^'iu .0^>. ^r% ^.vV IMAGE EVALUATION TEST TARGET (MT-3) 1.0 JffliM 12.5 I.I ^ 1^ IM 2.0 11.25 1.8 lA. 11.6 6" i^. V] <$> ^ ^. /}. ^ c '"e^ v^ ,^1 %_.'^''' V 4 W W '^// Photographic Sciences Corporation '-^ 23 WEST MAIN STREET WEBSTER, NY. 1 4580 (716) 872-4503 t ^ ^'^ ^ o \ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques 1981 Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. 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I I Coloured pages/ V □ Pages de couleur Pages damaged/ Pages endommag^es Pages restored and/oi Pages restaui^es et/ou pellicuj^es I I Pages damaged/ I I Pages restored and/or laminated/ ~~71 Pages discoloured, stained or foxed/ yj Pages d6color6es, tachetdes ou piquees □Pages detached/ Pages d^tach^es Showthrough/ Transparence I I Quality of print varies/ Quality in^gale de I'impression Includes supplementary material/ Comprend du materiel supplementaire Only edition available/ Seule Edition di;^'s^^^^fm^i^ tlic'ir own pleasure and delicate Hvinu:, against all reason, e(]uity, and good conscience." Irate creditors are sometimes inclined to think that notwithstanding the improvements of civilization, the genus here described is not yet quite extinct. By a Statute passed in the reign of Elizabeth, the law of ])ankruptcy was restricted to traders, but bankrupts were still in effect treated a.s criminols. Various alterations were from time to time made in the law, but it was not until the reign of Queen Anne that any provision was made for the release of bankrupts from their debts upon surrendering their property and conforming to the directions of the law. All subseciuent legislation on the subiect continued to apply to traders only until 18G1. The Act of that year, consolid- atinty and amending the law, extended it to non-traders also. This departure appears to have worked satisfactorily ; the subsequent consolidations in 18G9 and 1883 following the Act of 1861 in that respect. Apart from these consolidations, the law has been amended from time to time, the more exten- sive amendments being those of 1887 and 1890. Notwith- standing the almost continuous patliamentary attention the subject has received in England since 1861, there would ap- pear to have been no serious suggestion for a return to the former rule restricting the law to traders only. Turning to the history of the subject in Canada, it will be more convenient first to refer to the Province of Quebec. In 1668 the Company of the One Hundred Associates aban- doned to the King of France " the property and lordship of New France." Thereupon was passed the " Ordinance of 1663 " conferring on the colony its first constitution. This quaint piece of legislation, aftsr reciting the surrender of the concessions granted in 1628, the necessity for the " establish- turn m"~t of justice " to secure the repose and happiness of the inlidbitants of the colony, and the impossibility of effectually administering the laws from so i^rtat a distance, concludes that the King and his advisers " could not take a better reso- lution, than that of establishing a well-regulated justice and a grand council in the said country ; . . . . causing the same form of justice, as far as possible, to be kept there as is administered in our kini^dom." This Sovereign Council was enjoined to judge all matters " according to the laws and ordi- nances of our kingdom, and to proceed as far as possible in the form and manner which is practised and maintained in the seat of our Court of Parliament at Paris." Subsetjuent ordinances faithfully followed this precedent, and the " cus- tom of Paris '' became the foundation of French Canadian law. This custom, based in its turn on the Roman Civil Law, had always recognized that when a debtor had not wherewithal to meet his obligations in full, what he had should be fairly divided amongst those having claims upon him. It failed to recognize however any right of the insolvent on full surrender to a discharge from further liability. But Quebec (then Lower Canada) takes first place on this subject among the Provinces, not only by reason of the greater liberality of its common law, but because it was the first to cover the whole ground by statutory provision. After the breaking out of the rebellion of 1837, the Imperial Par- liament suspended the constitution of the colony, and vested the government thereof in a Special Council appointed by the Crown One of the early enactments of this Council w^as an " Ordinance concerning bankrupts and the administration and distribution of their estates and effects." This ordinance was modelled on the English bankruptcy laws then in force, and like them wji.s made Hp})licable to tradevH only. The law thus promiilt^ated ensured not only rateable distril^ution, but tl'e debtor's ri^jht, in the absence of t'laud, to a discharj-.e after full .surrender of his estate ; as well as immunity from arrtist for debt, and release therefrom if under arrest. After the restoration of the constitution and the union of the Provinces of Lower and Upper Canada, the ordinance continued in force in the former Province until l'S48, when it was displaced by a Statute, wiiich with considerable amend- ment of details, extended ihe provisions of the ordinance to both Provinces. The subsequent development of le<,nslation on the sub- ject, is intimately interwoven with the gradual miti^jation and ultimate abolition of imprisonment for debt which the growth of humane feeling had rendere.I necessary. It would scarcely be profitable here to follow the intricacies of these changes. Broadly speaking, it may be stated that the bank- ruptcy law was in force in the two Pro^'inces from 1 15 the public rather than with the creditors of a particular estate, to secure such a firm administration of the law as will not subject to unfair competition, rival traders who are pay- ing and desire to continue payingj 100 cents on the dollar. What is a public duty should be discharged on the authority, and at the expense of the public. Sometimes we are told that what we need is a simple Act of a few clauses. That reminds one of a simple Hoe printing press, made of a few bars of steel. A bankruptcy law from its very nature, deals with abnormal conditions. It must provide means for adjustments, intinite in number and variety ; hence it must always be one of the most intricate pieces of legislation that any parliament can be called upon to consider. Its framing re<]uires the highest degree of skill, and the highest degree of knowledge of the subject, just as surely as does the designing of the most intricate piece of machinery known to the modern manufacturer. That con- sideration should however no more deter the nation, than it deters the manufacturer who scours the earth for talent to improve his facilities. Taking for a moment a broader survey, what do we see ? Before our eyes, with a rapidity never before dreamed of, improved facilities of communication and transport are draw- ing the whole world close together. The world's commerce is the prize for which not only great manufacturers, but nations now strive. A world's public opinion, too, destined yet to wield a mightier power than armies and navies, is fast crys- tallizing. International law is slowly emerging from chaos ; and will never again contract its sphere. Inevitably it must keep pace with the ever widening scope of international com- merce. imiii— WMMMi'VWsltiMainKae »ni«»>^>-i-. u».tu. ■•» : Our hearts beat high to-day in sympathy with Enghind's military achievements ; hut after all, England's dominant instincts are not martial. It is essentially in the two realms of commerca, and law, that she has led the world for centu- ries, and leads it still. As mistress of the seas ; as pioneer manufacturer ; as the tirst of trading nations ; all yield her the palm. But her supremacy as the world's law maker, is to-day more uncjuestionable, than is her place in the commer- cial world. Wherevei- civilization extends, her example and experience in constitutional government, in nearly all blanches of jurisprudence, and especially in the interpretation and ia the impartial administration of law, are the common fountain of inspiration for all lands. With giant strides Canada has during recent years, been taking her place as a daughter worthy to share in the destiny of this prolific mother of nations. Has not the time come when we should take a leaf from the rich book of Ensflaud's experience (m tho subject of bankruptcy legislation — a sub- ject confessedly vital to modern national and international relations ?