Vol. 16 No. 7 (July, 2006) pp.536-538

ESSAYS IN THE HISTORY OF CANADIAN LAW, VOL.IX, TWO ISLANDS: NEWFOUNDLAND AND PRINCE EDWARD ISLAND, by Christopher English (ed.). Toronto: University of Toronto Press, 2005. 320pp. Cloth (CDN & US)$70.00/£42.00.  ISBN: 0802090435.

Reviewed by Peter H. Russell, Department of Political Science, University of Toronto.  Email: Phruss [at] aol.com

The focus of this ninth volume in the Osgoode Society’s splendid series of essays on Canadian legal history is Canada’s two island provinces, Newfoundland and Prince Edward Island. It contains much that is of interest about the vagaries of British colonialism and the roots of judicial activism.

The volume’s nine chapters on Newfoundland provide fascinating accounts of what editor Christopher English appropriately refers to as Britain’s “retarded colonialism.” From the early 1600s to the late 1700s, Britain was in denial that it had a colony in Newfoundland. The official line in London was that Newfoundland was a seasonal fishing station, not a colony. And even after Newfoundland, along with the coastal communities of Labrador, gained formal colonial status, the justice system reflected the Colonial Office’s predilection for government on the cheap.

The four chapters on Prince Edward Island give us a close-up look at the legal hassles resulting from Britain’s decision, one and one-half centuries after the beginning of English settlement in Newfoundland, to settle that island with tenants of English gentry who acquired ownership of island lots in a 1767 lottery. Here we get a glimpse of an unpropertied populace of tenant farmers struggling to establish the legal foundation for a new colonial society, while a motley crew of landowners’ agents and political nabobs jousted in the courts. 

The book informs us of just how rough justice could be in the early days of Britain’s North American colonies. Several contributions, including Christopher English’s fine first chapter, tell us about the major role played by naval officers in administering justice in Newfoundland’s early days. In Jerry Bannister’s chapter we learn about the remarkable role surgeons played, not only as leading witnesses in homicide cases but often as magistrates – because in the tiny fishing outposts of those days, they were available, willing and regarded as “learned.” They were also difficult to convince that the deaths of badly battered women were caused by their husband’s or employer’s beatings. Nina Jane Goudie’s essay shows us that when the administration of justice became more formal in the nineteenth century, and Supreme Court judges on circuit replaced amateur local surrogates, the quality of justice experienced by residents of Newfoundland’s northern communities actually declined.

Rough as colonial justice was, it could also be progressive. This was [*537] particularly the case with respect to the rights of women. Based on an examination of all cases, civil and criminal, occurring in the courts of Newfoundland’s Placentia District between 1757 and 1823, Krista Simon shows that women were active participants in all kinds of litigation. This meant that married women exercised legal rights to own property and defend legal actions that at the time were denied their counterparts in England. Women’s use of the courts to defend and advance their interests continued into the modern period as we see in Laura Brown’s account of the legal treatment of women in the years immediately preceding Newfoundland’s joining Canada in 1949. It was not a matter of women benefiting from progressive judges but of taking their husbands to court for support payments so that they could feed their children.

If colonial justice was rough, it was also vigorous and highly political. Judges were major law-makers in these outposts of British civilization. Most of their activism was exercised in adapting English law to local circumstances. In a wonderful chapter by Bruce Kercher and Jodie Young, we meet a heroic example of such judging in Francis Forbes. Forbes, over a twenty-year period, from 1817 to 1837, served successively as Chief Justice of Newfoundland and Chief Justice of New South Wales. He justified his activism with the maxim that “of all evils upon society, I know of none more to be deprecated, than to be governed by unsuitable laws.”  In dealing with land disputes in a colony lacking a system of land titles he recognized “possession quietly obtained.” This simple tenure, Forbes wrote, “is best adapted to an instant settlement, and appears to have grown out of those common exigencies which are the best interpreters of positive laws, and in their absence, become laws themselves.”  Through Trudi Johnson’s chapter on property inheritance we can appreciate the economic security that the treatment of land issues by Forbes and other early colonial judges brought to Newfoundland and Labrador. Michelle Stairs’ chapter on family inheritance law in colonial Prince Edward Island shows how that colony too benefited from judges who were willing to respect wills that departed from the gender and class prejudices of English common law.

Stairs’ chapter brings out the benign side of judicial creativity in colonial Prince Edward Island.  J.M. Bumsted’s overview  of the judicial process in PEI’s early days, and David Butcher’s account of the nearly fifty years of litigation involved in the case of BOWLEY v. CAMBRIDGE show the pathological side of the interweaving of political and judicial life in PEI’s formative years. In the small island community where everyone knew everyone else, litigation was truly politics by other means. Political rivals fought for wealth and power in the courts presided over by judges with close ties to the litigants. In this environment judicial impartiality and independence were scarcely even shibboleths. No wonder in BOWLEY v. CAMBRIDGE, the litigants resorted four times to the Privy Council in London. Newfoundland has also seen its share of political law suits. Christopher English’s concluding chapter recounts [*538] the 1947 CASHIN libel trial in which two of the Newfoundland Supreme Court’s three judges went before their brother judge to sue a political critic for libel. Fortunately the jury failed to reach a verdict.

This collection of historical essays should disabuse political scientists of any idea that the judicialization of politics and the politicalization of the judiciary are strictly contemporary phenomena. Of course, in the colonial context where law-making by local legislatures was pristine and not particularly democratic, judicial activism took on a very different hue. Even so, it is important to understand that judicial power has been an enduring feature in political societies founded on the English tradition of governance. This book helps us appreciate that this power can be as much a force for good as for ill.  

Besides giving us many insights into the law and justice system of Canada’s island provinces, the volume provides useful accounts of their legal historiography – Christopher English writing on Newfoundland’s and J.M. Bumsted on Prince Edward Island’s.  Newfoundland and Labrador and Prince Edward Island may be Canada’s only two provinces without a law school, but this collection of essays by scholars, young and old, from a variety of disciplines, show that these provinces do not lack a talented legal academy.

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© Copyright 2006 by the author, Peter H. Russell.