An Odyssey or a Contract: Conquests, Cessions, Constitutions and History

Peter H. Russell’s Canada’s Odyssey is a sweeping reconsideration of the foundations of Canada’s constitutional order that has garnered considerable attention and praise. This essay is the first in a three-part series assessing the book’s significance.

Elizabeth Mancke

Upon first inspection of Canada’s Odyssey: A Country Based on Incomplete Conquests, I recoiled. The main title seemed pitch perfect, the subtitle screams like sirens at a symphony. This subtitle and its various iterations within the book is the primary flaw of Canada’s Odyssey, an otherwise strong and needed addition to the national conversation about the country’s constitution, and a prequel of sorts to Peter H. Russell’s earlier book, Constitutional Odyssey: Can Canadians Become a Sovereign People? After that book’s third edition in 2004, Russell began to realize that Canada’s constitutional history needed to be expanded to include sections on Indigenous and French Canadian constitutional rights. Canada, Russell now argues, is built on three constitutional pillars, one Indigenous, one French Canadian, one British Canadian, and its constitutional history begins not with Confederation and the 1867 Constitution Act – formerly known as the British North America Act – but a century earlier. Canada’s Odyssey thus begins in the 1760s, with the British conquest of Canada in 1759 and 1760, the French cession of Canada, Cape Breton, and Ile St. Jean to the British through the Treaty of Paris in February 1763, and the Royal Proclamation in October 1763.

With that chronological shift from the 1860s to the 1760s, Russell makes a subtle, yet powerful, statement about history and constitutions. Constitutions are an odyssey across time and space, an ongoing journey with no clear starting point and no end, a journey with critical points of reorientation and additions of fellow travelers. By shifting from 1867 and Confederation as a starting point for understanding Canada’s constitutional development, a moment in time complete with the production of a document that can be interpreted as a Constitution, Russell is moving away from the widespread idea that constitutions begin as written documents, as social contracts, that define the distribution and exercise of power within a polity. Russell recognizes this distinction with a note stating that he uses Constitution, upper case, to reference the written text, and constitution, lower case, to signal “the informal practices, conventions, judicial decisions, laws, and treaties that regulate how a country is governed and that form its constitutional system. Britain has a constitution, not a Constitution” (p. 454, Ch. 1, n.2). The US Constitution, written in 1787 and ratified in 1788, is a written Constitution.

In shifting his analysis from Constitution to constitution, Russell reorients his analysis of Canada’s constitutional history to an accretion of agreements, concessions, acknowledgements of rights and privileges, documentable understandings about the distribution and limits on the exercise of power. That constitutional odyssey, as it were, resulted in the accumulation of critical documents, including the Proclamation of 1763, the Quebec Act of 1774, British constitutional legacies such as the writ of habeas corpus, North American adaptations, such as the workings of provincial assemblies, as well as major pieces of constitutional legislation. In this understanding of constitutional developments, the 1867 Constitution Act was both a new federal arrangement and an agreement between the British Empire and British North Americans that their constitutional odysseys will henceforth be travelling on different routes.

So why is the subtitle of this fine book so jarring – indeed so at odds with the argument of the book? The idea of an unfinished conquest is troublesome in multiple ways. First, the use of the term “incomplete conquest” by a political scientist and in the context of constitutionalism might be interpreted as an invitation to put assimilative pressures on a country’s minorities in the name of constitutional improvement, to tidy up constitutional rights and protections predating or deriving from a conquest. Ironically, Russell argues the opposite, and indeed it seems he might have been compelled to write Canada’s Odyssey almost as a corrective to the constitutional pressures that the Canadian government applied to Quebec and Indigenous Peoples in the post-Second World War era. Pierre Trudeau’s government, for example, pressured those groups to give up their distinct societies and constitutional relationships to English-speaking Canada. Second, and relatedly, “incomplete conquest” does not apply to Indigenous Peoples in Canada. Russell notes that “the language of conquest – complete or incomplete – is even more of a stretch” when applied to Indigenous Peoples (p. 4). Then why use it when Canada has a disturbing legacy of what the “completion” of a seeming “incomplete conquest” entails?

Beginning in 1755 and continuing into 1762, British and New England troops “completed” the 1710 conquest of Acadia by deporting any Acadians they could capture, four decades after the Treaty of Utrecht in 1713. The Nova Scotia Assembly underscored that “completed conquest” when it passed legislation in 1758 prohibiting Catholics from owning real property in the province, and then more legislation in 1759 making it illegal for Acadians to try to reclaim their land through filing suits in the courts. The Union of the Canadas, legislated by Parliament in Westminster in 1840 and enacted in North America in 1841, was another attempt to complete the conquest of French Canada eight decades on. Meanwhile, the Indigenous Peoples of Canada were never conquered by the settler society, but Canadians dispossessed them of much of their land base and attempted to force their assimilation into mainstream Canadian society through the residential school system, as though they were the recalcitrant conquered. These legacies are sobering reminders of the dangers of invoking incomplete conquests.

Russell has an idea that a complete conquest involves the wholesale stripping of a conquered people’s culture, including their civic practices, maybe their property, perhaps including a dislocation. That complete conquest would also involve a significant scrubbing of their historically grounded rights. In this respect, Russell is captive to the simplistic idea that “the victors write history,” as well as to the legacy of American history in which “conquests” were construed as giving the “victors” the right to strip the “conquered” of rights, property, and homelands. At the end of the War for Independence, for example, the US government tried to assert that because Indigenous nations had tended to side with the British rather than the Americans, they had been defeated and had to relinquish their lands and relocate west of the Mississippi River. That assertion, which the US federal government found difficult to impose, reflected an idea of an unconditional conquest, a particular definition of a complete rather than incomplete conquest, one in which the victor imposed terms that allow it to violate the rights of peoples deemed to be the “conquered.”

That idea of conquest, however, was not the only operational one in the world. For example, in England, or the Ottoman or Mughal Empires, it was not unusual for conquered peoples to carry protected rights and privileges into post-conquest governing arrangements. Indeed, the continuance of common law in England, rather than the use of civil law derived from Roman law as in much of the rest of Europe, is thought by some legal scholars to be a concession from the post-1066 Norman invaders. In the wake of the French surrender at Quebec in 1759 and Montreal in 1760, the British began crafting a different kind of conquest than they had imposed on Acadians in the previous five years. The capitulation agreement that French and British officers negotiated with the surrender of Montreal in 1760 included protections for Canadiens. The Proclamation of 1763 addressed the governing and administrative arrangements for the American territories ceded by the French to the British in the Treaty of Paris, particularly for Indigenous Peoples. Between 1763 and the passage of the Quebec Act in 1774, British governors in Quebec made further accommodations of French rights, such as the maintenance of the Custom of Paris regulating property rights. With the arrival of the Loyalists in 1783, losers in the American Revolution, additional accommodations to the challenges of post-war governance were enacted.

Conquest in these instances did not necessarily strip people of constitutionally protected rights; rather, conquest could impose constitutional responsibilities on the victors. Not only did the existing rights of the conquered need to be recognized, but the victors could only honour those rights by knowing the history of the conquered, because their constitutions were embedded in their histories. When conquests carry constitutional rights for the conquered and constitutional responsibilities for the victors, then enacting a Constitution, a social contract, becomes difficult, because the past and its embedded legacies are alive. Russell, moreover, shows he is aware of this distinction, and the understanding that conquest can carry responsibilities.

In the conclusion to Canada’s Odyssey, Russell notes that in the post-Second World War era, Canadians were instrumental in establishing the United Nations and drafting the Declaration of Human Rights. That war may have been noteworthy for the unconditional surrenders the Allies demanded of the Germans and the Japanese, but they immediately complicated those surrenders by affirming universal human rights and the responsibility to uphold them.

There is no incomplete conquest in Canada’s constitutional odyssey and Canada’s constitution cannot be separated from its history without risking the violation of the constitutional rights and protections of the less powerful. Significantly, Constitutions as social contracts are more subject to elite manipulation because they can be treated as a kind of constitutional conquest, an obliteration of past constitutional rights, protections, and responsibilities, all in the name of extending constitutional rights. In contrast, constitutions as odysseys are more difficult to hijack. Indeed, the Quebecois and Indigenous Peoples used their historic constitutional rights and protections to challenge the late 20th-century attempts to replace them with conquest by Constitution.

In Canada’s Odyssey, Peter Russell shows a different configuration of conquest, cession, and constitutions, one in which conquest imposed constitutional responsibilities. Historians should heed its message because in many ways it is an eloquent defense of the relevance of history to human rights. Constitutions as odysseys can provide long-term protections of rights that are as good, if not better, than the protections that Constitutions as social contracts provide. Russell makes this case in Canada’s Odyssey, but he could make it more substantively if there were a different subtitle, even, “conquests, cessions, and constitutions.” I would urge him and the University of Toronto Press to consider a revised second edition of this important intervention into how we talk about constitutions as opposed to Constitutions.

Elizabeth Mancke is Professor of History and Canada Research Chair at the University of New Brunswick. Her research and writing address issues of political change in the British Empire, ca. 1500-1830, with a special interest in pre-Confederation Canada.

Special thanks to Colin Grittner who obligingly “thought out loud” with me on these issues and then provided editing counsel. I am, of course, responsible for errors, omissions, and infelicities.

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