H. ROBERT BAKER

Creating Order in the Wilderness: Transplanting the English Law to Rupert's Land, 1835-51

The legal history of the western Canadian frontier has received renewed attention in recent years. Much of the work readdresses the question of "law and order," challenging older assumptions about Canada's orderly frontier culture—orderly particularly in contrast to the United States' violent settlement of the west. ¹ At issue is not just a revision of whether violence occurred on the Canadian frontier but a fundamental reinterpretation of what the concepts of "law" and "order" had really meant. Indeed, conflict between legal cultures has become a major theme as historians attempt to rewrite the history of the Canadian west. They understand that this conflict—whether violent or not—shaped the formation of Canada's legal culture before 1870. Methodological prescriptions for writing this type of history have emphasized the need for historians to widen their base of sources, particularly to exploit "nonlegal" sources (such as diaries, journals, and letters), and to consider the workings of what Lawrence Friedman has called the "cultural" component of a legal system: what suits were brought to court, what notions came into play there, what expectations people brought with them. ² Important studies on the colonial settlement of British Columbia in the nineteenth century have focused on the relationships between the Hudson's Bay Company, colonists, and Natives to demonstrate that conflict over resources and competing definitions of liberalism and law often shaped legal discourse. ³ These rich accounts have, among other things, called into question the idea of an orderly, peaceful Canadian frontier. ⁴ They have also provided a much more complex picture of the interactions between Native and European, and the uses of law and the legal system by settlers, Company men, and Aboriginals.
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      Competing definitions of law, order, and justice also shaped the judicature of western Canada's first permanent colony, the Red River settlement. Located at the forks of the Assiniboine and Red rivers (south of Lake Winnipeg), it was the only colonial settlement that the Hudson's Bay Company had established within its massive 1.5 million acres of chartered territory known as "Rupert's Land." ⁵ The settlement sat within the "District of Assiniboia," a large tract of land that the Company had sold to Thomas Douglas, the fifth earl of Selkirk, in 1811 for the purpose of settlement. ⁶ The Company directors, largely through their principal agent in North America, Sir George Simpson, established a judicature and police force in 1835. They had attempted to bring order to the wilderness colony in the form of legal transplants: a court system dependent on the dictates of the Company charter and based on English models. It was a definition of order conceived from above, one that attempted to define rigidly the institutions that would dispense justice, administer law, and maintain order. Once in place, however, these same institutions were subject to competing definitions of law, justice, and order from below. Colonists who came to the court as litigants, defendants, and jurors perceived law as a flexible entity, one that depended on individual reason and equity rather than the strict application of known laws. As the legal history of the settlement before 1835 reveals, the settlers often relied on a "smoothing system" for justice that ignored legal niceties and institutional solidity for equitable solutions and flexibility.
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Reinterpreting the Legal History of Assiniboia

Since these definitions obviously competed with one another, historians have usually written Assiniboia's legal history in terms of conflict: conflict between the Anglo-Scots settlers and the largely French-speaking Métis and not least between the Company struggling to enforce its fur trade monopoly and the settlers who harbored free trade ambitions. In this light, the Company's establishment of a judicature was a conscious attempt to maintain order and defend its trading monopoly against potential free traders within the Red River settlement. Even more telling was the Company's importation of Adam Thom in 1839 as the colony's first legally trained judge, particularly since he served the dual role of colony judge and Company legal advisor. Given this evidence, there can be little doubt that Simpson and the London directors harbored such motives. Historians have also concluded that the rigid structures created by Sir George Simpson and the iron fist of Adam Thom from the bench dominated and determined Assiniboia's law. This is in error. The misunderstanding stems, in part, from a mistake made by Kathryn Bindon in her seminal article on Adam Thom. She asserted that the Company accepted "without alteration" Thom's proposed civil and criminal codes for the settlement; the Company in fact rejected them. ⁷ More recent surveys of Assiniboia's legal history accepted Bindon's mistake and used it as evidence that Adam Thom had a conscious program for, and a tremendous influence on, Assiniboia's law. ⁸ These surveys, however, were only surveys: they lacked an in-depth exploration of the archival sources of Assiniboia's legal history. ⁹ It is precisely for this reason that attempts to place Assiniboia within a comparative framework have suffered: historians have assumed that Assiniboia's law was Company law, that the judicature was simply a bulwark for monopoly, that Adam Thom's rigid hand guided Assiniboia's legal history.
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      The historical record does not support these conclusions. This is not to say that conflict between Company officials and settlers over the Company's monopoly did not occur—it was an obvious part of life in nineteenth-century Assiniboia. But it did not dominate the agenda of the council of Assiniboia, nor did prosecution of free traders fill the court docket of the general quarterly court of Assiniboia. Once scrutinized, Adam Thom's legal contributions are far less impressive than others have assumed: the Company rejected his codes and rebuffed his attempts to provide a written statement of Assiniboia's law. The "local code" of laws for Assiniboia passed through the council—considered by historians to be Thom's crowning achievement—was a collection of laws passed before Thom arrived at Red River. In addition Thom never exploited his ability to declare the law from the bench in the form of legal judgments, thus leaving little impact on the records. Once again, the Company had frustrated him, this time by declaring that the law of Assiniboia was the law of 1670 England—in other words, arcane and virtually unknowable by both settlers and Thom himself. ¹⁰ Thom could not write judgments, and indeed did not write judgments, when he did not know what the law was. This left the law in the hands of the juries, who settled cases according to their own notions of law and order. Quite simply, order from above gave way to order from below. The Company directors refused to meddle with an institutional system that they believed brought order to the wilderness, leaving the colonists' definition of order to determine the substance of Assiniboia's law.
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      This reinterpretation of Assiniboia's legal history raises questions about its place in the larger legal history of the Canadian frontier. In 1835 Red River was the only colonial settlement in Rupert's Land and thus has been the focus for prairie legal history before 1870. Yet previous interpretations have stressed too strongly the Company's role in determining the law and its attempt to make legal institutions into disciplinary instruments. Given the reassessment of the role of law in British Columbia by Hamar Foster and Tina Loo, the time has come to reappraise Red River's legal history and legacy as well. It is a history dependent on community notions of law, justice, and reason. Importantly, it is a history less dependent on attempts to impose authority from above than on obtaining support from below—from those who brought suits, answered to suits, and staffed the juries. This suggests that the question of law and order on the Canadian frontier indeed needs to be reassessed, precisely because it was the contemporary notions of law and order in Red River that determined what emerged from the general quarterly court as "law." It is a history waiting to be written.
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The Company and the Law

Until 1835 legal institutions in Rupert's Land had at best a patchwork tradition. In order to reconstruct their history, one would have to knit together a small number of cases held over three different centuries with almost no common thread—hardly a history at all. In reality the Company erected "courts" on an ad hoc basis and rarely initiated formal legal proceedings within its territory. The Company never established a regularly convening judicature either on the shores of the Bay or at the inland posts during the eighteenth or nineteenth centuries. Even Selkirk, who created the Red River colony, did not establish a regularly convening court for his colonists. Rivalry between the Hudson's Bay Company's settlers at Red River and the North West Company's fur traders led to violent conflict and the infamous "massacre" of Red River settlers at Seven Oaks on 19 June 1816. ¹¹ This in turn led to a parliamentary investigation and the passage of the Second Canada Jurisdiction Act of 1821, which authorized the Crown and the governor of Lower Canada to commission justices of the peace (JPs) to establish courts of record within Rupert's Land. The Act also reaffirmed the Company's jurisdiction and ability to issue commissions under its own seal. Yet the Company did not establish a formal judicature directly after the 1821 Act; instead, the governor and council of Assiniboia arbitrated disputes when the need arose. ¹² Assiniboia's legal institutions, therefore, did not "evolve" from an institutional Company legal tradition—no such tradition existed. When the Company established Assiniboia's judicature in 1835, it created something new, something that had not existed there before.
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      This is not to say that the Company brought no law to Rupert's Land during its three centuries of physical presence there. As ships sailed from London to Port Nelson (York Fort) in the late seventeenth and early eighteenth centuries, so did Company instructions and regulations arrive in Rupert's Land to form a body of "law" to govern Company servants—both the conduct between servant and servant, and the conduct between servant and Native. ¹³ Moreover, the general law governing the relationship between the chief factors and the laborers conformed to the English master-servant law. ¹⁴ Constant contact with Natives brought their customs into the fold. ¹⁵ There was no absence of law and custom in eighteenth-century Rupert's Land—only an absence of formal legal machinery and rules that governed anyone but Company servants. In effect, the Company left no institutional legacy or substantive body of law for the Red River colonists.
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Conciliar Justice

The Company drew its jurisdictional powers from its 1670 charter of incorporation. This granted the governor of the Company and his council "power to judge all persons belonging to the said Governor and Company or that shall live under them in all Causes whether Civill or Criminall according to the Lawes of this Kingdome and to execute Justice accordingly." ¹⁶ The jurisdiction empowered the governor and council, thus giving any court erected by the Company a distinctly conciliar flavor. The three recorded cases that took place in the seventeenth and the eighteenth centuries all adhered to this conciliar model—the governor and council comprised the court and never called a jury. At least two people were formally charged and tried under the Company's jurisdiction in the seventeenth century, both during the period of war with France. ¹⁷ The best documented trial was that of Thomas Butler for a number of crimes and misdemeanors (among them theft, slander, and fornication with a Native woman) in 1715, conducted by James Knight. The detailed records of this trial indicate minute attention to procedure and form, including the gathering of evidence and the exclusion of two members of the post council from judgment because of their role as witnesses. ¹⁸
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      These cases were remarkable because they were few. The bare fact that the Company held only three known formal trials over a period of nearly 120 years suggests that it had neither the need nor the desire to establish a permanent judicature for Rupert's Land. The Company had means of disciplining recalcitrant servants that did not require a formal legal process, and petty crime was often subsumed under this type of punishment. For instance, Albany Post chief factor Anthony Beale whipped four men for theft in 1713 without calling a trial. ¹⁹ Until the period of violent conflict with the North West Company from 1811 to 1821, very few incidents arose that required a formal tribunal to settle. ²⁰ As a result, any administration of law remained ad hoc. When Andrew Wilson—a postmaster in the Company's employment—raised a case of slander against chief trader John Todd in 1833 (it was not settled until 1835), the "formal trial" administered by Sir George Simpson and Alexander Christie bore a general resemblance (although with less precision) to the trials held more than a hundred years before. ²¹ Indeed, the records indicate that the early eighteenth-century trial followed a stricter and more advanced procedure than Simpson and Christie's court in the 1830s. ²²
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      The Company had not built a formal judicature to dispense law and justice in Rupert's Land and it showed even less interest in regulating the laws of the Red River settlers. Besides a small collection of penal laws published in 1815 at Moose Factory—which were little more than regulations for Company servants at Company posts—the Company had yet to codify or publish what laws were really in force in Rupert's Land. ²³ Selkirk had given various incomplete instructions but had died on 8 April 1820 while his settlement was still wracked with turmoil. Andrew Colvile, an executor and trustee of Lord Selkirk's estate, told John Halkett, a London director of the Company and also an executor and trustee of Selkirk's estate, that: "You will have to advise [Governor Andrew] Bulger as to his conduct in regard to the Jurisdiction. If substantial justice is done and the punishments moderate the forms will not so much signify. Everything should be done in open court and juries sworn on proper occasions but I believe it is not necessary that the jury should be 12 if so many unexceptional persons from the thinness of the population cannot be brought together." ²⁴ The model for the new judicature roughly followed the specifications of the charter that enabled the governor and council to hear and decide cases. The addition of a jury to decide issues of fact indicated that the London directors wanted to institute a common law court. In order for outside authorities—particularly the British Parliament—to consider the Company's court legitimate, it had to appear fair in its administration of justice. The form of the court was considered a technical affair and secondary in importance to the justice it delivered.
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      Considering the absence of any quarterly sitting of the court from 1822 to 1835, it does not appear that great attention was paid to form. Alexander Ross, who came to Red River in 1825, noted that up until 1835 "a few councillors, to assist the Governor, some few constables too, had been nominally appointed; and this little machinery of government had dragged along under what has been very properly called the smoothing system, or rather no system at all." ²⁵ The Reverend Roderick MacBeath, whose father had been a magistrate in Assiniboia, recalled that "the science and art of statecraft had made but little progress on the banks of the Red River, and that laws and the administration of them were primitive enough in those early days." ²⁶ Both Ross and MacBeath described a system largely dependent on arbitration and equitable settlements, aided by the spirit of mutual cooperation among the colonists. Ross considered it "a political miracle" that an apparently lawless community functioned so well. Roderick MacBeath gave several heartwarming anecdotes of how his father administered justice. In one case, a drunken "half-breed" chased a merchant whom he held responsible for the death of his son into MacBeath's home. The two of them spent the night there—in opposite ends of the house—and in the morning, "when the half-breed was sober, court was held, and after being shown how groundless his view was, he was bound over to keep the peace under severe penalties, and that settled it." Roderick MacBeath went on to note that "nowadays, or then, if enforced strictly, the criminal law would not deal so gently with a man who was disposed to prowl after innocent parties with murderous intent and a fork; but a wholesome dread of the court, if any breach of the law were committed, made the plan effective." ²⁷ Although the story in question must have occurred after 1852 (the year Robert MacBeath became a magistrate), it was obviously reminiscent of a flexible and personal system of justice for a small colony.
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      Nor do the several records of the trials that did take place indicate that the governor and council of Assiniboia consciously attempted to transplant the complexities of the common law or English procedure to Red River. Several instances of criminality were recorded by Andrew Bulger, governor of the settlement in 1822 and 1823. ²⁸ Bulger, though, did little more than take depositions and issue commissions for constables. He admitted to Andrew Colvile in 1822 that he "did not expect ... to be called upon at any time to perform any judicial functions," primarily because he was "not competent in point of ability, nor qualified by law." ²⁹ The Company's ad hoc administration of justice during the eighteenth century had relied on its charter and on an acceptance of basic English legal models—the conciliar court and basic rules of procedure—and in the absence of a formal court, the master-servant law. The early governors of the settlement, however, did not follow even that slight attention to form. As the few formal records of trials and the reflections of contemporaries demonstrate, both the colonists and their immediate governors were less interested in establishing a formal judicature based on the English model (or in strict accordance with the charter) than in providing a flexible means to arbitrate disputes within the settlement. The organization, such as it was, truly must have been as Alexander Ross described it: a smoothing system.
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Transplanting the Formal Judicature

Thus by 1835 the Red River settlement had functioned for over a decade without any formal courts of law, and the extant records indicate little need for such institutions. Conflict was not the primary force shaping law, nor was it the potential reason for the establishment of a judicature. Instead, it was wholly Sir George Simpson, the governor of Rupert's Land, who found both the reason and the will to create a permanent judiciary. He did so in a conscious attempt to impose order on a growing settlement that was a potential threat to the Company's trade monopoly. To bolster this judicature, he established a military style law enforcement body. To secure the legal status of his new courts, he imported a new legal officer—the recorder of Rupert's Land—to preside over the court and serve as legal adviser to the Company. He brought to the settlement its first recorder of Rupert's Land, Adam Thom, with Thom's understanding that he was a servant of the Company first and a fair-minded judge second. It was an ambitious program designed to implement the law as a disciplinary instrument. But as Adam Thom would learn, the job was only half done—institutional rigidity would not by itself ensure a program of order established from above.
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      Simpson's context was always dual; he spoke to both the London directors (possibly answerable to Parliament) and the settlers. In 1835 he informed the governor and council of Assiniboia that it was time "to put the administration of Justice on a more firm and regular footing than heretofore," in order to "guard against the dangers from abroad or difficulties at home, for the maintenance of good order and tranquillity, and for the security and protection of Lives and Property." ³⁰ Simpson intoned mantras immediately recognizable to both his colleagues in England and the settlers isolated in the subarctic. Justice, tranquility, law and order—hallmarks of the English common law as seen through Victorian spectacles, transparently universal to the true believer in the hegemony of the common law. Whether his audience was London or Assiniboia, Simpson played the role of lawgiver brilliantly.
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The Restructuring of Assiniboia

A brief recapitulation of this legislative activity is necessary, both to establish the courts' essential framework and to locate the historical models for their creation. In 1835 the council of Assiniboia divided Red River into four districts and appointed a magistrate in each section. Each magistrate presided over a quarterly, petty court authorized to hear "cases of petty Offence, and debts under 40s. [shillings]." Two constables were to attend the court and obey the commands of the magistrate, presumably to maintain order in the court and aid in the execution of sentences. In addition to these petty courts, the governor and council of Assiniboia were authorized to sit as a general quarterly court at the governor's residence, "where cases of a more serious nature, cases of debt exceeding 40s. [shillings] and all appeal cases from the decision of the Justice of the Peace shall be examined into." ³¹ As a check on "frivolous" litigation, the prosecutor had to pay three shillings to initiate proceedings, and in cases of appeal, the fee was five shillings. ³²
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      In 1837 the council repealed the 1835 resolution that divided Assiniboia into four districts. It formed three districts and appointed two magistrates for each. Petty courts in each of the districts consisted of any three magistrates and exerted jurisdiction over petty offenses and debts not exceeding £5. The general quarterly court consisted of the governor—or the principal representative of the Company then in Red River—and the council. ³³ In 1839 the Company reformed Assiniboia's judicature once again. Each district was appointed three magistrates, of which at least one had to reside inside, and one outside, of the district of appointment. The Company empowered these magistrates to hold courts of summary jurisdiction over civil suits under £5 and any criminal misdemeanors where the resultant fine did not exceed £5. All the general appointments were rescinded and both the administrative and judicial posts received minor reform. The London directors created a governor-in-chief of Rupert's Land, a governor of Assiniboia, a recorder of Rupert's Land, four sheriffs of Rupert's Land, and two sheriffs of Assiniboia. Councils were created and named for both Rupert's Land and Assiniboia. ³⁴ In 1841 the council of Assiniboia further restricted the summary jurisdiction of the petty courts to fines not exceeding twenty shillings. ³⁵
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      The system was roughly modeled after the English quarter sessions. The presence of quarterly courts on a petty scale with summary jurisdiction closely resembled the jurisdiction that JPs had exercised since Tudor-Stuart England. The Company issued commissions to the magistrates that made them JPs in both fact and law, and the Company intended the magistrates to fulfill all the functions consistent with their English counterparts. JPs in Assiniboia were charged "to keep and cause to be kept all Ordinances and Statutes for the good of the Peace and for preservation of the same and for the quiet Rule and Government of the People." ³⁶ The commission empowered them to examine witnesses and administer oaths in order to inquire into the truth of any crime, whether felony or misdemeanor. Mirroring the functions of their English counterparts, the Assiniboia JPs monitored victuallers to check the abuse of weights and measures and acted as safety inspectors. Their jurisdiction extended beyond the district courts and into the community. JPs in England bore a duty to prevent crimes from occurring. Similarly, JPs in Assiniboia were expected to call before them men who had threatened others with injury or breach of the peace, "to find sufficient Security for the Peace or their good behaviour." ³⁷ The use of a "sheriff" to frame lists for juries was consistent with the quarterly court model. The two sheriffs were expected "in turn, [to] officiate as Chief Officers of the Court, and that if either of them be absent from his Share of duty the other shall officiate in his stead." ³⁸
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      This series of active reforms issued not from the members of the Red River community but from the London directors. Alexander Ross noted that "the first steps taken by the Company after its new acquisition, was to organize something like local regulations, courts of justice, and a code of laws for the colony." ³⁹ These early reforms—the organization of four judicial districts in 1835—were drawn up and promoted by Sir George Simpson. The council's meeting on 12 February 1835 began with a "preparatory address" that justified an extensive overhaul of the administration of justice; Simpson wrote it and read it to the council. ⁴⁰ "Toward these important ends," said a polite Simpson to the councilmen, "I therefore beg to propose the following Resolutions, which I trust will receive your favorable consideration." ⁴¹ Simpson proposed every resolution at the meeting, and the councilmen accepted every one. The London directors expressed their desire to see good order and tranquillity maintained in the colony and endorsed the resolutions of the governor and council. The directors also expressed their desire to take an active role in the governance of the colony: "we feel deeply interested in the prosperity of this Settlement, and [are] of opinion, that it could be better, and with greater facility managed, if entirely in the hands of the Company." ⁴²
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      The Company made good on its promise. Appointments of councillors, magistrates, sheriffs, and governors all came from London. The London directors drew up the judicial reforms of 1839, Simpson read them to the council in Red River, and the newly appointed council "unanimously adopted the same." Nor did this supervision end with the judicial reforms but rather continued throughout Red River's history as a part of Rupert's Land. This structure of governance for Rupert's Land relied on the corporate model and depended wholly on chartered rights. Ultimate authority (apart from the Crown) rested with the London directors, although their dependence on George Simpson for information and administration in North America gave him considerable influence as a local governor. ⁴³ As the governor-in-chief of Rupert's Land, Simpson's authority was supreme anywhere within the Company's territories. When present in Red River he superseded the governor of Assiniboia as president of the council of Assiniboia. He carried all the instructions, judicial reforms, and appointments from London to Assiniboia; he also authored and influenced many of the resolutions. The appointed councillors of Assiniboia were not silent, however. For their part, they played an active role in their own governance and, albeit perpetually under Company supervision, legislated enthusiastically throughout the settlement's history.
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      Not all of Simpson's reforms followed the common law model. The most glaring deviation was located in the resolutions concerning Red River's constabulary. Before 1835 councillors had appointed constables to handle routine duties for the settlement. In 1835 Simpson and the local council dissolved the existing constabulary and replaced them with "a more efficient and disposable force ... to be styled a Volunteer Corps." ⁴⁴ The force was sixty men strong, ordered in a hierarchical military fashion: privates, sergeants, sergeant-majors, and a captain. "Enlisted men" were given an oath that stated the duties of their double office as privates in a military corps and police officers for Red River. In establishing guidelines for the conduct of these police officers/volunteer soldiers, the council stated "in short that every thing Connected with the good order or discipline of the Corps be as much as possible in union with and conformable to the practice and usages connected with such service in the British Army." ⁴⁵ The council immediately requested guns and ammunition for their soldiers/police officers, something that Simpson made sure the London directors fulfilled. Simpson built the first regular police force at Red River using a military model. ⁴⁶ In so doing, he essentially abandoned any notion of a traditional common law constabulary. ⁴⁷
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      Simpson gave several reasons for creating a police force that had military readiness. First, the police force in existence before 1835 was not large enough, or endowed with enough authority, to maintain the tranquillity of the settlement. Additionally, in a remote region, the volunteer corps could offer at least cursory protection from outside hostility. London approved of the action, and congratulated Simpson on the council's choice: "We approve very much of the determination you came to with the Council of Assiniboia, to continue the Police Corps, the presence of which must be useful in maintaining the tranquility of the Settlement, at the same time it commands the respect of the neighbouring Indians and checks their disposition to commit depredations." ⁴⁸
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      Implicit in Simpson and the London directors' desire to promote order was the assumption of unrest in the Red River settlement. It was an assumption predicated upon the directors' knowledge of the settlement, which they derived almost solely from Simpson's correspondence. Simpson himself mentioned only one incident of internal disturbance. Moreover, it was a sensational and almost unbelievable affair, not reported or documented by anyone else. Simpson claimed that Cuthbert Grant (a local Métis leader with a colorful and controversial history with the Company) had led the Saulteaux in an attack on a Sioux band that had come into the settlement in July 1834. Alexander Christie and a number of gentlemen safely escorted the Sioux out of the settlement, preventing Grant and his Salteaux party from "butchering" the Sioux. Simpson followed the story with his plea for a military power:
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The affair in question, which happily was attended with no serious immediate consequence, shows the necessity that exists of early measures being taken to organize a more powerful force, for the protection of the Settlement from a foreign enemy, likewise for maintaining good order at home, than the inefficient police we now have amounting only to 30 men; and I have the satisfaction to say it has been suggested by the Scotch, and other respectable Settlers, that a Militia, or Volunteer Corps, should be raised, for the defense and protection of the Colony, which I beg leave strongly to recommend to the favorable consideration of Your Honors. ⁴⁹

      Simpson also spent a good deal of his letter praising Alexander Christie for his "excellent" management of the situation—and of the settlement in general—and criticizing Grant as a "drunken" and violent barbarian. The account smacked of sharp politicization and probable embellishment; Simpson wrote it with transparent purpose and communicated it only to the London directors.
23

      Excepting Simpson's story, however, none of the extant records pointed to any serious disturbances in Red River or any real problems with maintaining order. ⁵⁰ Alexander Christie, the chief factor at Fort Garry, reported to Simpson in 1835 "with much satisfaction ... that this Settlement is, at present, generally speaking, perfectly tranquil and healthy." ⁵¹ Alexander Ross—a councillor of Assiniboia and Red River's first historian—had actually expressed displeasure with the numerous judicial reforms. He noted that, before the Company reformed the judiciary, "in no instance were the decisions of the magistrates questioned or disobeyed; no collision of interests or parties disturbed the peace.... Peace and order were thoroughly maintained throughout every part of the settlement; the laws were respected, and life and property was everywhere secure." ⁵² The appointment of military style officers and enlisted men by an executive council to execute writs and fulfill the other duties of policemen smacked of an absolutist, and very non-English, system of government. The 1761 "Militia Act" in England specifically prohibited "any Constable, or any other peace officer" from serving in the militia. ⁵³ The chosen model lacked the authority of the magistrate—the expressed leader of the locality—to appoint constables and thus keep them under the supervision and careful watch of the community's common law standards.
24

      The council of Assiniboia imposed constraints to keep this military police force under public supervision. By stipulation, the council had to approve the funding of the police annually. This prevented the police from becoming an independent power outside the control of the council. Also, the compact size of the settlement acted as a guard against the possible abuse of power by a small police/military unit—the volunteer corps was not linked to distant power but in the hands of Alexander Ross, a resident of Red River. The council also continually reformed the police to make them responsible and answerable to the community. In 1843, besides some structural changes (the office of sergeant-major was abolished), the council required that half of the privates be changed every other year, ostensibly to avoid the rise of career soldiers. ⁵⁴ In 1844 the council reduced the volunteer corps to fifty and empowered magistrates to make a "strict examination ... into the character of every individual employed in the capacity of policeman." Furthermore, to receive their pay policemen had to acquire a certificate of good conduct under the hand of their commanding officer and present it to the magistrate who dispensed their salaries. ⁵⁵
25

      In 1845 the council disbanded the police and created a force of fifteen constables to assist magistrates and execute writs. The council retained the power to appoint constables but thereafter left them in the hands of the individual magistrates, who held the power of review and dismissal. ⁵⁶ Thus the council of Assiniboia had abandoned the military model and fully adopted the common law constable as the legitimate police of Red River. The impetus behind this change lay in "reduction"; apparently there was no need for a large police force to keep the peace and execute the various tasks normally performed by the constable. The change in conceptualization, however, was far more important. The abandonment of a pseudo-military structure for a common law model indicated the reception of an English common law structure within the courts, with the same emphasis on authority as coming both from the Crown (through the vehicle of the charter) and from the support of the community.
26

      While the use of legal institutions as disciplinary instruments was an obvious desire of the Company, the directors undoubtedly had the welfare of the colony in mind as it reformed Red River's judicature. They meant to reduce the possibility of conflict in a growing settlement by the formalization of a two-tiered system of justice that required a nominal fee to begin actions. Expediency seemed to be the goal. Magistrates came from the community, but the requirement of one sitting magistrate "outside of the district" (meaning outside of the immediate district but within Assiniboia's three judicial districts) aimed to ensure an impartial hearing. Expediency and impartiality, however, lay only at the surface of the Company's designs. Bindon asserted that the reorganization of judicial machinery and the presence of a recorder "was intended to impress the colonists with the legality of the Hudson's Bay Company's trade monopoly." ⁵⁷ She hit the mark: appointees to judicial and legislative posts in Assiniboia necessarily came from the community, but they had ties to the Company or—as in the cases of nearly all Assiniboia's governors—had previously been in the Company's service. This led Alexander Ross to admit in his history of the settlement that the councillors "did not carry the public feeling with them, consequently were not, perhaps, the fittest persons, all things considered, to legislate for the colony." ⁵⁸
27

The Appointment of Adam Thom

Of all the Company's reforms, none smacked so much of self-interest as the appointment of Adam Thom as recorder of Rupert's Land. Thom, who had done some private work for George Simpson, had few qualities to recommend him to the position. ⁵⁹ Both Simpson and the London directors made it clear that their appointment for recorder was a Company official first and a servant of justice second. In a private communication from Simpson to Thom in 1837, Simpson explained that—if Thom wished to accept the appointment—he would act not only as recorder but also as a magistrate and a councillor in Assiniboia, and as a legal advisor to the Company. Furthermore, Simpson instructed Thom that "your time & services should be entirely devoted to the duties of your various offices & to the promotion of the Company's interests: & that you should not devote any portion of your time or attention to any occupation that might be prejudicial to the interests of the Hudson's Bay Company, or foreign to the duties you would have to perform in the offices to which you would be appointed." ⁶⁰ If the Company had indeed anticipated the sentiment for free trade among the colonists, then Bindon was right; it undoubtedly placed Thom in Red River as a legal bulwark for the protection of its monopoly.
28

      Thom's appointment also was part of a larger scheme. After 169 years of chartered rights in Rupert's Land, the Company had never established a formal or regular court of law. By formalizing the judicature in Red River in 1839, the Company finally had the means to exercise its claims of jurisdiction over its chartered territories. This was part and parcel of the Company's paternalistic attitude toward the Red River community: the jurisdictional grant in its charter entailed a responsibility to maintain order and provide for justice. ⁶¹ One can also imagine more implicit, self-interested goals on the part of the Company. For instance, the Second Canada Jurisdiction Act of 1821 had authorized both the king and the governor of Upper Canada to send JPs to Rupert's Land to establish courts of record. This was a continuing threat to the Company's jurisdiction and the protection of its monopoly. In order to convince the British Parliament that it was fulfilling its duties, it had to establish a court of record within its territory. This meant that the Company had to provide a court that was accessible to its colonists and appeared legitimate to outsiders. Furthermore, by adding a barrister to the court, the Company could now impress upon Canadians and foreigners that the general quarterly court of Assiniboia was a true court of record for Rupert's Land.
29

      For the settlers in Red River, however, Thom was an outsider and a Company man. The men of influence who were appointed as councillors and magistrates came from the community, and, even if the vast majority of inhabitants had no say in the governance of their colony, they at least knew their immediate governors were their neighbors. The Company may have had the power to appoint anybody it chose as councillors or governors of Assiniboia, but expediency and common sense led them to select men present in the settlement. In contrast, Adam Thom assumed a newly created position of great power in Red River, and he arrived on Company money. These facts did not escape the majority population of the settlement. Remarking on the liberal salary of £700 the Company afforded Thom, Alexander Ross noted, "in the nature of things, a paid servant must have a special eye to his employer's interest, above that of all others." ⁶²
30

      Thom's appointment begged the question of why the Company chose a "recorder" as opposed to a "judge." Bindon suggested that the Company used the less formidable title to downplay the role that the recorder would play at Red River. ⁶³ There is not one shred of evidence to substantiate such a claim, as the Company clearly envisioned a dominant role for the recorder in the court and council of Assiniboia. Moreover, the Company had grand designs for the recorder of Rupert's Land that Thom did not live up to. Besides acting as legal advisor to the Company, overseeing the general quarterly court, and acting as a councillor for both Assiniboia and Rupert's Land, the recorder was "to proceed to any part of the Companys Territory to hold Courts or act as legal adviser to the Council." ⁶⁴ The recorder had a wide range of duties that extended throughout Rupert's Land, even though Red River was his natural headquarters. Rather than using it to downplay Thom's role, the title of recorder suggests that the Company modeled its judicial machinery after another corporate entity with a grant of jurisdiction: the municipality.
31

      Municipal governments in England employed recorders to assist with judicial proceedings in municipal courts. Although municipalities all held different charters and, thus, different courts, most municipalities employed the services of a recorder. As Giles Jacob explained, the recorder was "a Counsellor or other Person well versed and experienced in the Law," chosen by the mayor and the aldermen, who was "one of the Justices of Oyer and Terminer; and a Justice of Peace of the Quorum, for putting the Laws in Execution for Preservation of the Peace and Government of the City: And being the Mouth of the said City, he learnedly delivers the Sentences and Judgments of the Courts therein." ⁶⁵ The duties Jacob detailed were those of the recorder of London, but the recorder's primary purpose in any case was to legitimate the proceedings of a court of record presided over by borough officials. The recorder, except in a few cases (such as the city of Norwich), was an officer of the corporation selected by the elected officials and was not himself an elected representative of that body. Although the primary functions of the recorder were to oversee judicial proceedings and act as a legal advisor to the corporation, the recorder often held administrative and legislative posts as well, as in London, Leeds, and Berwick on Tweed. ⁶⁶ The Company's choice of the title "recorder" precisely followed this model.
32

      These individual transplants—the hierarchical court system, the volunteer corps (later changed to a common law constabulary), and the recorder—all fit within Simpson's goal of providing for law and order within the settlement. His motive was control. It provided the directors far away in London with the comfortable illusion of order in the wilderness. In practice, however, the transplanted courts were not themselves instruments of authoritarian control; rather, the legislation that established the courts guaranteed settlers easy access and community participation through the jury. If Simpson desired the general quarterly court of Assiniboia to be an institution of control, buttressing the legal hegemony and fur trade monopoly of the Company, then he still needed to exercise authority over the substantive law dispensed by the court. Perhaps he intended Adam Thom to fulfill that task. We have no direct evidence of that desire. But we can infer from the idea behind the transplanted office of recorder that Simpson harbored such motives. After all, the recorder was expected to act as the "mouth of the court" in delivering sentences and judgments, which would be essential to maintaining a court of record. The question then arises: did Adam Thom set about to define and thus dominate the law of Assiniboia, and if so, was he successful?
33

Thom's Influence

Adam Thom believed himself the common law's harbinger in a wilderness wild. Upon his arrival at Red River, he set about the business of placing the law of Rupert's Land upon proper footing. He first assessed the present state of its judicature and then drew up proposals for comprehensive civil and penal codes for Rupert's Land. As councillor of Assiniboia, he revised the local laws there and consolidated them into a "code." Alexander Ross noted with distaste that
34

nor was our legal associate much less independent of control with regard to our local enactments, whether such enactments professed to provide for the indigenous peculiarities of this secluded colony, or to modify and modernize our imported code. It was the Recorder that penned them; it was the Recorder that argued them through the Council in a masterly manner; it was the Recorder that interpreted them, so as to make their inevitable generalities fit particular cases. In these respects, he may be said to have always had his own way—less would not satisfy him; and this often raised up difficulties between himself and his colleagues. ⁶⁷

      Ross had the fortunate gift of hindsight when he sat down to write the history of Red River in the 1850s, and his personal dislike for Thom influenced his analysis of Thom's involvement in the judicial reforms of the 1840s. By the time Adam Thom left the bench for good in 1851, much of the settlement shared Ross's sentiments. Simpson wrote Thom to tell him that the Métis would not have him in court, as they believed that "every case in which you took a part was decided, not according to law or to its merits, but by your dictum." ⁶⁸ Simpson, in a blunt and displeased manner, informed Thom that if he returned to his duties, then he did so at his own risk, because Major Caldwell was "on a condition to protect the fort only [and] the preservation of peace generally throughout the settlement was beyond his power, or, to use his own words, that he could not be answerable for your life." ⁶⁹ Eden Colvile informed Simpson in May of 1851 that Thom could not return to the court without provoking violence in the settlement. ⁷⁰ Dr. John Bunn wrote Simpson in 1851 to inform him that Thom was universally hated in the settlement despite his demotion to court clerk. Bunn concluded that Thom's recall—the only option—was "the price that must be paid for so much peace as his presence disturbs—his want of tact is so far as I can see his principal failing—he promotes animosity while he purposes to confer benefit." ⁷¹
35

      The demonizing of Thom's character by his contemporaries has led many to overestimate his influence in determining the law of Assiniboia. Thom was almost universally hated and despised at Red River, and many of his contemporaries believed that he manipulated the law as he pleased while he served as recorder in the general quarterly court. Although this was undoubtedly true, Thom had little lasting impact on the law of Assiniboia. His attempt to lay out the fundamental law of the land in his legal treatise "Observations on the Law and Judicature of Rupert's Land" was too vague to be of value, and its only audience—the London directors—shelved it shortly after receiving it. He ambitiously drew up comprehensive civil and penal codes for the colony that the London directors rejected outright. In addition, the laws Thom did pass into effect in 1841 for Assiniboia (the "local code") had largely been determined before he arrived. Thom did not bring the law to Assiniboia; he merely refined the laws he found already there.
36

Thom's Codification Project

Thom's plans to codify the civil and criminal law of Assiniboia began with an inquiry into the sources of law that would constitute the backbone of the laws already in force. He reasoned that, with the exception of a few local regulations for Assiniboia, the Company had never exercised its power of legislation—therefore the laws in force remained the laws of England on 2 May 1670. Thom then set out to discover what these were. He began by looking at the last session of Parliament convened before the granting of the royal charter to the Company. This raised several problems as Thom waded through technical questions as to whether he should include the statutes in force, or merely in existence, in 1670. He decided to take the statutes that were in existence—if not necessarily in force—as perpetual law for Rupert's Land, although he specified that temporary statutes (i.e., time limited) in 1670 were also temporary in Rupert's Land, regardless of whether or not Parliament renewed them or gave them perpetuity at a later date. As for the common law, Thom straightforwardly declared that "it was introduced, so far as it was applicable, precisely in the state in which it existed in England, according to the decisions of the Judges, its interpreter and, in a great measure, its authors, on 2nd May 1670." ⁷²
37

      Declaring the law to be the unknown and archaic laws of 1670 left Rupert's Land in a virtual fog, with no way of discerning what laws actually governed the territory. But the vague statement belied Thom's own intentions. "A Court," he wrote, "ought to be restricted, as far as possible, to the dispensing of fixed and known rules." ⁷³ Presumably, it was those fixed and known rules that Thom sought to elucidate in his "Observations on the Law and Judicature of Rupert's Land." If so, he chose an odd course by writing at great length about what the law of Rupert's Land was not. He began, promisingly, with a discussion of the applicability of the common law of England according to the rules laid down by Sir William Blackstone and the interpretation of statutes according to the rules of Sir Fortunatus Dwarris. He eliminated "inapplicable" laws based on their dependence on particular circumstances in England. Thus, revenue laws could not apply and were not in force in Rupert's Land. Thom also eliminated the distinction of civil privileges based on religion or tenure of property; the laws associated with those distinctions could never apply to a new colony of small standing with very little by way of a landed class. Regarding the religion issue, Thom observed "that the most important of the original plantations, such as Pennsylvania and the Provinces of new England were founded on anti-ecclesiastical principles and with anti-ecclesiastical views." ⁷⁴ He never developed this slightly provocative point or explained why this distinction should be dropped. Thom excluded several other categories of law as irrelevant. Poor laws could not apply, as Thom claimed there was no class of "paupers" in Rupert's Land. On similar grounds, laws connected with highways and bridges could not apply because Rupert's Land lacked England's extensive infrastructure. Thom followed Dwarris and Blackstone's exclusion of police laws, bankruptcy laws, and corporate laws in colonial settings—all because they were statutes specific to England and neither necessary nor tenable for the common law's establishment in Rupert's Land or any British colony.
38

      The imperial acts he cited as in force related primarily to trade and navigation, although there were several provisions concerning debt and bankruptcy that applied to Rupert's Land. One statute, 5 George 2, c. 7, specified that any affidavit made in Great Britain had legal force in colonial courts and allowed colonists to use their colonial lands as bonds or specialties in the case of debt. Two more statutes—6 George 4, c. 16, s. 63 and 64 and 1 & 2 Victoria, c. 110, s. 37—bound debtors "in whatever quarter of the empire situated" to their creditors. Another, 4 George 3, c. 34, prohibited paper money in the colonies as legal tender, presumably for the payment of debts in England. While this caused Thom to question the legality of the Company's notes in Rupert's Land, he held that "where both debtor and creditor are residents of Rupert's Land, the Court may perhaps rationally and safely hold that there is in every local contract a tacit understanding that the notes aforesaid are to be received as Cash." ⁷⁵
39

      With the sources of his law thus determined, Thom avoided an explanation of what laws were actually in force in Rupert's Land. Rather he confined himself "to the more useful and practicable task of shewing generally what the law of Rupert's Land is not[,] compared with the law of England of the present day." ⁷⁶ Thom dealt with technical but important areas, such as the legal interest rate of money, inheritance laws, and rules for the appearance of witnesses. In some cases, reason and equity compelled him to adopt laws and rules enacted after 1670. For instance, in the early eighteenth century, a statute dissolved the "absurd, iniquitous and unhuman" rule that excluded defendants from swearing in their witnesses in capital cases, and Thom concluded that "we may safely neglect [the rule] as unfit for any British colony." ⁷⁷ The antiquated benefit of clergy remained, although Thom explained that "the law of Rupert's Land still withholds it from women and from persons unable to read." ⁷⁸ Although Thom explained benefit of clergy, he never once dealt with wager of law. This was an option available for debtors whose creditors had no sealed bond but still sued for debt. The debtor could deny the debt and "wage his law" by producing a specified number of oath-helpers to testify that the debtor's denial was credible, which at common law was considered sufficient proof against the debt's existence. ⁷⁹ There were other contrasts with the contemporary law of England. Accessories in Rupert's Land could only be tried if the principal had been tried. Debtors suffered the most from the old laws: creditors could still jail their debtors before trial, and—even in the most flagrant cases of dishonesty on the part of the creditor—jail their debtors after judgment.
40

      This list of excluded laws meant little to Rupert's Land, particularly to a colony that supported no lawyers. But Thom's next undertaking seemed more promising as he turned to the question of what laws to transplant to Rupert's Land. Relationships at law followed the rigid common law model: "In every state of civilized society, there must be husband and wife, parent and child, guardian and ward, master and servant, debtor and creditor, seller and buyer; hence the applicability of all the general laws affecting and enforcing their respective relations and any relations arising therefrom." ⁸⁰ Concerning the civil and criminal law, Thom's assessment was terse and extremely broad: "all men must profess life, liberty and more or less property; hence the applicability of all general laws professing to protect them from injury or violence. This, however, is to be taken with some restrictions." ⁸¹ The latter were essentially various steps taken to mitigate the harshness of the penalties in the English criminal law. In keeping with the rest of his essay, Thom never explained those restrictions.
41

      Thom never enunciated the particulars of Rupert's Land's law in his legal treatise primarily because it was an essay intended solely for Simpson and the London directors. He made it deliberately extensive in order to found his conclusions "on as broad and deep a foundation as possible." ⁸² But the extensive nature of the essay thwarted its usefulness by leaving it vague. The London directors praised Thom for demonstrating his "extended legal knowledge and deep research" and likewise praised his "Observations" as "highly creditable to the industry and talents of that Gent: m [Thom]." ⁸³ As a legal treatise explaining the law of Rupert's Land, however, it failed largely because the intended audience gave it little attention. It was never again to be a matter for discussion among the directors, nor did the directors present it at the Company's general court of proprietors for further review. Its failure to outline "fixed and known rules" for Rupert's Land's judicature (as well as its highly technical nature) made it irrelevant in the colony; nor is there any evidence that Thom shared his legal treatise with anyone in the colony outside of Duncan Finlayson, who grumbled about its prodigious length and called it "trite" and "irrelevant." ⁸⁴
42

      Thom meant to supplement his "Observations" with detailed criminal and civil codes that would serve as a comprehensive statement of the substantive law of Rupert's Land. ⁸⁵ It was an ambitious project that the London directors initially supported, particularly after Thom submitted drafts of his proposed codes to the directors in 1841. ⁸⁶ The codes—had they been passed into law—would have provided at least an outline for dispensing justice at Red River. Thom acknowledged that "nothing can be more vague than the criminal law of England, as it exists, whether in theory or in practice, among us. I take my version of it from 1670 in theory; but in practice reason and equity compel me sometimes to admit modern ameliorations." ⁸⁷ His proposed penal code for the colony echoed this sentiment: "the primary object of these provisions is to mitigate the criminal law of England with respect to such offences as are most likely to be committed in Rupert's Land." ⁸⁸ His proposed civil code followed the general formula he applied to his "Observations," excluding rules he felt too impractical and, for the most part, avoiding any description of what the laws of 1670 actually were. ⁸⁹ Like his "Observations," it was too vague to be of any real value. ⁹⁰
43

      Thom's labors went unrewarded. In 1842 the London directors—who had praised the codes a year earlier as well suited for Rupert's Land—dismissed them and instructed Thom to "follow the regulations laid down by the Charter of judging all persons ... according to the laws of this Kingdom and to execute justice accordingly." ⁹¹ The phrase was lifted directly from the Company's 1670 charter to illustrate the directors' desire to follow the strict letter of the law. ⁹² And while the letter did not even mention Thom's laborious civil code, the London directors rejected outright his abridged penal code and complained that portions of it were "obscurely expressed." ⁹³ Thom, upset that his codes had been rejected, wrote to Simpson and complained of "the moral impossibility of enforcing in this country the criminal Law of England, whether written or unwritten, whether of 1670 or of 1842." ⁹⁴
44

      But Thom's complaint had a much more self-interested grounding than mitigating the terrors of the common law. In 1840 he had written Simpson and the London directors to inform them that—if they did not legislate for the colony—the general quarterly court of Assiniboia would have to moderate the law on its own. Thom suggested that the Company import the law as it existed in 1840 and pass specific rules to mitigate it, in order to avoid leaving "too much of discretionary despotism to the local tribunals," which would be a "dangerous alternative." ⁹⁵ After the rejection of his penal and civil codes in 1842, Thom pointed out that mitigation of penalties by his "co-equal" colleagues was "purely arbitrary and discretionary, a mere emanation of untechnical conscience." ⁹⁶ Underlying this argument was a warning to the London directors: for the Company to maintain control in Red River, it had to provide strict rules to prevent the local authorities from gaining too much discretionary power. Thom intimated to Simpson that if the London Committee refused to pass legislation on this issue, then he hoped it would allow the council of Assiniboia (under his guidance) "to do prospectively in our legislative capacity, what we are now compelled to do retrospectively on the bench." ⁹⁷ Even with the court firmly under his control, Thom saw a real danger in allowing the local authorities in Red River too much autonomy.
45

The "Local Code" of 1841

Thus, by 1842, Thom's pained labors had produced mountains of paper but little in the way of a distinguishing mark on Assiniboia's legal history. He did, however, consolidate various regulations previously passed by council in a "local code" that the council adopted as law on 25 June 1841. ⁹⁸ It consisted of sixteen sections and was roughly organized into two portions. The first section, "General Provisions," listed the general rules for interpreting the local laws. It specified the jurisdiction of the laws and gave several rules for the prosecution of public wrongs. Prosecutors were allowed to testify as witnesses and to split any fines levied on the defendant with the Court. The rules also negated leniency for accessories to any crime: "whoever may have assisted, or seconded, or advised, or ordered, or authorized the committing of any offence, shall be held to have committed it himself." ⁹⁹ The only rule for civil litigation was a provision allowing plaintiffs to sue, unless otherwise expressly stated, for damages above and beyond any specified fine. The next eight sections, excluding one section on the "Maintenance of Prisoners," intermixed regulations that amounted to public wrongs—horse-taking, fires, and intoxicating (i.e., giving or selling alcohol to) Natives—with private wrongs—trespassing pigs, hay rights, and wandering stallions. The last seven sections covered matters directly regulated by the governor and council: distillation, roads and bridges, custom duty, courts of law, and the police. The last two headings—"Duration & Effect" and "Publication"—put the regulations into effect forever or until appealed and, in keeping with the council's policy in previous years, ordered the regulations to be made public.
46

      This "local code" of laws was long considered to be Thom's crowning achievement. As Roy Stubbs confidently asserted, "these laws, in the final form they attained before this province [Manitoba] entered Confederation, still bear the firm imprint of Adam Thom's clear, logical mind." ¹⁰⁰ Contemporary scholars have accepted this argument, sometimes without question. ¹⁰¹ Thom's influence in determining the content of the code, however, was negligible; the council of Assiniboia had passed most of the laws included in the code before Thom arrived. The portion of the code devoted to fires, pigs, and horse-taking (theft) merely refined the resolutions passed by council in 1832. ¹⁰² The section that authorized settlers to seize stray stallions was slightly revised; the new law required that the settler put the stallion in the custody of "the nearest constable, private or serjeant" to prevent settlers using the law as a "pretext for taking horses to ride or drive." ¹⁰³ The laws prohibiting the sale of alcohol to Natives was originally passed by council in 1836, ¹⁰⁴ and was substantially modified in 1840. ¹⁰⁵ The council had passed in 1838 all the relevant laws that appeared in the 1841 code concerning fence-breaking cattle. ¹⁰⁶ The portion of the code that dealt with courts and the general procedure for trials (e.g., the framing of writs, issuing summons, petty courts and their summary jurisdiction, and the payment of jurors and witnesses) was taken almost verbatim from the resolutions of 1837 and 1839. ¹⁰⁷ Quite simply, the local council had expressed and passed the laws that were local and peculiar to Assiniboia before Thom's arrival; likewise, Simpson and the London directors rather than Thom had authored all the regulations pertaining to the structure of Assiniboia's courts.
47

      Of these resolutions, several did bear Thom's mark. Although the resolutions against the sale of liquor to Natives were in place before his arrival, Thom increased the penalties in 1840 despite "reluctance of some members of the council to sanction the new resolutions on the subject of supplying the Indians with beer." ¹⁰⁸ Furthermore, the language of the code clearly reflected a legal vocabulary. For instance, the 1832 resolution concerning fires simply specified fires "at a distance exceeding fifty yards from [the offender's] house" as unlawful. While lighting fires off one's property was strictly prohibited, it was permitted "in cases where such fires may have been lighted through absolute necessity, of which the council alone be competent Judges." ¹⁰⁹ In the 1841 code, Thom added technical language to the regulations governing fires (besides increasing the distance), making it illegal to set fire to "any hay-stack, of which every part shall be more than a hundred yards distant from the nearest point of its owner's house or adjacent out-houses." Moreover, he specified a procedure for exceptions: "after verdict but before judgment, the president of the Court may remit the whole fine, as well the prosecutor's half as the other, merely by certifying in writing, on the back of the Clerk's notes of the evidence, that the offender is morally guiltless." ¹¹⁰ Virtually Thom's only achievement was the clarification of subtleties within the local code. Its substance had largely been determined before his arrival.
48

Thom's Legal Legacy

A handful of so-called watershed cases that came before the general quarterly court of Assiniboia has garnered a disproportionate share of historians' attention for some time. Thom's involvement as a judge in these few notable cases—as well as Alexander Ross's (and the community's) assessment of Thom—has led many to overestimate his lasting impact on the law. ¹¹¹ That Thom was a stubborn and unrefined man, no one can dispute; he certainly bent the law when it was in his employer's interests. But bending the law did not impact the permanent legal record. And, much like his pages of legal writings concerning Rupert's Land, what he did leave behind faded into obscurity.
49

      Thom thought he could mold the general quarterly court into a court of record for Rupert's Land—one that would not merely resolve disputes but leave a lasting record to reflect the law of Rupert's Land. This ambition, reflected by his failed attempts to lay out a comprehensive code of laws for Rupert's Land, paralleled his desire to make the general quarterly court of Assiniboia into a supreme court of sorts for all of Rupert's Land. Consequently, he informed the London directors that "under a certain provision of the charter, the crimes of other districts may very probably be tried and punished in Assiniboia." ¹¹² This created, from a very early date, a slight tension in the relationship between the recorder and his employer. Simpson had informed Thom in 1838 that, as recorder, he was "to assist the Governor & Council within those Territories in administering the Laws conformably to the powers vested in them by their Charter." ¹¹³ The implication was clear: although stationed at Red River, Thom was expected to travel freely within the territories to advise Company officials on legal matters. After Thom's removal, Simpson complained to the London directors that "Mr. Thom, although he has for 15 years held the appointment of Recorder of Ruperts Land, with the understanding that he should, where required, proceed to any part of the Companys Territory to hold Courts or act as legal adviser to the Council [of Rupert's Land], has always excused his attendance at the seat of Council on some frivolous pretext or another." ¹¹⁴ Simpson and the Company had intended the recorder of Rupert's Land to be the Company's primary legal officer in its North American territories. Consequently, they expected the recorder's role in the Northern Department as a councillor of Rupert's Land to bear as much (or more) weight as his role at Red River as a councillor of Assiniboia. Thom, however, had little interest in traveling the wilderness on an assize-style circuit. Rather, he envisioned the general quarterly court of Assiniboia as a supreme court of Rupert's Land, drawing the wilderness to it. But in order to create such a court, Thom knew that his judgments needed to reflect the peculiar law of Rupert's Land and present a matter of record for future litigants.
50

      Thom initially pressed this course of action in the general quarterly court. In 1848 he ordered the court clerk to record his lengthy opinion that the Company's court had jurisdiction over a murder committed on the Peace River. ¹¹⁵ Thom's argument detailed the chartered claims of the Hudson's Bay Company and denied the jurisdiction of colonial officials in neighboring Upper and Lower Canada. ¹¹⁶ It was largely (and admittedly) a recapitulation of his charge to the grand jury in 1845, which was published in London in 1848. ¹¹⁷ It was the only instance when Thom ordered the court clerk to record a lengthy legal opinion, and it took place without a jury and without resolution of the murder case before the court. Only on one other occasion did the clerk record even an outline of Thom's legal instructions to a jury—the oft-quoted 1849 case Hudson's Bay Company v. Sayer. ¹¹⁸ The Company, eager to assert its monopolistic fur-trading rights over free traders in the settlement, prosecuted Sayer for trading furs. After a lengthy trial, the court clerk recorded that Thom explained the rights of the Company to the jury, who subsequently returned a verdict of guilty with a recommendation of mercy since Sayer believed he had obtained a proper license to trade furs. The court (mindful of a number of things, including the armed Métis outside the courthouse) granted mercy. Although the clerk did not record specifically what instructions Thom gave to the jurors, it stands as one of the few cases where active participation by the bench attempted to influence the jury.
51

      These cases were remarkable in that they were few. From 1844 to 1850, Thom sat as recorder of Rupert's Land on the general quarterly court of Assiniboia and heard sixty-seven cases, the majority of them criminal. Fourteen of the criminal cases ended in open confession, four were dismissed, and the case of James Calder (murder at Peace River) never went beyond its opening stages to an actual trial. Likewise, two of the civil trials ended in an admission on the part of the defendant, one never saw a jury (it was decided wholly by the bench), and two involved only a perfunctory action to record publicly the creation of a trust fund for two orphaned children. Forty-three cases, then, went to a jury for resolution. The court clerk recorded that in nineteen of these cases Thom addressed the jury, or "summed up the evidence" for jurors. Of these, only the record of Hudson's Bay Company v. Sayer included a vague reference to what instructions Thom gave to the jury. In twenty-four cases, the court clerk did not even record that Thom instructed the jury at all.
52

      If Thom dominated the bench and the court from his position as recorder—as historians now conclude—then why the absence of his participation in the record? He had stated on previous occasions that he hoped to temper the discretionary powers of his colleagues with rigid codes—failing that, at least with a record of his judgments that would serve as guideposts for future litigants. That the court clerk recorded his laborious opinion regarding the jurisdiction of the Hudson's Bay Company in the Calder case suggests that Thom had the power to record judgments and points of law at any time. Yet the record reveals an entirely different emphasis: the clerk recorded carefully and conscientiously all of the evidence that came before the court and was then sent to the jury for decision. But he recorded only one opinion from Thom. This is not to suggest that Thom did not attempt to influence the decisions that flowed from the jury—he probably did. However, that the clerk recorded neither his judgments nor his instructions indicates that questions of physical evidence were more important than points of law. Consequently, future litigants had available the record that detailed what evidence was necessary to establish certain claims—not Thom's statements on principles of possession, contract, or tort.
53

      Modern historians who have concluded that Thom dominated the general quarterly court usually rely on the "watershed" Hudson's Bay Company v. Sayer for evidence. Yet this was an unusual case. Far more typical was Morin v. Richard, fought over the possession of a horse. ¹¹⁹ The facts were simple (although later cases over the same issue would often be more complex). Both the plaintiff and the defendant stated their cases—the plaintiff claiming he had lost the horse that the defendant found, and the defendant claiming that the horse he retrieved on the plains had originally been his. Ten witnesses appeared for the plaintiff and six for the defendant. The horse was brought to the courtroom door, and each witness identified it as belonging either to the plaintiff or the defendant after examining the horse for distinguishing marks. No other evidence was presented, and the court did not record that Thom left the jury with any instructions. The jury, "after long deliberation and minute inspection of the horse, found that it was the Plaintiff's." The court decreed accordingly and ordered the defendant to deliver up the horse and pay the costs of the suit.
54

       Marcellais v. Ploofe was another typical case. ¹²⁰ This involved a simple trespass where the plaintiff's horse had fallen into a hole made in the ice by the defendant. ¹²¹ Baptiste Marcellais brought his suit under the regulations specified in the thirty-fourth paragraph of the local code, which specifically dealt with holes left in ice. According to the resolution, holes in the ice had to be "marked by a 6-foot pole, or else [the person who made the hole was] liable for damages." ¹²² The only exception provided in the code was that "anyone wantonly removing the pole" ¹²³ was held liable for any damages concerning the hole for the first twenty-four hours. The plaintiff called three witnesses, two of whom testified that the horse did in fact fall in the hole. The witnesses were unsure as to whether the hole had been marked: one saw several sticks lying flat on the ice rather than erect, another could not tell if the sticks were there at all, and the last witness testified that "about an hour after the horse was drowned, he was told by his wife of the occurrence, [and] he looked at the hole which was pretty large, but saw no sticks or poles whatever." ¹²⁴ The defense also called three witnesses, two of whom testified that they had seen the sticks marking the hole still standing after the unfortunate incident.
55

      The resolution of this issue, if strictly construed, should have turned on the language of the thirty-fourth resolution of the 1841 code. The court, however, declined to interpret the code for the jury and left the jurors to decide whether the defendant was liable for the death of the horse. The evidence presented in the case was strictly oral, and the witnesses offered by both sides attested to the presence of the sticks marking the hole. This was enough to satisfy the jury that the defendant had indeed marked the hole and was thus not fully liable. However, the jurors relied on their common reason to determine the verdict: "The Jury having deliberated brought in a Verdict of finding for the Plaintiff Thirty shillings of damages and the costs of suit, the Jury stating that the fact of the hole having been so unreasonably large as to admit the horse was the main ground on which their Verdict rested; And the Court decreed accordingly." ¹²⁵ The original action had been for £9—the value of the drowned horse. The jury reduced the award to 30s., one-sixth the value of the original claim, because the hole was "unreasonably large." It was an equitable compromise that deemed the defendant liable, but not for the full damage of the drowned horse.
56

      In Morin v. Richard the jury faced a simple question: who had the better claim for the horse? The evidence they evaluated came from two sources: first, the plaintiff's and the defendant's individual stories and second, the witnesses they produced. The horse itself stood at the courtroom door where witnesses scrutinized it to find distinguishing marks for the court. The jury evaluated this evidence without any instructions (or at least, nothing the clerk bothered to record) from Thom or the bench; rather, the jurors deliberated and inspected the horse themselves to determine who had made the more probable claim. In Marcellais v. Ploofe the jury received no lecture from the court about how to apply the local code to the given circumstances. Nor did the jury strictly construe the code in its verdict. Rather, it used its discretionary powers to find an equitable solution for the problem. Both Morin and Marcellais serve as much more illustrative anecdotes of law and justice at Red River than Hudson's Bay Company v. Sayer, not only because they were more representative of what usually appeared on the court's docket, but also because they were decided the same way the vast majority of cases were decided: by the jury and with the court decreeing accordingly.
57

Conclusion

Thom left the bench in 1851 and left the Company's service entirely in 1854 when he returned to Scotland. Succeeding recorders were often more successful, better judges, and certainly better diplomats than Thom. They inherited a system largely dependent on the jury, and none seemed willing to change it. Only recorder Johnson brought some innovation during his short tenure from 1854 to 1858. ¹²⁶ The legacy, however, was intact. The institutions of Assiniboia's legal system arrived at the Red River settlement rather abruptly, the result of Sir George Simpson's desire to impose law and order on a colony that he had viewed with distaste and suspicion ever since his arrival in Rupert's Land. ¹²⁷ As scholars have readily pointed out, Simpson's emphasis on law in the settlement, the formalization of courts, and the introduction of a Company servant to the settlement as "recorder" all spelled out Simpson and the London directors' desire to impose a sense of order on a growing community that did not always respect the Company's fur trade monopoly. Even more telling was Simpson's desire to plant a military style police at Red River and his later (successful) attempts to persuade the British government to dispatch troops to Red River to defend against a possible invasion from the United States. The transplants that Simpson brought to Red River all imposed an order that was easily recognizable by both the local inhabitants and the London directors. Historians have justifiably pointed to this evidence and drawn the necessary conclusion: the Company prized law and order above all else primarily to support its fur trade monopoly. If anything, new evidence only supports this claim—particularly Simpson's specious pretext for founding the volunteer corps in 1835.
58

      Yet these were only the Company's motives. After 1839 it did not attempt to reform the courts of Assiniboia again, nor did it actively attempt to control the business of the courts. Simpson based the transplants on English models that were largely foreign to a Scots and Métis community. In addition, although he provided an extensive outline for the law's machinery, he failed to give even a sketch of its substance. Therefore, the Red River community inherited the hollow shell of a legal system that it could, and did, fill on its own. The transplants were flexible enough to allow the revamping of the courts in 1837 and 1839 and accessible enough to allow every member of the community the opportunity to come before the courts. Remarkably, even those alienated by Thom's aggressive partisanship felt an affinity for the general quarterly court and directed their anger solely at Thom. Indeed, Métis leaders such as Pascal Breland considered the court a competent forum for dispute resolution. ¹²⁸
59

      When Adam Thom arrived in 1839, his self-proclaimed task was to bring the English law to the general quarterly court of Assiniboia. His initial proposals aimed to fulfill that task, and early support from the London directors indicated that they relished the opportunity to further impose a rigid order on the Red River colony. But ultimately the directors (perhaps inadvertently) frustrated various attempts to bring English common law to Red River. In a twist of irony, it was their strict adherence to the law that allowed for flexibility within the colony. Adam Thom—himself a model of common law rigidity—was forced to drop his extensive plans to codify the criminal and civil law not because the directors felt it too rigid, but because it involved a deviation from the strict letter of the Company's charter. The directors, in response to all attempts to publicly declare the law in Assiniboia, ordered Thom to "follow the regulations laid down by the Charter." ¹²⁹ This meant that the laws of Rupert's Land were the laws of England at the date of the signing of the royal charter to the Hudson's Bay Company: 2 May 1670. This was, perhaps, the largest legal fiction ever imposed on Assiniboia.
60

      The imposition—despite Thom's ranting—was itself another fiction. In 1851 the council appointed a law amendment committee of three men: Dr. John Bunn, Louis LaFleche, and Adam Thom himself. In their report they admitted that "the laws of England of [1670], independently of their inherent and essential inferiority, are difficult, nay, generally speaking, impossible, to be ascertained, more particularly in such a wilderness as this." ¹³⁰ The legal fictions that made the general quarterly court of Assiniboia a creature of the Company's charter were real fictions: they lacked any practical standing with the litigants and—as the court's chief officer admitted in 1851—with the court's officials.
61

      It is not surprising that the legal institutions and substantive law of a small, isolated colony were developed from the ground up and that the inhabitants resisted any overt imposition from above. Bruce Kercher has shown that the judiciary in colonial Australia designed primitive courts that displayed many similar characteristics to Assiniboia, such as the blending of equity and law into one court and the twisting of law to fit local circumstances. As the imperial Parliament began legislating for its colonies (c. 1820), Australian colonists were able to use local institutions to control the law to their liking. ¹³¹ John Phillip Reid's work on California shows that the law there was largely determined by the concepts brought across the overland trail rather than by official proclamation or legislation. ¹³² This demonstrates a resilience on the part of the settlers, an almost intrinsic desire to shape the law according to traditional and local notions of justice. It may be impossible to formulate a simple or universal theory regarding the development of colonial law, but the experience in Assiniboia reminds us that legal transplants have to operate in human hands. In Assiniboia, the human hands were those of the settlers, who shaped it carefully, but at their pleasure rather than the Company's.
62

      This is important because Assiniboia's legal history is central to the legal history of the Canadian frontier. In British Columbia, law developed in the context of economic and capitalist concerns; naturally, those administering the law were concerned with establishing a predictable law that adhered to precedent and more traditional English doctrine. As Tina Loo has argued, this led to a conflation of state interest and self-interest that was key to emerging notions of governance. ¹³³ In Assiniboia, however, law never took on that predictability. Yet the law of Assiniboia was not "unpredictable and uncertain." ¹³⁴ On the contrary, its success hinged on the community's notions of reason and equity expressed through the jury and depended on the community assent to the jury's decisions. Settlers conceived of both governance and law in largely local terms, looking to the Company for paternal guidance but resisting overt oppression. Legal institutions and substantive law, although obvious concerns for the monopolistic Hudson's Bay Company, were not simply disciplinary tools; rather, they provided colonists with the forums for dispute resolution and the means to express community notions about law, equity, and justice. This legal culture is the most important component of Assiniboia's legal history.
63

      Understanding this legal culture requires more than a look at the motives of a few Company officials, regardless of the prominence of their positions. The judicial transplants, as we have seen, served a dual purpose: they comforted London directors with the illusion of order in the wilderness, and they allowed settlers easy and cheap access to the courts as a forum for dispute resolution. This, however, was only the structural portion of Assiniboia's legal system. The council of Assiniboia articulated a fragment of the substantive portion with its local code, passed in 1841. The rest, however, remained unwritten. ¹³⁵ Nor is there any evidence that the majority of settlers were disappointed with this type of legal system—litigants brought their suits before the court without consulting a written statement of the law. Thus, they trusted in the reasonableness of the jury to settle disputes. Indeed, the record that the court left of Assiniboia's law contained few if any references to common law authorities, the instructions of the recorder, or case precedents. In order to begin the difficult task of explicating Assiniboia's legal culture, less attention needs to be given to Adam Thom and larger Company visions of control and more attention needs to be paid to the legal records of the general quarterly court of Assinib