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Thursday, November 8, 2018

Gilding, "The Silent Framers of British North American Union: the Colonial Office and Canadian Confederation, 1851-67"

Note: currently open access

Ben Gilding of Cambridge University has published "The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67" in the Canadian Historical Review.


One hundred and fifty years after the creation of the “Dominion” of Canada, it is notable that historians have often downplayed the role of the British Colonial Office in initiating and guiding the process that brought about the union of the colonies of British North America. In the traditional narrative, the British government and Colonial Office were forced to accept the Quebec Resolutions drafted by North American representatives as a fait accompli. This view tends to exaggerate the importance of Confederation as a singular constitutional event, and it does not take into account the active pursuit, by numerous colonial administrators over the course of the years prior to Confederation, to organize some form of union of the British North American colonies and the considerable influence they exercised over the nature of the union created in 1867. This article examines the intentions of the various British colonial administrators and their visions for a federal or legislative model for the governance of the new Dominion. It argues that while the Colonial Office heavily favoured a strong legislative union, the British North America Act of 1867 was ultimately a product of compromise resulting in the strong ambiguities that gave rise to the later notion of a “compact theory.” These ambiguities were further reflected in the innovative designation of “Dominion” to the newly united provinces; however, this article warns that it is crucial that scholars are wary of anachronistically imposing Canada's eventual quasi-independent Dominion status upon the circumstances of 1867.

Cent cinquante ans après la création du « dominion » du Canada, on remarque que les historiens ont souvent minimisé le rôle du Colonial Office britannique dans l'enclenchement et l'orientation du processus qui a mené à l'union des colonies de l'Amérique du Nord britannique. Selon le récit traditionnel, le gouvernement britannique et le Colonial Office ont été forcés d'accepter comme un fait accompli les résolutions de Québec rédigées par des représentants nord-américains. Cette interprétation tend à exagérer l'importance de la Confédération en tant qu'événement constitutionnel singulier et elle ne tient pas compte du long travail en amont effectué par de nombreux administrateurs coloniaux, durant les années précédant la Confédération, pour trouver une forme quelconque d'union des colonies britanniques d'Amérique du Nord ni de l'influence considérable qu'ils ont exercée sur la nature de l'union créée en 1867. Le présent article traite des intentions des divers administrateurs coloniaux britanniques et de leurs visions du modèle de gouvernance fédéral ou législatif du nouveau dominion. L'auteur soutient que bien que le Colonial Office ait été hautement favorable à une solide union législative, l'Acte de l'Amérique du Nord britannique de 1867 a finalement été un compromis qui s'est soldé par d'importantes ambiguïtés qui ont plus tard donné naissance à la notion de « théorie du pacte fédératif ». Ces ambiguïtés se reflètent en outre dans l'appellation novatrice de « dominion » utilisée pour désigner les nouvelles provinces unies; l'auteur met toutefois en garde les chercheurs contre accoler au Canada de 1867 le statut de dominion quasi-indépendant, car ce serait un anachronisme.

CFP: Canadian Law and Society Midwinter Meeting, Winnipeg, Jan. 19-20 (deadline Nov. 27)


The midwinter meeting of the Canadian Law and Society Association will be held at the University of Manitoba Faculty of Law on January 19-20, 2019. The call for papers is here.The deadline for submission of proposals is November 27, 2018.

Le colloque d’hiver de l’Assocation canadienne Droit et Société se tiendra à la Faculté de droit de l’Université du Manitoba les 19 et 20 janvier 2019L’appel à communications est ici. La date limite de soumission est le 27 novembre 2018.

Wednesday, November 7, 2018

York University Job Posting in Law & Society: Socio-legal Studies, Indigeneity, and Indigenous Peoples

Position Information

Position Rank: Full Time Tenure Stream - Assistant/Associate/Full Professor
Discipline/Field: Law & Society: Socio-legal Studies, Indigeneity, and Indigenous Peoples
Home Faculty: Liberal Arts & Professional Studies
Home Department/Area/Division: Social Science
Affiliation/Union: YUFA
Position Start Date: July 1, 2019
Department of Social Science
The Law and Society Program in the Department of Social Science, Faculty of Liberal Arts &
Professional Studies invites applications for a professorial stream tenure-track appointment at
the rank of Assistant/Associate/Full Professor in the area of Socio-Legal Studies, Indigeneity,
and Indigenous Peoples to commence July 1, 2019. Information about the Law and Society
Program can be found here: Information about the affiliated
Graduate Program in Socio-Legal Studies can be found here: .
Required qualifications include a completed PhD (or near completion) with specialization in
Socio-Legal Studies, Law, Indigenous Studies or a relevant related field. This position is open to
candidates from all areas of expertise, with preference for expertise in Indigenous Peoples and
law (Canadian focus); law, social justice and Indigenous knowledge; arts, culture and social
change, and/or socio-legal history. Candidates must demonstrate excellence or promise of
excellence in scholarly research, teaching and service as well as demonstrate a willingness to
take a leadership role in program/curricular innovation. Candidates are expected to have
produced publications relevant to the field of Law and Society appropriate to their stage of
career. The position will involve undergraduate teaching as well as graduate teaching and
supervision. Pedagogical innovation in high priority areas such as experiential education and
technology enhanced learning is preferred. Candidates must demonstrate engagement with
Indigenous communities in their research and teaching with knowledge of indigenous
methodologies and pedagogies. The successful candidate will be expected to teach
interdisciplinary courses in their own areas of expertise as well as core courses in the Law and
Society Program. The successful candidate must be eligible for prompt appointment to the
Faculty of Graduate Studies.
York University acknowledges its presence on the traditional territory of many Indigenous
Nations. The area known as Tkaronto has been care taken by the Anishinabek Nation, the
Haudenosaunee Confederacy, the Huron-Wendat, and the Métis. It is now home to many
Indigenous Peoples. We acknowledge the current treaty holders, the Mississaugas of the New
Credit First Nation. This territory is subject of the Dish With One Spoon Wampum Belt
Covenant, an agreement to peaceably share and care for the Great Lakes region. York

University supports Indigenous research and education through its Indigenous Framework for
York University, the Centre for Aboriginal Student Services, the York Aboriginal Council, and
Skennen'kó:wa Gamig, or the House of Great Peace, a space for Indigenous faculty, staff, and
students. York is committed to fostering understanding of, respect for and connections with
Indigenous communities; and the University is working to support the recruitment and success
of Indigenous undergraduate and graduate students, the integration of Indigenous cultures,
approaches and perspectives into curricular offerings and research, collaboration with
indigenous communities, and recruitment and retention of Indigenous faculty and staff.
This selection will be limited to Aboriginal (Indigenous) peoples. York University values diversity
and encourages candidates from Aboriginal (Indigenous) communities to self-identify as a
member of one or more of the four designated groups: Aboriginal (Indigenous) Peoples,
women, visible minorities (members of racialized groups) and persons with disabilities.
Qualified candidates are encouraged to apply; however, Canadian citizens, Permanent

Residents and Indigenous peoples in Canada will be given priority. Applicants wishing to self-
identify can do so by downloading, completing and submitting the forms found at: . Please select the "Affirmative Action" tab under which forms
pertaining to Citizenship and Affirmative Action can be found.

Applicants should submit a signed letter of application outlining their professional experience
and research interests, an up-to-date curriculum vitae, a sample of their scholarly work, a
teaching dossier, and arrange for three signed confidential letters of recommendation to be
sent to: Professor Amanda Glasbeek, Chair, Department of Social Science, S754 Ross Building,
York University, 4700 Keele St., Toronto, Ontario, Canada, M3J 1P3. Email:
(subject line "LASO appt").

The deadline for receipt of completed applications has been extended to January 12, 2019.
Salary will be commensurate with qualifications and experience. All York University positions
are subject to budgetary approval.
Posting End Date: January 12, 2019

Monday, November 5, 2018

4th Evening of Legal History, Nov. 19: Heidi Bohaker speaking on Canada by Treaty: Indigenous Legal Traditions and the Common Law of Property in the Agreements that Shaped a Country

Join us for our fourth evening session of Legal History for Legal Professionals. 
On November 19th Professor Heidi Bohaker will present the fourth lecture in our lecture series (5:30 at Osgoode Hall, Toronto)
Canada by Treaty: Indigenous Legal Traditions and the Common Law of Property in the Agreements that Shaped a Country

A central fact of the Canadian historical experience is that the French and subsequently British colonization of Indigenous lands was effectively peaceful, and accomplished through treaties, at least for the 50% of the Canadian land mass covered by those agreements prior to 1923. While the colony of New France was conquered militarily and ceded to Great Britain by the 1763 Treaty of Paris, there was no military conquest of France’s Indigenous allies, not then, and not really at any subsequent point.

Indeed, The Royal Proclamation of 1763, which was the first British constitution for the former French colony of Quebec, recognized Indigenous title to and jurisdiction over their own lands, and laid out the rules by which subsequent generations of British settlers would acquire it.  The Proclamation forbade any private person from acquiring title to any land, limiting such purchases from the “several Nations or Tribes of Indians with whom We are connected” only to the Crown, and only at “some public Meeting or Assembly” that was convened by “the Governor or Commander in Chief.” In other words, such purchases of land were to be undertaken at the level of government to government, or nation-to-nation. And many such purchases were made beginning in 1768 – each purchase called a treaty. While the text of the documents are standard British title deeds, the associated council minutes reveal different legal traditions at work – the creation and renewal of alliance relationships according to Haudeonsaunee and Anishinaabeg customary law.

Examination of treaties negotiated between 1768 and 1862 for lands in North America’s eastern Great Lakes Region (including what is now Ontario) reveals the enduring presence of Indigenous legal traditions in such “purchase” agreements, where one party sought to acquire title, and the other to affirm or renew an alliance relationship.

This essential historic and cross-cultural context is crucial to making sense of contemporary treaty litigation and ongoing challenges in Indigenous-Crown relationships across Canada today.

* approval pending for 40 minutes EDI Professionalism Credit from the Law Society for Ontario.

This lecture is for Osgoode Society members only
Join or rejoin the at

PHONE AT 416-947-3321 OR E-MAIL

Please renew your membership for 2018 if you haven't already done so, or join now for the first time.

Membership brings many benefits: 
  • 2018 members book, which will be A History of Law in Canada Volume I: 1500 to 1866 by Philip Girard, Jim Phillips, and Blake Brown
  • Lectures and Events
  • Quarterly newsletter with information on the Osgoode Society and Canadian legal history.

Wednesday, October 31, 2018

Osgoode Society one of 20 recipients of LFO Catalyst grants!

Thank you so much to the Law Foundation of Ontario for awarding a three-year Catalyst grant to the Osgoode Society for Canadian Legal History! The core funding we receive will go to support our work recording oral histories, and scholarly research and publishing by graduate students, historians, lawyers, judges, and other scholars interested in the legal past(s) of our country.

It is an honour to be selected, and particularly so in the company of such admirable and inspiring organizations.

The Law Foundation has helped fund our work for a number of years, and we are delighted that they continue to recognize the Osgoode Society's contribution to the critical understanding of law as a profound force in our society, one which is complicated, always changing and contested, and which should never be assumed or taken for granted. We are grateful that the Foundation appreciates the importance of history in fostering a commitment to access to justice. Thank you again, LFO!

Tuesday, October 30, 2018

Cavanagh, "The Imperial Constitution of the Law Officers of the Crown: Legal Thought on War and Colonial Government, 1719–1774"

Edward Cavanagh has published  "The Imperial Constitution of the Law Officers of the Crown: Legal Thought on War and Colonial Government, 1719–1774" in the Journal of Imperial and Commonwealth History;

The rule of conquest came to receive different applications for different parts of the British Empire. How this happened, and who was responsible for it happening, are the interests of this article. Calling upon court reports, parliamentary records, and correspondence between various officeholders in the early Hanoverian government, attention will be drawn in particular to the attorney general and the solicitor general (the law officers of the crown) and the advice they offered upon the governance of colonies between 1719 and 1774. Focusing upon the conventions that pertain to war and conquest in Ireland, the Caribbean, India, and North America, this article reveals inconsistency in doctrine, but consistency in the procedures by which law officers of the crown acquired influence over proceedings in the houses of parliament and in the courts of common law and equity. Just as often in their formal capacities as in their informal capacities, the attorney general and the solicitor general were pivotal to the development of the imperial constitution, in constant response, as they were, to the peculiar demands of various colonies and plantations in the British Empire.

Monday, October 29, 2018

CFP: Second Postgraduate Conference in Comparative Legal History, 27–29 June 2019, Augsburg University, Germany

Second Postgraduate Conference in Comparative Legal History 27–29 June 2019, Augsburg University, Germany 

Call for Papers

The European Society for Comparative Legal History (ESCLH) is pleased to announce its Second Postgraduate Conference. The ESCLH invites PhD-students (beyond their first year) and post-doctoral-researchers who work in the field of comparative legal history to participate in the conference. The conference will be held from 27 to 29 June 2019 at Augsburg University, Germany.

The ESCHL wants to overcome the narrow nationalism and geographical segregation of legal history in contemporary European scholarship and professional organisations. The society, thus, aims to promote comparative legal history, the explicit comparison of legal ideas and institutions in two or more legal traditions.

The Second Postgraduate Conference of the ESCLH will give advanced PhD-students and post-doc- toral-researchers the opportunity to present their research in the field of comparative legal history to a panel of six leading experts. Furthermore, the conference will give all participants the opportunity to build academic networks. The experts on the panel cover a broad range of subjects: Ulrike Babusiaux (Zürich), Mia Korpiola (Turku), Annamaria Monti (Milano), Wim Decock (Leuven), Matthew Dyson (Oxford), and Aniceto Masferrer (Valencia).

The ESCLH invites advanced doctoral candidates and post-doctoral researchers to submit abstracts for presentation. The abstract should be of no more than 300 words and give the title of your research project, your field of research, and your personal data (full name, email address, affiliated university, CV) to:

The conference language is English and abstracts must be submitted in English. The closing date for receipt of abstracts is 15 January 2019. 12 applicants will be selected and invited to participate in the conference. Successful applicants will be informed by 15 February 2019.

Participants are expected to cover their own travel expenses. Accommodation and catering will be provided without charge.