The authority of decided cases is the subject which I propose to discuss in the two lectures which it is my privilege to deliver to the students of the law faculty of McGill University. This subject is most important because it is often misunderstood, and, I may add, because it has been assumed, with what reason I will have to say, that the authority of decided cases in the province of Quebec is something less than their authority in England and in the other provinces of the Dominion where the common law prevails. There is no doubt that the doctrine of stare decisis, or of the binding effect of judicial decisions, is a doctrine peculiar to the common law, and is fully recognized in all countries where the common law has been introduced. Perhaps it is natural that it should be so, for the whole body of the Common law, as well as of Equity, is made up of such decisions. It is otherwise in civil law countries, for they, or at least the greater part of them, a conspicuous exception being South Africa, have enacted complete codes wherein is consigned or supposed to be consigned the whole corpus juris civilis. Broadly speaking, it can be said that the common law is an unwritten law while the civil law is a written one. Under both systems, however, there are written laws, statutes, which of course are binding on the courts, but, in common law countries, a distinction is made between the common or unwritten law and the statute law, while no such distinction is possible, except perhaps for purposes of classification, where the civil law exists and has been codified, for the codes themselves are statutes and positive enactments of the Legislature. In common law countries, the common law, as well as the equity system, both unwritten, except

'Lectures delivered before the students of the Faculty of Law of McGill University in April, 1921.

1-C.B.R.-VOL. III.

where attempts have been made at partial codification are derived from an alarmingly.great number of judicial pronouncements. In the civil law systems, on the contrary, the civil law is primarily to be found in a code enacted by the legislature, and not in judicial decisions, and such a code is moreover not distinguishable, at least in so far as its form and enactment are concerned, from statute law properly.so.called.

The sources of law therefore, where the common law prevails, are Judicial decisions and statutes. In civil law countries, the sources of law are primarily the codes and statutes. I say primarily, because the question still remains, and it is the main subject of my investigation, whether in a civil law country, like Quebec, there is not a further source of law derived from judicial decisions. It is obvious that these decisions may either give effect to the plain enactments of the Legislature, and they then certainly add nothing thereto, or they may construe the enactments themselves if not plain, and then, if binding, they must be followed so that it would not be open to place. any other meaning on the enactments so construed. But this is not all, for the Courts may draw from a rule enacted in a code certain deductions which are not expressed therein, or, by analogy, they may apply an article of the code to cases which the article does not mention. In this way the law is developed and this development is onviously of very great importance, for the distinctive merit of a code is its brevity, and its purpose is not to provide for every possible contingency, but to lay down certain general rules whereby, and especially by their natural and logical development, the infinite variety of controversies may be decided conformably to legal principle. There is, therefore, in a civil law country a vast field left for the constructive work, if this term be not too ambitious, of the Courts, leading up to the creation of another source of law, which we call jurisprudence, a term which I greatly prefer to the expression "judge-made law."

Before dealing with the problem of the authority of decided cases in the province of Quebec, it is entirely proper, and indeed necessary, to define their authority in common law countries like England and the other provinces of the Dominion.

Of the English juridical system I will say only this, that, outside of the lower courts, there are three courts: 1, His Majesty's High Court of Justice, divided into the Chancery Division, the King's Bench Division and the Probate, Divorce and Admiralty Division, this court being a trial court as well as an appellate court from the lower courts: 2, His Majesty's Court of Appeal, which hears appeals

from the High Court; 3, The House of Lords, where appeals from the Court of Appeal, as well as appeals from the Appellate Courts of Scotland and Ireland1 are finally disposed of. The Judicial Committee of the Privy Council hears appeals from the Colonies or Dominions, but not from the English, Scottish or Irish Courts, and has also jurisdiction in certain special matters. It is obvious that I deal with this organization of the English courts in the briefest possible outline and that I do not intend, nor is it necessary, to attempt to make any complete description of their functions and jurisdiction.

Let me now say that decisions of the House of Lords on questions of law are binding on all courts in the British Isles and are also binding on the House of Lords itself even where the decision appealed from is affirmed on an equal division.

The latest decision, I think, of the House of Lords on this subject is London Street Tramways Co. v. London County Council, pronounced by Lord Halsbury, L. C., and concurred in by Lords Macnaghten, Morris and Lord James of Hereford, in which it was held that "a decision of the House of Lords upon a question of law is conclusive and binds the House in subsequent cases. An erroneous decision can be set right only by an Act of Parliament."

This is in conformity with what the House of Lords had already decided in Attorney-General v. Dean and Canons of Windsor. The latter judgment was remarkable because it was governed by the prior decision of the House of Lords in Regina v. Millis, a decision dismissing an appeal on an equal division, and although Lord Campbell disapproved of the decision in Regina v. Millis, he nevertheless held that the House of Lords was bound thereby.

A quotation may be usefully made from the judgment of Lord Halsbury in London Street Tramways Co. v. London County Council, because it disposes of an objection which may occur to some of my hearers:

"My Lords, I only wish to say one word in answer to a very ingenious argument which the learned counsel set before your Lordships. It is that this House might have omitted to notice an act of Parliament or might have acted upon an Act of Parliament which was afterwards found to have been repealed. It seems to me that the answer to that ingenious suggestion is a very manifest one-namely, that that would be a case of a mistake of fact. If the House were

1

The British judicial system was considered as it existed before the creation of the Irish Free State.

under the impression that there was an Act when there was not such an Act as was suggested, of course they would not be bound, when the fact was ascertained that there was not such an Act or that the Act had been repealed, to proceed upon the hypothesis that the Act existed. They would then have ascertained whether it existed or not as a matter of fact, and in a subsequent case they would act upon the law as they then found it to be, although before they had been under the impression, on the hypothesis I have put, either on the one hand that an Act of Parliament did not exist, or on the other hand that an Act had not been repealed (either case might be taken as an example) and acted accordingly."

This distinction between a decision founded on a "mistake in fact," which is not binding, and a decision of the House of Lords supposedly erroneous on a question of law, which "can be set right only by an Act of Parliament," is really fundamental, because it is only the legal proposition or rule of law which is laid down that has force of law. In other words, and to borrow some terms from another science, it is only when the House of Lords speaks ex cathedra, when it "defines " a dogma of the law, that its doctrine must be held to be true and all controversy must cease unless the law-making department of the State intervenes and corrects the error, and it may after all have been no error whatever. It is therefore this legal proposition affirmed by the House of Lords that is binding until set aside by Parliament. It can be found by seeking the ratio decidendi, all observations going beyond or outside this ratio decidendi, whatever respect they may command by reason of the eminence of those by whom they are uttered, are only to be followed (I use the words of Lord Campbell in Attorney-General v. The Dean and Canons of Windsor), in so far as they may be considered agreeable to sound reason and to prior authorities. And, I may add, there may be several rationes decidendi or legal propositions on which a decision is founded, and then each of them, although one alone would have sufficed to support the judgment, must be followed in subsequent cases. This was very well and very succinctly stated by Lord Macnaghten in New South Wales Taxation Commissioners v. Palmer.?

"It is impossible to treat a proposition which the court declares to be a distinct and sufficient ground for its decision as a mere dictum, simply because there is also another ground stated upon which, standing alone, the case might have been determined."

So the House of Lords binds all courts and itself as well when it

& H. L. C. 369 at p. 391.

* (1907), A. C. 179.