Constance B. Backhouse

Married Women's Property Law in Nineteenth-Century Canada

In nineteenth-century Canada, womens property was transferred to their husbands upon marriage. The common-law rule disadvantaged women, particularly those abandoned by their husbands. This article chronicles the development of married womens property rights in the nineteenth century. The introduction of legislation that began to reform this field of law occurred in three waves: 1) enactments applicable to financially desperate married women, 2) protective measures insulating womens property from their husbands and their husbands’ creditors, and 3) laws adopted from British statute, aimed at giving women more control over their property. Married womens gains in property rights during the 1800s were initiated by provincial legislatures with varying motivations; paternalism, protection of women, desire to increase womens status, or reflexive veneration for the imperial British Parliament. Judges were hostile toward laws that protected womens property from their husbands, believing such laws posed a danger to the Canadian family. They conceived of the Canadian family as a necessarily patriarchal hierarchical structure, not as a partnership of equals. Most judges deliberately tried to debilitate the legislation by narrowly interpreting the scope of married womens rights to property and freedom of contract. Judicial conservatism was eventually overturned by legislative amendment. While the nineteenth century saw great gains in womens formal property rights, men continued to have markedly greater access to wealth and resources.

Judging Bertha Wilson : law as large as life

Madame Justice Bertha Wilson, the first woman appointed to the Supreme Court of Canada, is an enormously influential and controversial figure in Canadian legal and political history. This engaging, authorized, intellectual biography draws on interviews conducted under the auspices of the Osgoode Society for Legal History, held in Scotland and Canada with Madame Justice Wilson, as well as with her friends, relatives, and colleagues. The biography traces Wilsons story from her birth in Scotland in 1923 to the present. Wilsons contributions to the areas of human rights law and equality jurisprudence are many and well-known. Lesser known are her early days in Scotland and her work as a ministers wife or her post-judicial work on gender equality for the Canadian Bar Association and her contributions to the Royal Commission on Aboriginal Peoples. Through a scrupulous survey of Wilsons judgements, memos, and academic writings (many as yet unpublished), Ellen Anderson shows how Wilsons life and the law were seamlessly integrated in her persistent commitment to a stance of principled contextuality. This stance has had an enduring effect on the evolution of Canadian law and cultural history. Supported with the warmth and generosity of Wilsons numerous personal anecdotes, this work illuminates the life and throught of a woman who has left an extraordinary mark on Canadas legal landscape.

Contesting the legal culture of professionalism

W. Wesley Pue’s Lawyers’ Empire: Legal Professions and Cultural Authority, 1780–1950, brilliantly substantiates his “larger than life” reputation. In this short comment, I have chosen to examine only one small piece of what is a much larger, magisterial monograph. My focus will be the rebuke of Gordon Martin, whose request to be called to the British Columbia bar went down in flames in 1948 because he was a “Marxist communist”. As Pue notes, Gordon Martin held the requisite law degree and had completed his articled apprenticeship. Martin produced statements, letters and statutory declarations attesting to his “good repute”, and his fitness to be called to the bar. He affirmed his good faith intentions to swear allegiance to the British King. As Pue concludes, it was clear that Martin’s “personal morals” could not be questioned, that he was a “hard worker at the University” and that he was “conscientious”. But Martin was a self-identified communist. In a previous provincial election campaign, he had been a candidate for the Labour Progressive Party, which promulgated communist political views. He was also the president of the UBC student “Communist Forum”. Martin attempted to convince the Law Society that his brand of communism was peaceful, testifying that “the beliefs of the Communists in British Columbia do not entail adherence either to the Marxist doctrine of the overthrow of constituted authority by force or the subversive doctrines and activities of certain Communists in Canada”. And his Labour Progressive Party was a legally-constituted political organization. The Benchers of the Law Society of British Columbia took the unanimous view that they had the sole jurisdiction and absolute discretion to decide which candidates qualified for admission to the bar. Then they determined that Martin must be denied entry because his communist politics rendered him incapable of demonstrating that he was a “person of good repute within the meaning and intent of the Legal Professions Act”. That decision was unanimously upheld by the Supreme Court and the Court of Appeal of British Columbia. The judicial opinions decried communism as a “pernicious creed”, communist parties as “agents of the Russian dictatorship” and communists as “operating as a Fifth Column”, acting “(designedly or not) to assist an unfriendly