Tag Archives: Constitutions

Canada´s confederation at 150 years

Official banner Canada 150

With the summer approaching you can be busy enough to almost miss events such as centenary celebrations. Thus the celebration of 150 years Canadian confederation, a major step to Canada´s independence almost escaped my attention. Centenary celebrations should not stand in the way of other subjects, but I think this one is interesting enough for a post here. At the heart of this contributions are the main constitutional documents in Canadian history, both before and after 1867. It will be instructive to make a tour of the major online portals with historic and current constitutions.

Before and after 1867

The websites which bring us online versions of constitutions worldwide often restrict themselves to current versions, but happily there are exceptions. Some portals give primarily historical versions. The Archivio delle Costituzione Storiche (Università di Torino) gives for Canada only documents from 1871 to 1943, and only in English. The Digithèque MJP (Université Perpignan) gives a very generous selection of constitutional documents concerning Canada, a number of them located at this portal and other elsewhere. The wealth of information from Perpignan, including an overview of major facts in Canadian history, is such that it is helpful to have a direct link to its version of the 1867 act. Canada is absent among the German translations at Verfassungen der Welt, but the English version is present at its Anglophone counterpart, International Constitutional Law (Universität Bern). I could not find quickly any Canadian document in the Avalon Project (Yale Law School).

William F. Maton created the webpage Canadian Constitutional Documents, with first of all a consolidated version of the British North America Act 1867, followed by later constitutional documents up to 2001. Alas the Spanish page gives no Spanish translations of the texts, only a translation of the introductions and explanatory notes. The Constitutional Society offers only the English version of the 1867 act. Among the facsimiles at The Rise of Modern Constitutionalism, 1776-1849 there are simply no documents relating to Canada, which helps to create the false impression no such documents came into being before the mid-nineteenth century. The Constitution Finder (University of Richmond School of Law) contains for Canada seven documents (1867, 1982, 2011). In the Constitute Project of the University of Texas at Austin you will find only the current version of the Canadian1867 act. A Russian project for constitutions worldwide brings you Russian and French translations of the Canadian constitution (1867, 1982, 1989).

Logo Canadiana

I made this tour of websites for the history of constitutions because it appeared that the URL for Canada in the Making at the digital portal Canadiana was broken, and also for checking the other web addresses of constittutional portals. The English version of Verfassungen der Welt had moved to a new URL, and I had to update the page for digital libraries at Rechtshistorie where you can find a section with these portal sites. The Internet Archive saved the pages of Canada in the Making, evidently an educational resource which got skipped at Canadiana without a trace. It seems there has developed a paradox between its absence and the abundance of sister portals for Canadiana, a general portal for online resources, the Héritage/Heritage portal for archival collections, and Early Canadiana Online, to mention only the most important offsprings. If you search for the word constitution at Early Canadiana Online you will get nearly 3,000 results.

Canada in the Making featured not only Canadian constitutional history, but also sections on aboriginal treaties and relations, and on pioneers and immigrants. The very words used for these two sections can cause frowns, and you might guess they explain at least a part of its disappearance. The section on constitutional history starts its story in the seventeenth century, and makes it sufficiently clear that the 1867 act is surely a milestone, but decidedly not the only one in Canadian history.

For a concise introduction to Canada’s constitutional history the page of the online Canadian Encyclopedia on this subject and separate pages about the 1867 constitution and other major acts are most rewarding. Dutch readers will recognize in particular the role of unwritten conventions in Canadian law which closely resemble Dutch constitutional law.

Logo Then/Hier

One of the gateways to educational resources for Canadian history is the bilingual portal Then/Hier. You might expect some attention to the curent celebrations, but this portal shows no signs of them. Among the teaching resources is a section on constitutional history, and if this is not enough for your taste you might have a look at the generous selection of links at Then/Hier, both in Canada and elsewhere.

If you want to continue a search for digital resources you should have a look at the Canadian National Digital Heritage Index (CNDHI), a portal for searching digital collections. At its start the number of collections included was rather small, but now it seems the team behind CNDHI has put in a lot of effort to create a sensible covering of available digital collections. A simple search with the word constitution resulted in nearly 500 hits.

On my legal history portal I put on the digital archives page the CNDHI among the general resources concerning Canadian archives. The first section of this page leads you to general overviews and gateways to digital inventories and finding aids, the second section brings you to digital archival collections. The links for Canada should help you to pursue your own interests. In the final section you will find among specific tools, sites and societies of archivists also The Association of Canadian Archivists. Writing here about Canadian history has been for me a stimulus to continue to make my overviews of digital archives and libraries better tuned to the needs of legal historians. I can recommend visiting the Borealia blog for much more information about current research on early Canadian history.

A postscript

Some sessions at the upcoming conference Canada’s Legal Past: Future Directions in Canadain Legal History (Calgary, July 17-18, 2017) will deal with Canada’s constitutional history. The Law Society of Upper Canada will organize on September 27, 2017 at Toronto the symposium Lawyers and Canada at 150. The blog of the Osgoode Society for Canadian Legal History keeps you informed about scholarly events and publications.

Beyond the text

For me December 11, 2010 could have been a celebration day, the first anniversary of this blog. However, legal historians might remember there is another time measure in customary law, just a bit longer than one year. After a year and a day it is great to look back to the start of this blog. December 2009 saw a healthy start with a nice number of postings. I was not surprised that I could not maintain the stream of news I published in that month, but somehow I succeeded in posting at least a few items almost every month. This is far below the average number of blog items on other blogs, but this is also due to the start of www.rechtshistorie.nl.

Until now customary law has scarcely figured on this blog. For this posting I had in mind looking at the other end of the legal sphere. In the field of private law codifications tried to furnish among many other things more certainty than unwritten law and customs. Constitutions seem the very embodiment of guaranties for the rule of law in the public sphere. Searching for and editing old constitutions is a specific task for legal historians, but also lawyers searching for the present law have to be attentive to older versions of constitutions.

Many web guides for constitutional law point to websites presenting constitutions in force today. One of the best known sites with this aim is the Constitution Finder at the University of Richmond School of Law. This site has the advantage of not only containing links to (English versions of) constitutions, for some countries it even provides information about drafts or amendments. This website is maintained by law students. The list of National Constitutions of the Constitutional Society is of course impressive, and the gesture to create and indicate different formats is most welcome. I can sympathize with the makers of this site when I noticed that a rather large number of links does not function because of changed web addresses, a perennial concern for any webmaster. Relying on just one website is seldom possible and in fact not wise to do.

For Dutch history it is good to know that not only the constitution of 1848 is important, but also other versions to be found at the site for lawgiving in the Low Countries. The Institute for Dutch History in The Hague has digitized materials for the constitutions of 1815, and also the series of constitutions during the Batavian Republic (1796-1806) because one has also to be aware of the sources concerning the concept for the constitution of 1798. The Institute for Dutch History presents an online research guide for the Batavian-French period (1795-1813).

When comparing constitutions you have to cross national and linguistic frontiers. In my search for websites with constitutions it would not do to look only at texts in English. The German website Verfassungen der Welt is a portal to historical constitutions from Germany, Austria and Schweiz, and modern constitutions from Europe and worldwide in German translation. A project for international constitutional law at the University of Bern offers also overviews of the main event in constitutional history of the nations involved. The Archivio delle Costituzioni Storiche of the Dipertimento di Studi Giuridiche, Università di Torino, brings texts in English, French or Italian translation. The Université de Perpignan has a fine digithèque with many constitutions, often with their historical forerunners and useful weblinks, and also a nice list of major treaties. I have waited to mention The Rise of Modern Constitutionalism, 1776-1849,  a site with facsimiles of constitutions, because one can encounter more at this website only when you enter it from a subscribing library. This situation can help reminding you at least of the fact one cannot read and study constitutions in isolation. An example that has impressed me much is the creation and interpretation of the modern Japanese constitution which cannot be understood properly without bearing in mind the impact of the American constitution and American constitutional thought.

How can websites help you interpreting old constitutions, determining their ancestry and putting clauses and paragraphs into relief? The Liberty Library of Constitutional Classics is almost too famous. For Spanish history the site of the Biblioteca de Historia Constitucional Francisco Martínez Merina at the Universidad de Oviedo present a digital library with works on constitutional law, with also Spanish translations of foreign constitutions. I have to add here the Biblioteca Virtual Constitución 1812, a digital library which presents the Spanish constitution of 1812, and also the deliberations of the Córtes since 1810. Precious services are provided by the website for The Founders’ Constitution, a digitized and searchable version of the 1987 book by Philip B. Kurland and Ralph Lerner. The five volumes of their study contain a wealth of documents which are not only important for the history of the constitution of the United States of America. The site was created by the University of Chicago Press and the Liberty Fund which presents in its Online Library of Liberty also a substantial number of books concerning constitutional history.

Only comparing one constitution with another constitution is just the beginning. Its impact on legal institutions and legal life can be very different. Think only of the vast difference between a legal system in which laws can be reviewed in the light of a constitution, where a supreme court deals with law suits involving the constitution, and a legal system in countries with a constitution where this is not provided for in some way or another.  All this should not hold you from getting acquainted with or revisiting these online resources and make them useful for your research or your curiosity.