I am a friend to the preservation of the rights of property…but I believe in the subordination of those rights to the public good…. I deny that the people of my Province are insensible to or careless about the true principles of legislation. I believe they are thoroughly alive to them, and I am content that my rights of property, humble though they are, and those of my children, shall belong to the Legislature of my country to be disposed of subject to the good sense and right feeling of the people of that Province.

Edward Blake made this declaration about property in 1882. Presumably his beliefs were widely shared by Canadian lawyers, for he was the leader of the Liberal party, the Treasurer of the Law Society of Upper Canada (Ontario), and one of the leading counsel. We seek to explore his beliefs and to reconstruct the understandings of rights in late nineteenth-century Canada, and especially the understandings of common-law lawyers.

Shortly after the beginning of his reign in 1201, Duke Henry I the Bearded of Silesia confirmed the past acquisitions of two major Cistercian monasteries in his province—the houses of Lubiąż and Trzebnica—with three long charters in which he described and explained the past transfers of individual holdings to the abbeys, clarified doubts and controversies about them, and added endowment to the estates of each monastery. Both communities were endowed with wealthy areas of settlement and revenue that had prior to the creation of their estates been held under knightly, ducal, and ecclesiastical lordship.

The medieval English Court of Chancery is not a well-known institution. Its Victorian great-granddaughter—if to posit such a relationship does the antecedent justice—has a far broader public for its much darker persona, thanks to Jarndyce and Jarndyce. Even Chancery's Jacobean descendant looms larger in the historical memory than does its medieval forebear, if only for the celebrated battle between Chancellor Ellesmere and Coke, CJ. Perhaps with the brief tenure of St. Thomas More, brought into our own popular culture by playwright Robert Bolt and actor Paul Scofield, the early Chancery emerges for a moment, although the court under More was overshadowed by that chancellor's more difficult trials. In fact, the Chancery as a court has been subsumed in a multitude of studies on the Chancery as an administrative office. It appears in essays on government, councils and parliaments, writing offices and administrative centers. Yet the court that grew around the chancellor was not the sum, or even just a part, of his activity as the leading administrator of the realm. Still, with a few exceptions, the medieval Court of Chancery has never been afforded the same careful and discrete treatment its Elizabethan successor has received. The older court remains a footnote to administrative history, something just on the far side of the light cast by St German and Tudor records.

The American officials who assumed control of the Louisiana Purchase territory were quite certain about the Spanish legal system they were displacing. “[T]he laws, rules of justice, and the forms of proceeding,” Amos Stoddard reported from St. Louis two weeks after receiving possession of Upper Louisiana on behalf of the United States, “were almost wholly arbitrary—for each successive Lieut. Governor has totally changed or abrogated those established by his predecessor.” Under “the despotism of the Dons,” as Frederick Bates described the preceding four decades of Spanish government in St. Louis and the surrounding area, the residents “knew that they had no rights and that they were absolutely dependent, in all things, on the will and pleasure of the Governor.” In New Orleans Governor William Claiborne described a legal “system in most points incongenial with the principles of our own Government,” one in which “the executives of the collony have often exercised a dispensing power over th[e] Laws, and the people consequently have been habituated to the uncertain operation of rules occasionally modified by the wisdom or caprice of those in power.” In short, this was a government of men, not laws; the task at hand was to get rid of it as soon as possible. As Bates explained to future governor (and ex-explorer) Meriwether Lewis, “we are endeavouring to establish the empire of the laws; and to substitute those laws in the place of the arbitrary Rescripts of proconsular Agents.”

In the fall of 1865, North Carolina lawmakers gathered in Raleigh to draw up a new constitution. Despite the absence of the most extreme secessionists, those in attendance were still a remarkably homogeneous group of planters, businessmen, and professionals—white men of the same wealthy families that had always governed the state. Yet faced with the sweeping changes wrought by war and emancipation, they anticipated a difficult session. Edwin Reade, who delivered the opening address, tried to set a positive tone, assuring the assembly that the future would be easy compared to the hardships of the past five years. The metaphor he chose was that of a homecoming. “Fellow citizens,” he intoned, “we are going home”: “Let painful reflections upon our late separation, and pleasant memories of our early union, quicken our footsteps towards the old mansion, that we may grasp hard again the hand of friendship which stands at the door, and, sheltered by the old homestead which was built upon a rock and has weathered the storm, enjoy together the long, bright future which awaits us.”

Moose Jaw, Saskatchewan, provided the setting, in May 1912, for two widely publicized trials that highlighted the explosive fusion between race, gender, and class in early twentieth-century Canada. The prosecutions were based on a Saskatchewan statute passed several weeks earlier, “An Act to Prevent the Employment of Female Labour in Certain Capacities.” The first of its kind in Canada, this statute made it a criminal offence for “Chinese” men to employ “white” women. Quong Wing and Quong Sing, men who operated two restaurants and a rooming house in Moose Jaw's small but growing Chinatown, were charged with violating the new law. Between them, they employed three white women: Nellie Lane and Mabel Hopham as waitresses and Annie Hartman as a chambermaid.