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Magna Carta and Its Gift to Canada: An excerpt

Thursday, Aug 06, 2015 at 5:21pm

This year marks the 800th anniversary of the Magna Carta, one of history's most important documents and one that set the groundwork for many concepts that continue to define democratic life today. To commemorate this anniversary, and to spread knowledge of the Magna Carta's impact on the world, the document is being toured across Canada over the course of 2015.

Between August 15th and September 18th, 2015, the Magna Carta will be in Winnipeg at the Canadian Museum for Human Rights.

Along with the exhibition, Magna Carta expert and author Carolyn Harris will be in town for events at the Museum, as well as a discussion and signing of her book, Magna Carta and Its Gifts to Canada: Democracy, Law, and Human Rights, at our store on Friday, August 14th.

For a preview of Magna Carta and Its Gifts to Canada, look after the jump. The book is available now in our Canadian History section for $24.99 -- and don't forget to mark the August 14th discussion and signing on your calendar!

 


 


An excerpt from Magna Carta and Its Gifts to Canada
, taken from Part 4 of the book: Magna Carta Abroad.

MAGNA CARTA AND CANADA’S CONFEDERATION IN 1867

English Canada shares the political and legal inheritance of the rest of the English-speaking world, and Magna Carta influenced the terms of Canada’s Confederation in 1867. The political and cultural environment of the nineteenth century meant that Magna Carta assumed a different legal and political significance in Canada than it did in the United States. The inhabitants of the thirteen colonies took specific clauses of Magna Carta literally according to the interpretations provided by Coke in the Institutes of the Lawes of England and the Petition of Right, particularly with regard to property law and individual rights. In contrast, Canadians came to view the Magna Carta as a foundation document for their system of parliamentary democracy and common law modelled on British political and legal institutions: the beginning of “the rule of law” tradition where everyone, even the monarch, became subject to the laws of the land.

By the time of Canada’s Confederation in 1867, the differences between British and American interpretations of Magna Carta had become even more pronounced than it had been at the time of the American Revolution in the late eighteenth century. In the nineteenth-century United Kingdom (the official name for Great Britain and Ireland once their parliaments united in 1801), Parliament served as the guarantor of individual rights. The first Statute Laws Revision Act of 1856 began the process of removing “obsolete” legislation from the British statute books. Subsequent acts in 1861 and 1863 continued the process of removing centuries-old legislation from British statute books. The 1863 legislation repealed seventeen clauses from the 1225 version of Magna Carta issued by Henry III when he achieved his majority.

The British parliament’s gradual removal of Magna Carta from the formal statute books attracted controversy. Members of Parliament argued that Magna Carta and other “stones in the edifice of the constitution” should be exempt from statute reform.13 Changes to forest law, guaranteed previously by Magna Carta and the Charter of the Forest, provoked opposition in the New Forest, which still maintained its own forest courts. Prominent cultural and political figures expressed concern that Magna Carta might be entering another period of obscurity as attempts to keep the individual clauses of the charter on British statute books were unsuccessful.

The private secondary schools and universities that trained the British Empire’s future civil servants focused on classical learning rather than modern history and politics, a curriculum that was criticized by one of Canada’s future governors general, John Campbell, Marquis of Lorne, who was educated at Eton, St. Andrews, and Cambridge. The poet Lord Byron satirized this emphasis on the classics in his 1806 verse, “Thoughts Suggested by a College Examination,” writing, “Though marvelling at the name of Magna Carta / Yet well he recollects the laws of Sparta.” Byron went on to complain in his poem that commentaries on Magna Carta gathered dust on the bookshelves of students while they studied classical Greece and Rome. Portrayals of Magna Carta in nineteenth-century popular culture focused on the perceived philosophy of the charter as a foundation document for British liberties rather than the individual clauses. This cultural climate would inform Magna Carta’s significance for Canadians.

In contrast to the pace of developments in the United States because of the American Revolution, the process of self-government in Canada was a gradual one, undertaken in co-operation with the United Kingdom. The Province of Canada, consisting of parts of modern Ontario and Quebec, received a degree of autonomy in 1841, achieving Confederation with two of the Maritime Provinces in 1867. Canada did not receive control over its foreign policy until the Statute of Westminster created a separate Canadian crown in 1931. The Constitution was patriated in 1982, completing the process of sovereignty. The development of common law in English Canada followed the British model.

In 1867, the new Dominion of Canada became a constitutional monarchy with Queen Victoria as sovereign. Canada’s first prime minister, John A. Macdonald, explained at the Quebec Conference of 1864, “The best interest and present and future prosperity of British North America will be promoted by a Federal union under the Crown of Great Britain, provided such union can be affected on principles just to the several provinces.” The queen played an active role in Confederation, meeting in Britain with future prime minister John A. Macdonald and other Fathers of Confederation. The queen’s support for Canada’s self-government helped Macdonald bring together the four original provinces (Ontario, Quebec, New Brunswick, and Nova Scotia), which had very different economic and political interests at the time of Confederation.

Canada’s system of government reflected the influence of Magna Carta, the Six Statutes, the Petition of Right, and the Bill of Rights, which had developed England’s political system into the modern constitutional monarchy. The monarchy served as a unifying force for the new nation whose population included a sizable population of descendants of American loyalists who had immigrated to British North America at the time of the American Revolution. The Royal Proclamation and Quebec Act established the Crown as a guarantor of the rights of minorities within the larger representative government, a perception of the monarchy that lasted in Quebec until the Quiet Revolution of the 1960s. John A. Macdonald’s biographer, Richard Gwyn, observed that nineteenth-century Canadians celebrated their loyalty to the crown as a key cultural attribute that differentiated them from Americans.

The potency of the ethic of loyalty, conjoining as it did an earthly sovereign with a heavenly one and a rule of law, was overwhelming. It made Canadians proud to be who they were (and not to be Americans) but ebulliently, braggartly proud. There was not the least shyness about Canada’s loyalty. Flags were waved, songs were sung and public figures competed in their expressions of devotion to Crown and Queen.

At the same time, royalty who visited Canada in the second half of the nineteenth century were warned not to expect undue deference because Canadians were a democratic people.

The Constitution Act, passed on July 1, 1867 (known as the British North America Act before 1982), established the modern division of powers between the federal government and the provinces that exists to the present day, combining the British parliamentary framework with a federal system of government. The act absorbed the legislative documents that shaped the development of the British government, including Magna Carta, the Petition of Right, the Bill of Rights, and the 1701 Act of Settlement, which governed succession to the throne until the 2013 succession reforms, as unwritten “conventions of the constitution.” Within this framework, Canadians came to regard Magna Carta as the earliest legislative document that shapes modern Canadian politics and law. The Ontario provincial government’s website states that its structure dates from Magna Carta. In 1941, future prime minister Lester B. Pearson declared that he was proud to be Canadian and part of a nation with a development that stretched from “Magna Carta to the Sirois Commission.”15 Magna Carta came to represent Canada’s political and legal origins and would inform the Charter of Rights and Freedoms in the twentieth century.

Reprinted with Permission from Dundurn Press. © 2015 Carolyn Harris.

Categories: Winnipeg, History

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