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An Historical Introduction to the Teaching of International Law in Canada: Part II

Published online by Cambridge University Press:  09 March 2016

R. St. J. Macdonald*
Affiliation:
Dalhousie University
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Extract

The teaching of international law at Queen’s University in its early years took place mainly in the faculty of arts and science. The first, short-lived, law school offered a course of lectures from 1861 to 1864 and again from 1880 to 1883, when the faculty was disbanded, not to re-open until 1957. During the period 1861 to 1864 no specific course in international law was offered in the law school or in the faculty of arts.

When lectures in the law school resumed in 1880, one of the courses offered was Roman Law, for which one lecture per week was given. The texts to be consulted in this course included, strange to say, Kent’s Commentary on International Law and Wheaton’s Elements of International Law. It is possible that at this time instruction in international law was offered in the faculty of arts as well as in the law school. For example, in the examination for the gold medal in political economy the following question was asked: “Would abolition of tolls on the Welland Canada be a Free Trade or Protective measure? How does the Treaty of Washington affect the imposition of those tolls?” The second part of the question indicates that some reference to the law of treaties might have been made during the teaching of the course.

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Articles
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1976

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References

95 For background information on the Faculty of Law at Queen’s, see Calvin, D. D., Queen’s University at Kingston, 1841–1941 210–15Google Scholar; Corry, J. A., “The Queen’s University Law Faculty,” (1958) 12 U. Toronto L.J. 290 CrossRefGoogle Scholar; Soberman, D. A., “The Faculty of Law of Queen’s University,” (1969) 19 U. Toronto L.J. 420 CrossRefGoogle Scholar. The members of the original faculty were Alexander Campbell, law partner of Sir John A. Macdonald in Kingston, Minister of Justice 1881–85, and Lieutenant-Governor of Ontario 1887–92; J. A. Henderson; and William G. Draper. As far as we know, none was especially interested in international law. The inability of the faculty to survive was probably due to the unwillingness of the Law Society to accord it recognition. Professor John E. Claydon, whose generous assistance I happily acknowledge, furnished the details referred to in the text.

96 Kent, James (1763–1847), Kent’s Commentary on International Law (2nd ed., Abdy, J. T.. Cambridge, Eng., 1878)Google Scholar; Wheaton, Henry (1785–1848), Elements of International Law (English ed., Boyd, A. C.. London, 1878)Google Scholar. The course instructor was J. M. Machar.

97 Walker, Thomas Alfred, A Manual of Public International Law (Cambridge University Press, 1895. Pp. xxviii, 244).Google Scholar

98 Woolf, Leonard Sidney, International Government (Two reports prepared for the Fabian research department. 2nd ed., with an introduction by Bernard Shaw. London: George Allen and Unwin Ltd. n.d.)Google Scholar; SirPollock, Frederick, The League of Nations (2nd ed., London, 1922. Pp. xvi, 266).Google Scholar

99 Mower, Edmund C., International Government (Boston and N.Y.: D. C. Heath and Company. 1931)Google Scholar; Corbett, Pitt (1852–1919), Leading Cases on International Law, with notes containing the views of the text-writers on the topics referred to, supplementary cases, treaties, and statutes (4th ed., Bellot, H. H. L.. London, 1922–24).Google Scholar

100 Norman McLeod Rogers (1894–1940), educated at Acadia and Oxford; called to the Bar in Nova Scotia, 1924; professor of history at Acadia, 192227; secretary to W. L. Mackenzie King, 1927–29; professor of political science at Queen’s, 1929–35; Liberal M.P. for Kingston, 1935; minister of labour, 1935–39; minister of national defence, 1939–40; killed in an airplane crash at Newtonville, Ont., 1940; author of numerous articles on economic and constitutional questions. For biographical details, see Who Was Who 1929–1940, at 1163; see too the tribute in “The Late Norman McLeod Rogers,” (1940) 14 The Queen’s Review 151.

101 Schuman, Frederick L., International Politics: An Introduction to the Western State System (1st ed., New York and London, McGraw-Hill Book Company, 1933).Google Scholar

J. A. Corry, F.R.S.C., C.C., one of Canada’s most distinguished academicians, received an LL.B. from the University of Saskatchewan in 1923, a B.C.L. from Oxford in 1927, and an LL.M. from Columbia in 1935. He was appointed Hardy Professor of Political Science at Queen’s in 1936 and served as principal of Queen’s from 1961–68. Corry was instrumental in reestablishing the law faculty. In 1957 he became its first (acting) dean. Corry has been one of Canada’s foremost educators and has served on many important government–appointed bodies. In 1973 he was awarded the Royal Bank Award in recognition of his “outstanding contribution to Canadian education.” His distinguished publications are mainly in the field of law, government, and politics. For his views on universities, see his collection of graceful essays, Farewell the Ivory Tower (Montreal: McGill–Queens Press, 1970. Pp. 121).

102 Briggs, Herbert W., The Law of Nations. Cases, Documents and Notes (New York: Appleton-Century-Crofts Inc., 2nd ed., 1952).Google Scholar

103 The dean’s office gave strong support. “As dean of the new law school, Bill Lederman was a great enthusiast for international law and he gave a teacher of the subject all the support one might ask. This support was underlined by the increase in the basic international law course from thirty hours to sixty hours and by its change in status from optional to compulsory in 1962–63”: letter from Hugh Lawford dated March 26, 1974, at 2. John Glaydon writes in similar vein: “In the early years of the current Faculty of Law, it was decided to offer an active international law program. Both Bill Lederman and Dan Soberman have given high priority to developing library resources in the area and were instrumental in ensuring the allocation of more than adequate manpower resources to the field. This basic approach, coupled with a favourable student–faculty ratio, culminated in perhaps the most extensive international law program in the country, notwithstanding Queen’s relatively small size” (letter dated September 25, 1975, at 3).

104 “Broadly, the emphasis both of the traditional international law course and of the transactions–oriented courses was upon educating students who were seen as ultimately going into practice either in their own law firms or in the legal division of External Affairs. The international organizations course instructors tended to be less impressed with practical future careers of students and more impressed with conveying some notion of the role of the international community”: letter from Hugh Lawford dated March 26, 1974. at 4.

105 For general information on the university, see Taiman, James J. and Taiman, Ruth Davis, Western 1878–1953 (London, Ontario, 1953)Google Scholar. For discussion of the question of establishing a law school in London, see the Minutes of the Middlesex Law Association of November 24, 1884. The question was referred to a committee of which W. R. Meredith (later Chief Justice of Canada), A. O. Jeffrey, and the Hon. David Mills were members. The first dean (Judge William Elliot) and his eight lecturers were part–time. Dr. Margaret A. Banks, chief law librarian at the University of Western Ontario, was as gracious as she was untiring in providing and verifying the details referred to in the text above.

106 The curriculum for 1885–86 prescribed the following: Harris’ Criminal Law; Snell’s Equity Jurisprudence; Williams on Real Property; Pollock on Contracts; Dillan’s Municipal Corporations; Kent’s International Law; Taswell Langmead’s Constitutional Hùtory; Guizot’s Rise of Representative Government. See the Register of the London Law School, December 7, 1885.

107 For biographical details, see: Canadian Parliamentary Guide, 1901, at 48, 49; Stewart Wallace, W., The MacMillan Dictionary of Canadian Biography 514 (3rd ed., 1963)Google Scholar. See too the not very flattering note in (1903) 23 Canadian Law Times 219; the more interesting article by Fred London, “David Mills: The Philosopher from Bothwell,” in Willisons Monthly, September 1929, at 2–9; the newspaper reference in The Canadian Annual Review of Public Affairs, 1903, at 114; the eulogy by McEvoy, J. M. in The University of Toronto Quarterly, vol. 4, December 1903, at 6973 Google Scholar; and, most helpful, McMurchy, D. J., David Mills: Nineteenth Century Canadian Liberal (Ph.D. thesis. Rochester, 1965).Google Scholar

108 But there is a problem here. “There is nothing in the lectures to indicate when or where they were given, but my impression is that they belong to a later period than 1885”: letter from Margaret A. Banks dated February 6, 1974, at 1. The question is, were these lectures presented at Western or at Toronto, where Mills spent nine years? It is not unlikely that some, perhaps most, of them were given at Toronto. However, for reasons indicated above, namely, that he was primarily a Western Ontario man, that he started lecturing there, and that at least the rudiments of his texts were developed at Western University, I am dealing with Mills here rather than elsewhere.

109 “I am very anxious that you should take very full notes, and write them out with care immediately after. Read them again and again, and read also in the textbook you use, what is said upon the same subject if you can, before the next lecture is delivered. Endeavour to understand every point; as I purpose questioning you upon each succeeding lecture so that, when you have finished the course, these constant reviews may have served to indelibly impress the subject upon your memories”: vol. 1 of his notes, at 9.

110 The Empire Review, November 1901, at 403–14; and December 1901, at 636–48.

111 “Much of his life was concerned with the development and extension of Canada’s responsible government — the position of the governor–general and the lieutenant–governors, control of the executive, the Supreme Court, maritime courts, extradition and copy–right, commercial treaties and foreign affairs, and control of the militia and defence”: McMurchy, op. cit. supra note 107, at 613.

112 Lord Strathcona offered Mills the principalship of McGill, which he declined. His involvement in the law school at Western is referred to in the History of the Bar of the County of Middlesex, by His Hon. Judge John Hughes and T. H. Purdam, K.C., as given before the Middlesex History Association in London (London, Ont. 1912).

113 Perrin graduated in arts from the University of Toronto in 1892 and in law from Osgoode Hall in 1898. He practised law in London, served as director of the London Branch of the Canadian Institute of International Affairs, lectured at the university and seems to have kept international law alive from 1915 until his judicial appointment and move to Woodstock in 1932. A brief obituary appears in The London Free Press of January 23, 1954, and in The Canadian Who’s Who, vol. 5 (Toronto: Trans-Canada Press, 1949–51).

114 Law was established as a department within the Faculty of Arts. The subjects offered varied somewhat from year to year but generally included domestic relations and medical jurisprudence. Sometimes comparative constitutional law and history, and comparative civil law were listed; in other years there was a course on corporations and one on theory of obligations. There was also provision for a thesis which could replace some of the course work. The LL.B. degree was granted to students who successfully completed this course.

115 The Department of Political Science was renamed the Department of Political Economy in 1918 and Department of Economic and Political Science in 1926. The last mentioned name seems to have been used until political science became a separate department in 1963. It must be understood that while Perrin and Carrothers, on a part-time basis, gave yeoman service in keeping the subject alive, they were not, and did not pretend to be, serious or productive scholars of the subject.

116 The course description appears in the Faculty of Law Bulletin, No. 2, 1960–61, at 15. The full–time members of the first staff were: Ivan Cleveland Rand, previously of the Supreme Court of Canada; Ronald St. John Macdonald, previously of Osgoode Hall Law School; Robert S. Mackay, previously of University of Toronto; and Douglas M. Johnston, previously of the Graduate School at Yale. The objects of the new school were set out imaginatively by Rand, I. C. in (1961) 14 U. Toronto L.J. 107, 108.CrossRefGoogle Scholar

117 From 1973–75 the instructor was T. H. Cohn. The course was not taught in 1975–76. Peyton V. Lyon recalls that though there were certain “objections to the administration at UWO [in those years …] I can’t recall being frustrated by restrictions on hiring, introducing courses, etc. Indeed, looking back, ’getting things moving’ in that sense was relatively easy”: letter from Peyton V. Lyon dated January 28, 1974.

118 Douglas M. Johnston and A. A. Fatouros published extensively while at Western and this practice has been continued by J. W. Samuels.

119 O’Reilly, J. B., “The College of Bytown 1848–1856,” (1947–48) Catholic Historical Association Reports 6170 Google Scholar; O’Reilly, J. B., “The Pontifical University of Ottawa From Its Origin to the Civil Charter 1848–1866,” (1949) Revue de l’Université d’Ottawa 119–43Google Scholar; and, for details about Joseph Henri Tabaret, le fondateur de l’Université d’Ottawa, see Transactions of the Royal Society of Canada 1943.

120 An Act Respecting the University of Ottawa, 13–14 Eliz. 11 S.O. 1965, c.37.

121 Recent calendars state that the school started in 1887. However, comments in the student publication, The Owl, suggest that 1892 was the effective starting date: see The Owl, vol. 2 (1888), at 3; vol. 3 (1889), at 70–71; vol. 5 (1891–92), at 466–67; vols. 11 and 12, at 480–83. It is of course possible that the university was empowered by its charter to create a faculty before 1892. Unfortunately, a fire destroyed the university archives in 1903. The difficulties encountered in starting the school are chronicled in Carriere, G., Histoire Documentaire de la Congrégation des Missionaires Oblats de Marie-Imaculée Dans L’est du Canada, vol. 6, at 291–96 (Ottawa: Editions de l’Université d’Ottawa, 1967).Google Scholar

122 Minutes of Meetings and Proceedings of the Faculty of Law of the University of Ottawa, Archives Deschatelets, Université Saint–Paul, Ottawa. For biographical details on Télésphore Fournier, see Wallace, W. S., The Dictionary of Canadian Biography 212 (2nd ed., Toronto, 1945)Google Scholar; and for a good study of Thompson, see Heisler, J. P., Sir John Thompson, 1844–1894 (unpublished Ph.D. thesis. Toronto, 1955).Google Scholar

123 University of Ottawa, Annual Calendar, 1895–1896, at 46; and Minute Book of the Faculty of Law, supra.

124 The Faculty of Law continued to be mentioned in the general university calendar as late as 1914.

125 Caron, G., “The Faculty of Law of the University of Ottawa,” (1958) 12 U. Toronto L.J. 294.CrossRefGoogle Scholar

126 Roger Chaput entered the Department of External Affairs in 1942, where he served in the Legal Division from 1943 until 1945. He accompanied John Read to the Washington Conference on the I.C.J, in 1945 and attended the San Francisco Conference as an adviser to the Canadian delegation in matters relating to the Court. He later served as head of the treaty section of the Legal Division and (1952–56) as a member of the U.N. Division, where he dealt mostly with disarmament.

Chaput’s reading list, illustrative of possibilities in a bilingual setting, includes the following French–language and English–language references: Mme Paul Bastid, Cours de droit international public; Louis Cavare, Le droit international public positif; Louis Delbez, Manuel de droit international public; J. T. Delos, La société internationale et les principes du droit public; Jean Devaux, Traité élémentaire de droit international public; Paul Guggenheim, Traité de droit international public; Robert Redslob, Traité de droit des gens; Paul Reuter, Droit international public; Paul Reuter, Institutions internationales; Charles Rousseau, Droit international public; Marcel Sibert, Droit international public; Pierre Vellas, Droit international public; J. L. Brierly, The Law of Nations; Ian Brownlie, Principles of Public International Law; Hans Kelsen, Principles of International Law; H. Lauterpacht, Oppenheim’s International Law; D. P. O’Connell, International Law; George Schwarzenberger, A Manual of International Law; M. Sorensen, Manual of Public International Law; J. G. Starke, Introduction to International Law.

127 “The materials used in the course were a blend of law review materials with a distinctive Canadian flavour, some of MacKenzie and Laing, Canada and the Law of Nations, Brierly, The Law of Nations (6th ed.), and Bishop, International Law (2nd ed.). Student interest was not high. Most students accepted the course as the lesser of two evils, the other being Jurisprudence. The library was not really adequate, and, as I recall, student interest in forming an International Law Society, which was suggested, never really developed. At the time, I felt that more rapport with my colleagues and students in the Civil Law section would precipitate new avenues of interest”: letter from Daniel C. Turack dated October 11, 1974, at 1.

128 The present day Faculty of Social Sciences includes the Department of Political Science. Before the creation of this faculty, political science as a subject was taught in the School of Higher Political Studies, the School of Political Science, and in the School of Economics, Social and Political Sciences.

129 Mayrand’s course was described as “public international law: the state as the subject of international law; constitutive elements of the state; the League of Nations; principles of sovereignty; in particular as regards land, water, and air; and interstate relations including peaceful and litigious solutions.”

130 Recommended readings included: Duroselle, J. B., Histoire diplomatique de 1919 à nos jours (Paris, Dalloz, 1953)Google Scholar; Strausz-Hupé, Robert and Possany, Stefan T., International Relations in the Age of Conflict between Democracy and Dictatorship (N.Y., McGraw–Hill, 1950)Google Scholar; and, Schuman, F. L., International Politics, the Western State System in Mid-Century (N.Y., McGraw-Hill, 1948).Google Scholar

131 Recommended texts included Scelle, Georges, Cours de droit international public (Paris, 1948)Google Scholar; and, Fenwick, Charles G., International Law (3rd ed. N.Y., Appleton-Century-Crofts, 1948).Google Scholar

132 During 1965, G. W. Badour taught a six-credit course in international relations. The recommended texts were: Renouvin, P. et Duroselle, J. B., Introduction à l’histoire de relations internationales (Paris, Libraire Armand Colin, 1964)Google Scholar; Aron, Rayword, Paix et guerre entre les nations (Paris, 1962)Google Scholar; Padelford, N. J. and Lincoln, G. A., The Dynamics of International Politics (N.Y., Macmillan, 1962)Google Scholar; Merle, Marcel, La vie internationale (Paris, Colin, 1963)Google Scholar; and Morgenthau, Hans, Politics Among Nations (N.Y., Knopf, 1948)Google Scholar. This course remained essentially unchanged until 1971. From 1965 to date, Badour and Sabourin have offered an advanced seminar on international relations. In 1965–66 Pharand offered this course.

133 Reminiscing from the United States almost ten years after his departure from Canada, Daniel C. Turack writes as follows: “It was my feeling, and the feeling of my former colleagues at the University of Ottawa, that it was in a rather unique position to develop an Institute for Studies and Research in International Law. The combination of the presence of the two main cultures of Canada, the dual sections of the Faculty of Law, the human and library resources in Ottawa, make the University the ideal facility for such an Institute. Hopefully, the prospects are still alive”; letter from Daniel C. Turack dated October 11, 1974, at 2.

134 There is no official history of Carleton University which, from 1942–45, offered only evening classes in introductory university subjects, with some courses in public administration; however, a useful summary of background information, prepared by Farr, D. M. L., appears in the Carleton Alumni Magazine of 1972, at 710 Google Scholar. The sessional lecturers associated with the Department of Public Law in its early years were Russell Hopkins, Q.C., now Law Clerk to the Senate, Gordon Henderson, Q.C., now a Bencher of the Law Society of Upper Canada, Charles F. Scott, Q.C., Ronald C. Merriam, Q.C., now the Executive Director of the Canadian Bar Association, and A. A. Cattanagh, Q.C., now Mr. Justice Cattanagh of the Federal Court of Canada. The material in the text above is based on notes provided by Professor J. George Neuspiel, Carleton’s senior international law teacher.

135 Abbott, R. D., “Legal Studies at Garleton University,” (1964) 1 Canadian Legal Studies 7174.Google Scholar

136 Abbott, R. D., “Law in The Liberal Arts,” (1966) 1 Canadian Legal Studies 163–65.Google Scholar

137 In 1970, the First National Conference of Canadian Teachers of International Law and Organizations, an important step in the development of the Canadian Council on International Law, was held at Carleton University.

138 For background information on the faculty, see Tarnopolsky, W. S., “The New Law School at the University of Windsor,” (1969) 19 U. Toronto L.J. 622 CrossRefGoogle Scholar. Dr. J. F. Leddy, president of the university, was the moving force in the establishment of the school; while Vice–President (Academic) at the University of Saskatchewan, he had come “to know the key importance of a good law school for any large university": letter from J. F. Leddy dated May 28, 1975, at 2. For background information on the university generally, see Ruth, N. J., “The University of Windsor,” (1967) 38 Journal of Higher Education 90 Google Scholar; and Shook, Lawrence, Catholic Post-Secondary Education in English Speaking Canada (U. Tor. Press, 1971).Google Scholar

139 “It was my personal hope to build up a teaching staff and a library which would attract students to specialize in public law fields. This was not only my personal preference but also based on what I believed was a social need in Canada for more graduates trained as public lawyers”: letter from Mark MacGuigan dated March 26, 1975. MacGuigan took M.A. and Ph.D. degrees at the University of Toronto, studied law at Osgoode Hall and at Columbia (LL.M. 1959, J.S.D. 1961), and taught law at University of Toronto (1960–66) and York–Osgoode (1966–67) before moving to Windsor in 1967 as dean of the new law school. He edited Jurisprudence: Readings and Cases (U. Tor. Press. 2nd ed., 1966); Cases and Materials on Creditors’ Rights (2nd ed., U. Tor. Press, 1967); and he has published more than forty articles in philosophical, theological, legal, and popular journals.

140 Faculty of Law Calendar, University of Windsor, 1969–70, at G–12.

141 This course also studies “the resolution of the varying problems that have ’marked’ the association between ’received’ law and the ’local’ law since the advent of independence”: Faculty of Law Calendar, 1972–73, at L–20.

142 “I must say that I cannot envisage a law school curriculum without international law. However, since the introduction of the optional system, we have found that only a very small percentage of our students have opted to take the course.… There has been no real difficulty with the faculty in introducing courses in international law, rather … the problem until recently has been to convince students that they should enroll for these courses”: letter from W. S. Tarnopolsky dated May 17, 1972.