Early Charters Research Articles

The Prudent Parliament and Section 24(1)

The appeal of Attorney General of Canada v Power was heard by the Supreme Court of Canada on December 7, 2023. The case concerns the availability of damages under section 24(1) of the Charter for legislative action. In response, our paper argues: 1) the text of section 24(1) does not bar damages for unconstitutional legislation; 2) the history of section 24(1) points towards damages for legislative action; 3) unwritten constitutional principles suggest courts should treat different types of damages differently; 4) precedent suggests Crown liability for unconstitutional legislation should proceed on a negligence standard for some types of damages; and 5) meeting the standard of care for such negligence should require Parliament to obtain legal advice. In advancing these arguments, we reconsider early Charter scholarship on the value of private law concepts to the unique public law context of section 24(1) in light of more recent jurisprudence.

The source value of early charters of uncertain chronological status in historical linguistics and onomastics

AbstractThis paper explores the problem of the source value of charters from the point of view of research in linguistic history. Charters written in Latin often contain elements of the vulgar language (in this case, Hungarian). Only four authentic Hungarian charters have survived from the 11th century in their original form. Therefore, we have also included the non-authentic and non-original charters of the 11th century in our research over the recent decades.These charters may contain 4–5 chronological layers, and so our task is to separate them. Charters of uncertain status cannot be analysed using the same methodological principles as the authentic and original charters. This paper discusses the methodological principles that may facilitate the identification of the source value of these charters for historical linguistics. Although these principles are defined based on charters from Hungary, due to their universal nature a significant portion of them may also be used successfully in other regions of medieval European charter research.

The Fedderate Charter and its implications for the thirteenth-century social and economic landscapes of North-east Scotland

ABSTRACT The late twelfth–early thirteenth-century Fedderate Charter gives a unique view of aspects of the thirteenth-century landscape of North-east Scotland that is not available from other sources. It is a multi-purpose document shedding light on agricultural, economic and social change, landscape and place-name development, secular religious observance and routeways. The method employed to describe the boundary of the estate is also unusual and may relate to the size of the grant and customary methods of witnessing such events.

Reflecting back on the future of labour law

The future of Canadian labour law will not come by means of a sudden legislative tsunami that sweeps in broad-based sectoral collective bargaining or some other dramatic new system to replace the Wagner model which has governed since the 1940s. Instead, change will come first in the form of smaller foreshocks. Clues as to what those foreshocks may be are found in two important debates that took place during the 1980s. The first debate, led by Paul Weiler, explored comparative labour law and the intersection between the US and Canadian versions of the Wagner model. Weiler’s vision of a hybrid Wagner model that drew upon features of both versions to advance worker access to a collective voice at work is instructive of the direction we may be headed in Canada. The second debate related to the potential impact of the Canadian Charter of Rights and Freedoms on the future of Canadian labour law. David Beatty led the argument that the Charter would cause a conversation in Canada that would eventually lead to the dismantling of the Wagner model and its replacement with a new model that emphasized equality of individual liberty and that extended the reach of collective bargaining. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty’s normative vision for a post-Charter labour law. However, in important ways, Charter jurisprudence since 2001 may be catching up to that vision even if the Supreme Court has not often formally adopted his arguments. It is therefore important to revisit his ideas to find clues as to where we may be headed in labour law. The article concludes with some predictions about the changes that will come to Canadian labour law drawn from these debates of some forty years ago.

David Beatty's Redemption (And Other Thoughts on the Future of Labour Law)

The future of Canadian labor law won't come by means of a sudden legislative tsunami that sweeps in broad-based sectoral collective bargaining or some other dramatic new system to replace the Wagner model which has governed since the 1940s. Instead, change will come first in the form of smaller fore-shocks to the Wagner model and other periphery models of collective bargaining law. Clues as to what those fore-shocks might be may be found in two important debates that took place during the 1980s. The first debate, lead by Harvard's Paul Weiler, explored the question of how to restore collective bargaining in the U.S. when private sector union density had fallen to 15 percent, roughly Canada's level today. Weiler proposed a hybrid model that merged features of the two countries' labor laws as a means to restore collective voice in the US. The second debate related to the potential impact of the Charter of Rights and Freedoms on the future of Canadian Labor law. Professor Beatty led the argument that the Charter would cause a conversation in Canada that would eventually lead to the dismantling of the Wagner Model and its replacement with a new liberalized model that extended the reach of collective bargaining to corners of the economy it had not reached before, where many of the most precarious workers toil. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty's normative vision for a post-Charter labor law. However, in important ways, Charter jurisprudence has now caught up to Beatty's normative vision of a post-Charter labor law. It is therefore important to revisit his ideas to find clues as to where we may be headed in labor law. The paper concludes with some predictions about the changes that will soon come to Canadian labor law drawn from these debates of some 40 years ago. [An earlier version of this paper was entitled David Beatty's Redemption (And Other Thoughts on the Future of Labour Law]

Constitutional Law and Abortion in Saskatchewan:The Freedom of Informed Choice (Abortions) Act

AbstractThis paper reviews the history of Bill 53, theFreedom of Informed Choice (Abortions) Act. A private member’s bill introduced in the Saskatchewan Legislative Assembly in 1985, Bill 53 would have imposed additional consent requirements on women seeking abortions. After concerns about its constitutionality were raised, the Bill was referred to the Saskatchewan Court of Appeal, which found it fell outside provincial jurisdiction. This paper explores the connection between Bill 53 and its more well-known cousins, Morgentaler and Borowski, and examines judicial and political decision-making in the early Charter era.

Back to the Future of Canadian Labour Law

The invitation to present the H.D. Woods Lecture came with a proposed subject: the future of labor law. That future won't come by means of a sudden legislative tsunami that sweeps in broad-based sect-oral collective bargaining or some other dramatic new system to replace the Wagner Model which has governed since the 1940s. Instead, change will come first in the form of smaller fore-shocks. In this paper, which is the text of the 2019 H.D. Woods lecture, I argue that clues as to what those fore-shocks may be found can be found in important debates that took place during the 1980s. One of those debates examined comparative labor law and proposals to improve the Wagner Model of collective bargaining by merging features of the Canadian and U.S. versions of that model to create a hybrid model that would better facilitate access to collective voice. A second debate related to the potential impact of the Charter of Rights and Freedoms on the future of Canadian Labor law. David Beatty argued that the Charter would eventually lead to the dismantling of the Wagner Model and its replacement with a new model that extended the reach of collective bargaining to workers long excluded by the Wagner Model. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty's normative vision for a post-Charter labor law. However, in important ways, Charter jurisprudence since 2001 has slowly shifted the labor law agenda towards a landscape that shares much in common with that which Beatty envisioned long ago. The paper concludes with some predictions about the changes that will come to Canadian labor law drawn from these debates of some 40 years ago.

Subversive Acts: The Early Charters of the Borough of Beverley

Subversive Acts: The Early Charters of the Borough of Beverley

In the king’s shadow: Petitioner-donors of eighth–ninth century Pāla copper plate land grant charters

Six early copper plate charters of the Pāla dynasty of eastern India introduce petitioners requesting the reigning king to grant tax-free land to either a Buddhist monastery or a temple of Viṣṇu or Śiva established by them. The structure and content of such charters are similar to yet somewhat distinct from contemporary copper plates recording direct land grants made by the Pāla kings. By analysing the representation of petitioners in different segments of a copper plate inscription, the article shows that they are the primary donors seeking the king’s ratification of property transfers made by them. Consequently, in acknowledgement of their role in the donative act, the term petitioner-donors has been coined to refer to them. What enriches the group of Pāla petitioner-donors is the presence of both royal and private individuals, one of whom was the ruler of a Southeast Asian kingdom. On the basis of the profile of the six petitioner-donors, the article classifies them into three distinct categories, each of which registered its donative activity at a different locus within the Pāla domain. A comparative analysis of the eulogies (praśastis) of the petitioner-donors shows how the power balance was worked out between them, on the one hand, and the Pāla kings from Dharmapāla to Gopāla II, on the other, in the period between the late eighth century and the third quarter of the ninth century.

Fountains Abbey and the Acquisition of Bordley-In-Craven: Anglo-Scandinavians, Scots and Monastic Flocks

This article is based on material from the surviving manuscripts of Fountains Abbey. For reasons discussed below, this material was omitted from the only published version of early charters from th...

Writing on a Blank Slate: The Alberta Court of Appeal’s Early <i>Charter</i> Cases

This article describes several cases heard by the Alberta Court of Appeal during the first five years after the Charter was proclaimed. In doing so, it highlights the key contributions made by the Court of Appeal to early Charter interpretations. It further explores how the Alberta Court of Appeal’s Charter judgments were received by the Supreme Court of Canada. It outlines the contributions that these judgments made to foundational principles of Charter interpretation and ultimately concludes that the Alberta Court of Appeal had a significant role in shaping how the Charter was understood and applied.

The Charters of the Cinque Ports – Are They Still Needed?

The Cinque Ports were a collection of ports on the east coast of England which - from early times - were granted, by charter, a number of Crown prerogatives in return for providing a ship service to the Crown. The earliest charter still extant dates from 1278. However, there may have existed charters granted by sovereigns to some - or all - of the Cinque Ports going back to the time of Edward the Confessor (1042-66). The original Cinque Ports were the ports of Hastings, Dover, Sandwich, New Romney and Hythe. To these five ports were added - probably prior to 1210 - the towns of Winchelsea and Rye. And to these were later added corporate and non-corporate members (or limbs), being other smaller ports. The heyday of the Cinque Ports was in medieval times when they provided a vital navy for the protection of the realm. Today, the Cinque Ports, and their charters, still exist. However, the purpose of this article is to review the terms and meaning of these charters, in order to determine whether they are now obsolete and should be cancelled. That is the conclusion.

What's Sincerity Got to Do with It? Freedom of Religion in Canada

Recently, the Supreme Court of Canada (SCC) returned to the test of individual sincerity for determining whether there has been an infringement of freedom of religion pursuant to section 2(a) of the Canadian Charter of Rights and Freedoms (the Charter) in SL c Commission scolaire des Chênes. Sincerity of belief or in practice as necessary for religious expression on the part of a complainant has been accepted from some of the earliest Charter cases as the triggering requirement for a section 2(a) claim, and, in itself, sufficient to establish a claim which a court must then balance against conflicting claims pursuant to section 1 (‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’) or section 15 (equality rights). In SL, the court confirmed that mere sincerity is no longer sufficient and that an objective burden of proof now rests on a claimant to show how a state-sanctioned requirement infringes the fundamental right to freedom of religion before competing claims will be assessed. In SL, the court found that the complainants had failed to show how a religious education course mandated for all students without exception by the Government of Quebec interfered with what they argued was their religious freedom as Roman Catholic parents to pass on their faith to their children. This result has also been interpreted to mean that the state has a right prior to parental rights in the religious formation of their own children, and, on this reading, has been highly controversial. The court's new formulation of a sincerity test may be of interest elsewhere. The earlier formulation in Syndicat Northcrest v Anselem was adopted by the House of Lords in R (Williamson) v Secretary of State for Education and Employment, and the subsequent spread of its use has since been subject to consideration in England.

The Politics of the Charter: The Illusive Promise of Constitutional Rights (review)

Reviewed by: The Politics of the Charter: The Illusive Promise of Constitutional Rights Dennis Baker The Politics of the Charter: The Illusive Promise of Constitutional Rights by Andrew Petter. Toronto: University of Toronto Press, 2010, 256 pp. Cloth $65.00, paper $29.95. It is commonplace to attribute criticism of the Charter of Rights and Freedoms to an author’s displeasure with particular judicial outcomes; those on the political right, it is sometimes said, simply object to the progressive decisions made by the Supreme Court of Canada. Andrew Petter’s recent collection of essays cannot be so carelessly pigeonholed since it offers a stinging critique of the Charter that is largely process-based and from the left. Certainly Petter’s left-wing credentials cannot be doubted: his opening introduction includes a wistful reminiscence of boyhood summers spent at CCF picnics listening to Tommy Douglas and Robert Strachan. Petter’s critique of the Charter is not ideological—at least not in the programmatic sense—and he does not criticize the Court for failing to hew to a strictly leftist agenda. Rather, like some of the best scholarship on the Charter (Knopff and Morton 1992; Manfredi 2001), Petter is able to separate his political preferences from his institutional arguments convincingly. As someone who has been a legal scholar, partisan insider, and cabinet minister, Petter is ideally placed to judge the Charter’s impact on Canadian democracy. His understanding that the appropriate venue for political change is the legislature, not the courtroom, was clearly informed by his early experience as Saskatchewan premier Alan Blakeney’s speechwriter during the Patriation saga of the early 1980s. During his tussle with Trudeau, Blakeney argued that no social democrat “should voluntarily hand power from the political forum, where the policies of the majority find expression, to the judicial forum” (p. 6). Activists of Blakeney’s era typically viewed judges as elderly naysayers, largely out-of-step with popular opinion, and generally hostile to left-wing politics (something clearly evident when labour statutes were before the bench). Given this [End Page 133] background, why would any one expect judges to be the new vanguard of social justice? However, as Petter notes, the “alluring realm of rights” offered too tempting an escape from the “sordid world of politics” (p. 99); instead of protracted and messy fights to win the opinions of the public and their representatives, the judicial process could engender superior policies in a reasoned and principled fashion. While this vision would capture the imagination of many of his contemporaries, Petter saw the early Charter decisions of the Court as vividly demonstrating that the promise of constitutional rights—to deliver us from politics—was illusory and ultimately detrimental to our practice of self-government. The Politics of the Charter tracks Petter’s views over three decades, and the format of the book—a collection of previously published essays—carries both obvious drawbacks and unexpected benefits. The first half of the book consists of essays that are now very dated. For those keen on jurisprudential minutia, reading them can be an enjoyable trip down memory lane. Venerable “con law” classics like BC Motor Vehicles and Dolphin Delivery—case names that stand now as place-holders for the major premises and axioms they introduced—are subjected to in-depth and sustained critical scrutiny here. For those too young to remember them and for those who have forgotten the details, Petter’s close analysis of each case reveals how these decisions were hardly inevitable and, moreover, suggests that the Court got them wrong. Despite the tantalizing glimpse of a constitutional world lost, the general readership may find this historical expedition somewhat tedious and, more troublingly, they might be left confused about the current state of constitutional law (to his credit, Petter has updated the cases through endnotes in each chapter). The upside of the collected format is that one can easily trace the evolution of Petter’s thinking—itself a rewarding journey since Petter is such a thoughtful and open-minded observer. In short, the Younger Petter’s seeds of concern about the direction of early Charter jurisprudence grow into the Elder Petter’s skepticism of the Court’s place in...

The earls of Dunbar and the church in Lothian and the Merse

The Church in twelfthand thirteenth-century Scotland, as elsewhere in western Europe, was in a process of reform, focusing on the issues of spiritual independence and authority, and seeking to impose more exacting standards of order and of professionalism amongst the clergy at all levels. The major players were the popes, the bishops and the great religious houses, sometimes united, sometimes uneasy allies, at times at odds; while outwith the Church establishment, kings, magnates and lesser lords, and the parish clergy of the old order, held their ground on some issues, and came to terms on others, relinquishing powers and lands and rights and revenues where these could no longer be justifiably held or exploited. It is against this background of change and conflict, and also of accommodation, that the charters of the Dunbar earls as patrons and benefactors but also as litigants and parties to dispute should be placed. From the evidence available, some reconstruction of the links between the earls and the churches of their earldom in Lothian and the Merse in the twelfth and thirteenth centuries can be made. An early charter of the earls, the only surviving one of its kind in the Dunbar collection, relating to the foundation or re-foundation of the church of St Nicholas, Hume, records that Earl Gospatric endowed the church with one ploughgate, presumably for the glebe, and identified the toun of Hume and half of Gordon as its parish. It was a solemn affair, the earl’s son, Gospatric, who was to succeed him as earl, and his two other sons, Edward and Edgar, together with his wife giving their consent in the presence of Robert, bishop of St Andrews, Thor, the dean, Deldred or Aelred the priest and others. We can speculate only on the circumstances of the benefaction. The earl may have recently acquired Hume and may consequently have wished to demonstrate the power and prestige of his lordship. Alternatively, he may have been using the occasion to reinforce his existing lordship through the forging or re-

Early Maitrakas, Landgrant Charters and Regional State Formation in Early Medieval Gujarat

Early Maitrakas, Landgrant Charters and Regional State Formation in Early Medieval Gujarat

The Golden Anniversary of the Society of Protozoologists (1947‐1997)1

ABSTRACT The history of the Society of Protozoologists is traced from its birth, half a century ago, to the present time. Emphasis is placed on events of the formative years, since data from the scattered records and memories of those times need to be assembled in one place before they are entirely forgotten or “misremembered.” As is true in the establishment of any new association, the people involved are responsible for its later success. Thus tribute is especially paid to the original founding fathers and the early charter members who worked so hard and so unselfishly to assure the permanence—and long—lasting usefulness‐of their Society in a specialized branch of biology. An obvious value of a new scientific organization lies in its production of a scholarly journal. In the present case, such a publication was launched early, and it rapidly became known worldwide as a protozoological research outlet of the highest quality. The aims and goals of the founders seem to have been well met over the past 50 years, but the international Society of Protozoologists faces new challenges and obligations in the years ahead.

De origine Hospitalariorum Hierosolymitanorum—Vom klösterlichen Pilgerhospital zur internationalen Organisation

We are still not quite sure about the beginnings of the Order of the Knights of St John. There are thirteen years in which the possessions of the Hospice of Jerusalem increased enormously that we do not know much about. Up to now research on the origin of the Hospitallers of St John has been concerned primarily with two points of discussion. Firstly, the question as to whether the hospice of the Amalfitan abbey St Mary Latina is identical with the great Hospice of St John in Jerusalem. Secondly, the institutional development of the Hospice since its first papal privilege (1113). This paper raises the question of when and why this great and internationally organized Hospice of Jerusalem was founded, or rather when and why the dependent hospice of the abbey St Mary Latina was transformed into the independent Hospice of Jerusalem. By analysing early charters of western donations to the Hospice, we find that the creation of such a hospice was already planned during the great journey of Pope Urban II through France in the years 1095/1096. This means that is was planned at the same time as the conception of the First Crusade. The distribution of the first dependencies of the Hospice in the West, for example, proves this. It was intended to support the crusade, which was defined as an armed pilgrimage to liberate the Holy Sepulchre. In addition it was to facilitate, in this way, the Jerusalem pilgrimage generally. After the conquest of the Holy City in 1100, the Patriarch of Jerusalem, Daimbert of Pisa, carried out the papal plan.

The Houses of the Dandolo: A Family Compound in Medieval Venice

In the present paper an attempt is made to reconstruct the residential compound in medieval Venice of doge Enrico and doge Andrea Dandolo and their kin, using early notarial drafts, charters, and inventories of documents. The history that emerges is compared with theoretical explanations for the existence in the Middle Ages of such family compounds, explanations which-at least in this one instance-are found wanting.

Charters Earlier than 800 from French CollectionsChartae Latinae Antiquiores: Facsimile-Edition of the Latin Charters Prior to the Ninth Century, 13: France I.Albert Bruckner , Robert Marichal , Hartmut Atsma , Jean VezinChartae Latinae Antiquiores: Facsimile-Edition of the Latin Charters Prior to the Ninth Century, 14: France II.Hartmut Atsma , Jean VezinChartae Latinae Antiquiores: Facsimile-Edition of the Latin Charters Prior to

The volumes reviewed here Chartae Latinae antiquiores, volumes 13-19 contain the earliest surviving charters from French collections, in the provinces as well as Paris. The exacting method, sound scholarship, and full-scale facsimiles found on every page move the reader to awed admiration. In a few years the editors' technical introduction is due to appear; their commentary together with the splendid presentation of the documents should open a new era in Frankish diplomatics. The lion's share of the early royal charters Merovingian in volumes 1314, Carolingian in 15-16 comes from the Archives nationales, which obtained all of its early charters, private as well as royal, from the Monastery of St.-Denis. Volumes 17-19 contain exotic items from the Biblioth~que nationale and from several papyrus collections, including a Roman muster roll, a handwriting exercise, and many fragments of a scroll, originally approaching ten meters in length, from the municipal archives of sixth-century Ravenna. (For these special items, appropriate experts were called upon, such as Robert Marichal, a general editor of ChLA, for the Roman papyri and Jan-Olof Tjader for the papyri of Ravenna; and the format used by Hartmut Atsma and Jean Vezin sometimes yields to another.) Equally singular, in ChLA volumes 17-19, is a group of seventh-century payment lists from Tours, anticipating the estate documents of Carolingian times. The parchments had already been detected in an old Tours binding in the eighteenth century but had to endure many adventures before being first pub-