND PRESENT READERS! THIS COURSE WILL BETTER INFORM YOU ON SELECT SUBSTANTIVE AND PROCEDURAL AREAS OF LAW, THEIR ORIGINS AND DEVELOPMENT: ABORIGINAL, ENGLISH, FRENCH, CANADIAN, MANITOBAN.

PURPOSE: 's history has been best documented in matters legal and judicial, if only because law creates systems with procedures that construct authoritative records for human activities. This course offers both substantive and methodological contents in a chronological manner, working with primary evidence in 's abundant legal-judicial archives and libraries, wherever possible.

REQUIREMENTS AND EVALUATION: This is an interdisciplinary course centered in the professional, postgraduate curriculum of the Faculty of Law, cross-listed for credit in the Department of History. There are no course pre-requisites.

(a) Each LAW STUDENT will be graded on individual performance for TWO RESEARCH ESSAYS (25% of total course grade = 1st essay, 60% = 2nd essay), plus ONE ORAL REPORT on assigned articles (5%), the AALT research/writing assignment (5%), and the “Old Bailey” case search (5%); a confidentially communicated evaluation or progress report will be available whenever the student requests it. The two research essays must be submitted in draft form on or before fixed deadlines; they will be corrected, criticized and returned without grades, to allow for revision and re-thinking; and the final versions, along with the drafts, will be due on or before the first day of Final Exams, Monday 15 April 2013.

(b) Each HISTORY STUDENT has a departmental requirement for a final (take-home) exam based on all course work and readings, worth 30% of the total grade; the first essay, based on the Jesuit Relations is worth 25% and the second research essay will also be worth 30% of the final grade, but this second essay needs to be only 8-10 pages long; with 5% based on the oral report noted above and 5% each for the AALT assignment and the “Old Bailey” criminal law case search.

(c) If late submission of one or more essays requires any deferral, this must be obtained respectively by law students from the Associate Dean, Faculty of Law, and by history students from the Head, Department of History, after consultation with the teacher. The course withdrawal deadline is Wednesday 20 March 2013 for both law students and for history students without academic penalty; and evaluative information to that date will be available upon request to Professor Guth. History students who wish to appeal a grade given for course work must do so within ten (10) working days of the semester =s work grade first being made available to them.

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(d) The teacher of this course strictly enforces the rules on plagiarism, cheating, and essay or examination impersonation defined under “Section 8: Academic Integrity” of this University's General Academic . The common penalty in the Faculties of Arts and Law for plagiarism in a written assignment, test, or examination is F (DISC = disciplinary action) on the paper and F (DISC = disciplinary action) for the course: this includes the purchase of an essay or cheating on a test or examination; and student work suspected of being plagiarised may be searched on Internet sites designed to detect plagiarism. STUDENTS UNDERTAKE THAT SUBMITTED RESEARCH AND WRITING IS THEIR OWN ORIGINAL WORK FOR THIS COURSE ALONE.

(e) Each student is free to choose a topic for the FIRST ESSAY (see Syllabus for the First Week in January 2013 and the JESUIT RELATIONS assignment sheet): this essay's maximum length will be 6 pages, doubled-spaced typed, or 6-8 pages handwritten.

(f) The SECOND ESSAY will have everyone researching and writing on their own choice of topic, provided the research is based in primary evidence and the topic relates to law in Canada. You are encouraged to think about possible topics as soon as possible; and then discuss the choices directly with Professor Guth, to identify the one that best suits your interests and the course’s focus on primary, preferably archival, evidence. This essay's maximum length for LAW STUDENTS will be 30 pages, doubled-spaced typed, and for HISTORY STUDENTS 8-10 pages, presented to publishable standards regarding style, analysis, primary research and originality. For footnoting and bibliographical forms, we will generally follow the Canadian Guide to Uniform Legal Citation (Scarborough, : Carswell, 1992), 7 th ed., supplemented by the class handout: DeLloyd J. Guth, “The Citation of Canadian Public Documents,” The Chicago Manual of Style , 15 th ed. (Chicago: The University of Chicago Press, 2003).

TEXTBOOK: You are encouraged to purchase (special student price = $20.00) directly in class, Canada’s Legal Inheritances , ed. by DeLloyd J. Guth and W. Wesley Pue (Winnipeg: Canadian Legal History Project, Faculty of Law, 2001); but this is not a requirement and copies are available on Reserve in the Law Library. Most course readings are in this book and the rest will be available from the teacher.

HISTORICAL REFERENCE: For general background you can consult any recent historical survey; for example, see Jack M. Bumsted, The Peoples of Canada (1992), vols. I and II [on RESERVE].

GRADE SCALE ():

A+ = 4.5 (90-100%) A = 4.0 (80-89%) B+ = 3.5 (75-79%) B = 3.0 (70-74%) C+ = 2.5 (65-69%) C = 2.0 (60-64%) D = 1.0 (50-59%) F = 0.0 (less than 50%)

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GENERAL SYLLABUS: LAW 3410 / HISTORY 3780 Canadian Legal History, WINTER 2013 Thursday, 5:00 - 8:00 pm, Robson Hall, Room 205, or occasionally at Professor Guth's home

2012 Topic Assignment for Next Week

Week I Introductions to Defining & Locating Law and Begin Research for the Jesuit Relations , FIRST 10 Jan. the Past: What? Where? When? Whose? How? ESSAY; read Elton, Wedgwood, and Guth (on Sixteenth-Century Anglo-Scottish law).

Week II Late-Medieval Anglo-French & Legal FIRST ESSAY (JR) topics chosen. NOTA BENE: we 17 Jan. Cultures, on the Eve of Colonisation will discuss on-line internet access to the Jesuit Relations and to “Proceedings of the OLD BAILEY , London 1674-1799" and to the “Anglo-American Legal Tradition” (AALT) research websites.

Week III CLASS MEETING AT HUDSON’S BAY COMPANY Read essays by Henderson and Sprague [CLI]: 24 Jan. AND PROVINCIAL ARCHIVES, PLUS THE discussion leaders to be assigned for 31 Jan; GOVERNMENT RECORDS CENTRE FIRST RESEARCH/WRITING ASSIGNMENT due (AALT)

Week IV Reconstructing Aboriginal Law: Seventeenth- Read essays by Dickinson, Vanderlinden, 31 Jan. Century Lower Canada and Nineteenth- Century Goebel, Katz, Flaherty, Bell, Girard, English, Rupert’s Land Peter Karsten. SECOND ESSAY topic to be chosen

Week V Reception, Transplantation, Imposition & Read essays by D. Hay, J. Langbein, P. 07 Feb. @ Recognition of Law: Canada 1450-1790, France to Linebaugh, J. Oldham, J. Beattie, and Guth: Guth’s Home , England to Maritimes & Newfoundland; discussion leaders to be assigned for reports on for DINNER Draft of FIRST ESSAY due! 14 Feb.; SECOND RESEARCH/WRITING ASSIGNMENT due (“Old Bailey”)

Week VI Criminal Law in 18 th c. England: Modern Debates Read essays by Gibson, Price; and from 14 Feb. and Perspectives; “Old Bailey” criminal law case Canadian State III , by Bumsted, Lesage, search assignment due! Waiser, and McLachlin, for 28 Feb.

Week VII NO CLASS = WINTER BREAK WEEK 21 Feb.

Week VIII Founding Manitoba’s , , Continue research for SECOND ESSAY. 28 Feb. : Louis Riel’s Role and Read essays by M. Greenwood, P. Romney, R. VISITING PROFESSOR PHILIP GIRARD Smandych, H. Foster: discussion leaders to be (DALHOUSIE/LAW) assigned, for 07 March.

Week IX 19 th c. Law and Institutions: the , British Read the Articles of Confederation (1777), U.S. 07 March Columbia & the North West (1789), B.N.A. Act (1867), and Manitoba Act (1870) for 14 March.

Week X Comparative Canadian and U.S. 14 March Constitutional Principles and Realities, 1763-1867

Week XI PROGRESS REPORTS ON RESEARCH FOR Read Essays by R. Risk and D. Gibson [ CLI ]; Guth 21 March SECOND ESSAY on Brian Dickson : for discussion on 28 March.

Week XII Appellate Law: Judicial Committee of the Privy Read essays by Kasirer & Brisson, Backhouse, 28 March Council to Supreme of Canada; McCallum, McLaren, Pue, and Strange; DRAFT OF SECOND ESSAY DUE (to be returned discussions leaders to be assigned for 04 April. with corrections for next class)

Week XIII Law and Society in Canada, 1850-1920 04 April

Week XIV SECOND ESSAY: DISCUSSION LAST CLASS 11 April (Take-home Final Exam Issued: due Monday 15 April @ 4:00 pm @ Robson Hall)

Wednesday Both Draft and Final Revised Versions of Both Essays Due for Final Grades and The Osgoode Society 29 April Prize [on or before the last day of Final Exams]

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Faculty of Law/The University of Manitoba

COURSE READINGS CANADIAN LEGAL HISTORY Law 3410 / History 3780

WINTER 2013 Dr. DeLloyd J. Guth (Office: 305-1, Robson Hall: 474-6149) [Class meets Thursdays 4:00-7:00 p.m., 204 Robson Hall, or occasionally at Guth's home]

PLEASE NOTE: EACH STUDENT IS EXPECTED TO READ THESE ARTICLES BUT WILL BE REQUIRED TO REPORT ORALLY ONLY ON A MINIMUM OF TWO.

For 10 Jan., Week I: Orientation, Welcomes and Introductions: Defining Law, History and Comparative Legal Systems

For 17 Jan., Week II: (1) The Practice of History : readings from G.R. Elton and C.V. Wedgwood [HANDOUTS] (2) Read in Canada’s Legal Inheritances [CLI ]: BOOK IS ON RESERVE! (a) Prologue, by DeLloyd J. Guth [ CLI , pp. xxviii-xlvi] (b) Legal Vocabulary and Maps, by DeLloyd J. Guth [ CLI , pp. 691-703] (3) DeLloyd J. Guth, Law, Chapter 5 in A Tudor Companion to Britain (Oxford: Blackwells, 2004), ed. by Norman Jones and Robert Tittler [class handout]. (4) Guth, “ Principles: Latin Terms” [HANDOUT] (5) “,” Access Guide to Government Records and Information (Government of Manitoba: Archives of Manitoba, 204/945-6533, 255 Memorial Blvd., Winnipeg) [HANDOUT] (6) Guth, “The Citation of Canadian Public Documents, 2000,” prepared for The Chicago Manual of Style , 15 th ed., 2003: “Canada 17.335,” pp. 744-6 [HANDOUT] (7) Guth, “English Legal Sources in the Faculty of Law Library, University of Manitoba” for , Reported Cases, Encyclopedias. [HANDOUT]

For 31 Jan., Week IV: (1) James (Sakej) Youngblood Henderson, “First Nations Legal Inheritances in Canada: The Mikmaq Models”, in [ CLI , pp. 1-31]; (2) D.N. Sprague, “Canada’s Treaties with Aboriginal Peoples”, [ CLI , pp. 341-351] (3) John A. Noon (ed.), “A Case Book of Iroquois Law” [HANDOUT]

For 07 Feb., Week V: (1) Jacques Vanderlinden, “A la rencontre de l'histoire du droit en Acadie avant le dérangement" [ CLI , pp. 1-31] (2) John A. Dickinson, “New France: Law, Courts, and the Coutume de Paris , 1608-1760”, [ CLI , pp. 32-54] (3) Julius Goebel, Jr., “King's Law and Local Custom in Seventeenth Century England”, 31 Columbia Law Review (1931) 416-448 [RESERVE & HEINONLINE via Law Library Catalogue] (4) Stanley N. Katz, “The Politics of Law in Colonial America: Controversies over Chancery Courts and Law in the Eighteenth Century," Law in American History , ed. by Donald Fleming and Bernard Bailyn (Boston, 1971), 265-284 [RESERVE] (5) David Flaherty, “Law and the Enforcement of Morals in Early America," ibid ., 203-253 [RESERVE] (6) David Bell, "Maritime Legal Institutions under the Ancien Regime , 1710 1850”, [CLI , pp. 103-131]; Philip Girard,” ... Lawyers and Legal Institutions” [CLI , pp. 379-405] (7) Christopher English, “Newfoundland's Early Laws and Legal Institutions ... [to] 1791-92,” [CLI , pp. 55-78] (8) Peter Karsten, “Introduction” to Between Law and Custom (Cambridge: Cambridge University Press, 2002), pp. 1-19 [HANDOUT]

For 14 Feb., Week VI: (1) Douglas Hay, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree (1975), pp. 17-63 [RESERVE]. (2) John Langbein, “AIbion's Fatal Flaw”, 98 Past and Present (1983), pp. 96-120 [HANDOUT] (3) Peter Linebaugh, “(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein,” 60 New York University Law Review (1985), pp. 212-243 [HANDOUT] (4) James C. Oldham, “On Pleading the Belly: A History of the of Matrons," History [HANDOUT] 4

(5) John Beattie, "Scales of Justice: and the English Criminal Trial in the Eighteenth and Nineteenth Centuries," 9 Law & History Review , (1992), pp. 221-67 [HANDOUT] and (6), DeLloyd J. Guth, “The Traditional Constable, 1235-1829: From Bracton to the Fieldings to Canada,” in Powers in Canada: The Evolution and Practice of Authority, ed. by R.C. Macleod and David Schneiderman (Toronto: University of Toronto Press, 1994), pp. 3-23 [HANDOUT]

For 21 Feb., Week VII: NO CLASS = WINTER SEMESTER BREAK

For 28 Feb, Week VIII: (1) Dale Gibson, “Company Justice ... Manitoba,” [CLI , pp. 247-292] (2) Graham Price, “The North,” [CLI , pp. 352-378] (3) From Canadian State Trials, Volume III: Political Trials and Security Measures, 1840-1914 , ed. by Barry Wright and Susan Binnie (Toronto: University of Toronto Press, for The Osgoode Society, 2009): [RESERVE] (a) pp. 411-50, “Another Look at the Riel Trial for Treason,” by J.M. Bumsted; (b) pp. 451-80, “The White Man Governs: The 1885 Indian Trials,” by Bill Waiser; and, (c) pp. 576-89, “Archival Sources in Canada for Riel’s Rebellion,” by Gilles Lesage. (4) The Rt. Hon. Beverley McLachlin, “Louis Riel: Patriot Rebel,” 35.1 (2011) Manitoba Law Journal 1 [RESERVE]

For 07 March., Week IX: (1) Murray Greenwood, "Lower Canada (Quebec): Transformation of , From Higher Morality to Autonomous Will, 1774-1866" [ CLI , pp. 133-182] (2) Paul Romney, “Upper Canada (Ontario): The Administration of Justice, 1784-1850" [ CLI , pp. 182-213] (3) Russell Smandych "Colonial Welfare Laws and Practices: Coping without an English Poor Law in Upper Canada, 1792-1837," [ CLI , pp. 214-246] (4) Hamar Foster, ": Legal Institutions in the Far West, from Contact to 1871," [ CLI , pp. 293-340]

For 14 March, Week X: Full texts of the “Articles of Confederation [U.S., 1777-1781],” the U.S. Constitution of 1787, the British North America Act of 1867, and the Manitoba Act 1870 (32-33 Victoria, c.3) [HANDOUTS]

For 21 March, Week XI: ORAL REPORTS ON RESEARCH ESSAY PROGRESS/PROBLEMS

For 28 March, Week XII: (1) Richard Risk, “The Scholars and the Constitution: P.O.G.G. and the Privy Council," [ CLI , pp. 496-523] (2) Dale Gibson, “Federal Legal and Judicial Institutions in Canada,” [CLI , pp. 450-495] (3) DeLloyd J. Guth, “Introduction” and “Securing Canada’s Judicial Heritage,” in Guth (ed.), Brian Dickson at The Supreme Court of Canada 1973-1990 [HANDOUT]

For 04 April, Week XIII: (1) Nicholas Kasirer and Jean-Maurice Brisson, "The Married Woman in Ascendance, The Mother Country in Retreat: From Legal Colonialism to Legal Nationalism in Quebec Matrimonial Law Reform, 1866-1991" [ CLI , pp. 406-449] (2) Constance Backhouse, “The Shining Sixpence: Women's Worth in Canadian Law at the End of the Victorian Era," [ CLI , pp. 556-573] (3) Margaret McCallum, “Labour and the Liberal State” [CLI , pp. 574-593] (4) John P.S. McLaren, “Recalculating the Wages of Sin: The Social and Legal Construction of Prostitution, 1850-1920" [ CLI , pp. 524-555] (5) Carolyn Strange, "The Lottery of Death: Capital Punishment, 1867- 1976," [CLI , pp. 594-619] (6) W. Wesley Pue, “Commo n Law ,” [CLI , pp. 654-688]

5 CANADIAN LEGAL HISTORY Law 3410/History 3780 DeLloyd J. Guth (WINTER 2013)

FIRST ESSAY ASSIGNMENT: JESUIT RELATIONS [25% of Final Grade]

Working exclusively from the primary evidence in the Jesuit Relations , choose one of the suggested topics below and develop a single focus on Aboriginal culture that provides:

(1) a precise DESCRIPTION that establishes what can be known and cannot be known about your topic from this collection of evidence alone; therefore, do not bother with secondary sources and instead give your own reading of these primary texts, including problems of terminology and translation;

(2) An ANALYSIS of the legal significance of your topic based on what you can know and have described above, which includes problems of definition for law; and,

(3) a CRITICISM ( i.e., positive and negative) of the evidence itself, its authenticity, reliability, and limitations with specific reference to your topic.

TOPICS: use the two volume General Index (vols. 72 and 73) for your topic; you may also find your topic listed internally to the various general tribal entries ( e.g. , Abenakis, Algonquin/Montagnais, Mikmaq, Huron/Iroquois/Seneca, and "Indians").

LOCATION: (a) three full sets of the Jesuit Relations are available in hard-copy in the Dafoe, the Dafoe Special Collections, and St. Paul's College Library: FC/317/A2/1896. Also, a microfiche copy is at the University of Winnipeg Library: F/1030.7/J6312/1960. (b) internet (electronic) web-site: just GOOGLE “Jesuit Relations” and hit the first entry, marked “Index”.

SELECTIONS FOR ESSAY TOPIC (or consult with Dr. Guth, after you have looked at the two index volumes to be certain that enough information exists):

Things Possessed: Actions Punished: Land Homicide Chattel Robbery Hunting/Fishing Theft Boundaries Treason Reputation/Honour Rape/Sexual Assault Arson

Legal Status: Relationships: Women Treaties (War/Peace) Children /Promises Slaves/Captive Servants Gifts Chiefs/Captains Compensations () Shaman/Medicine Persons Assemblies/Councils Warriors/ Duty Marriage/Family

Due Process: Mentalities: Animism Evidence Dreams/Spiritualism Torture Religion/Morality Penalties Death/Morality Proofs Death/Immortality

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Canadian Legal History (LAW 3410/HISTORY 3780) Professor DeLloyd J. Guth

I. FIRST RESEARCH/WRITING ASSIGNMENT: ( http://aalt.law.uh.edu/ ) (due Week III, 24 January 2013)

Student Name: ______

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ANGLO-AMERICAN LEGAL TRADITION: Documents from Medieval and Early Modern England from the National Archives in London, Kew Gardens (initiated and executed by Dr. Robert C. Palmer, Cullen Professor of History and Law, University of Houston).

Assignment: (1) from the AALT Home Page, go to “George III,” then to “Privy Council Registers” (1760-1800), and peruse the photo copied frames under “Privy Council Misc. Papers: “Colonial,” with specific references to “Quebec Jesuit Lands;”

(2) choose any specific document (“61Pt10 onwards”) that interests you, dated 1775 or later, and transcribe ( i.e ., make a handwritten or typed copy of) at least one paragraph or the entire letter;

(3) explicate that text (i.e ., explain exactly what that paragraph or entire letter tells you about the law); and,

(4) provide a full citation (i.e ., who the letter is from and to, where exactly one can locate it on the AALT website).

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Canadian Legal History (LAW 3410/HISTORY 3780)/Winter 2013 Professor DeLloyd J. Guth

II. SECOND RESEARCH/WRITING ASSIGNMENT: ( www.oldbaileyonline.org.uk ) (Due in class 14 February 2013)

Student Name: ______

Keyword Search Used: ( e.g ., “Offence” or “Punishment”) ______

Style of Cause for Case Selected: ( i.e. , R. v. __ )

Case Date(s): ______

Case Reference Number: ______

Type of Case ( e.g. , offence/charge):______

ONE : Identify/list the key actors, and structure the personnel ( i.e. , officers of the court), in your chosen case.

TWO : List the procedural stages, step-by-step, beginning with the alleged offence.

THREE : Identify substantive criminal law operating in this case, such as legal reasoning, legal authority(ies) cited and uncited, statutory interpretation, applied discretionary , and any mitigation of punishment.

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