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maintenance and observance of the law, within and without the courts, the range and meaning of each legal principle must be apprehended to the fullest extent." (Gareis).
Dr. R. W. Lee's contribution to the present number of the REVIEW, “The Place of Roman Law in Legal Education,” is very timely and full of thought and excellent counsel. We especially commend what he has to say about the value of a knowledge of the Roman Law to young Canadian lawyers, not only as a means to a readier understanding of the legal system of Quebec, but also as a useful equipment in their relations with statesmen and diplomats of other nations should they seek to serve their country in foreign fields and international business. Dr. Lee very justly says: “Without the necessary intellectual equipment (which the study of Roman Law can give) they cannot expect to cut more than a poor figure before Commissioners of Arbitration and International Courts of Justice.” We would supplement Dr. Lee's observations on this head by a reference to what the Honourable Charles E. Hughes, Secretary of State for the United States, said along similar lines to an audience of his countrymen not long ago: “The necessity for a trained staff is obvious. The notion that a wide-awake average American can do anything is flattering to the American pride, but costs the government dearly. In every line of effort-professional
, commercial or industrial—it is thoroughly understood that you cannot obtain the necessary technical equipment through mere general experience or by reading instructions."
LAW AS A LINK OF EMPIRE.
BY THE RIGHT HONOURABLE LORD SHAW OF
(Continued). Thus we come back to law, to the law-your profession and mine but to law in a very noble sense as the servitor and interpreter of justice, to law as an Empire binder. This conception is not new; it is centuries old. But there is modern development of it,a development more pronounced since the Great War.
In the second century after Christ, Florus wrote a brief epitome of the history of Rome, that little city on the Tiber, which grew to command an Empire bounded only by the unknown. Florus shrewdly remarks “Viribus parantur provinciae jure retinentur." In one sense it was true of the Roman Empire, as it would have been true a year or two ago, if Germany had attained the empire of the world. Provinces, kingdoms, dominions, were made to conform in their laws to the centralized law of Rome, whose jurisprudence thus dominated the world. This compulsory conformity was supposed to symbolize Imperial conquest and Imperial pride, and at every hand was accompanied and sanctioned by the heavy weight of the force of arms. So it would have been with a law emanating from Berlin. Everywhere the light of law shining from only one centre, from which centre also came the threatening thunders and the missions of Imperial power. Provinces were retained by law, no doubt, but it was not their own law which they had been tutored in past ages to obey, but a new superimposed system, acceptance of which as a whole was sheer submission, and rejection of which made any person, or people, or province, an outlaw or a rebel.
The genius of the law of Rome, by its inherent reasonableness, commended itself for adoption after the edifice of force which it had compulsorily imposed was broken and disrupted. But essentially it was a system of force, proud, centralized, imposed from above. That was the jus Romanum. It would also have been the jus Germanicum. We must pay our historical homage to the scheme; but a law of that description is unfitted for any modern empire which means to be an empire of service to mankind, and an empire that will endure. The world has never known any contrast so great as between empire and law as we conceive them, and empire and law which are the concepts of what may be called the Roman-German system.
Think of how different our ideas are. Every land contributes its own crop as per its own climate; it shows forth its own needs, and these vary as from arctic to equatorial conditions; and so all the lands thus contributing and co-operating move forward in those channels of custom, to destroy which is to lay society in ruins.
To recognize these customs, to acknowledge frankly the right of self-government, to respect liberty, to respect history, that is the English-speaking system. The law, the true and enduring jus civile, which is the great umpire, interpreter, helper, is not English law, nor Canadian law, nor Scotch law, nor Australian law, but it is those principles of jurisprudence which inform and bind together the whole mass of co-operating provinces and states under concepts which underlie all variety of local and juristic expression, and which are the guarantee of civilization. Law, according to this modern idea, has evolved more freely in the British Empire than in any other sphere. The chances of its life are far more enduring, because it is commended by reason itself, than any system however mighty which is imposed by force. Over against it stands what I may call the Roman-Prussian system, which is self-centred. Think of it again. It passes from province to province accomplishing unity by the sword, and imposing the forms of its law to its atmost circumference. It suffers no history, no immemorial custom, no local or sentimental attachments, to stay its hand. It achieves unity, a unity of submission by the suppression of variety and of local liberty, till, at length, the vast humiliation, with occasional extirpation, achieves its triumph.
We of the British Empire—the time may come sooner than we expect that the same may be said of the entire Anglo-Saxon race—must and do stand for the other view which finds a place of brotherhood for all nations under the sun, and which achieves that unity in variety which is harmony. Here, at the heart of the matter, law rests; for the law which can endure as an elevating, harmonising and binding force, is a respecter of tradition, which, through the ages in every land, has contributed something to the noble inheritance of mankind. It is in this way that law, as a Link of Empire, comes to be a very sacred thing. For, by force of reason and principle, law is lifted to the level of true majesty as the friend of progress. It gives liberty and individualism among the nations their chance, and receives back from them
them an enlightened gratitude or co-operation.
Many fine and good things have been said about the Common Law of England and by fine and good men. In a manner I look upon it from a point apart. But who, pretending to an ordinary measure of intelligence and knowledge, can look upon it without admiration and marvel? Its details, like the details of any law, present of course occasion to the scoffer; but in its mass it is an expression of the inborn sense of how an honest free-born people wish to have their affairs conducted,-a living and masterly instrument working always through history towards the light, and in every age bringing comfort to the commonwealth.
I think upon the whole that that must have been the way in which in this ampler Canadian air the sons of England still looked upon it. The instance I give is peculiar. You know the subject well; but I should just like to set a few heads down again. Canada-as one Colony' and under the name of the Province of Quebec—was ceded to England by the French in the year 1763. In 1774 the Quebec Act provided that in civil matters the old law of Quebec should still apply, "while in criminal matters the English law should prevail.” What was the old Quebec law prior to 1763? Its sources are thus stated by Baye
(1) The Coutume de Paris and the Ordinances in force within the jurisdiction of Paris, except such as were clearly not intended to have effect outside Paris.
(2) The “Arrêt du Conseil du Roi" and the Ordinances published between 1663 and 1763, but in both cases only if they had been registered by the Council of Quebec.
(3) The Ordinances of the Administrative Authorities in Canada, chiefly those of the Intendants.
(4) The Judgments of the Courts.
So far as civil affairs were concerned, this was French, French out and out; then in 1791, the so-called Quebec was divided into the provinces of Upper Canada and Lower Canada. And in 1792, the striking change occurred; Quebec remained as Lower Canada, the remainder within a year passed its famous Statute of October, 1792, enacting what may be called the reversion to the Motherland
in all matters of controversy relative to property and civil rights, resort shall be had to the laws of England, as the rule for the decision of the same.
This reversion was acknowledged in the preamble with the utmost frankness:
“Whereas since the passing of the Act aforesaid, that part of the late province of Quebec, now comprehended within the province of Upper Canada, having become inhabited principally by British subjects, born and educated in countries where the English' laws were established, and who are unaccustomed to the laws of Canada, etc."
This broad and emphatic admission of the laws of England has extended and extended westward over