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

 Faculty of Law / The University of Manitoba SYLLABUS CANADIAN LEGAL HISTORY History 3780/Law 3410 WINTER 2012 DeLloyd J. Guth, Ph.D. Professor of Law and Legal History Office: 305I, Robson Hall: Thursdays 11:30 a.m. ‐ 3:00 and by appointment (474‐
6149 or 488‐7477 or email = [email protected]) Class Meets: Thursdays 4:00‐7:00 p.m., Room 204, Robson Hall (or occasionally at Guth's home). MISSION: TO EXPAND YOUR SELF‐SUFFICIENT PRIMARY EVIDENCE 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: Canada'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 Winnipeg'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 TWO ORAL REPORTS on assigned articles and general class participation (10%) and the “Old Bailey” criminal law case search (5%); a confidentially communicated evaluation or progress report will be available whenever the student requests it. The two 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, Wednesday 11 April 2012. (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 10% of the final grade based on class participation and the two oral reports noted above and 5% for 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 Friday 16 March 2012 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 Undergraduate Calendar, 2011‐2012, as well as the “Student Discipline Bylaw” at pp. 19‐20, ibid. The common penalty in the Faculties of Arts and Law for plagiarism in a written assignment, test, or examination is F on the paper and F 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. (e) Each student is free to choose a topic for the FIRST ESSAY (see Syllabus for the First Week in January and the JESUIT RELATIONS assignment sheet): this essay's maximum length will be 4 pages, doubled‐spaced typed, or 4‐6 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, Ontario: Carswell, 1992), 4th ed., supplemented by the class handout: DeLloyd J. Guth, AThe Citation of Canadian Public Documents,@ The Chicago Manual of Style, 15th 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 are on Reserve. 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 (University of Manitoba): 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%) HIST 3780 Students further information from the Faculty of Arts: Uncollected term work will become the property of the Faculty of Arts and will be subject to confidential destruction. The common penalty in Arts for plagiarism on a written assignment is a grade of F on the paper and a final grade of F (DISC) (for Disciplinary Action) for the course. For the most serious acts of plagiarism, such as purchase of an essay and repeat violations, this penalty can also include suspension for a period of up to five (5) years from registration in courses taught in a particular department/program in Arts or from all courses taught in this Faculty. The Faculty also reserves the right to submit student work that is suspected of being plagiarized to Internet sites designed to detect plagiarism or to other experts for authentication. The common penalty in Arts for academic dishonesty on a test or examination is F for the paper, F (DISC) for the course, and a one‐year suspension from courses acceptable for credit the Faculty. For more serious acts of academic dishonesty on a test or examination, such as repeat violations, this penalty can also include suspension for a period of up to five years from registration in courses taught in a particular department or program in Arts or from all courses taught in or accepted for credit by this Faculty. 2
GENERAL SYLLABUS: LAW 3410 / HISTORY 3780 Canadian Legal History, WINTER 2012 Thursday, 4:00 ‐ 7:00 pm, Robson Hall, Room 204, or occasionally at Professor Guth's home 2012 Topic Assignment for Next Week Week I Introductions to Defining & Locating Law and Begin Research for Jesuit Relations, FIRST ESSAY; Athe Past@: What? Where? When? Whose? How? read Elton, Wedgwood, and Guth (on Sixteenth‐
05 Jan. Century Anglo‐Scottish law). Week II Late‐Medieval Anglo‐French Laws & Legal FIRST ESSAY (JR) topics chosen. NOTA BENE: we will do an on‐line internet access to the Jesuit Cultures, on the Eve of Colonisation 12 Jan. Relations and to AProceedings of the Old Bailey, London 1674‐1799" in class. Week III 19 Jan. DINNER @ Guth=s Home after! CLASS MEETING AT HUDSON=S BAY COMPANY AND PROVINCIAL ARCHIVES, PLUS THE GOVERNMENT RECORDS CENTRE Read essays by Henderson and Sprague [CLI]: discussion leaders to be assigned. Week IV 26 Jan. Reconstructing Aboriginal Law: Seventeenth‐ Century Lower Canada and Nineteenth‐ Century Rupert’s Land Read essays by Dickinson, Vanderlinden, Goebel, Katz, Flaherty, Bell, Girard, and English; as well as the Peter Karsten handout. SECOND ESSAY topic to be chosen Week V 02 Feb. Reception, Transplantation, Imposition & Recognition of Law: Canada 1450‐1790, France to Quebec, England to Maritimes & Newfoundland; Draft of FIRST ESSAY due! Week VI 09 Feb. Criminal Law in 18th c. England: Modern Debates and Perspectives; “Old Bailey” criminal law case search assignment due! Week VII 16 Feb. 19th c. Law and Institutions: the Canadas, British Columbia & the North West NO CLASS = WINTER BREAK WEEK Week VIII 23 Feb. Read essays by D. Hay, J. Langbein, P. Linebaugh, J. Oldham, J. Beattie; and hand‐out essay by Hay: discussion leaders to be assigned for reports on 09 Feb.; OLD BAILEY (Case Outline) ASSIGNMENT. Continue research for SECOND ESSAY. Read essays by M. Greenwood, P. Romney, R. Smandych, H. Foster: discussion leaders to be assigned, for 16 Feb. Read essays by Gibson, Price; and from Canadian State Trials III, by Bumsted, Lesage, Waiser, and McLachlin, for 01 March. Week IX 01 March Founding Manitoba’s Courts, Legislature, Lawyers: Louis Riel’s Role and Trial Week X 08 March @ 4:30 pm Moot Court James Oldham (Georgetown University/Law): “Habeas Corpus: from Medieval Origins to Guantanamo” Read the Articles of Confederation (1778), U.S. Constitution (1789), B.N.A. Act (1867),and Manitoba Act (1870) for 15 March. Week XI 15 March Comparative Canadian and U.S. Read Essays by R. Risk and D. Gibson [CLI]; Guth Constitutional Principles and Realities, 1763‐1867 on Brian Dickson: for discussion on 22 March. Appellate Law: Judicial Committee of the Privy Council to Supreme Court of Canada; DRAFT OF SECOND ESSAY DUE (to be returned with corrections for next class) Read essays by Kasirer & Brisson, Backhouse, McCallum, McLaren, Pue, and Strange; discussions leaders to be assigned for 29 March. Week XII 22 March Week XIII 29 March Law and Society in Canada, 1850‐1920 Week XIV 05 April SECOND ESSAY: DISCUSSION (Take‐home Final Exam Issued: due Monday 09 April @ 4:00 pm @ Robson Hall) Wednesday 25 April 3
LAST CLASS Both Draft and Final Revised Versions of Both Essays Due for Final Grades and The Osgoode Society Prize [on or before the last day of Final Exams] Faculty of Law/The University of Manitoba COURSE READINGS CANADIAN LEGAL HISTORY Law 3410 / History 3780 WINTER 2012 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. 2012 For 05 Jan., Week I: Orientation, Welcomes and Introductions: Defining Law, History and Comparative Legal Systems For 12 Jan., Week II: (1) The Practice of History: readings from G.R. Elton and C.V. Wedgwood [class handouts] (2) Read in Canada=s Legal Inheritances [CLI]: (a) APrologue,@ by DeLloyd J. Guth [CLI, pp. xxviii‐xlvi] (b) ALegal Vocabulary@ and AMaps,@ by DeLloyd J. Guth [CLI, pp. 691‐703] (3) DeLloyd J. Guth, ALaw,@ Chapter 5 in A Tudor Companion to Britain (Oxford: Blackwells, 2004), ed. by Norman Jones and Robert Tittler [class handout]. For 26 Jan., Week IV: (1) James (Sakej) Youngblood Henderson, AFirst Nations Legal Inheritances in Canada: The Mikmaq Models,@ in [CLI, pp. 1‐31]; (2) D.N. Sprague, ACanada=s Treaties with Aboriginal Peoples,@ [CLI, pp. 341‐
351] (3) John A. Noon (ed.), AA Case Book of Iroquois Law@ [RESERVE/class handout] For 02 Feb., Week V: (1) Jacques Vanderlinden, AA la rencontre de l'histoire du droit en Acadie avant le dérangement" [CLI, pp. 1‐31] (2) John A. Dickinson, ANew France: Law, Courts, and the Coutume de Paris, 1608‐1760,@ [CLI, pp. 32‐54] (3) Julius Goebel, Jr., AKing's Law and Local Custom in Seventeenth Century England,@ 31 Columbia Law Review (1931) 416‐448 [RESERVE] (4) Stanley N. Katz, AThe Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century," Law in American History, ed. by Donald Fleming and Bernard Bailyn (Boston, 1971), 265‐284 [RESERVE] (5) David Flaherty, ALaw 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, A... Lawyers and Legal Institutions@ [CLI, pp. 379‐405] (7) Christopher English, ANewfoundland'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 09 Feb., Week VI: (1) Douglas Hay, AProperty, Authority and the Criminal Law,@ Albion's Fatal Tree (1975), pp. 17‐63 [RESERVE]. (2) John Langbein, AAIbion's Fatal Flaw,@ 98 Past and Present (1983), pp. 96‐120 [RESERVE] (3) Peter Linebaugh, A(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein,@ 60 New York University Law Review (1985), pp. 212‐243 [RESERVE] 4
(4) James C. Oldham, AOn Pleading the Belly: A History of the Jury of Matrons," Criminal Justice History [RESERVE] (5) John Beattie, "Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries," 9 Law & History Review, (1992), pp. 221‐67 [RESERVE] and (6), Douglas Hay, ATime, Inequality, and Law=s Violence,@ in Law=s Violence, ed. by Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1992), 141‐173 [handout]. For 16 Feb., Week VIII: (1) Murray Greenwood, "Lower Canada (Quebec): Transformation of Civil Law, From Higher Morality to Autonomous Will, 1774‐1866" [CLI, pp. 133‐
182] (2) Paul Romney, AUpper 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, "British Columbia: Legal Institutions in the Far West, from Contact to 1871," [CLI, pp. 293‐340] For 23 Feb., Week VII: NO CLASS = WINTER SEMESTER BREAK For 01 March, Week IX: (1) Dale Gibson, ACompany Justice ... Manitoba,@ [CLI, pp. 247‐292] (2) Graham Price, AThe North,@ [CLI, pp. 352‐378] (3) Full texts of Hudson=s Bay Company and Manitoba (1870s) constitutional documents [class handouts]. (4) 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): (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. (5) The Rt. Hon. Beverley McLachlin, “Louis Riel: Patriot Rebel,” 35.1 (2011) Manitoba Law Journal 1. For 08 March, Week X: ORAL REPORTS ON RESEARCH ESSAY PROGRESS/PROBLEMS For 15 Mar., Week XI: (1) Full texts of the U.S. Constitution of 1787 and of the British North America Act of 1867 [Class handouts]. For 22 March, Week XII: (1) Richard Risk, AThe Scholars and the Constitution: P.O.G.G. and the Privy Council," [CLI, pp. 496‐523] (2) Dale Gibson, AFederal Legal and Judicial Institutions in Canada,@ [CLI, pp. 450‐495] (3) DeLloyd J. Guth, AIntroduction@ and ASecuring Canada=s Judicial Heritage,@ in Guth (ed.), Brian Dickson at The Supreme Court of Canada 1973‐1990 [RESERVE] For 29 March, 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, AThe Shining Sixpence: Women's Worth in Canadian Law at the End of the Victorian Era," [CLI, pp. 556‐573] (3) Margaret McCallum, ALabour and the Liberal State@ [CLI, pp. 574‐593] (4) John P.S. McLaren, ARecalculating 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, ACommon Law Legal Education,@ [CLI, pp. 654‐688]
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CANADIAN LEGAL HISTORY Law 3410/History 3780 DeLloyd J. Guth (WINTER 2012) 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 the primary texts, including problems of terminology; (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 AJesuit Relations@ and hit the first entry, marked AIndex.@ 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 Contracts/Promises Slaves/Captive Servants Gifts Chiefs/Captains Compensations (Tort) Shaman/Medicine Persons Assemblies/Councils Warriors/Military Duty Marriage/Family Due Process: Mentalities: Customary Law Animism Evidence Dreams/Spiritualism Torture Religion/Morality Penalties Death/Morality Proofs Death/Immortality 6
Canadian Legal History (LAW 3410/HISTORY 3780)/Winter 2012 Professor DeLloyd J. Guth RESEARCH/WRITING ASSIGNMENT: (www.oldbaileyonline.org.uk) (Due in class 09 February 2012) Student Name: __________________________________________________________________ Keyword Search Used: (e.g., AOffence@ or APunishment@) ______________________________________ 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 judgment, and any mitigation of punishment. [over] 7