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7. Hunt and Wickham, supra note 5 at 52, note that for Foucault “[m]odernity … is marked by the emergence of ‘government’ and ‘governmentality’.” They go on to note that Foucault “uses the term ‘government’ in a way that is very different from the conventional sense of state executives and legislatures,” and in a way that is “consistent with his downgrading of the importance of the state.” Foucault, Governmentality, supra note 1 at 95, argues that government “is a question not of imposing laws on men, but of disposing things: that is to say, of employing tactics rather than laws, and even of using laws themselves as tactics—to arrange things in such a way that, through a certain number of means, such and such ends may be achieved.” In turn, as Hunt and Wickham, supra note 5 at 75 explain, Foucault uses “the neologism ‘governmentality’ to capture the dramatic changes in techniques of government developed in the western world from the eighteenth century onwards.” According to Foucault, supra note 1 at 95, 101, these changes included the development of “a range of multiform tactics” for the government of populations outside the state, as well as “the governmentalization of the state” itself. In his writings of the late 1970s and early 1980s, Foucault considers the topic of government in relation to a wide range of issues, from the issue of “the correct government of one's self to the pedagogic question of the government of children and the question of the government of the state by the monarch.” McNay, Lois, Foucault: A Critical Introduction (New York: Continuum, 1994) at 113.Google Scholar In Foucault's view, supra note 1 at 87, the study of the “art of government” involves the study of questions concerning “[h]ow to govern oneself, how to be governed, how to govern others, by whom the people will accept to be governed, and how to become the best possible governor…”

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11. The Hudson's Bay Company Archives [hereinafter HBCA] now exist as part of the Provincial Archives of Manitoba in Winnipeg. The HBCA contain a detailed historical record of the operation of the Hudson's Bay Company in western Canada from the 1670s to the end of the 19th century.

12. Foster, Hamar, “Long-Distance Justice: The Criminal Jurisdiction of Canadian Courts West of the Canadas, 1763–1859” (1990) 34 American Journal of Legal History 1.CrossRefGoogle Scholar

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14. Moreover, during the period considered in this study, the Hudson's Bay Company, and other existing chartered companies—like the English and Dutch East India Companies and the Royal Africa Company—were not companies that acted simply as additional “arms of the state,” by supposed virtue of the fact that they catered to the interests of the monarchs who granted them their law-making powers. Rather, other studies have suggested that, far from subservient to the state, these companies likely used the powers they were delegated by the state to pursue their own economic interests. See, for example, Adams, Julia, “Principals and Agents, Colonialists and Company Men: The Decay of Colonial Control in the Dutch East Indies” (1996) 61 Amerian Sociological Review 12 CrossRefGoogle Scholar; Brenner, Robert, Merchants and Revolution: Commençai Change, Political Conflict, and London's Overseas Traders, 1550–1653 (Princeton: Princeton University Press, 1993).Google Scholar

15. Oliver, E. H., ed., The Canadian North-West: Its Early Development and Legislative Records, vol. 1 (Ottawa: Government Printing Bureau, 1914) at 22.Google Scholar

16. 1690, 2 W. & M. c 23.

17. Bindon, Kathryn, “Hudson's Bay Company Law: Adam Thom and the Institution of Order in Rupert's Land 1839–54” in Flaherty, D., ed., Essays in the History of Canadian Law, vol. 1 (Toronto: University of Toronto Press, 1981)Google Scholar; Dobbs, Arthur, An Account of the Countries Adjoining to Hudson's Bay Company in the Northwest Part of America (London: Printed for J. Robinson, 1744)Google Scholar; Great Britain, Parliament, House of Commons, “Select Committee on the Report from the Select Committee on the Hudson's Bay Company; together with the Proceedings of the Committee, Minutes of Evidence, Appendix and Index” (Chairman: Rt. Hon. Henry Labouchere) [ordered by the House of Commons to be printed, 31 July and 11 August 1857]; Robson, Joseph, An Account of Six Years Residence in Hudson's Bay from 1733 to 1736, and 1744 to 1747 (London: J. Payne, 1752).Google Scholar Although they represent an important aspect of the early history of the Company, more detailed discussion of these legal challenges is beyond the scope of this paper.

18. See, generally, Smandych & Sacca, supra note 13; Gibson, Dale, “Company Justice: Origins of Legal Institutions in Pre-Confederation Manitoba” (1995) 23 Man. Law J. 247 Google Scholar; Baker, Howard R. II, Law Transplanted, Justice Invented: Sources of Law for the Hudson's Bay Company in Rupert's Land, 1670–1870 (M.A. Thesis, University of Manitoba, 1996).Google Scholar

19. Makahonuk, Glen, “Wage-Labour in the Northwest Fur Trade Economy” (1988) 41 Saskatchewan History 1.Google Scholar

20. Fitzgerald, James E., An Examination of the Charter and Proceedings of the Hudson's Bay Company (London: 1849) at 135–36Google Scholar, cited in Makahonuk, supra note 19 at 1–2.

21. Goldring, Philip, Papers on the Labour System of the Hudson's Bay Company, 1821–1900: Vol. I, Manuscript Report Series no. 362 (Ottawa: Parks Canada, 1979)Google Scholar; Goldring, Philip, Papers on the Labour System of the Hudson's Bay Company, 1821–1900: Vol. II, Manuscript Report Series, no. 412 (Ottawa: Parks Canada, 1980).Google Scholar Papers on the Labour System of the Hudson's Bay Company, 1821–1900: Vol. III, Microfiche Report Series, no. 299 (Ottawa: Parks Canada, 1982); Payne, Michael, The Most Respectable Place in the Territory: Everyday Life in Hudson's Bay Company Service: York Factory, 1788 to 1879 (Canadian Parks Service: National Historic Parks and Sites, 1988)Google Scholar; Payne, Michael, Labour at Lower Fort Garry in the Mid–19th Century and the Role of Women at Lower Fort Garry, 1840 to 1860, Microfiche Report Series 470 (Winnipeg: Historical Services, Canadian Parks Service Prairie and Northern Region, 1990).Google Scholar In order to avoid confusion later, it should be noted that, during the time period covered in this study, HBC company employees of all ranks were commonly refered to as Company “servants.”

22. Brown, Jennifer, Strangers in Blood: Fur Trade Company Families in the Indian Country (Vancouver: University of British Columbia Press, 1980).Google Scholar

23. Makahonuk, supra note 19 at 1.

24. Foster, Hamar, “Mutiny on the Beaver: Law and Authority in the Fur Trade Navy, 1835–1840” (1991) 20 Man. L. J. 15 Google Scholar; Foster, Hamar, “Killing Mr. John: Law and Jurisdiction at Fort Stikine, 1842–1846” in McLaren, J., Foster, H. & Orloff, C., eds., “Law for the Elephant, Law for the Beaver”. Essay s in the Legal History of the North American West (Regina: Canadian Plains Research Center, 1992)Google Scholar; Foster, Hamar, “British Columbia: Legal Institutions in the Far West, from Contact to 1871” (1995) 23 Man. L. J. 293.Google Scholar

25. Burley, Edith, Work, Discipline and Conflict in the Hudson's Bay Company, 1770 to 1870 (Ph.D. Dissertation, University of Manitoba, 1993).Google Scholar

26. Ibid. at 7, 39.

27. The shift in the nature of HBC labour relations that occurred in the period from the 1690s to the 1790s appears to have occurred more or less simultaneously with the transition to capitalism and corresponding changes in the nature of social class relations that occurred in England during the same period. The shift toward a “free labour” market economy in England, and the manner in which it was linked to both the transformation of master-servant relations and changes in institutions used to control “problem populations” like the poor, the criminal, and the insane, is given detailed attention in the work of revisionist historians like Ignatieff, Michael, A Just Measure of Pain: The Penitentiary and the Industrial Revolution (New York: Pantheon Books, 1978)CrossRefGoogle Scholar, and Scull, Andrew, Museums of Madness: The Social Organization of Insanity in the Nineteenth Century (London: Allen Lane, 1979).Google Scholar More recently, Linebaugh, Peter, The London Hanged: Crime and Civil Society in the Eighteenth Century (Cambridge: Cambridge University Press, 1992)Google Scholar has argued similarly that the punishment of the labouring poor for crimes in 18th-century London must be understood within the broader context of structural changes in the economy that affected the labour market and the nature of social class relations.

28. Rediker, Marcus, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700–1750 (Cambridge: Cambridge University Press, 1987) at 206.Google Scholar

29. Ibid. at 211.

30. Goffman, Erving, “On the Characteristics of Total Institutions: The Inmate World” in Cressey, Donald R., ed., The Prison: Studies in Institutional and Organizational Change (New York: Holt, Rinehart & Winston, 1961) at 15.Google Scholar

31. Rich, E. E., ed., Minutes of the Hudson's Bay Company 1671–1674, vol. 5 (London: Hudson's Bay Record Society, 1942) at 38.Google Scholar

32. Ibid. at 67, 75.

33. The problem of private trading persisted until at least the mid–19th century. Indicatively, as late as 1834, the London Committee ordered the printing of a new “Deed Poll” respecting the rights and duties of Chief Factors and Chief Traders conducting trade on behalf of the Company in Rupertsland and the Indian territories, which contained an article prohibiting private trading. See Hudson's Bay Company, Deed Poll, by the Governor and Company of Hudson's Bay, With Respect to their Chief Factors and Chief Traders for Conducting their Trade in Rupert's Land and North America; And for Ascertaining the Rights and Prescribing the Duties of Those Officers (London: Printed by Henry Kent Causton, 1834).Google Scholar Specifically, Article XIV of the “Deed Poll” of 1834 read that: ‘The Chief Factors and Chief Traders shall not on their separate account, distinct from the said trade, enter into any trade, business or commerce whatsoever, either directly or indirectly, or be in any wise [sic] concerned or interested therein, neither with Indians nor with any other person whomsoever; and every such Chief Factor or Chief Trader so offending, shall for each such offence, pay the sum of 1,000 (pounds) to the Governor and Company as stated, or liquidated damages.”

34. Francis, Daniel & Morantz, Toby, Partners in Furs: A History of the Fur Trade in Eastern James Bay 1600–1870 (Kingston & Montreal: McGill-Queen's University Press, 1983) at 90–91.Google Scholar

35. Brown, supra note 22 at 153–54.

36. Kirk, Sylvia Van, “Many Tender Ties”: Women in Fur Trade Society in Western Canada 1670–1870 (Winnipeg: Watson & Dwyer, 1980) at 38–5.Google Scholar

37. Robson, supra note 17 at 38

38. Ibid. at 49.

39. Ibid. at 76.

40 Ibid. at 17.

41. Supra note 25.

42. “Report to the Governor and Committee by John Nixon 1682” in Rich, E. E., ed., Minutes of the Hudson's Bay Company 1679–1682, vol. 8 (London: Hudson's Bay Record Society, 1946) at 239–304.Google Scholar Brown, supra note 22 at 14, has noted that Nixon's “report” of 1682 is the earliest surviving account of the fur trade sent back to London from Hudson Bay.

43. Ibid. at 244. One of the recommendations Nixon made to the London Committee was that more trustworthy and reliable men be sent to meet the ships that were arriving from England, in order to prevent bayside Company servants and HBC seamen from engaging in private trading.

44. Ibid. at 244–45.

45. Ibid. at 256.

46. Ibid. at 272–73.

47. Rich, E. E., ed., Hudson's Bay Company Letters Outward, 1679–169, vol. 11, (London: Hudson's Bay Record Society, 1948) at 39–40, 79–80, 111–12, 149, 179–80, 195, 233, 239.Google Scholar

48. Rich, E. E., ed., Hudson's Bay Copy Booke of Letters, Commissions, Instructions Outward, 1688–1696, vol. 20 (London: Hudson's Bay Record Society, 1957) at 101, 121, 125, 147, 149.Google Scholar

49. For an overview and documents concerning this Anglo-French rivalry, including a chronology of battles between the French and English over HBC posts, see Rich, ed., supra notes 47 and 48.

50. Rich, ed., supra note 42 at 301–02.

51. Rich, ed., supra note 48 at 144–48, 164–65.

52. Supra note 47 at 146.

53. ibid. at 147.

54. Ibid.

55. Ibid. at 147–48.

56. Hudson's Bay Company Archives [HBCA], B.3/z/2, fos., 1–3, Albany Fort, Miscellaneous files, 1694–1696. The HBCA miscellaneous files pertaining to Albany Fort are a series of documents that contain depositions of Company servants, Post accounts, Men's accounts, Indian's accounts, lists of Day and Night Watches, and Memoranda. All of these documents appear to have been placed in the Albany Fort miscellaneous files because they were not part of the post journal itself.

57. HBCA, B.3/Z/2, fo. 1.

58. HBCA, B.3/z/2, fo. 2. It is beyond the scope of this paper to undertake a detailed comparison of the type and severity of punishments administered by officers of the HBC and the captains of merchant ships or officers in the British military. However, a number of studies have been completed that provide a good starting point for such a study. See generally, the data and literature discussed in Braithwaite, John, “Shame and Modernity” (1993) 33 British Journal of Criminology 1 CrossRefGoogle Scholar; Cockburn, J. S., “Punishment and Brutalization in the English Enlightenment” (1994) 12 Law and History Review 155.Google Scholar

59. HBCA, B.3/Z/2, fo. 3.

60. Ibid.

61. HBCA, “York Factory Councils” B.239/a/2, fos. 75–78.

62. The five councillors who participated in the trial were Henry Kelsey (who was then Deputy Governor), Alexander Apthorp, David Vaughan, John Carruthers and Fotherby Jackson.

63. HBCA, B.239/a/2, fo. 75.

64. HBCA, B.239/a/2, fo.76.

65. Although the recorded post council meetings that were held at York Factory between 1714 and the mid–1720s contain no examples of other criminal trials, it is evident from the council minutes that they were also convened to make collective decisions on how disobedient and dishonest Company servants should be dealt with. For example, at the council held at York Factory on 1 September 1725, presided over by Governor Henry Kelsey, a decision was made to extend the contracts of a number of bayside servants for an additional year because the crew and men who arrived on the “Whalebone Sloop” from England in the summer refused to stay over the winter and take the place of the men who were scheduled to return. The members of Henry Kelsey's council also took steps at the meeting to deal with a case involving the suspected theft of Company furs by a servant by the name of Hall. Specifically, it was reported that the Governor ceased “all M:r Halls papers and Furrs that he Could find in his Cabbbin, Chest or elsewhere, tyed them up on a Bundle and afterwards Open:d them before the S:d Councell (but) found No papers Materiall & of Furrs, (except) one black Beav:r the Gov:r gave him 10 Marins (and) one Red Fox, he Catcht in the Winter.” However, the council stated that “we are (still) Senceable he Caught more.” HBCA, B.239/b/, fo. 9.

66. Lake became the Governor of the Hudson's Bay Company in 1712 (when he was around 28 years old), and remained the Governor without a break until his death in 1743, a total of 29 years. This was the longest term served by any Governor of the Hudson's Bay Company prior to 1949. Lake was also “a Sub-Governor of the Africa Company.” He was also actively involved in buying and selling stocks and annuities, including “East India stocks of various denominations.” See Rich, E. E., ed., Introduction to James Isham's Observations and Notes, 1743–49 vol. 12 London: Hudson's Bay Record Society, 1949 at xix.Google Scholar Lake was a key member of the Board of Governors of the Company until his death, and he is said to have exerted a great deal of influence and control over the Company's activities in North America. According to Rich: “During the period of the recovery (following the Treaty of Utrecht and the return of HBC posts to the control of the Company) the dominant personality was undoubtedly the Governor, whose character pervaded not only the London Committee meetings but also the councils of the remote forts on the Bay; a subtle, reasonable influence, apparently unenterprising except in matters of accountancy but yet keen, shrewd and utterly reliable.” Ibid. at 14.

67. These data were collected during two years of research in the Hudson's Bay Company Archives and the Dafoe Library at the University of Manitoba, during which time we were assisted by several research assistants: Gloria Lee, James Muir, Paul Nigol, Tannis Peikoff, Joanne Reid, Ruth Swan. Each of these graduate student research assistants—from the disciplines of history, sociology, and law—made important contributions to the research through searching out new data sources, answering many of the questions we had about the Hudson's Bay Company, and transcribing literally hundreds of pages of relevant post journal entries and other unpublished primary sources.

68. Robson, supra note 17.

69. Williams, Glyndwr, “Arthur Dobbs and Joseph Robson: New Light on the Relationship between Two Early Critics of the Hudson's Bay Company” (1959) 40 Canadian Historical Review 132.CrossRefGoogle Scholar

70. Williams, Glyndwr, ed., Hudson's Bay Miscellany 1670–1870 (Winnipeg: Hudson's Bay Record Society, 1975) at 5.Google Scholar

71. “Captain John Fullartine, Governor of Albany Fort in Hudson's Bay, to Governor and Committee of the Hudson's Bay Company, 2 August 1703” in Davis, K. G., ed., Letters from Hudson Bay 1703–1740 (London: Hudson's Bay Record Society, 1965) at 5–14.Google Scholar Fullartine returned to Albany in 1708 and successfully defended the post against the French in 1709. Fullartine was not a novice at fighting with the French, as he had participated in earlier military campaigns in the Bay in the 1680s and 1690s, and on two of these occasions, he was captured and taken prisoner. Fullartine finally returned to England in 1711, where he became a member of the London Committee until shortly before his death in 1738. Ibid. at 10, note 1.

72. Williams, supra note 70 at 5; Davis, ibid. at 355–61.

73. Williams, ibid. at 10–65.

74. HBCA, A.6/3, fo. 69, cited in Williams, ibid. at 15. The copy of the Piracy Act sent by the Committee was enacted in 1701 (11 & 12 William III, c.vii.). This act was modelled after, and made specific reference to, the Piracy Act of 1536, enacted during the reign of Henry VIII.

75. HBCA, Albany Post Journal, 2 May 1706, cited in Williams, supra note 70 at 50.

76. HBCA, B.3/a/4, Albany Post Journals, 4, 15, and 16, May 1713.

77. HBCA, B.3/a/4, Albany Post Journal, 26 January 1713.

78. HBCA, A.l 1/2 fos. 14–25, Inward Correspondence, Anthony Beale, Albany Fort, to the Honourable Governor and Committee of the Hudson's Bay Company, residing in London, 23 July 1706, 1 August 1712, 10 September 1712, 2 August 1714, published in Davis, supra note 71 at 15–33.

79 Ibid. at 22–23.

80. HBCA, A.11/2, fos. 26–33, 34–41, Inward Correspondence, Thomas Macklish, Albany Fort, to the London Committee, 16 July 1716, 12 September 1716, 20 August 1717, 31 August 1719.

81. HBCA, A.11/2, fos. 38–41, Thomas Macklish, Albany Fort, to the London Committee, 31 August 1719.

82. HBCA.A.11/2, fos. 42–5.

83. HBCA, A.11/2, fos., 56–57, cited in Davis, supra note 71 at 113–16.

84. HBCA, A.6/5. fo. 2–2d, London Committee to Joseph Myatt, 25 May 1727, cited in Davis, supra note 71 at 114.

85. Davis, supra note 71 at 323.

86. HBCA, Search file, Joseph Isbister.

87. Kirk, Sylvia Van, “Joseph Isbister” 6 Dictionary of Canadian Biography at 381.Google Scholar

88. HBCA, A.6/7, Outward Correspondence, London Committee to Mr. Joseph Isbister and Council at Albany Fort, 5 May 1742. Specifically, the London Committee told Isbister: “We Expect a due Performance of your Promise by your Vertuous example, not only to prevent immoderate drinking and other vices that did occasion M:r Waggoners Death, but that you will take care to hinder as much as Possible the detestable Sin of Whoring w:ch we are informed is practiced in the Factory notwithstanding what we have so often ordered in our former letters to the Contrary.”

89 HBCA, B.59/a/1–4, Eastmain Journals, December 1736 to April 1740.

90. HBCA, B.3/a/33, Albany Post Journal, 16 September 1741 [emphasis added].

91 HBCA, B.3/b/1, Albany Correspondence Books, Copy of letter sent to Mr. Duffield, 13 September 1742.

92. HBCA, B.3/b/1, Albany Correspondence Books, Copy of Mr. Duffield's letter, Moose Fort, 24 September 1742.

93. HBCA, B.3/b/1, Albany Correspondence Books, Copy of Mr. White's letter, York Fort, 29 June 1742.

94. HBCA, B.3/a/30, Albany Post Journal, 22 August 1740.

95. HBCA, B.3/a/30, Albany Post Journal, 2 September 1740.

96. HBCA, B.3/a/30, Albany Post Journal, 5 September 1740.

97. HBCA, B.3/a/30, Albany Post Journal, 8 September 1740.

98. HBCA, B.3/a/30, Albany Post Journal, 25 September 1740. A second slightly different account of this incident was written down by Isbister's Deputy Governor, George Spence, in the journal he kept during 1740–1741 (HBCA, B.3/a/31, George Spence's Journal, 26 August 1740 to 6 September 1741). Spence's journal entry for 25 September 1740, states: “Thurs:dy Last Night as usual y:e Mast:r having order'd me I went down and sett y:e Watch att 5 o'clock and order'd the Rest of y:e people to Bed & likewise put out their Lights, afterwards I went out and walkt a top of y:e Sheeds till such Time as I saw no Light in their Windows, then I went in y:e Guard Room saw no Body there but Tho:s Nelthorpe who was Master of y:e Watch and his Watch Mates, having staid there some time I went to my Cabin, about a quarter of an hour afterwards y:e Master came down, & walking round y:e House, see'd a Light in Tho:s Nelthorpe's Cabin, went in and found him in Company with 2 or 3 more drinking, y:e Master reprimanded those in Company with him for not being gone to Bed, and likewise Nelthorp for Neglecting his Watch, to which he replyed that it was apprentice Hours to make one go to Bed at 8 o'Clock and that he did not come into y:e Country to watch, but to keep a Journal and to do the Company as much Service that way as he could, and likewise asked the Master a great many impertinent Questions.”

99. HBCA, B.3/a/30, Albany Post Journals, 29 November 1740, 20 and 25 December 1740, Hand 18 March 1741, 10 and 11 August 1741.

100. HBCA, B./a/30, Albany Post Journal, 20 December 1740. In the journal he kept as Deputy Governor, George Spence offered the following slightly different description of the incident: “Satur:dy The Taylor at work as Yesterday, y:e Hunters killd 29 Partridges, two of the People brewed to Day, and some carrying Snow out of the Yard, this Evening Tho:s Nelthorpe being fuddled, challenged one of y:e People to fight him, viz. Henry Smith they imediatly went to y:e Wood Pile (a Place ussual for deciding of Manhood) the Mast:r being Informed of it, went out to them, being both stript ready to engage and John Geenaway Armourer, who was likewise drunk striping in order to assist Nelthorpe his Reason for challenging the Fellow, he not y:e Armourer could give no Satisfactory one, wherefore the Mast.r ordeR'd them all to put on their Cloaths, and get within Doors, and told Nelthorpe never to Challenge any of the people for if they affronted him, to acquaint him of it & he would punish them, Nelthorpe not being satisfied with this, swore that he would beat the Fellow whether the Mast.r would, or not, or according to his Expression, for all the Gov:r as he was pleased to title him, however the Mast:r told them they should not fight and made them go with:in Doors: after this y:e Armourer & Nelthorpe, had the Impudence to come up to y:e Mast:r that Night and ask for Brandy, but they had none: Wind SE a moderate breeze with clear cold weather.” HBCA, B3/a/31, George Spence's Journal, 20 December 1740.

101. HBCA, B.3/a/30, Albany Post Journal, 10 August 1741.

102. HBCA, B.3/a/33, Albany Post Journal, 25 December 1741.

103. HBCA, B.3/a/33, Albany Post Journals, 28 December 1741, 6 January 1742 [emphasis added].

104. HBCA, B.3/a/33, Albany Post Journals, 9 and 14 January 1742.

105. HBCA, B.3/a/33, Albany Post Journals, 5, 6, and 7 February 1742.

106. HBCA, B.3/a/33, Albany Post Journal, 7 February 1742.

107. HBCA, B.3/a/33, Albany Post Journal, 28 March 1742.

108. Isbister also had awful spelling, even in comparison to his 18th-century peers.

109. HBCA, Albany Post Journals, 1742–1748, 1753–1756; Smandych & Linden, supra note 10.

110. HBCA, B.3/a/34, Albany Post Journal, 11 August 1742.

111. In the sense in which these terms have been used by Foucault, Governmentality, supra note 1.

112. Ignatieff, supra note 27; Scull, supra note 27; Linebaugh, supra note 27.

113. Supra note 25.