Entered according to act of Parliament of Canada, in the year one thousand nine hundred, by C. THEORET, Publisher of Montreal, in the Department of the Minister of Agriculture, Ottawa. PREFATORY NOTE. This article is, with some additions, a lecture delivered to the "Junior Bar Association of Montreal. An eclectic legal system, like that administered here, has the defects of its qualities. One of them is that English, French and American cases are thrown together pell-mell for the purposes of an argument. In the hurry of preparation it is very easy to overlook a difference of principle which may make the English case less applicable. I thought, therefore, that it might be useful to state the points of contrast in the two laws. As it stands, our law is in a curious position. A French writer, describing a similar state of affairs, wittily says: "les arrêts ne rendaient plus qu'un platonique hommage à la théorie classique du Code." Lawyers are the most conservative of mortals. They cling with desperate tenacity to the formulæ of a past age. Even in countries where the law is not codified, its advance is almost imperceptible, unless the legislator rudely intervenes. Under a Code the judge is tied still more tightly to the formula. He must interpret and not make the law. But it sometimes happens that the world moves too fast, or that the wheels of legislation are too slow. The old formula has got to appear so narrow and inadequate that the judge is as anxious as the counsel to give it a new interpretation. He expounds the texts as the ancients expounded the oracles. The oracle cannot have erred. That which has happened must have been the thing foretold. If men expected something different it was because they misunderstood the dark saying. So if the Code gets too narrow it must be read in another light. We must pour into it a new sense to fit it to a new world. In the following pages, I have tried to shew that this is our present condition as to this branch of the law. The new English Act and the new French Loi are printed at the end. |