University of Calgary PRISM: University of Calgary's Digital Repository Graduate Studies Legacy Theses 2001 Discipline, discretion and control: the private justice system of the Hudson's Bay Company in Rupert's land, 1670-1770 Nigol, Paul C. Nigol, P. C. (2001). Discipline, discretion and control: the private justice system of the Hudson's Bay Company in Rupert's land, 1670-1770 (Unpublished doctoral thesis). University of Calgary, Calgary, AB. doi:10.11575/PRISM/12235 http://hdl.handle.net/1880/40917 doctoral thesis University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca UNIVERSITY OF CALGARY DiscipIine, Discretion and Control: The Private Justice System of the Hudson's Bay Company in Rupert's Land, 1670- 1770 Paul C. Nigol A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQLJIIEMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY DEPARTMENT OF HISTORY CALGARY,ALBERTA MARCH, 200 1 Q Paul C. Nigol2001 National Library Biblioth&quenationale I*! 0fCa"ada du Canada Acquisitions and Acquisitions et Bibliographic Services services bibliographiques 395 Wdigton Street 395, rue Wellinglca O(tawa ON K1AON4 OaawaON KlAW Canada CaMda The author has granted a non- L'autettr a accorde me licence non exclusive licence allowing the exclusive pennettant a la Nationd Lbrary of Canada to Bibliotheque nationale du Canada de reproduce, loan, distn"bute or sell reproduire, preter, distribuer ou copies of this thesis in microform, vendre des copies de cette these sous paper or electronic formats. la fonne de rnicrofiche/Elm, de reproduction sur papier on sur fomat Bectronique. The author retains ownersh~~of the L'auteur conserve la propnete du copyright in this thesis. Neither the droit d'auteur qui protkge cette these. thesis nor substantial extracts fiom it Ni la these ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent etre imprim& reproduced without the author's ou autrement reproduits sans son permission. autorisation. ABSTRACT This thesis examines the private justice system of the Hudson's Bay Company during the first century of its enterprise in Rupert's Land. It explores themes in the development and interaction of legal systems prior to the establishment of state sovereignty. The study of law without a state is the primary focus of this work. which is developed thematically and chronologicaIly. A narrative is employed in five thematic areas in order to deveIop a comparative sketch of legal systems without a state. The introduction develops the larger context of the Company's business and provides an overview of the methodology employed and the sources used. This chapter also examines the intellectual history of colonialism during the Company's first century and current developments in the fields of colonial theory and comparative legal studies. Chapter two examines the Company's central management structure in the context of imperial rivalries, constitutional crises and its methods of managing a coIoniaI business enterprise in the seventeenth and eighteenth centuries. In addition and in an effort to develop the legal culture of the Company. biographies of its legal counsel are placed within the framework of the major developments in the profession. Chapters three to six are organized thematicaIIy and expiore the internal dispute resolution system of the Company at Hudson Bay. the interaction between Aboriginal dispute resolution systems and Company law. the role of the Hudson's Bay Company's navy and naval law in Rupert's Land and the legal status of women and the family. These themes are examined because they were of patconcern to the Company's managers d~gthis period and are developed in a narrative format with an eye to certain poignant incidents that took pIace in Rupert's Land and Europe. The final chapter deals with how these various influences combined to create a dispute resolution system that was unique to Rupert's Land. The time period chosen ends in 1770. which marks a departure in Company policy with its move inland and its attempt to exercise sovereignty over a larger geographic area. Throughout this thesis. the common law is contrasted with the legal system that emerged in Rupert's Land. PREFACE In this thesis, an effort has been made to make the primary source material more readable. Most ofthese records were written in short-hand script and were difficult to decipher. Thus, the clear meaning of the words used in post journals, correspondence and other documentation has been facilitated by expanding abbreviation and modernizing the English used in quotes. The letter case and punctuation has been left intact and indecipherable words were substituted with words that seem plausible in the context of the text. A number of terms are used synonymously throughout this thesis. In order to develop a sense of conformity throughout this work, the terms First Nations People and Aboriginal people are used synonymously. With respect to the Company's establishments on the Bay, the terms fort and factory refer to the Company's larger trading posts while the term house refers to smaller outposts. Post is used as a general term used to describe all of its establishments in North America In addition, the term governor is used to designate the Bayside governor, while Governor is the designation ofthe Company's Governor in London. The terms governor, chief factor, factor, commander and leader are also synonymous terms for the purposes of this thesis, while the term officer is a catch all term for all employees in upper and middle management positic;.~. ACKNOWLEDGEMENTS I would Like to express my sincerest thank you to my supervisor, Professor L.A. Knafla, who provided me with invaluable guidance and helped me wade through innumerable revisions while providing me with encouragement and support when it was most needed. I would also like to thank Professor Russel1 Smandych, who inspired me to take on this project and provided me with direction along the way. In addition, I would like to thank Judith Beattie, Keeper of the Hudson's Bay Company Archives for her direction and assistance while I was completing this research. I also owe a debt of gratitude to the entire staff of the Hudson's Bay Company Archives, whose service made this work rnucheasier. Finally, I would like to thank my parents, Olaf and Valentina Nigol, for their support and encouragement which made this work possible. TABLE OF CONTENTS .. Approval Page ...................~........~..........................................~...................~...~~.........~~......~.........11 Abstnct.................................................................................................................................. 111 Preface..................................................................................................................................... v Acknowledgements ................................................................................................................. vi.. Table of Contents................................................................................................................... v11... List ofTables ........................................................................................................................ vm... List of Figures ........................................................................................................................ vul... List of Abbrevlatlons ............................................................................................................. v111 CHAPTER ONE: INTRODUCTION: COLONIALISM AND THE CHARTER .................... 1 CHAPTER TWO: EXPLORATION, THE CHARTER AND THE COMPANY'S LEGAL COUNSEL ............................................................................................................................ 2 1 The Company's Charter and Commerce in London..................................................... 2 1 The Barristers and Solicitors of the HBC ....................................................................46 CHAPTERTHREE: 39 LASHES UPON HIS BARE BACK: INTERNAL DISCIPLINE AND SOCIAL ORDERING IN THE FORT ................................................................................... 59 CHAPTER FOUR: THE HENLEY HOUSE HOMICIDES AM) THE COMPANY'S EXTERNAL RELATIONS. ............................................................................................... 1 13 CHAPTERFNE: "THE YEARLY PACKET ARRIVED AUGUST 24': THE COMPANY'S NAVY AND NAVAL DISCIPLINE .................................................................................... 155 CHAPTER SIX: ''THAT NO WOMAN OF THIS COUNTRY BE ALLOWED IN THE HONOURABLE COMPANY'S FORTS": GENDER RELATIONS AND SEXUAL LIAISONS........................................................................................................................... 194 CHAPTER SEVEN: CONCLUSION................................................................................ -230 BIBLIOGRAPHY................................................................................................................ 239 LIST OF TABLES Table 1 :Training ofHBC legal counsel ...*.............,., .........................*....*.*..**.**..............48 Table 2: Capital