MANITOBA COURT OF QUEEN'S BENCH IN EQUITY, 1872-1895: A STUDY IN LEGAL ADMINISTRATION AND RECORDS by SHARON GAlL McCULLOUGH A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS Department of History (Archival Studies) University of Manitoba Winnipeg, Manitoba October, 2000 National Library Bibliothèque nationale If1 of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. me Wellington Ottawa ON K 1A ON4 OCtawaON K1AW Canada Canada The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or seli 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. 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Canada THE fr'NIVERSITY OF MANiTOBA FACULTY OF GR4DUATE STUDES +*** COPYRIGHT PERMISSION PAGE Manitoba Court of Queen's Bench in Equity, 1872-1895: A Study in Legal Administration and Records BY Sharon Gai1 McCullough A ThesidPracticum submitted to the Faculty of Cridurte Studies of The University of Manitoba in partial fuifillment of the requirements of the degree of Master of Grts Permission has been granted to the Librrry of The University of Manitoba to lend or seii copies of this thesis/practicum, to the National Libriry of Canada to microfilm this thesidpracticum and to lend or seU copies of the film, and to Dissertations Abstracts International to publish an abstract of tàis thesidpracticum. The author reserves other publication rights, and neither this thesidpracticum nor extensive extracts from it may be printed or otherwise reproduced without the author's w~ttenpermission. Abstract The Manitoba Court of Queen's Bench in Equity began to administer justice in 1872. Functioning as a "siden of Queen's Bench, Equity resolved civil disputes on the basis of faimess and good conscience. lt complemented wmmon law, but unlike that branch, it was not bound by precedent. Rather it employed flexible remedies such as injunctions and orders for specific performance. The operations of Equity generated a quantity of records that is valuable for its unique reflection of the court systern and of the society from which that system sprang. This thesis postdates that Manitoba's Equity records were created to serve the administration of equitable justice, that equitable justice is based on the underlying need for equity, and that the need for equity has coursed through many centuries of Western judicial history. The thesis argues that equitable treatment has been applied in a continuously evolving court environment, and that equity remains today a critical element in the justice system These posits are explored through three main thernes. First, the thesis examines the development of equity in the English court of common law, and, later, in the court of Chancery. Equity's transference to Canada and Manitoba is identified and examined as a carrier of Engtish law, and as a court system capable of adaptation. Second, the thesis considers the early histories of Manitoba's Court of Queen's Bench and Court of Queen's Bench in Equity. Equity jurisdiction is studied in detail, and the personnel associated with the two sides of the court are profiled. Last, the thesis focuses on the records thernselves. Their organization and interrelationships, ernbedded in the record keeping systems, are analyzed. The records' physical characteristics are scrutinized for dues to the original creation and retention of the documents. This threefold thematic inquiry is based on and inspired by the contextual approach in archival studies. The contextual approach embodies concepts whose utilization empowers archivists and users of archives. This approach emphasizes the importance of knowledge of the nature and evolution of administrative structures. It stresses understanding of the functions of institutions, their record keeping systems, and the individual documents created on those systems. This information enables and promotes better understanding and archival administration of records such as those of the Manitoba Court of Queen's Bench in Equity. iii Table of Contents -. Abstract ...................................................................................................... II Acknowledgements .................... ... ......................................................... v Introduction ................................................................................................. 1 Chapter 1 .................................................................................................... 11 Equity in the Courts of England. Colonial Canada. and the Red River Settlement to 1870 Chapter 2 .................................................................................................... 43 Manitoba Court of Queen's Bench in Equity, 1872-1895: Organization, Function, and Personnel Chapter 3 ....................................................................................................80 Manitoba Court of Queen's Bench in Equity, 1872-1895: The Records Appendix A .................................. ...,, .......................................................... 122 Records of Court of Queen's Bench in Equity, 1872-1895 Appendix B ................................................................................................. 127 Court of Queen's Bench Personnel, 1872-1895 Appendix C ................................................................................................. 135 Directions for Copying Letters Bibliography ............................................................................................... 136 Many people have influenced the writing of this thesis. l would particularly like to express rny gratitude to Dr. Tom Nesmith. His enthusiasm and knowledge have prompted my interest and research in the field. His sense of perspective and unfailing support have been significant to the continuing work and eventual completion of the project. I would like to thank Manitoba Provincial Archives staff, who have facil itated my work through their willing accommodation of numerous research requests. Also of great assistance has been the efficient service of library staffs: Legislative Library of Manitoba, Law Courts Great Library, and University of Manitoba Iibraries, including the E.K. Williams Law Library, Robson Hall. I sincerely appreciate the good advice and ongoing encouragement provided by fel low archival students and archivists. I would like to recognize the contribution of my family. lmmediate family members have, for years, show their generosity, tolerance and good humour. Extended family have unstintingly cheered my efforts. These supports have been very important and I am grateful for them. Introduction Modem society relies on its records. Each sector requires secondary representation of its actions and events. Government and commerce, education and even religion al1 depend on the record as purveyor and verifier of experience. Nowhere is this more pronounced than it is in the judicialllegal sector- Courts and law firrns, judges and lawyers depend heavily upon the document as the medium of legal business. Indeed, it may be argued that the record is the fundamental component in contemporary conduct of legal affairs. The importance attached to the record has meant that courts have tended to retain materials generated as a result of daiiy business. Documents, registers, and ledgers have accumulated over long periods of time. In Canada these materials have been recognized as archival since the nineteenth century. In the twentieth century, many records have been transferred to archival institutions. Unfortunately, there they have often languished, just as they formerl y did in court-house cabinets and basements, unused, and generally l ittle understood. Manitoba is no exception in this respect. The extensive accumulation of court records, housed at Provincial Archives of Manitoba, remains largely untapped as an historical and genealogical resource. The rewrds' content as a product of court function, and its context as a part of wider society have yet to be exploited. This absence reflects the relatively small amount of research that has been undertaken on records and record keeping. A few archival writers have investigated these themes, using mat might be called the contextual approach. The contextual approach examines the broad societal and administrative origins of records, and the record keeping systems that generated and held the records. This approach also focuses on the nature of the individual record, its physical characteristics, and the interrelationships between medium and content. The latter aspect of the contextual approach is known as diplomatic analysis. The various aspects of the wntextual approach can be studied and employed separately or together, since they are complementary. The contextual approach emphasizes the investigation