diate relation to what we are thinking, doing and enjoying to-day"— a thought which in another form was expressed in this way by the distinguished Bâtonnier of Paris in his opening address at last year's reception:

"Recherche laborieuse et féconde, au cours de laquelle les origines communes des législations qui se croyaient étrangères ont été plus d'une fois reconnues.

"N'a-t-on pas démontré déjà qu'au temps de la conquête normande, les lois des conquérants les suivirent, continuant plusieurs siècles durant à se formuler dans la langue originaire et marquant d'une empreinte définitive une législation transportée ensuite par les émigrants au-delà des mers? Quel jour n'a pas alors été projeté sur les analogies de fond de lois qui paraissaient si différentes! Et quel stimulant à multiplier les rapprochements, à resserrer les collaborations, à essayer de restituer dans toute sa vérité l'unité essentielle du droit sous l'apparente diversité des législations."

So far as they have now advanced, and notwithstanding the "nolumus leges Angliae mutare" of the Statute of Merton, the more recent researches do not seem to confirm Sir Matthew Hale's theories and deductions.

Mr. Edward Stanley Roscoe starts his book on "The Growth of English Law," being studies in the evolution of law and procedure in England, by the following passage:

"Before the time of Edward I. English law did not exist: AngloSaxon, Danish, Norman and Roman law then partially prevailed, and Norman, ecclesiastical and Roman influences were each at work." And later he adds (p. 15): “The influence of the canon law and of the Roman law is obvious not only in its breadth of view, but in some classical pedantries, occasionally also in some actual rules which supply the absence of authority arising either from English dicta, practice or custom."

Sir Frederick Pollock ("The Expansion of the Common Law") observes rather how the Common Law has not only adopted but assimilated these divers systems, and has thereby enriched its resources for doing justice without losing anything of its individual. character.

Coming then to a few illustrations, he points to the sworn inquest, a special and royal form of procedure, "ultimately of Roman origin, but imported by the Conqueror as part of the Frankish administrative machinery which the Roman Court had adopted."

Take that as a starting point and remember that the English justices of the peace, down to the Restoration and later, "combined the

functions of subordinate judges with those of public prosecutors and, in their mixed executive and judicial capacity, they did not escape the inquisitorial bent of Tudor administration and legislation." "So that, for some time, England was near having a preliminary criminal procedure not unlike that of modern Franch law." This "inquisitorial bent" is to be retraced in the power of the Court to examine the parties on oath, which Pollock thinks is "perhaps the most striking deviation of a suit in equity from a typical action at common law."

Chancery is referred to by Bacon, in his History of King Henry VII., as "the Pretorian power for mitigating the rigour of law, in case of extremity, by the conscience of a good man." Now the version of natural justice of the early Chancellors "bore a decided civilian or canonical stamp"; and natural justice, the jus naturale of the Roman law, was made the ground of a not very remote English decision (Bradford Corporation v. Ferrand)1, in which the right to running waters was in question, as being "that which is aequum et bonum between the upper and lower proprietors." As pointed out by Sir Frederick Pollock, there is a good deal of identity between the Roman conception of "aequum et bonum" or "aequitas" and the present English doctrine of "reasonableness," reasonable price and reasonable time being among "the most familiar elements in the law of contract."

Speaking of English decisions, two other remarkable illustrations of our point may be found in the very well-known cases of Young v. Grote2 and Taylor v. Caldwell.3

In the first one, as you remember, the Court of Common Pleas had based its judgment on a passage from Pothier (Contrat de change, No. 100) and held the drawer of a cheque liable for his negligence in writing it. Chief Justice Anglin, in his address on "Stare Decisis and other subjects as viewed in the Civil Law and at Common Law," reviews at full length the history of English Jurisprudence on that question. He shows how much Young v. Grote was discussed for almost a century, until its authority finally triumphed in the House of Lords, in 1918 (London Joint Stock Bank v. McMillan), when the Lord Chancellor, Viscount Finlay, alluding to the passage from Pothier, said that it appeared to him "to embody the principles of English as well as of the Civil Law."

1
1 [1902] 2 Ch. 655.

24 Bing 253.

3 B.S. 826.

4 [1918] A.C. 777.

As for Taylor v. Caldwell, it came prominently before the Supreme Court of Canada in the British Columbia case of Canadian Merchant Marine v. Canadian Trading Co.," where it was discussed by all the Judges; and Mr. Justice Mignault took occasion to point to the interesting reference made by Blackburn, J., "to the Civil Law and to Pothier, 'Obligations,' No. 668, as laying down the rule that the debtor Corporis Certi is freed from the obligation, when the thing has perished neither by his act, nor by his neglect, and before he is in default, unless by some stipulation he has taken on himself the risk of the particular misfortune which has occurred."

Of Pothier, in fact, it may no doubt be granted that his authority is very high before the English Courts (see Best, C.J., in Cox v. Troy; also Lord Blackburn, in the House of Lords, McLean v. Clydesdale Banking Co."

I will not pursue this any longer. I have tried to indicate the theme very superficially, closely following the few English authors which it has been my privilege to study, fully aware of my shortcomings and knowing that you will be able to supply what I have omitted.

Perhaps, like the Lord Chancellor and the other legal dignitaries who were present at the clandestine marriage of Coke, I may be absolved by reason of ignorance of the law.

Let us, therefore, cross the Ocean, land in the new world, and see these two countries, France and England, successively at work in the building up of the legal structure of this country.

Until

French law was introduced with the first discoverers. the Proclamation of King George the third, in 1763, it exercised full sway. Still more, but for the short period which followed Murray's Ordinances, the Canadian law in force in the territory which now forms the Province of Quebec was all contained in the Coutume de Paris, the Edicts and Ordinances of the French Kings, the Arrêts and Règlements of their creature, the Conseil Souverain, or of the Conseil d'Etat du Roi, as well as those of the subsequent administrative authorities of the Country.

In 1774, history repeats itself. The French-speaking barons of Runnymede secured for the English people that immortal document which, until this day, constitutes the keystone of its liberties; an English King gave to his new French-speaking subjects the Quebec Act, which can be styled the Magna Carta of French Canada. Later the Legislative Assembly of the Union, half composed of English

64 Sup. C. Rep. p. 106.

5 B. & Ald. 481.

19 A.C. 105.

speaking members, decided in 1857 to codify the laws of Lower Canada. As you know," the object of the codification was rather to consolidate the existing law in a convenient form than to effect serious changes in its substance."

Of course, I am not speaking of the Public Law. That of England was introduced ipso facto by the change of sovereignty in 1763. I must eliminate also those branches of the law which are, by our constitution, ascribed to Federal jurisdiction, such as the Criminal law, Bills of Exchange and Promissory notes, Banks and Banking, Navigation and Shipping, Patents and Copyrights, Currency and Coinage, Bankruptcy and Insolvency, and, in part, the laws of Insurance, of Railways and of Joint Stock Companies. Those are in force throughout Canada and are largely copies or counterparts of the English Acts.

Our inquiry must be confined to the Codes and the Statutes adopted by the Legislature of the Province of Quebec. Let us say at once that the general scheme of the Provincial Statutes, concerning Insurance, Railways and Companies is similar to the Federal Acts. and one does not find in them serious departures from the Dominion Laws, based on the English model.

It would be quite beyond the limits of this paper to follow the traces of English law throughout the numerous statutes which are yearly adopted by the Legislature of Quebec. Perhaps, however, special mention should be made of two enactments of 1914, one of which (4 Geo. V. ch. 50) renders debentures indisputable after certain conditions have arisen, and is practically borrowed from Ontario; while the other is of tremendous importance (chap. 51) introducing as it does the right of companies to hypothecate their personal or moveable property-a principle of English law incorporating the idea of the chattel mortgage, which, up to that late date, had remained wholly foreign to the Franco-Canadian legal conception of property and civil rights.

It may be added that the rules of interpretation of Statutes laid down by the English writers and precedents are mainly followed in Quebec. Endlich, Maxwell, Craies are constantly quoted.

Quebec has three codes: the Municipal Code, the Code of Civil Procedure and the Civil Code.

The present Municipal Code came into force in 1916, but it merely replaced the older Municipal Code of 1871, which was itself practically a codification of Municipal Acts, some of them dating back to the early eighties. It follows the English plan and has even adopted some rules from the United States. The American author,

Dillon, is probably the most often cited by lawyers and referred to by the Courts on questions of municipal law.

Unlike the Civil Code, the Quebec Code of Civil Procedure of 1897, following an earlier code of 1867, is not based on the French Code de Procédure Civile. Its main basis is the Ordonnance sur la Procédure Civile of 1667. It also drew much of its inspiration from Louisiana, originally a French settlement, while many of its forms and writs are of English origin, such as injunction, mandamus, quo warranto and prohibition. But, most noteworthy of all, it preserved in a limited number of specified civil cases the trial by jury, unknown to French civil procedure, and which sprang up in the English system from the solemnity and sanctity of the old popular judgments. Trial by jury was adopted in Quebec in 1785, by an Ordinance of the Legislative Council of the Province.

The same Council, the year previous, had introduced the writ of Habeas Corpus in criminal matters.

However, the Civil Code is at once the most important and the most instructive for the purposes of this disquisition. As already mentioned, it was made clear in the instructions given to the codifiers that, while they were to take the Code Napoleon as their model, yet they were to collect the law as they found it then to be in force ("des dispositions qu'ils tiendrent pour être réellement en force.")

For that reason, the Code Civil du Bas-Canada, proclaimed in 1866, is an exceptional document for the purpose of testing, after a little over a century, the impress of English law upon a country born, raised and kept up in the spirit of the French law.

It is curious to note, in that respect, the impression made by the Code Civil upon two eminent legal writers, one French and one English.

Sir Frederick Pollock ("The Expansion of the Common Law," p. 135): “Witness the Province of Quebec, where the Civil Code represents the old French law of the colony, modified by free use of the Napoleonic Code, and in some particulars by English influence."

And Mr. Planiol in the introduction to his very valuable work on the Droit Civil (Vol. 1, p. 60): "On a rédigé (dans le Bas-Canada) un Code Civil qui a été mis en vigueur le ler août, 1866. Des éléments divers s'y combinent de la façon la plus curieuse. Ses principales sources sont la Coutume de Paris de 1580, le Code Napoléon et le droit anglais."

The importance of this question justifies my treating it with some detail.