Uniformité des Lois, 6 Rev. Leg. 16).

So much for the history and character of the FrenchCanadian law. It is now proposed, in this, and perhaps a second, paper, to consider some of the more striking points of difference between that law and the system in force in Ontario.

A very important distinction between the law under the Code and systems based upon the common law is the different value given to decided cases under them respectively.

"Case law is now the usual term for the law declared and developed by judicial decisions, and embodied in published reports of them." (Pollock's Jurisprudence, 228.)

And it is case law "our modern, our very modern conception of rigorous case law," that is of the most importance in England and countries which have derived their law from England.

"The decisions of superior courts of justice, and the reasons given for them, are treated as having eminent and all but exclusive authority." (Ib. p. 227.)

Austin speaks somewhat slightingly of this doctrine:"The childish fiction employed by our Judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the Judges. This being the case, of course there can be no ex post facto legislation in the English judiciary law." (II., p. 655.)

In practice, if not in theory, the common law of England has been manufactured by the decisions of English Judges. A judicial precedent speaks in England with a voice of authority; a reported case may be cited with almost as much confidence as an Act of Parliament; it is not merely evidence of the law but a source of it; and the courts are bound to follow the law that is so established. (Judicial Precedents, 16 L. Q. Rev. p. 376.)

A Scotch Judge is reported to have said: "This puts me in mind of what Gulliver reports of the law of England, that if once Judges go wrong they make it a rule never to come right." (5 Rev. Leg. p. 344.)

The late Lord Watson, in an address given in 1883 and recently published (13 Jur. Rev. p. 11), says that one of the most eloquent of the last generation of Scotch Judges thought that it would be of great advantage to the law were all the reports of decided cases burnt, and all reference to them strictly prohibited.

Lord Watson, however, thought this opinion not likely to find much favour with lawyers of the present age; and Mr. Bryce, to judge from his most recent writings, would also object to this holocaust.

"There is." says Mr. Bryce, "a practicality about English case law, a firm grasp of facts and reality, as well as a richness and variety, which cannot be looked for in legal treatises composed even by the ablest and most conscientious private persons, who, writing in their studies, have not been enlightened by forensic discussion nor felt themselves surrounded by the halo of official dignity." (Roman and English Legislation, Studies in Jurisprudence, ii., p. 291.)

There are indications of a revolt against the reverence heretofore had for cases; for example. Lord Halsbury says (Quinn v. Leathem, [1901] A. C. p. 506): "A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical

at all."

This does not seem to differ much from the epigram of the civilians: les arrêts sont bon pour ceux qui les obtiennent. And Lord Macnaghten (Keighley v. Durant, [1901] A. C. 1.248) speaks of the case of Bird v. Brown as follows: "The case is instructive, I think, and useful, because it tends to shake one's confidence in the infallibility of reports, which always seem to carry the more weight the less opportunity there is of testing their accuracy. Why should an obscure report be taken for gospel merely because it is old?"

These statements justify Austin's words: “We can never be absolutely certain (so far as I know) that any judiciary rule is good or valid law, and will certainly be followed by

future Judges in cases resembling the cases by which it has been introduced." (Austin's Jurisprudence, 5th ed., p. 655.)

It is said that the best expressed justification of this system of ascribing positive authority to decided cases is an opinion given to the House of Lords by Sir James Parke, afterwards Lord Wensleydale: "Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we must apply those rules. where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them. and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science." (Mirehouse v. Rennell (1833), 1 Cl. & F. pp. 527, 546.)

In the Province of Quebec, on the other hand, and in all systems derived from Roman law, judicial authority is of no value. "Non exemplis sed legibus judicandum est."

"Exactly speaking, decisions have neither more nor less authority in France, Germany, or Italy at the present day than the opinions of learned persons expressed in any other form." (Pollock, 230.)

Previous decisions are instructive but not authoritative, they are instruments for the persuasion of Judges, but they are nothing more. (16 L. Q. Rev. p. 376.)

Recent Quebec writers put the position as follows. There are two systems:

"The English system, in which the Judge is almost a legislator, and the French system, in which, according to the most weighty opinions, decisions only enjoy an authority based upon their reasonableness (une authorité de raison). It is, however, correct to say that decisions (la jurisprudence) are treated with very great respect. But they do not make the law, as in England, for the very simple reason that, in

this differing from English decisions, they are not a source of law (droit). In England there is only statute law and what is called " case law." The former is not very important (considérable); the latter is an inexhaustible mine. France is governed by written law; in England, law for the most part, and even its much vaunted constitution, is unwritten. In one country, precedent is a binding rule; in the other, it is only a guide." (L'Autorité Judiciaire, 6 Rev.

Leg. p. 167.)

“The Canadian (i.e., French) law steers, as it were, a middle course between two theories which are separated by essential distinctions.

"Our French law is under the control of our Legislature: our English law is within the jurisdiction of the Dominion. Parliament.

"When it is a question of interpreting our Civil Code, the decisions of our Courts, the Code Napoleon, the works of commentators upon it, French decisions (jurisprudence), the Coutume de Paris, the jurisconsults of the old regime, and even those of Rome, are our constant guides.

"When, on the other hand, we have to apply our English law, we are perforce compelled, in searching the origin of this law, to accept the interpretation which the English superior courts have placed upon it.

"It follows that for us the authority of decisions (arrêts) depends, in a certain measure, upon the law which has to be applied.

"But,

as a general proposition, it may be said that judicial

decisions (jurisprudence) have undoubtedly very considerable weight with us, although less authoritative than is the case in England. of our Courts, that does not end the matter. The counsel on the other side may attack the reasons for the decision, and, if he does so successfully, the Judge will decide in his favour." (6 Rev. Leg., p. 168.)

When a decision has been cited before one

In practice, however (as Sir F. Pollock points out), it is found that wherever decided cases are made accessible by regular reporting, their influence tends to gain on other forms of "scientific law," and jurisprudence to assume a more dis

tinctly national character. (Pollock Jur. 230; cf. Holland, 7th ed., p. 60.)

He says "where the two systems have come into competition, as they have done in the Province of Quebec, the Cape Colony, and other British possessions originally settled under continental systems of law, the method of ascribing exclusive authority to judicial decisions has invariably, so far as I know, been accepted." (Pollock Juris. 325.)

Professor Walton, in an interesting and very instructive article on the "Civil Law and Common Law in Canada " (5 Rev. Leg. 329), states that in his opinion the law of Quebec exhibits a strong tendency in the direction of following precedents with the same certainty as in England.

This is not unnatural when we consider the composition of the Courts of ultimate appeal from the provincial Courts, the Supreme Court of Canada and the Privy Council.

Professor Walton says: "The Judges of the Privy Council, and most of the Judges of the Supreme Court of Canada, are thoroughly imbued with the spirit of the common law as to the value of cases. And in the Courts within the Province, the reported cases are consulted and relied upon to a greater extent than is done in France or Germany. Apparently the rule that cases ought to be followed is gradually becoming more fixed."

A curious result of the working of the French Code is to be found in the conflicting opinions of French lawyers which occasionally appear in English Courts.

In one case a very eminent English Judge, remarking on a conflict of opinions given by twelve or thirteen of the most eminent French advocates, observed: "I am not aware whether the Judges of France (administering law under codes) differ among themselves seldomer than those of England, who, in addition to the unwritten law and plain statutes, are occasionally required to expound legislative riddles. such as might have saved the Sphinx. But I am satisfied, so far as relates to counsel, that Westminster Hall has never exhibited a more amazing conflict of opinions upon English law than that which well-propounded questions upon French law (which had been submitted by Master Tinney) have