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MICRCCOrV *ESOlUTK>N TBT CHART I ANSI ond ISO TEST CHART No 21 1.0 I.I t- Urn 1^ 1.8 L25 I w II 1.6 ^ APPL I ED IK-MGE Inc ^^K '6^3 Ea^t MQ.1 Mre^t S T^S WocnesiBf, New 'o'h 1*609 uSA r^S ^■"^) *82 - OJOO - Phcne ;SSS ^^'6) 288 - ^989 - fsx THE GENESIS OF ROMAN LAW IN AMERICA BY WILLIAM BENNETT MUNRO ^^H '^^H ^Kb . ^"•X"'' r^^ Hn B^O^^^: .>,."- ;• ■ ■>;? H9 1^^^^^-;^^ %. Reprinted from the ■s H' < 1 1 HARVARD LAW REVIEW H ^^B * * June, iQog. ■fl I- 3^ ■■ 1 m ■V ^kB JL ^— i..';^ i^..^..:. ' i n^6 ^ S8 THE GENESIS OF ROMAN LAW IN AMERICA. $79 THE GENESIS OF ROMAN LAW IN AMERICA. OOME few years ago the Judicial Committee of the English O Privy Council, in a case which came before it on appeal from the Court of King's Bench for Quebec,' encountered some difficulty in the interpretation of a certain clause in the Civil Code of the Province of Quebec* The clause in question had, it appeared, been borrowed almost literally by the framers of the Quebec codi- fication from the Code Napoleon of France.' Resort was had, therefore, to this latter compilation, whereupon it further appeared that the provision had been condensed by the Napoleonic jurists fro.n a passage in the works of a well-known commentator on the laws of France during the old rfegime.* As the code provision needed elucidation, further reference was accordingly made to this commentary, only to find that the commentator had drawn his rule from the Roman Digest* The judges thereupon went back to the Justinian compilation, and here they found the rule of law set forth in such clear terms as to enable them to give decision with entire confidence. This is an interesting illustration of the continuity of legal evolu- tion : it affords testimony to what Mr. Bryce has emphasized as the vitality of the Roman jurisprudence, and of its contemporary application to immense areas which never knew the Roman sway.« At the first glance this instance, and many others like unto it, would seem capable of very easy explanation. French law is based on Roman ; the French colonized Canada ; they introduced their own law; the English, when they came, retained it; hence the Roman law very naturally forms the groundwork of Quebec civil jurisprudence in the twentieth centui^ This simple explanation ' Kieffer v. Le S^minaire de Quebec, [1903] A. C. 85. « Code Civil de Quebec, J 501. The clause relates to the liability of a landlord for the tort of a tenant in connection with the impairment of a riparian right ' Code Napolton, { 640. « R. P. Pothier, Traits de socisto>re du droit fran9ais (Paris, 1892). 673. i,! . •• ;„ » 11. Kuche, " Essai sur Tancienne coutume de Pans aux XIII et XIV slides m Nouvelle Revue Historique, vol. viu. pp. 45-86 ; vol. U. pp. 558-579- THE GENESIS OF ROMAN LAW IN AMERICA. S3l with this as a basis that Dumoulin wrote his famous Latin com- mentary. This is to distinguish it from the " new custom " which embodied the results of a revision made in 1 580 by a commission of Parisian l.'wytrs under the presidency of the distinguished juris- consult Chris.ofle dc Thou.' In this revision of 1580 the general arrangement of the Custom of I'aris was improve i, and some changes were made in the text. The code now appears with its text arranged in sixteen titles which rontain altogether three hundred and jixty-two articles numbered consecutively. The form is satisfactory and the various rules are set forth with tolerable clearness and brevity. The most distin- guishing characteristic of this code, however, is its thoroughly native spirit ; for it contains very little distinct trace of either Roman or Canon law influence. One might indeed go so far as to say that the jurisprudence of Rome had up to this time influenced the Custom of Paris no more than it had influenced the common law of England at the contemporary stage of its development. It ought to be mentioned, however, that the Custom of Paris did not purport to be a complete and comprehensive body of jurispru- dence ; for it did not include the general law of obligations nor the law of special contracts. All this, which forms an important part of every legal system, was left to be governed, even in the territory to which the Custom of Paris applied, mainly by the rules of Roman law. This latter obtained its foothold in the Viscounty and Provostship of Paris, not through the Custom, but through its application to a sphere of private relations with which the Custom did not undertake to deal. It is highly important that one should remember this, for it does not coincide with the commonly accepted idea that Roman law first made its way to the New World through the transplantation of the Custom of Paris to New France and Louisiana.* The Custom itself Dwed little or nothing to Roman law; and it consequently brought little or nothing of it across the seas. In 1664, when all the territories of France in the Western Hem- isphere were given to the Company of the West Indies, it seemed advisable that a definite code of jurisprudence for these territories should be prescribed, and from the many customary codes available for this pur yse the Custom of Paris was selected and decreed into ' V. A. Poulenc, La coutume de Paris (Pari*, igoo). ' See, for example, W. W. Howe's article on " Roman and Civil Law in America" in 16 Harv. L. Rev. 343-358 (March, 1903). 583 HARVARD LAW REVIEW. force » The French colonists in America up to this time had been drawn mainly from Normandy, and it has sometimes been sug- cested that the Custom of Normandy would have been a more appropriate choice as a colonial code. It is to be remembered, however, that the Custom of I'aris had acquired a certain primacy among the various French coutumes at this time, and that even before this date Uumoulin had been able to speak of .t as «/«/ omnium hnjus ngni it toUus etiam Belsicar comHctudmum At the time .^f its transplantation across the Atlantic it bade fair to become the "common law" of France, and its selection by the French authorities was therefore entirely logical, although .t in- volved the nnplication to sparsely settled and undeveloped colonies of what Nvas intrinsically a metropolitan code. IW the decree of 1664 't was provided that the courts of the French colonies in America and the West Indies should govern themselves by the Custom of Paris and "by the laws and ordi- nances of the realm." The ordinances of the French crown prior to this date had been somewhat numerous, but few of then, had made any important changes in the law of private relations. The acre of Louis XIV (1662-.715) was prolific in royal legislation, however, and a succession of elaborate decrees, commonly known as the mxndcs ordonnances, revised and codified several impor- tant branches of law and civil procedure.' This legislafon in the main supplemented the Custom of Paris, and covered fields of law with which the Custom did not undertake to deal; but to some extent the great ordinances varied and altered in effect the pro- visions of this code. It therefore becomes important to know whether these ordinances extended to the colonies, or whether their provisions applied to France alone.'' In France it was necessary, before an ordinance of this sort should become valid, that it should be registered by vSe Parlia- ment of Paris. This b ody, as every one knows, had techn ically tne -IT;;;;;;;;^,^ jug,, etabU, en wus lesdit, Hcux tenus de juger suivant les loix et ordon.^"., Ju royaume, et le, officier, de suivre e. se conformer i U cou.ume de U r v6t" t v,co.n./de Pam, suivan. laque.le les habi.an, pourron, io"'"'^*" "J" ^'^^ [•on puisse iniroduire aucune cou.ame pour ivi.er la d.ver.U*." ^"bl.ssement de a CoTagnic <'" I"''" C)cciden.ales (Ar.. xxxiii). i" I-amberf. Recued genera, de. ancienne, lois fran.aise. (30 vols., Pari,. .8..-.833). -'• ""'• PP,38fl• ^ Paul Viollet, Histoire du droit civil fran9ais (Pans, iSgj). p. 208- . Amone these were the " Ordonnance civile touchant la reformation de la justice la marine--' August, .68.). in lUJ. vol. xix. pp. =8. «. , and the " Ordonnance da com- merce " (March, .673), in Ibid., vol. xix. pp. 9a ff. THE GENESIS OF ROMAN LAW IN AMERICA. 583 right to refuse registration, and tb'i to deny validity to royal de- crees ; but the king might, and ab time went on did actually, over- ride its veto by the use of the prerogative commonly known as the /// le juuict. Now the Sovereign Councils, which the French government established in its American colonies, were modelled roughly after the frame of the Parliament of Paris, and in the edicts creating them were specifically instructed to follow the procedure of this body.' One of their chief func'' ns, indeed, was thit of receiving royal ordinances sent fron. .a nee and of registering these in their council records. Mip' these colonial councils, then, like their prototype in France, refuse to register a royal decree; and might a royal ordinance become operative in the colonics save after such registration ? The answer to the former of these questions is simple enough. Whatever the legal rights of the council^ In Canada and Louisiana, the fact was that the councillors in both colonies were appointed directly by the king ; they held office only during the royal pleasure; and they might be removed by the crown at will. Unlike tl ^ members of the Parliament of Paris, they did not secure their posts by purchase or by inheritance, and they had hence no security of tenure. At the first show of recalcitrancy Louis XIV would certainly have removed the colonial councillors from office. They themselves knew this very well, and there is consequently no evidence that they ever showed any disposition to refuse registration to an/ royal mandate sent to them. The other question, namely, whether an c anre which had been registered by the Parliament of Pnris, bu >t sent out to be registered by the councils of the Franc /ATTiirican colonies, could be held to apply in these colonies, i; , ne which is by no means so easy to answer. As a ; -atter of t t the great ordinances of Louis XIV were not regisi .:i : in any of the colonies. Still their provisions were commonly .ijcepted by the colonial courts, and especially by the courts of Canada during the French regime, and some of them acquired the full force of law. There was a good deal of Roman law in these great ordinances, and it was in this way that some branches of Romin jurisprudence made their way to America and gained a footing there. The colonial courts fol- lowed the provisions of the great ordinances in many matters ' S«e the " Edit de creation du conseil souverain de la Nouvelle-France " (April, 1663), in Edits et ordonnancet du roi conccmant le Canada (3 vote., Quebec, 1854), *ol. i. pp. 37-39. ^1 If S8+ HARVARD LAiy REVIEW. because they found it convenient to do so ; it is now well settled that, since the ordinances were not registered in the colonies, they were in no way binding upon the colonial authorities.* But the royal ordinances were not the only enactments by which the Custom of Paris or " common law " of the colonies was sup- plemented or changed. The Sovereign Councils of the colonies might themselves issue decrees, and the ordinances issued by the council at Quebec fill several ponderous volumes.* Likewise the Intendant in New France and the Sub-delegate in Louisiana issued their multitude of riglcments covering all sorts of matters from the most important to the most trivial, as the wru.r has elsewhere shown.* Indeed, if there is any one feature which impresses the student of French administration in the New World, it is the pro- digious official activity there displayed. Still this bewildering mass of colonial legislation did not greatly modify the general principles of colonial law as set forth in the Custom of Paris and in those of the royal ordinances which had been registered, for the obvious reason that the ordinance power of the colonial authorities was limited to the elucidation and interpretation of the law, and did not extend to the radical alteration of it. It is true, howi r, that they did not limit themselves strictly in this respect, but allowed themselves considerable latitude, for, as one of the intendants expressed it in a despatch to the kin^, there would soon be more lawsuits in the colony than persons, if the authorities did not hold themselves free to order things in a fashion which often involved wide departures from the letter of the law.* When the French withdrew from their extensive territories in 1 760, therefore, they left implanted in ithese a legal system which was fundamentally Teutonic in character, and which, except so far as the law of special contracts was concerned, bore very little important trace of Roman influence. The jurisprudence of the French colonies in America had been much less romanized than the jurisprudence of the motherland at this time ; for many branches of the home jurisprudence had been thoroughly impregnated 1 F. P. Walton, The Scope and Interpretation of the Civil Code of Lower Canada (Montreal, 1907), especially the cases cited on p. 4, note 3. ■i Jugements et deliberation* du conseil souverain de la Nouvelle-France (6 vols., Quebec, 1SS5-1891). 8 " The Dftice of Intendant in New France " in American Historical Review, October, 1906, pp. 15-3S. * Kaudot to Pontchartrain (November 10, 1707), in Canadian Archives, Series F., vol. xxvi. pp. 7 ff. THE GENESIS OF ROMAN LAW IN AMERICA. 58s with Roman influences through the issue of the great ordinances which, as has been stated, were not registered in the American colonies of France, and were consequently not part of the legal systems there. Somewhat strange and paradoxical as it may ap- pear, a large part of the Roman influence which now appears in the civil jurisprudence of Quebec and Louisiana made its way to these jurisdictions, not during the period of French dominion, but since the expulsion of France from the New World. This may be best illustrated, perhaps, by confining attention to the former of these two jurisdictions alone. It is a recognized principle of English public law that the con- quest of alien territory does not, ipso facto, involve the <"- nsion thereto of the English law of property and civil rights.* On the contrary, the law of the conquered territory remains in full force and effect until such time as the new suzerain may alter or abrogate it by explicit enactment. The conquest of Canada, therefore, left the colony with its old law for the time being. But this ancient jurisprudence was soon set aside, for within three years after the conquest, on October 7, 1763, a royal proclamation provided for the establishi. it of new courts in the colony and directed specifi- cally that these tribunals should " hear all causes, both criminal and civil, as near as may be agreeable to the law and equity of England."* The intent of this proclamation was without doubt to abrogate entirely the Custom of Paris and the other factors in the old law system of the province, replacing these by the common law and equity jurisprudence of England. But it is quite an open question whether the king of England, by the mere exercise of his royal prerogative and through the elementary agency of a royal proc- lamation, had power to make this sweeping change. There are those who believe that a change of this nature could be made only b_ Act of Parliament. The question is one which has been dis- cussed at considerable length by the legal savants of French Canada, and until very recently the weight of opinion has inclined to the view that the king did not possess the right to abrogate the old law by proclamation.' One of the higher courts of Quebec, * The leading case on this point is Campbell v. Hall, I Cowp. 204. > Canadian Archives, Series Q., Vol. 62A, Pt. I, pp. 114 ff. An exact copy of the proclamation is printed in " Documents relating to the Constitutional History o£ Canada" (ed. A. Shortt and A. G. Doughty, Ottawa, 1907), pp. 119-123. « Rudolphe Lemieuz, Les origines da droit franco It was pnblUhed in four parts at London during the years 1772-1773. The exact titles of the four parts are : i. An Abstract of those Parts of the Custom of the Vis- county and Provostship of Paris which were received and practiced in the Province of Quebec in the time of the French Government. 2. The Sequel to the Abstract . . . containing the Thirteen latter Titles of the said Abstract. 3. An Abstract of the Criminal Laws that were in force in the Province of Quebec in the time of the French Government. 4. An Abstract of the Several Royal Edicts, and Declarations, and Provincial Regluations and Ordinances that were in force in the Province of Quebec in the time of the French Government, and of the Commissions of the several Gov- ernors-General and Intendants of the said Province (London, 1772-1773). 588 HARVARD LAIV RE VIE IV. law in " all cases relating to property and civil rights," thus ousting from the province all that was left of English law in =ts application to other than criminal causes.' This was a very welcome conces- sion to tl : French-Canadians, and doubtless had some influence in keeping them from casting in their lot with the revolting Amer- ican colonists to the southward. By these latter, as is well known, the change was regarded as a species of treason to Anglo-Saxon institutions, and in the Declaration of Independence George III was rebuked, inUt alia, " for abolishing the free system of English law in a neighboring province." At any rate, the Quebec Act re- stored in its entirety the civil jurisprudence of the old regime, and it has remained in full force throughout the Province of Quebec down to the present day. The English criminal law has, however, existed side by side with it from the outset. During the half century following the restoration of the old law system many changes were made in it ; for the legislative authori- ties of the province had been given power to change it by en- actment whenever changes might seem desirable. In 1785, for example, the p"- wincial authorities made provision that in all com- mercial causes the English rules of evidence applicable to such proceedings were to b followed. These English rules of evidence in commercial causes were founded, however, on the rules of the old law merchant, and as they were in their origin rather interna- tional than national they did not differ in essentials from those which were prescribed in the Ordonnance de la Marine of 1681,* one of the Grand Ordinances which had never been registered in the colony. Other statutes made important changes in various branches of the law, and the abolition of the seigniorial system of 1,-ind tenure in 1854 made a very radical change, not in the law it- self but in one of the chief subjects with which the civil law had to deal. During this period, moreover, a considerable development took place through the agency of judicial decisions. The judges of the province turned constantly for enlightenment to the commen- tators of Old France, to the decisions of French courts, and, above all, to the provisions of the Code Napoleon after that compilation had been prepared. In many respec.s the provincial jurisprudence, therefore, while professing to be a perpetuation of the old legal sys- tem, was steadily departing from this latter. Through the channels » 14 Geo. in. c. 83. » This ordinance may be found in Isambert's Recueil g&^ral, vol. xix. pp. 282 ff. THE GENESIS OF ROMAN LAW IN AMERICA. 589 which have just been mentioned the influence of Roman Law exerted itself strongly and with enduring eflfect. In 1857 it was deemed advisable that the civi' law system of the province should be revised and recodified, for there had been no important revision since 1773. The work was committed to a com- mission of French-Canadian jurists by whom it was accomplished with high credit When the task was completed, the compilation was enacted as the Code Civil de Quebec. If there was any one feature which marked the labors of this cc Timission. it was the un- remitting attention which they gave to the Code Napoleon and the large extent to which they drew from this source. In its arrange- ment the Code Civil de Quebec follows the Code Napoleon almost slavishly. In matter the dependence is extensive and obvious. Mary articles are reproduced \ crbatim ; many others show only mere verbal transposition. With the exception of a single book,» indeed, the Code Civil de Quebec may be much more properly looked upon as a recension of the Code Ixapoleon than as a revis- ion and recodification of the French civil law as it had existed in the colony before the English conquest. Now those who are familiar with the history of the legal system of modern France do not need to be reminded of the mighty debt which the Code Napoleon owes to the Roman Law. This obliga- tion, direct and indirect, is made perfectly clear in the collection of sources which the Bonapartist compilers used in the consumma- tion of their monumental task.* The legal system of France had b'-en steadily romanized during the century preceding the Revolu- tion, and the compilers of the Code Napol<^on completed the pro- cess. It may not be amiss therefore to point out that the Code Civil de Quebec, in so far as it is based upon the Napoleonic com- pilation, shares equally in indebtedness to the jurisprudence of Justinian. It is probably well within the bounds of *ruth to sug- gest that more Roman law found its way into the contempora.y legal system of French Canada by way of the Code Napoleon than through any other channel, or, possibly, through all other channels combined. The dominance of Roman juridical ideas in this province is not. therefore, a heritage from the days of French possession. It is not because the French established there the Custom of Paris ; but » Book iv^ » These sources are brcught together in Fenet's Recueil complet des travaux pr«- paratoires du Code CivU (15 vols, Parii, 1827-1829). 590 HARVARD LAW REVIEW. because under English rule there have been wide departures from this original code. When the French left Canada in 1763, they left behind them a system of jurisprudence which probably owed mor'i to Teutonic than to Roman sources. It is of course not unnatural that, being French in origin, the law system of the province should have continued French in development despite the passing of the colony into the hands of a new suzerain and notwithstanding the startling break in the continuity of French legal evolution which marked the Revolutionary and Napoleonic periods. But it was not essential that the civil j risprudence of Quebec should have taken this course. In fact it was the intention of the English authorities at the outset to turn it into quite another channel. From this policy they eventually refrained, however, and by so doing gave recognition to the principle that, in the evolution of a legal system, ethnic factors are apt to prove more potent than the pressure of political control William Bennett Munro. ■Hi