Christopher English, ed. Essays in The History of Canadian Law, Vol IX, Two Islands: Newfoundland and Prince Edward Island.
Jonathan Swainger1 THE NINTH VOLUME IN THE Osgoode Society for Canadian Legal History’s well-received Essays in the History of Canadian Law series explores the legal historical linkages and distinctions between Newfoundland and Prince Edward Island and, in a more limited fashion, the degree to which this history corresponded to the rest of the empire. Editor Christopher English, coordinator of the law and society program at Memorial University, recognized that marrying Newfoundland and Prince Edward Island offered a pairing that some might find odd. He argues that a contrast of the two islands reveals continuities and idiosyncrasies that are valuable in of themselves while suggesting lines of comparison with other jurisdictions. In this, English is on solid ground and although the collection is a bit uneven, it deepens and broadens our sense of Canada’s legal history while offering scholars a challenge to build upon the work already done.
2 Containing 13 essays plus English’s introduction, Two Islands presents a five part survey of historiography, the administration of justice, property law and inheritance, legal status and access to the courts by women, and litigation in chancery and at common law from the late eighteenth to the mid-twentieth centuries. Containing separate essays by English on Newfoundland and J.M. Bumsted on Prince Edward Island, the historiographical section offers a valuable sense of where the legal historical scholarship has been and where it might profitably develop in the future. Those familiar with the state of Canadian legal history will come away from these chapters with a sense that on both islands the discipline is still very much in its early days. With only slight exaggeration, the historiographical assessment and Two Islands as a whole resonates closely with the state of the legal historical discipline in Canada as was revealed in the first two volumes of Essays in the History of Canadian Law, published in 1981 and 1983. Like those early collections, this ninth volume indicates that the field carries a great deal of promise.
3 In concert with the historiographical treatments, Bumsted’s contributions on politics and the administration of justice in early Prince Edward Island, Jerry Bannister on surgeons and criminal justice in eighteenth century Newfoundland, Bruce Kercher and Jodie Young’s comparison of Chief Justice Francis Forbes in Newfoundland and New South Wales, David Bulger on the 47 year long chancery case of Bowley v Cambridge, and English’s examination of the equally peculiar Cashin libel trial of 1947 are collection’s strongest elements. Notwithstanding their distinctive topics and time frames, all of these chapters demonstrate thoughtful analysis and contextualization of primary sources pursuing subtle interpretations which place the legal history within local and broader contexts. Here we see the pull of broader trends in the law, legal interpretation and procedure answered by the push of local necessity, context, and a desire to fashion a legal world which had meaning for residents of Newfoundland and Prince Edward Island. For instance, neither Bannister’s surgeons or Kercher and Young’s Chief Justice Forbes set out to create distinctive local variants on how the legal system worked but the local setting effectively demanded innovation. At the same time, Bumsted’s treatment of politics and justice, Bulger’s unravelling of Bowley v Cambridge, and English’s examination of the Cashin trial demonstrate that regardless of the peculiarities of time and place, events on the two islands played upon themes to be found almost anywhere in the English legal world.
4 Less successful are Nina Goudie’s largely descriptive treatment of the northern circuit of the Supreme Court of Newfoundland in the early nineteenth century, Trudi Johnson’s examination of inheritance and the Chattels Real Act of 1834, Michele Stairs’s examination of intestacy law, Willeen Keough’s treatment of plebeian women in the courts, Krista Simon’s survey of women in the court of the Placentia District, and Laura Brown’s discussion of the legal status of women in Newfoundland at the time of Confederation. Johnson and Keough are the strongest contributions of this group of essays and it must be admitted that Johnson’s contribution is hobbled only by the fact that significant aspects of her examination are addressed in Kercher and Young’s impressive treatment of Chief Justice Forbes. Through no fault of her own she seems to be returning to ground already covered. Keough, whose chapter is drawn from her 2005 book on Irish women on the Avalon Peninsula, is well-stocked with fascinating material driven forward by sound questions but which, after setting an interpretative framework, retreats to a series of case studies. A similar character emerges in Goudie’s chapter on Newfoundland’s northern circuit and Simon’s discussion of women in the Placentia district’s courts, both of which employ descriptive case study methodology that too often produces a shopping list narrative. On the other hand, Brown’s chapter on women’s legal status in Confederation-era Newfoundland is based on five published cases and is unable to tease out how those legal precedents shaped the lived reality of women’s status in the mid to late 1940s.
5 Christopher English’s introduction argues that in the absence of a truly national legal history, we have adopted a view that is "modest, cautious, eclectic, and incremental" (8). To the extent that this is true of the broad field of Canadian legal history, it is certainly true of Two Islands which, buoyed up its strongest elements, signals the arrival of Newfoundland and Prince Edward Island into the field of Canadian legal history. While there remains more to be done in elaborating and expanding our legal historical understanding of those two islands and their peoples, these future enquiries can be founded on an essay collection that successfully provides compelling examples of the quality scholarship that can be produced.