Thursday, February 27, 2014

Morin, "The Discovery and Assimilation of British Constitutional Law Principles in Quebec, 1764-1774," and More

Michel Morin (University of Montreal) has posted three new essays on SSRN.

"The Discovery and Assimilation of British Constitutional Law Principles in Quebec, 1764-1774" appears in Volume 36 of the Dalhousie Law Journal (2013). Here's the abstract:
This paper examines information available to Francophone persons regarding their rights as British subjects prior to the adoption of the 1774 Quebec Act, as well as the use they made of these concepts. The bilingual Quebec Gazette reported on legal developments in France, England, and the American colonies, including challenges to the traditional vision of governmental authority. It discussed the right to be taxed by elected representatives and the conflicts between the metropolis and the colonies. Debates about these issues are thought to have appeared in Quebec only after the beginning of the American Revolution, but they circulated earlier. Educated members of the Francophone elite sought more specific information about the new legal system. Many of them were eager to obtain an Assembly, if Catholics could sit in it. This was considered one of their rights as British subjects, together with the continuation of property rights guaranteed by the Capitulation of 1760 and, by extension, inheritance and matrimonial laws. In the end, requests for an assembly were shelved in order to obtain religious equality. Thus, British officials were free to declare that Canadians had no interest in such an institution, creating a lasting and misleading impression.
"Blackstone and the Birth of Quebec's Legal Culture 1765-1867" will appear in Re-Interpreting Blackstone's Commentaries A Seminal Text in National and International Contexts, edited by Wilfrid Prest (Hart Publishing, 2014 Forthcoming). 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 law”. 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.
"Fraternité, Souveraineté Et Autonomie Des Autochtones En Nouvelle-France" (Fraternity, Sovereignty and Autonomy of Aboriginal Peoples in New France) appears in Volume 43 of Revue générale de droit (2013). The English language Abstract:
During the 17th and 18th centuries, the legal principles which formed the framework for relationships between the Algonquians peoples of the Saint-Lawrence Valley and the French were generally well understood by both parties. Founded initially on the concepts of friendship, alliance or fraternity, they assumed the existence of independent nations which had their own decisional systems and customs, as well as local or regional chiefs enjoying strong authority in practice. From 1628 to 1663, only new converts were granted the status of subject of the French king; from 1664 to 1674, only their descendents qualified. Afterward, the situation was ambiguous. However, Christian communities living close to the French cities enjoyed a wide autonomy and seldom renounced it. They were sometimes called children of the king, because they unconditionally supported him at the military level. During the second half of the 17th century, nations which had not become Christian also bestowed paternal status on the French king, but this socio-economic dependency did not call into question their independence, something the French understood very well.

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