"We constantly in the English Courts, upon the question of what is the general law, cite Pothier." A rather remarkable instance of this is presented by Young v. Grote (4 Bingham 253), decided in 1827. The question there was as to the liability of the drawer of a cheque, where his negligence in writing it had enabled a forger to raise it. The Court of Common Pleas held that the drawer must bear the loss, basing its judgment on a passage from Pothier's Contrat de Change (No. 100). For nearly 100 years Young v. Grote was much discussed in the English courts-sometimes approved, sometimes abused. In Scholfield v. Londesborough, decided as late as 1895 (1 Q. B. 538), where it was sought to hold the acceptor of a bill of exchange liable for an amount to which it had been raised after acceptance, falsification having been facilitated by the negligent manner in which the drawer had filled it in, Lord Esher, M.R., alluded to Young v. Grote as the "fount of bad argument." On appeal to the House of Lords (1896 A. C. 514), Lord Halsbury said of it: "That case has been pushed so far in argument that I think the time has come when it would be desirable for your lordships to deal with it authoritatively, and to examine how far it ought to be quoted as an authority for anything." And he added, "I entirely concur with what Lindley, L.J., said in Adelphi Bank v. Edwards (unreported) that it was wrong to contend that there was negligence in signing a negotiable instrument so that somebody could tamper with it; and the wider proposition of Bovill, C.J., in a former case, Société Générale v. Metropolitan Bank (27 L.T. 849), that people are not supposed to commit forgery, and that the protection against forgery is not the vigilance of parties excluding the possibility of committing forgery, but the law of the land." The question of the duty of the drawer of a cheque towards his banker came up for review, however, in the House of Lords in 1918, in London Joint Stock Bank v. McMillan and Arthur (1918, A. C. 777). In a series of remarkable judgments, the authority of Young v. Grote was triumphantly vindicated. In the course of his elaborate speech, Viscount Finlay, then Lord Chancellor, said that the passage from Pothier to which I have just alluded, and which his lordship quoted, "appears to me to embody the principles of English, as well as of the civil law." Yet it was only a few years before, in 1891, that Lord Halsbury had spoken of Young v. Grote as a case of very doubtful authority, and Lord Esher had referred to it as "the fount of bad argument. As was said by Tindal, C.J., in Acton v. Blundell (12 M. & W. 324-353), decided in the Exchequer Chamber in 1843: "The Roman law forms no rule, binding in itself, upon the subjects of these realms; but, in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries of Europe;" and Mr. Broom says, in the introduction to his great work on the Common Law of England: "Our courts will listen to arguments drawn from the Institutes and Pandects of Justinian, and will rejoice if their conclusions are shown to be in conformity with that law." We marvel, therefore, rather at the number and the extent of the disparities than of the similarities between the civil law and the English law as they exist to-day in the Province of Quebec and in the other provinces of Canada respectively. But that there are many such differences between the two systems-not a few of major, others of minor importance-is a fact only too often forced upon our attention. Apart from the complete and fundamental differences in the law of real property-the one system based on the civil law, and the other of feudal origindifferences which would open quite too wide a field of discussion and on which I shall therefore say nothing -perhaps the most noteworthy is the divergence of views as to the weight that should be given to judicial decisions as authority in subsequent cases. The existence of that difference has led to development along divergent lines, and is probably responsible for most of the minor and for some of the major dissimilarities we now encounter. In the early days of English law, down to the time of Bracton-that is, in the 13th century-previous decisions were not held binding on the English judges. But the contrary rule had been well settled before Blackstone began to write his Commentaries in 1765. Blackstone says (I. 69): "It is an established rule to abide by former precedents where the same points come again into litigation; as well to keep the scale of justice even and steady and not likely to waver with every judge's new opinion, as also because the law in that case being solemnly declared and determined, what before was uncertain is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments." As put by Sir Frederick Pollock, "The decisions of the superior courts of justice and the reasons given for them are treated as having eminent and all but exclusive authority." Sir Frederick in his designation of the doctrine of stare decisis-a term by which the doctrine of adhesion to precedent is generally known-as "our modern -our very modern conception of rigorous case law" (Jurisprudence, 227-8) is speaking comparatively. At all events, at the present day a decision of the House of Lords in England, or of the Privy Council in this Dominion, carries authority almost equal to that of an Act of Parliament. Indeed, only by a statute can an erroneous decision of the House of Lords on a question of law be set right (London Street Tramways v. London County Council, 1898, A. C. 375-381). But the Judicial Committee, doubtless because it is not a court of law in the strict sense but a body advising the Sovereign, claims for itself greater freedom in dealing with its former decisions (Tooth v. Power, 1891, A. C. 284, 292; Read v. Bishop of Lincoln, 1892, A. C. 644, 655). In these two cases, their Lordships say definitely that not only are they not bound by previous decisions of the Board, but if in a case subsequently argued they were satisfied there had been mistake in a view formerly expressed, it would be their duty to give effect to their own view of the law. While theoretically the function of the judge under the English system, as in Quebec, is " jus dicere, non jus dare," in practice the courts have often found it necessary to make the law. "Judicial decisions," says Mr. Broom, "indeed afford the best-oftentimes the only evidence of what the law is." There has been not a little criticism of stare decisis in English countries. "Why," said Lord Macnaghten, "should an obscure report be taken for gospel, merely because it is old?" That was in Keighly v. Durant, 1901 A. C. 248. This subject is seldom discussed without allusion being made to a witticism of Lord Gardenstone, another Scotch judge "One decision is nothing. 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." President Bouhier, cited by Laurent, a leading text writer (I. 281), attributed to a Roman author the scathing remark that-I shall read it in the French because it is so much more pointed "il n'y a que les petits génies, les esprits plébéiens, qui se laissent entrainer par les exemples au lieu d'écouter la raison." Translated freely "Only men of narrow vision-plebeian minds -allow themselves to be ruled by precedents instead of being guided by reason." The following well known lines of the Laureate Tennyson are also frequently quoted: "The lawless science of our law, Through which a few, by wit or fortune led, Sometimes, however, the doctrine of stare decisis is overstated, and it is always well to bear in mind. that a decision is authority only for the legal proposition on which it professes to be based. In an oft-quoted passage from his judgment in Quinn v. Leatham (1901, A. C. at page 506) Lord Halsbury, several times Lord Chancellor, who died a short time ago, said, "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." Logical development, on the other hand, is the aspiration of civilians. The judges of Quebec, as of other civil law countries, are expected to carry the principles enunciated by the civil code to their ultimate logical consequences. Note, I say, the principles -not the principle-because the code must be construed and taken as a whole, and quite often it becomes necessary to restrict the operation of one principle in order to admit of the proper application of another. |