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Book Review
| John McLaren, A. R. Buck, and Nancy Wright, editors, Despotic Dominion: Property Rights in British Settler Societies, Vancouver: University of British Columbia Press, 2005. Pp. 312. $85.00(CAN) cloth (ISBN 0-7748-1072-6); $29.95(CAN) paper (ISBN 0-7748-1073-4).
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| This collection of essays, based on papers presented at a conference at the Law School of the University of Victoria (BC), is the second such work produced by these three editors. The first, Land and Freedom: Law, Property Rights and the British Diaspora (Ashgate, 2001), flowed from similar conferences at the Centre for Interdisciplinary Studies of Property Rights, School of Law, Newcastle University, and the Australian National University's Research Centre. Despotic Dominion has as many interesting comparative insights in both legal history and law and society as its predecessor. |
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I found all of the essays rewarding, but several are particularly noteworthy: Richard Overstall provides a sophisticated review of the complex system of property and governance of the Gitzsan (in what is now British Columbia). John Weaver reviews the variations in British use of "improvement" rationales for the taking of "unproductive" native lands throughout North America and the Antipodes. Bruce Ziff notes the paucity of many really significant legislative variations from English property rules in the Canadian provinces. Philip Girard explores the ways that lawmakers addressed tensions in the eastern Canadian provinces between pressures for the alienability of land and an enduring agrarian concern for future family interests and mortgagors, to which Nigel Bankes offers a useful commentary on the ways that those same issues played out in western Canada. Rusty Bittermann and Margaret McCallum provide a superb microcosmic reexamination of the clash between absentee landlords and Prince Edward Island's merchants and tenant farmers. Andrew Buck explores the vigorous debate in New South Wales and Upper Canada between proponents and foes of primogeniture. Alvin Esau and John McLaren offer contrasting tales of Hutterite and Doukhobors, the former, on the Great Plains in the Dakotas and Alberta, the latter, in Saskatchewan and British Columbia. Hutterite settlers learned how to shield their communal landholding practices from unsympathetic courts, legislatures, and neighbors by creating trusts and unincorporated associations, while the less accommodative Doukhobors resisted a legal regimen they distrusted and lost their capacity to continue as communal farmers. Robert Foster unearths a symbiotic relationship in South Australia between pastoralists and indigenous groups inhabiting these pastor's leased ranges. South Australia is unique among its Australian counterparts in that the Colonial Office required that all pastoral leases acknowledge the rights of the original people to hunt and to "wander over" the land "in search of subsistence." Throughout most of the first seventy years of settlement, the era studied by Foster, the pastors vigorously defended "their" Aborigines, essentially because the Gold Rush and subsequent costs of European labor led them to turn with considerable success to the indigenous inhabitants for their employees: shepherds, stockmen, rabbit-killers, cooks, and servants. Doug Harris demonstrates that, contrary to the positions taken in several recent Canadian high court opinions, Canadian government officials in the nineteenth century had indeed recognized Aboriginal fishing rights. The Joint Indian Reserve Commission, charged with the establishment of First Nation reserves in British Columbia, recognized their "customary fishing grounds" and included fertile fisheries within or separate from these reserves, despite opposition from west coast commercial fish-packing firms. |
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This collection contains very little attention to a rather large British settler society, the seventeenth-, eighteenth-, and nineteenth-century United States. That can be explained by the fact that the conference was intended to compare the Canadian and Antipodal colonies. Their first effort did contain significant attention to the Republic to the South of the Canadas, and one hopes they will include the United States in future comparative analyses. |
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One might also take issue with the editors' title and opening observation, based on Blackstone's famous phrase, that property in English law of the era of colonization was "absolute," when James Ely and William Novak have recently gone to some lengths to establish that it was, in fact, hedged in with all sorts of public constraints and limitations. But the collection does not rely upon that observation. |
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The essayists and editors remind us that British common-law property rules often ignored, trumped, or simply negated existing and vibrant customary property rules of the original peoples of North America and the Antipodes. As historians, we must learn as much as possible of those customary rules in order to communicate to readers and students what happened and why most treaties might be said to have "lacked mutuality." Such understanding would seem to me to be essential to achieving the sort of reconciliation native people in Australia and parts of North America seek. The conferees also came to a sound general conclusion, that we can hardly expect the judiciary of these lands of the British Diaspora to redress native grievances on their own. As Hamar Foster put it: "Judges can get only so far ahead of the people who must live with their decisions and the configurations of power that will oppose them." But when a decision disrespectful of the weight of historical evidence (such as Delgamuukw v. British Columbia [1997]) comes down, we are the ones who must "beseech" the court that it should "think it possible you may be mistaken." |
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Legal historians will profit from reading, and and their libraries ought to own, both Despotic Dominion and Land and Freedom. |
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| Peter Karsten
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| University of Pittsburgh |
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