SESSION 3.1: The Legal Culture of the Kootenays/Columbia, 1860s-1914

The “First Formative Period” in the history of the law in British Columbia was a Victorian era that stretched from the creation of the crown colony in 1866 to the outbreak of World War One in 1914. While the legal contours of the first formative period have been sketched, there is still much to be done not only with its rich legal archival holdings, but also with the anthropological and sociological perspectives, the social, economic, and commercial dynamics, and the Canadian, American, and Imperial contexts. The purpose of this paper is to utilize the methodology of the new cultural history to explore the legal culture of in its first formative period with regard to one of its several geographical “islands,” the Kootenays/Columbia. The sources for the history of legal culture in British Columbia are among the richest for any region of Western Canada. The extant written record includes both the personal papers and bench books of some of the major judges of the period, and extensive court records for all jurisdictions from the Supreme Court to the Gold Commissioners. There are also large collections of documents in the files of the legal departments. The physical remains are also abundant, with many surviving courthouses and industrial sites. But how the law was perceived in the communities is an integral part of legal culture. This makes the printed press and other literary sources at least equal in importance to the legal record. One of the treasures of British Columbia\u27s historical remains is the survival of 394 newspapers representing its and their hinterland in the era. These will be utilized with court records, correspondence and events to explore the reality of the region\u27s legal culture. Looking at demographics, the southeast section of what became British Columbia comprised an area that can described as the three districts of the Kootenays bordered by the Columbia River communities. The problems of the law, and its image, in this remote area of the Canadian west were several. First, the Hudson\u27s Bay Company lacked jurisdiction over the indigenous peoples they encountered. Many of the company\u27s traders were husbands of mixed marriages whose status may or may not have been recognized in anglophone society. Second, the interface and possible conflict of First Nations, United States, and Russian interests made structures of authority ambiguous. Third, the discovery of rich mineral resources led to a mining boom with an influx of European immigrants. Mixed with fishing and forestry, the socio-economic factors were incredibly diverse. The violence between conflicting socio-economic interests, immigrant settlers, and First Nations would expand to other ethnic groups and employer-employee relations in the decades following the 1860s. And much of that would be adjudicated in an English common law regime. The political-judicial conflicts of the following years, concluding with the County and Assize Court Acts of 1883 and 1885, would result in an equally \u27mixed Canadian\u27 structure of local and central courts that would provide the touchstone for the foundation of legal culture in the region. The astronomical rate of prosecutions for this region in contrast to the province, or the rest of Canada, requires not only explanation, but also a discussion of its impact among the mixed peoples who inhabited the region. This paper will explore those subjects, and invite discussion and interaction as to the meaning of the evidence for the several fields of cultural, social, economic, historical and legal inquiry