Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West

Sarah Carter is an assistant professor of history at the University of
Calgary and the author of Lost Harvests: Prairie Indian Reserve Farmers
and Government Policy.

The purpose of this volume, and of the conference of the same name held
at the Faculty of Law of the University of Victoria in 1991, is to draw
attention in a preliminary way to some similarities and differences in
the legal experience of the American and Canadian Wests and Northwests
during the era of European settlement. It is not intended to be
comprehensive, but rather to provide a “series of snapshots” of the
historical record. The book succeeds in effectively opening up the field
of transboundary legal history, providing insight into some of the
questions, topics, methods, and sources currently being pursued and
suggesting those that warrant further exploration.

Not all of the authors featured here take an avowedly
American–Canadian approach. Among those who do are John McLaren,
writing on the courts and anti-Chinese legislation, and David Percy,
writing on the western water law. These essays together suggest that
there was extensive cross-fertilization of legal ideas in the North
American West, and that the problems a region shared that transcended
the boundary were capable of drawing similar legal responses (although
it is also clear, particularly in the case of water law, that
distinctively Canadian laws were devised). In “The Layers of Western
Legal History,” John Phillip Reid also draws on both the Canadian and
the American experience in his attempt to define western legal history
and to suggest both its continuity and discontinuity with developments
elsewhere. Other essays in the collection have been paired in order to
provide the basis for examining a common theme from the perspective of
both geopolitical units, such as those of Stephen Haycox and Paul
Tennant, on aboriginal rights in Alaska and British Columbia, and those
of Richard Maxwell Brown and Rod Macleod, on frontier justice in the
American and Canadian contexts.

The editors themselves mention some of the glaring gaps in their effort
to “scratch the surface of transboundary history,” such as gender
and the legal system. Women’s rights to homestead, for example, were
quite different in the American and Canadian Wests; why this was so and
what the results were is a topic that should be investigated. There is a
little effort to consider aboriginal concepts of justice and how these
interacted or clashed with common law. As Reid suggests, this
cross-cultural dimension remains one of the special challenges of
transboundary western legal history. This book, which amply proves the
legitimacy and great promise of comparative North American legal
history, should encourage legal historians to take up some of these
challenges.