In the late nineteenth century, the English legal historians Frederick Pollock and F.W. Maitland coined the phrase “the grand experiment” to describe the spread of English law throughout the British Empire. For Pollock and Maitland, this was an unequivocally positive process that would uplift settler societies. The work of recent legal historians, however, has alerted us to the more complex impact English law had on the peoples, both settler and indigenous, of those colonial societies. This “new colonial legal history” has revealed subtle and more ambiguous understandings of “the grand experiment.”
The essays in this volume reflect the exciting new directions in which legal history in the settler colonies of the British Empire has developed. The contributors, all noted scholars, show how local life and culture in selected settlements influenced, and was influenced by, the ideology of the rule of law that accompanied the British colonial project. Exploring themes of legal translation, local understandings, judicial biography, and “law at the boundaries,” they examine the legal cultures of dominions in Canada, Australia, and New Zealand to provide a contextual and comparative account of the “incomplete implementation of the British constitution” in these colonies. A variety of topics are covered, ranging from libel law in New South Wales, Upper Canada, and Massachusetts to the much-neglected question of the extent to which British courts took note of the decisions made by courts in the settler dominions.
Given the current lively debates about national characteristics and the rights of aboriginal peoples in British settler societies, this historical investigation has immediate relevance. The Grand Experiment will be of interest to all those whose lives have been shaped by the legacy of English law.
This collection of essays by Canada’s and Australasia’s most accomplished legal historians is a ‘must’ for academic libraries and those who share these scholars’ interest in the legal culture of the British colonial world.
Hamar Foster is a professor of law at the University of Victoria. Benjamin L. Berger an assistant professor of law at the University of Victoria. A.R. Buck is a professor of law and Co-Director of the Centre for Comparative Law, History and Governance at Macquarie University, Australia.
Contributors: Simon Bronitt, Lyndsay M. Campbell, Jeremy Finn, Philip Girard, Ian Holloway, Bruce Kercher, Greg Marquis, John P.S. McLaren, Stefan Petrow, Jim Phillips, Janna Promislow, Jonathan Swainger, David V. Williams, John Williams, Barry Wright, and Nancy E. Wright
Introduction: Does Law Matter? The New Colonial Legal History / Benjamin L. Berger, Hamar Foster, and A.R. Buck
Part 1: Authority at the Boundaries of Empire
1 Libel and the Colonial Administration of Justice in Upper Canada and New South Wales, c. 1825-30 / Barry Wright
2 The Limits of Despotic Government at Sea / Bruce Kercher
3 One Chief, Two Chiefs, Red Chiefs, Blue Chiefs: Newcomer Perspectives on Indigenous Leadership in Rupert’s Land and the North-West Territories / Janna Promislow
4 Rhetoric, Reason, and the Rule of Law in Early Colonial New South Wales / Ian Holloway, Simon Bronitt, and John Williams
5 Sometimes Persuasive Authority: Dominion Case Law and English Judges, 1895-1970 / Jeremy Finn
Part 2: Courts and Judges in the Colonies
6 Courts, Communities, and Communication: The Nova Scotia Supreme Court on Circuit, 1816-50 / Jim Phillips and Philip Girard
7 Fame and Infamy: Two Men of the Law in Colonial New Zealand / David V. Williams
8 Moving in an “Eccentric Orbit”: The Independence of Judge Algernon Sidney Montagu in Van Diemen’s Land, 1833-47 / Stefan Petrow
9 “Not in Keeping with the Traditions of the Cariboo Courts”: Courts and Community Identity in Northeastern British Columbia, 1920-50 / Jonathan Swainger
Part 3: Property, Politics, and Petitions in Colonial Law
10 Starkie’s Adventures in North America: The Emergence of Libel Law / Lyndsay M. Campbell
11 The Law of Dower in New South Wales and the United States: A Study in Comparative Legal History / A.R. Buck and Nancy E. Wright
12 Contesting Prohibition and the Constitution in 1850s New Brunswick / Greg Marquis
13 From Humble Prayers to Legal Demands: The Cowichan Petition of 1909 and the British Columbia Indian Land Question / Hamar Foster and Benjamin L. Berger
Afterword: Looking from the Past into the Future / John P.S. McLaren
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