Thomson on "And Two Cows...to My Wife, So Long As She Remains My Widow": Public Policy and Testamentary Marriage Clauses in Canada

Jane Thomson, University of New Brunswick Faculty of Law, is publishing "And Two Cows to my Wife… so Long as she Remains my Widow." Public Policy and Testamentary Marriage Clauses in Canada in volume 103 of the Canadian Bar Review. Here is the abstract.

This article, part one of a two part project, provides a comprehensive review of the law surrounding marriage conditions in wills in Canada, including the civil law jurisdiction of Quebec, through a quantitative study of nearly every electronically reported Canadian decision involving a marriage clause in a will. It begins with an overview of the history of marriage clauses in the UK, the US and Canada with a detailed review of the Canadian jurisprudence. This study reveals that the application of public policy to most marriage clauses in Canadian wills has remained stagnant since the 18 th century, with two notable exceptions. The first involves clauses that condition a gift on discriminatory terms such as the sex, race or religion of a beneficiary's spouse. When asked to do so, Canadian courts have voided such conditions, beginning in the 1960s. The second is the Province of Quebec where arguably all marriage clauses are now contrary to public order. This article is followed by a companion piece that provides the normative argument as to why all marriage clauses should be considered contrary to public policy in Canada.

Download the article from SSRN at the link.

Keay, Inwood, and Long on Public Sentiment and Criminal Sentencing: Gender, Indigeneity, and Class in Nineteenth Century British Columbia

Ian Keay, Department of Economics, Queen's University, Kris Inwood, University of Guelph, Department of Economics, and Blair Long, Memorial University, have published Public Sentiment and Criminal Sentencing: Gender, Indigeneity, and Class in Nineteenth Century British Columbia . Here is the abstract.

Using prison admission ledgers, we document the criminal sentencing behaviour of judges through an institutionally transformative period in the history of the Canadian province of British Columbia (BC). Between 1864 and 1913 we find significant biases in sentencing that resulted in shorter sentences for Indigenous, Chinese-origin, and female prisoners, relative to prisoners with otherwise similar observable characteristics. In contrast, prisoners who reported occupations typically held by those in the lowest and highest social classes had relatively longer sentences than the average prisoner. Over time, these biases shifted for those of Indigenous and Chinese-origin, and for women, concurrent with changes in public sentiment and significant historical and institutional events in BC. We use the probability of each prisoner's predicted future recidivism to test for the presence and impact of statistical discrimination. We find evidence of significant statistical bias, but the effect on prisoners' sentences is small, and most of the differential sentencing we document can be attributed to some combination of judge's taste-based discriminatory attitudes, and statistical discrimination along other dimensions.

Download the article from SSRN at the link.

Keay, Inwood, and Long on Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913 @kris_inwood

Ian Keay, Queen's University, Department of Economics, Kris Inwood, University of Guelph, Department of Economics, and Blair Long, Cape Breton University have published Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913. Here is the abstract.

In this paper we document the effect of transformative institutional change on criminal sentencing in a frontier environment. New historical evidence digitized from British Columbia’s (BC) prison admission ledgers allows us to track changes in sentencing distributions from 1864 to 1913. We find that as BC's criminal justice system moved from informal and locally independent colonial institutions, toward a set of institutions that closely resemble the system in place today, average sentences got longer and sentence dispersion fell. We isolate the increase in sentence length and decrease in sentence dispersion that can be attributed to changes in judicial decision-making by controlling for changes in the observable characteristics of the province's prison population. We also show that changes in the sentencing distribution were coincident with a reduction in judicial discretion, an increase in sentence predictability, and an expansion in the criminal justice system along the extensive margin.

Download the article from SSRN at the link.

Hooton and Murphy on Provincial Poor Laws and Pauper Auctions: The Elizabethan Welfare System in Colonial Canada @MPICSL @mpilhlt @maxplancklaw

Victoria Hooton, Max Planck Institute for Legal History and Legal Theory, and Christopher Murphy, Max Planck Institute for the Study of Crime, Security and Law, have published Provincial Poor Laws and Pauper Auctions: The Elizabethan Welfare System in Colonial Canada as Max Planck Lawcast, Episode 3. Here is the abstract.

In this episode Christopher Murphy travels back in time with Victoria Hooton to discuss the regulation of poverty in England and Wales in the early 17th century, with a specific focus on the 1601 Act for the Relief of the Poor. The Act reflected the prevailing moral sensibilities of the time, regarding who the worthy and the unworthy poor were and where the boundaries of welfare responsibility were to be drawn. After providing an overview of the legislation, the focus turns to the implementation of this welfare system in the Canadian provinces of Nova Scotia and New Brunswick during the mid-18th and 19th century.

Listen on: Spotify and Apple. For more Max Planck Lawcasts: https://law.mpg.de/lawcast/.

McMahon on Canada's Laws of White Supremacy

Thomas McMahon has published Canada’s Laws of White Supremacy: 1496-1791. Here is the abstract.

Is it permitted to say "white supremacy" when discussing Canada's foundational documents and archives? The purpose of this research paper is to identify the key legal documents establishing white supremacy as the foundational doctrine of Canada's legal history. If you refuse to name the problem, you can't begin to solve it.

Download the article from SSRN at the link.

Kinsinger on Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774 @kkinsinger @RunnymedeSoc

Kristopher Kinsinger, Runnymede Society; Cardus, has published Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774 at 105 SCLR 2d 395 (2022). Here is the abstract.

The human rights and civil liberties guaranteed by the Canadian Charter of Rights and Freedoms did not spring into existence in 1982. Although this assertion might seem trite, the Charter has engulfed how scholars study constitutional rights and freedoms in Canada. As a result, many jurists are not fully aware of the broader history of Canadian civil liberties. This article seeks to remedy this amnesia through a study of the constitutionally significant statutes and documents enacted following the Seven Years’ War which promised varying degrees of religious freedom to British North America’s Roman Catholic population. Geopolitics played an undeniable role in shaping imperial policy regarding religious freedom in Canada. But it would be a mistake to conclude (as the Quebec Superior Court did in its 2021 ruling in Hak c. Procureur général du Québec) that these guarantees were little more than the product of a political calculus. While many colonial leaders in late 18th century Canada appeared to largely value religious freedom for its political utility, others came to articulate a decidedly aspirational vision for these guarantees. It was to the efforts of these latter individuals that the late W.P.M. Kennedy referred when he asserted that this period of history establishes “religious toleration [as] one of the corner-stones of the Canadian constitution”.

Download the article from SSRN at the link.

Newly Published: Thierry Nootens: Genre, Patrimoine et Droit Civil (McGill-Queen's University Press, 2019 @McgillQueensUP)

New from McGill-Queen's University Press:

Thierry Nootens, Genre, patrimoine et droit civil: Les femmes mariées de la bourgeoisie québécoise en procès, 1900-1930 (2019).

Kirkby on Reconstituting Canada: The Enfranchisement and Disenfranchisement of "Indians": c 1837-1900 @CoelKirkby

Coel Kirkby, University of Sydney Law School, is publishing Reconstituting Canada: The Enfranchisement and Disenfranchisement of ‘Indians’, c. 1837-1900 in volume 69 of the University of Toronto Law Journal (2019). Here is the abstract.

The constitutional history of Canada and First Nations is often told as the promise fulfilled of Aboriginal rights and treaties. I will challenge this dominant story by recovering the story of the enfranchisement and disenfranchisement of ‘Indian’ subjects in the first three decades of Canadian confederation. Far from forgotten actors in a foretold play, ‘Indian’ voters were crucial to determining the outcome of three closely-contested federal elections and challenging settler ideas of the nascent Canadian nation. The question of the ‘Indian’ franchise was always embedded in competing constitutional visions for Confederation. The Canadian dream of transforming and assimilating Indigenous peoples would give way to a cynical idea of segregation under the permanent regime of the Indian Act. If the Indian franchise was the apotheosis of assimilation, its revocation marked the start of racial segregation. I juxtapose these Canadian constitutional visions with two alternative possibilities. The Anishinaabe-dominated Grand General Council accepted the franchise as part of its vision of reconciling membership in both their treaty-recognized nations and the Canadian state. The Confederacy Council of the Six Nations, in contrast, rejected the franchise as an existential threat to Haudenosaunee self-rule mediated by a treaty relationship with the Canadian and imperial governments. Recovering the constitutional contests driving Indian enfranchisement and disenfranchisement shows us of how the successful imposition of a single vision of a white democracy silenced alternative visions of a multi-national coexistence. It also reminds us of the multiplicity of constitutional possibilities for a common constitutional future.

Download the article from SSRN at the link.

Tucker on Writing Labor Law History: A Reconnaissance @OsgoodeNews

Eric Tucker, York University, Osgoode Hall; Cleveland-Marshall College of Law (Visiting), has published On Writing Labour Law History: A Reconnaissance as Osgoode Hall Legal Studies Research Paper No. 66/2017. Here is the abstract.

Labour law historians rarely write about the theoretical and methodological foundations of their discipline. In response to this state of affairs, this article adopts a reconnaissance strategy, which eschews any pretense at providing a synthesis or authoritative conclusions, but rather hopes to open up questions and paths of inquiry that may encourage others to also reflect on a neglected area of scholarship. It begins by documenting and reflecting on the implications of the fact that labour law history sits at the margins of many other disciplines, including labour history, legal history, labour law, industrial relations and law and society, but lacks a home of its own. It next presents a short historiography of the writing of labour law history, noting its varied and changing intellectual influences. Next the article notes some of the methodological consequences of different theoretical commitments and discusses briefly the possibilities opened up by computer technologies as revealed by two interesting projects that rely heavily on the construction of sophisticated data bases. Finally, the article reflects on the methodological challenges I have experienced in my current project on labour law’s recurring regulatory dilemmas and conclude with some thoughts on the contribution labour law history can make to our understanding of the dynamics that shape its current challenges.

Download the article from SSRN at the link.

Tucker on When Wage Theft Was a Crime in Canada, 1935-1955

Eric Tucker, York University, Osgoode Hall Law School; Cleveland-Marshall College of Law (Visiting), is publishing When Wage Theft Was a Crime in Canada, 1935-1955 in volume 54 of Osgoode Hall Law Journal. Here is the abstract.

In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935 Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of history of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that narrowed its scope and the one unsuccessful effort to prosecute an employer for intentionally paying less than the provincial minimum wage. It concludes that the law was a symbolic gesture and another example of the difficulty of using the criminal law to punish employers for their wrongdoing.

Download the essay from SSRN at the link.

Adams and Stanger-Ross on The Unlawful Dispossession of Japanese-Canadians During WWII @ericadams99 @UVicHistory

Eric M. Adams, University of Alberta Faculty of Law, and Jordan Stanger-Ross, University of Victoria, are publishing Promises of Law: The Unlawful Dispossession of Japanese Canadians in volume 54 of the Osgoode Hall Law Journal. Here is the abstract.

This article is about the origins, betrayal, and litigation of a promise of law. In 1942, while it ordered the internment of 21,457 Canadians of Japanese descent, the Canadian government enacted orders-in-council authorizing the Custodian of Enemy Property to seize all real and personal property owned by Japanese Canadians living within coastal British Columbia. Demands from the Japanese Canadian community and concern from within the corridors of government resulted in amendments to those orders which made clear that the Custodian held that property as a “protective” trust, and would return it to Japanese Canadians at the conclusion of the war. That is not what happened. In January 1943, a new order-in-council authorized the sale of all seized Japanese-Canadian-owned property. The trust abandoned, a promise broken, the Custodian sold everything it had taken. This article traces the promise to protect property from its origins in the federal bureaucracy and demands on the streets to its demise in Nakashima v Canada, the Exchequer Court decision holding that the legal promise carried no legal consequence. We argue that the failure of the promise should not obscure its history as a product of multi-vocal processes, community activism, conflicting wartime pressures, and competing conceptions of citizenship, legality, and justice. Drawing from a rich array of archival research, our article places the legacy of the property loss of Japanese Canadians at the disjuncture between law as a blunt instrument capable of gross injustice and its role as a social institution of good faith.

Download the essay from SSRN at the link.

Baker on Musings and Silences of Chief Justice William Osgood: Digest Marginalia About the Reception of Imperial Law

Blaine Baker, Mc Gill University, is publishing Musings and Silences of Chief Justice William Osgoode: Digest Marginalia about the Reception of Imperial Law in volume 54 of the Osgood Hall Law Journal. Here is the abstract.

This essay focuses on musings and silences in the margins of Canadian Chief Justice William Osgoode's late-eighteenth-century law library, to understand the role he assigned to Westminster-based imperial law in the transmission of 'British justice' to the colonies. It concludes that role was limited, mostly by Osgoode's greater commitment of time and energy to legislative and executive branches of government than to the judiciary, and by his sometimes cavalier impatience with English courts and legal commentators.

Download the essay from SSRN at the link.

DesBaillets on Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? @DDesBaillets

David DesBaillets, University of Quebec at Montreal (UQAM), Faculty of Law, has published Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? Here is the abstract.

When Canada celebrated the 800th anniversary of the Magna Carta in 2015, it did so in grand fashion. This event was marked by a nationwide tour, essay writing contests and countless speeches made by politicians, jurists and academics on its central place in the legal foundation of Canadian human rights, Constitutionalism, judiciary and representative democracy. As has been said enthusiastically by any number of Canadian legal historians “the Magna Carta…informs the legal system in English Canada, and the Canadian Charter of Rights and Freedoms.” However, a more critical lens is needed in order to better understand this document and the way in which it has shaped and continues to influence law, proceduralism and constitutionalism in Canada’s modern legal institutions. Starting from the premise that the ways in which justice is represented is often a reflection of the values that legal institutions aspire to represent, this paper demonstrates the power of Magna Carta as a legal symbol to legitimize and create a rights based discourse that portrays our current human rights paradigm as originating in an ancient historical and mystical common law past. In the first half, it looks at the semiotic, historical, anthropological and metaphorical uses of Magna Carta as well as in present day legal institutions and provides an overview of its specific relevance to the modern human rights narrative in Canada’s judiciary. The second half of this paper will re-examine these symbols with a critical lens in order to demonstrate the reality of Magna Carta as a human rights instrument without formal legal status. The significance of a foreign statute which has no direct bearing on Canadian human rights will be scrutinized in its, human rights law, criminal law, indigenous law and administrative law contexts. The primary sources of legal doctrine, jurisprudence, and constitutional interpretations involving Magna Carta as well, secondary sources of critical analysis will be used in attempt to demonstrate that the influence of Magna Carta, both historically and in contemporary discourses on human rights, can be seen as both positive and negative. Finally the paper will describe the paradox of the Magna Carta as both a source of proceduralism, on the one hand, and substantive rights and civil liberties, on the other, in the contentious Canadian debate between these two interrelated conceptions of human rights law as it relates to contemporary anti-terror legislation.

Download the article from SSRN at the link.

McNeil on the Relativity of de Jure Sovereignty in Canada, 1600-2016/La Relativité de la Souveraineté de Jure au Canada, 1600-2016

Kent McNeil, York University, Osgoode Hall Law School, has published La Relativité de la Souveraineté de Jure au Canada, 1600-2016 (The Relativity of de Jure Sovereignty in Canada, 1600-2016) as Osgoode Legal Studies Research Paper No. 40/2016. Here is the abstract.

French Abstract: Ce texte examine les affirmations européennes de souveraineté sur le territoire aujourd’hui connu sous le nom de Canada en établissant une distinction entre les notions de souveraineté de facto et de jure. La souveraineté de fait requiert l’exercice d’une autorité effective sur un territoire, tandis que la souveraineté de jure est un concept abstrait et relatif, puisqu’il dépend en fait du choix d’appliquer un système juridique plutôt qu'un autre. Ce choix est en essence normatif, car il fait intervenir une question de légitimité. À la lumière de ce qui précède, l’auteur conclut que bien que le Canada possède aujourd’hui la souveraineté de fait sur son territoire, la souveraineté de jure qu’il prétend détenir affiche en réalité un déficit de légitimité, dans la mesure où celle-ci n’est pas reconnue au sein des systèmes juridiques autochtones.

English Abstract: This paper examines European assertions of sovereignty in what is now Canada by distinguishing between de facto and de jure sovereignty. De facto sovereignty requires actual exercise of authority in a territory, whereas de jure sovereignty is an abstract concept that depends on the application of a specific legal system. De jure sovereignty is relative because, while it may be valid in one legal system, it is not necessarily valid in other legal systems. A choice of law question is therefore involved that raises an issue of legitimacy. The paper concludes that, although Canada has de facto sovereignty over its territory today, its claim to de jure sovereignty lacks legitimacy as long as it is not acknowledged by Indigenous legal systems.

Note: Downloadable document is available in French.

Download the article from SSRN at the link.

Schneiderman on Multiculturalism in Canadian Constitutional Culture

David Schneiderman, University of Toronto Faculty of Law, has published Multiculturalism in Canadian Constitutional Culture: Domesticating Difference. Here is the abstract.

If neither magic nor gods govern the public sphere, how should disagreement over fundamental values be mediated in secular states? Canada often is touted as a model for others to emulate in solving the problem of living together in divided societies, partly by reason of its policy on multiculturalism. This paper is a reflection on the origins and limits of this element of Canadian constitutional culture. Though Canadian constitutional culture accommodates difference rather well, it has discernible limits. By relying principally on liberal rights like freedom of religion, the Canadian model aims to domesticate difference. Multiculturalism, this paper argues, poses no real threat to dominant cultural values. Its aim, instead, is to tame and assimilate difference, a policy traceable to Canada’s origins in the eighteenth century.

Download the article from SSRN at the link.

Constitutional History and National Identity In Canada

Eric M. Adams, University of Alberta Faculty of Law, is publishing Canadian Constitutional Identities in volume 38 of the Dalhousie Law Journal. Here is the abstract.

Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms.

Download the text of the article from SSRN at the link.

Evaluating the Lougheed Era In Alberta, 1973-1993

Ted Morton, University of Calgary School of Public Policy, and Meredith McDonald have published The Siren Song of Economic Diversification: Alberta’s Legacy of Loss as SPP Research Paper No. 8-13. Here is the abstract.

Former Alberta premier Peter Lougheed is celebrated for his defence of the province and Western Canada during the energy wars of the 1970s, and deservedly so. Prime Minister Pierre Trudeau was a formidable opponent. He was able and willing to use the full arsenal of federal powers to redirect soaring western energy revenues away from Alberta to Ottawa. For those of us in Western Canada, it is unpleasant to imagine what the outcome of this struggle would have been if a lesser man than Peter Lougheed had been at Alberta’s helm. But there is another aspect of the Lougheed legacy that is less remembered because it is less celebrated — also deservedly so. These were Lougheed’s ambitious economic diversification projects. Between 1973 and 1993 (when Ralph Klein became premier), the Lougheed-Getty “forced-growth” economic diversification projects are conservatively estimated to have cost Albertans $2.2 billion. While former premier Don Getty got most the blame for these losses (as many occurred during his watch), most of these programs began earlier. Lougheed’s push for government-led diversification of the Alberta economy was a policy hallmark of his 1971 electoral breakthrough, and marked a sharp break from three decades of Social Credit laissez-faire policies.

The Lougheed-Getty diversification fiascos are of more than just historical interest. While the subsequent Progressive Conservative (PC) regime of Premier Ralph Klein (1993-2006) followed an explicit philosophy of “government is not in the business of business,” the more recent Stelmach (2006-11) and Redford (2011-14) governments have not.

Both have embraced government-sponsored “value-added” and diversification initiatives, including the North West Redwater Partnership upgrader and two new endowments to provide “funding for social and cultural innovation, and agricultural innovation.”

As Alberta’s fifth premier in the past nine years, Jim Prentice, takes the helm and tries to restore some stability to Alberta’s public finances, it merits revisiting the Lougheed-Getty experience for lessons learned. Our read of their record cautions against going down the same road again. While we identify several successes (e.g., Syncrude, Alberta Energy Company, and the ethane-based petrochemical industry), these were mostly in the hydrocarbon energy sector, and so contributed little to diversifying Alberta’s economy. Our analysis identifies the largest dollar losses (the “Dirty Dozen”), several of which suggest that failure to control costs is endemic to government-led projects. Last but not least, the sheer number and diversity of government-funded projects reflects an unhealthy culture of corporate cronyism. With billions of dollars sitting in the newly created Alberta Heritage Savings Trust Fund earmarked for “diversification” and “capital projects,” the temptation to spend became irresistible. The Heritage Fund, rather than serving its original purpose of a long-term “rainy-day account,” became a giant slush fund for ministers’ pet projects. The result is that, in real dollars, the Heritage Savings Trust Fund has a lower net worth in 2015 than it did in 1987.

By the time Klein won the leadership of the PCs in 1993, his predecessors had racked up over $23 billion in net debt. Klein is widely celebrated by some (and criticized by others) for the harsh budget cuts he made to eliminate the structural deficit he inherited. Less well known is that the Klein team also terminated almost all the Lougheed-Getty diversification and stimulus programs. In their stead, the Klein governments — under the leadership of treasurers Jim Dinning and Stockwell Day — pursued a diversification policy based on macroeconomics: making Alberta the most tax- competitive jurisdiction in Canada. This “build-it-and-they-will-come” approach was intended to attract both financial and human capital. This approach has enjoyed modest success thus far, as witnessed in the growth of the financial services sector and the relocation of many corporate head offices to Calgary. It is clearly a lower-risk path to sustained prosperity than the ill-fated, government-led “forced-growth” initiatives of the Lougheed-Getty era.

Download the paper from SSRN at the link.

The Royal Proclamation of 1763

Ghislain Otis, University of Ottawa, Civil Law Section, has published The Impact of the Royal Proclamation of 1763 on Quebec: Then and Now. Here is the abstract. 

The Royal Proclamation was the first imperial constitutional instrument in Canada that brought within its fold the indigenous people, the French people of Canada, and the British. For the first time in Canada the question of the fate of the French and the aboriginal peoples in British North America was posed. I want to frame my presentation within this foundational triangular or tripartite relationship, which was laid down in the Royal Proclamation and which substantially endures to this day, although it has very much evolved since then with the emergence of a strong multicultural dimension. In discussing the impact of the Proclamation on Quebec, I will of course be talking about its impact on the people that occupied the territory before the British took over and called it “The Province of Quebec” for the very first time in 1763. These people were the aboriginal peoples who occupied their traditional land and also some reserves created under the French regime and the French people of Canada who had been in the St-Lawrence Valley since the early 17th century. Of course, the territory of New France had been much larger than the tiny Province of Quebec created by the Proclamation but the majority of French settlers did live in that part of the territory claimed by France. I will first briefly canvass the impact of the Proclamation on the French people which has not yet been addressed in detail today. I will also touch on the impact of the Proclamation on the relationship between the French people and indigenous peoples. I will then move on to its impact on indigenous peoples. Since this aspect has been extensively covered by other speakers, I will only add a few additional comments.

Download the paper from SSRN at the link. 

The History of Riparian Rights In Anglo American Law

David Schorr, Tel Aviv University, Buchmann Faculty of Law, has published Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences. Here is the abstract. 

The development of the law of riparian rights in the Anglo-American world in the nineteenth century has been analyzed from several points of view, including economic property theory and Marxian legal history. Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development. Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.
This paper examines the crossed histories of English common law, French civil law, and American law in the jurisprudence of water rights in Lower Canada/Canada East/Quebec in the mid-nineteenth century, and the influence of this jurisprudence on the developing water law of the British Empire.

Download the paper from SSRN at the link. 

Blackstone's Influence On Quebec's Legal Regime

Michel Morin, University of Montreal, is publishing Blackstone and the Birth of Quebec's Legal Culture 1765-1867 in Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (Wilfrid Prest, ed.; Hart Publishing, forthcoming). Here is the abstract.

Blackstone’s commentaries were soon translated in French and became, prior to the French Revolution, the principal reference on British constitutional and criminal law. In Quebec, his work was known as early as 1767 and was used to buttress arguments for the preservation of French civil law. He was quoted in court proceedings and in a draft petition. In 1773, François-Joseph Cugnet sent documents concerning these issues to Blackstone, who forwarded them to the British Government. This probably convinced the ministry that the francophone population had no objection to English Criminal Law and to testamentary freedom. Thus, the Quebec Act of 1774 expressly preserved these parts of English Law, while restoring the laws in force prior to the Conquest concerning “Property and Civil Rights”. French versions of the Commentaries were available in Quebec as early as 1784. After the creation of an Assembly, politicians who opposed the Government and wanted to assimilate the provincial Assembly to the British House of Commons regularly quoted Blackstone. His Commentaries, which had benefitted from an improved translation by Chompré in 1822, remained a model for the first legal authors in Quebec. He clearly was part of Quebec’s legal culture and facilitated the understanding of arcane rules of English Law, both because of the clarity of his writings and of various translations of his work made in Europe.

Download the essay from SSRN at the link.