Hamar Foster – Religion, Blood, Ordeals, Battles and the Origins of the Common Law (#11)

The history of the common law is the history of change. ~ Hamar Foster

Hamar Foster, QC, hoards legal history like a dragon hoards its gold. But thankfully, Hamar delights in sharing this gold with the rest of us. And the only fires he breathes are the accounts of the often brutal and violent origins of our legal system. 

Hamar is a Professor Emeritus, a writer, researcher and a Royal Historical Society fellow. He’s also a passionate and charming storyteller. 

In this episode, Hamar uses his passion for history and his superhuman recall to guide us through tales of religion and death, of hot irons and forced drownings, of torture and political intrigue, and many other events across a long span of the common law’s history.

Even if you don’t consider yourself a fan of history, you’ll still enjoy this colourful and fast-paced conversation. Whether it’s discovering the capacity for the common law to evolve and change, or noting the many examples where humanity and morality spurred big course corrections on the path to today’s system, Hamar’s insights on the past will make you a more knowledgeable professional today. 

Hamar’s edited books include: Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (UBC Press 2007); The Grand Experiment: Law and Legal Culture in British Settler Societies (UBC Press 2008); and The British Columbia Court of Appeal, 1910-2010.  He is currently co-editing a book based on the presentations from a conference he helped organize on the topic of Indigenous treaty rights in the colonies of Vancouver Island and British Columbia from 1849-1864. He is also working on a book about the campaign for Aboriginal Title in BC in the years 1900-1928. Much of his other work is available in the “selected publications” tab near the bottom of his UVic Law Faculty page here.

Near the end of our conversation, Hamar also mentions his son-in-law, whose ancestral name is “Nusi” (his colonial name is Ian Reid), who is a Heiltsuk artist and carver from Bella Bella. With Nusi’s permission, I’m pleased to share some of his work here and here.

Topics Covered

  1. The Bloody Code
  2. Pre-contact dispute resolution in North America 
  3. Religion as a source of the common law
  4. Property as a basis for the development of common law
  5. Oath helpers
  6. Trial by ordeal
  7. Examples of law in colonial British Columbia
  8. Origin of criminal jury trial
  9. Peine forte et dure (hard and forceful punishment)
  10. Trial by battle
  11. History of writs
  12. Development and use of causes of action
  13. Development and use of equity
  14. The origin of trusts
  15. Origin of “settling pleadings”

Listen to “11 Hamar Foster – Religion, Blood, Ordeals, Battles and the Origins of the Common Law” on Spreaker.

The Quiz for this episode is here

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Show Notes

The Bloody Code 11:17

Benefit of clergy 15:24 

Mandatory minimum sentencing and plea bargaining 16:30

Writs of grace and writs of course 18:35 

Oyer and terminer and gaol delivery 19:07

Legal history and “presentism” 19:50

Law Society of BC removes statue of Judge Begbie 21:24

Pre-colonial or pre-contact legal systems in Western North America 24:40

The 12th Century Renaissance 26:00

“The Anarchy” following the death of Henry I 26:25

Justice meted out by the Crown and assizes 28:20

Religion, swearing before God and the bias against blood penalties 29:24

Oath helpers 31:10

Courts of the Hundred 32:21

Trial by ordeal 34:28

Oaths 34:45

The Assize of Clarendon 35:15

Mutiny on the Beaver: Law and Authority in the Fur Trade Navy, 1835-1840 (by Hamar Foster) (pdf) 38:45

People circumventing rules out of sympathy for others or internal conceptions on justice  41:00

The Neck Verse 41:40

Legal fictions 42:50

1215 Pope Innocent Forbids Priests participating in trial by ordeal (origin of the criminal jury trial) 44:20

Corruption of the Blood (avoiding jury trial) 47:00

Peine forte et dure 47:20

Law of evidence / law of torture on the Continent in 13th Century 49:00

Trial by battle 52:00

Appeal to felony 51:20

Battle by champion 51:45

Title to land 52:10

Writ of right 53:00 

Writs (generally) or a “Command of the King” 53:15

Writ of Course 54:20

Writ of Grace 54:40

Writ of trespass 56:05

Evolution and change within courts to expand their jurisdictions and respond to consumer demand (needs of the public) 58:30

Star Chamber 1:00:00

Development of Equity 1:05:20

Development of administrative tribunals 1:06:20

Development of trusts (uses) 1:10:00

“Lawyers’ history” 1:09:45

Development of the power to convey land through a will 1:11:20

Primogeniture and gender 1:13:45

The Court of Chancery 1:15:40

The relationship between the common law and equity 1:16:40

Equity and clean hands 1:19:00

The Court of High Commission 1:19:50

Jeremy Bentham & Lord Brougham1:21:30

Henry VIII 1:22:10

Constitutions (written and unwritten) and conventions 1:23:40

Addressing legal problems through legislation 1:25:12

The end of unanimity among judges 1:26:00

Trial by commission 1:26:36

The lack of intellectual scrutiny in criminal law 1:27:30

Nisi prius 1:28:30

Settling pleadings 1:29:28

The development of appeals 1:32:18

The “record” in a case and writs of error 1:33:00

Law French 1:34:05

The development of a right to have a lawyer for accused criminals 1:36:00

The use of lawyers for prosecution 1:37:00

Knights of the post 1:37:30

Humanitarian movement and Post Enlightenment and human reason as a driver for law reform 1:38:00

The development of commercial law and Lord Mansfield 1:40:19

What makes a law reformer? 1:40:25

Abolition of peremptory challenges for juries in Canada 1:43:30

Development of preliminary inquiries in Canada 1:46:10

How Hamar defines success for himself 1:47:34

Toughest choice or sacrifice Hamar made to get where he is today 1:48:00

If he had to do a week’s worth of work in 3 hours 1:49:20

Hamar’s son-in-law Nusi (Ian Reid) and here and here 1:50:00

Special things Hamar does to look after himself 1:51:00

What Hamar wants to do before his work in the law is done 1:51:30

The best book he read in the last year At the Bridge: James Teit and an Anthropology of Belonging by Wendy Wickwire: 1:52:02

Where to learn more about Hamar – UVic Law Website page and Hamar’s publications 1:53:01Hamar’s calls to action (Truth and Reconciliation Commission) 1:54:00

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