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Tiie UNIVERSITY of CALGARY the Comon Law and the Justices TIiE UNIVERSITY OF CALGARY The Comon Law and the Justices of the Supreme Court of the North-West Territories, 1887-1907 Roderick Graham Martin A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR TEE DEGREE OF MASTER OF ARTS DEPARTMENT OF HISTORY CALGARY, ALBERTA SEPTEMBER, 1997 @ Roderick Graham Martin 1997 191 National Library Bibliothèque nationale of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. nie Wellington OaawaON KlAON4 Ottawa ON KIA ON4 Canada Canada The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive pennettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or sel1 reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/film, 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 £iom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son pennission. autorisation. ABSTRACT This study of the common law and the Justices of the Supreme Court of the North-West Territories, 1887-1907, attempts to explain how the justices invoked, molded, followed and applied principles, doctrines and precedents from English and Canadian, statute, precedent and common law that fit the unique milieu of the North-West Territories. The investigation begins with the Hudson's Bay Company Charter of 1670, the original vehicle that accommodated the migration of English law to Rupert's Land and Assiniboia. Company law was based on English law, and was also an administrative component of an economically based merchant Company. In the late 1840rs, the judicial activities of Adam Thom, the first recorder of Assiniboia, crystallized the grip of English law in the chartered territories. Then in tne 1870rs, the North-West Mounted Police and its judicial officiais conveyed English and Canadian law to the Indian and Ncrth-West Territories. Subsequently, the first civllian stipendiary magistrates and judges were appointed, and the Supreme Court was established in 1887. This thesis constitutes an analysis of the judicial proceedings of the Supreme Court of the North-West Territories, 1887-1907. It concludes that the first generation of justices were cognizant of, and proactive in, the developmental creation of common law precedents that were germane to the North-West Territories. The justicesr persistently invoked English and Canadian statute and common law precedents . When formulating their j udicial decisions, they exercised judicial discretion, which meant that they actively molded, followed and applied principles, laws, doctrines, and precedents which would meet the particular or individual circumstances of cases. Their jridicial decisions also emphasized the rule of law, and no evidence emerged of a judicial discretion that compromised that rule of law or the applicability of the common law. The evidence from several en banc proceedings, also reveals that individual justices often disagreed with the other members of the court, however, the concurring majority decision became the precedent cornrnon law of the North-West Territol-ies at that time. Those doctrines endured, unless the decision was reversed by the Supreme Court of Canada or the Judicial Committee of the Frivy Council in Engiand. Finally, it can be concluded that the members of the court were highly competent and gave diverse interpretations to the statutes, precedents and the common law. Indeed, their decisions both responded and contributed to the social, political, cultural and economic milieu of the North-West Territories. 1 would like to express my appreciation to the rnembers of my cornmittee, Dr. J. Chris Levy, Faculty of Law, Dr. Warren M. Elofson, Department of History, and foremost my supervisor, Dr. Louis A. Knafla, Department of History for their insightful contributions to this thesis. My special gratitude to you Louis, for your patience, guidance, advice, editing, draft proofing, and most importantly, the rigorous standard of academic achievement you demand. You provide an ongoing inspiration to me, and 1 hope that my scholarlÿ career proves worthy of your excellent tutelage. My thanks to Don Sanders, University of Calgary Law Library, for his generous assistance in helping me research the Territorial Law Reports, A~SO,to Ms. Wendy Arnero and Mrs. Olga Leskiw, Department of History support staff, for their administrative guidance and assistance. Finally, to my mentor and the love of rny life, my xife Patti, wh~selove, patience, understanding and rigorous editing of my undergraduàte papers throughout the years, set a standard of excellence which has enabled me attain this level of academic achievement. To all, this work would not have been possible without you and 1 am forever indebted. TABLE OF CONTENTS Page Approval Page ..................... ii Abstract. ....................... iii Acknowledgments ..................... v Table of Contents ................... .vi Chapter One: Introduction ................ f Chapter Two: The Common Law and the Hudson's Bay Charter ................ 9 Chapter Thxee: Tne First Comon Law Courts: Justices of tne Peace, The North-West Mounted Police and Stipendiary Magistrates ......... 30 Chapter Four: The Civil Law Courts. ..........57 Chapter Five: The Criminal Law Courts. ........ .94 Chapter Six: Conciusion. .............. .12 5 Table of Judges ....................136 Bibliography ..................... .141 INTRODUCTION This analysis of the common law manifested through the first generation (1887-1907) of justices of the Supreme Court of the North-West Territories (SCNWT) reveals that the Justices invoked, followed and applied principles, doctrines and precedentç from English Statute and common law.' The Justices also ciced and followed (where applicable) the precedents and doctrines of the Supreme Court of Canada (SCC) and Provincial Suprerne Courts. They occasionally referred to Anerican and Australian Court decisions, as well as to scholarly papers and piiblications'. Throughout this formative period, the justices developed a body of common law that both responded and contributed to the social, politicol, cultural and economic milieu of the North-West Territories (NWT). The proceedings of this Court en banc and on assize reveal the justicesr strong belief in the supremacy of the rulê of law. No evidence emerged of a judicial discretion that compromised the rule of law or the applicability of the comon law. There are, however, examples of discretionary ' The research conducted on The Territorial Law Reports, ed. N.D. Beck et ai, Volumes 1 - 7 (Toronto: The Carsweil Co., Limited, 1900-1912). ' Henry Campbell Black, Black' s Law Diciionary, 6'" Eaition (St. Paul: West Publishing Co., 1990), 1332. The rule of Law is "...[a] legal principle ... sanctioned by the recognition of au~koritiesand cs~ally expressed in ;ne iorm of 2 maxirn or logical proposicion ... somezimes called 'the suprernacy of Law.'" justice. Laws, rules, doctrines or precedents were cited and applied to meet particular or individual circumstances of litigating parties. Indeed, bylaws were sometimes invalidated cr deemed ui tra vires3 when there were equally good precedents to uphold them. Nonetheless, it is also evident that Che judicial practices of the justices overwhelrningly affirrned che supremacy and legitimacy of the English Imperia1 and Canadian Domizion Parliaments. The Hudsonrs Bay Charter was the original vehicle that accommodated zhe migration of the common law into the chartered territories of Rupert's Land, the Indian Territories, and eventually tne NWT. Hudson's Bay Company (HBC) officers were the first judicial officiais to administer the colonial or private Company law in Rupert's Land, 1670-1870. Company law was modeled on English law and was not " ... repugnant to the laws of England". In addition, the Governor and Company were ernpowered to " ... assemble and make laws and ordinances for the good government of the Company and its colonies and forts, and for the advancenent Ibid., 1522. "An act performed without ariy authority O act on subject." ' E.H. Oliver, ed. "The Constitutional Development of tne Prairie Provinces". In -The Canadian North-West, Its Early Development and Legislative Records. (Ottawa : Goverriment Printing Biireau, l914).~. 22. Afso, see 2.E. Cote, "The Introcuction of English Law into Alberta." In Alberta Law Review, Vol. 3. (Edmonton: University of Alberta Publishing Department, 19641, 262-292. Cote argued that HBC settlers introduced English common law into Western Canada. of trade" in the territoriesS5They were also empowered " ... to try civil and criminal cases and to employ an armed force for the protection of its (Company) trade and territo~ies."~ Where there was no governor and council, " ... the chief factor of the district nad authority to send the offender to England for triai. "' Chief factors also dealt wich misdemeanors and other petty offenses against Company law \\ ... as a macter of interna1 corporate discipline-"' The intent of the law was to regulate al1 aspects of fur trade life in
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