A History of Law in Canada, Volume One: Beginnings to 1866 by Philip Girard, Jim Phillips, and R. Blake Brown (review)

No field has grown more rapidly than Canadian legal history over the past few decades. Once a rather specialised subject of interest only to lawyers and constitutional historians, it has entered the mainstream and a synthesis of the scholarship in the field is long overdue. This volume, the first of two, more than adequately fills that gap. In fact, it is the best synthesis of a field I have ever seen and should be required reading for all historians of Canada. It is astonishingly all-encompassing, examining not just the history of the evolution of the Canadian constitution and of the common and civil law derived from France and Britain but also the history of the Indigenous system of law. Indeed, it focuses upon how the three legal systems in Canada – the Indigenous, the French, and the English – coexisted and interacted over time, not an easy challenge in the period before Confederation when Canada was still divided into a series of colonial and imperial jurisdictions. The book examines substantive law, legal institutions, legal actors, and legal culture but it never narrowly focuses on the history of law in isolation, seeing law as a dynamic process, shaped by and shaping social values and political ideas. The authors explain how and why the legal systems of Upper Canada and the Maritimes, while having similar roots, diverged in the early nineteenth century. They offer insightful comments about Indigenous legal systems, pointing out that the interpretation of Mohawk society as a matriarchy is 'excessive' and that one of the reasons why there was less intra-societal conflict in Indigenous society was the 'more egalitarian distribution of resources' (pp. 307–8). They argue that the courts were 'the most important service provided by the colonial state' (p. 363) and were much more important in everyday life than they are today. The book contains a wealth of information about everything from conviction rates for crimes to the impact of the law on land tenure and commercial development. There are superb chapters on how the law affected minorities and women. What amazes me is how often the authors shed fresh light on an old topic. Take for example the question of the expulsion of the Acadians. They point out that the status of 'the Acadian deportation in law is not entirely settled' and that to talk of the deportation 'in terms of genocide or crimes against humanity is, legally speaking, anachronistic'. Indeed, the French also 'used loyalty oaths and deportation (or forced relocation) as tools against the Acadians' (p. 230). The authors are also prepared to challenge existing orthodoxies, arguing, for example, that repression against the rebels in 1837–38 was 'tempered by more pragmatic policies driven by restraint and mercy' (p. 489). The authors seem to have read everything and I found only one minor error; they erroneously claim that the uprising led by William Lyon Mackenzie in December 1837 was put down by 'British regulars' when none were involved (p. 508). This is a brilliant book and I am looking forward to volume two.