It is not nations that fall but systems. Though ruin has come upon the house founded upon the sands, the people live and may build again more wisely. If there is in Spain any saving salt of honest public spirit this will be its opportunity to purge the Government from the corruptions which have brought it, step by step, and generation after generation, down to the present stage of decay.

Great Britain, taught by her errors, and fortified by her losses, after the separation of her first colonies, consolidated her system of free Government, and set about building up a grander empire on the new principles in which we participate to-day. Thus nations like men, may rise on stepping-stones of their dead selves to higher things. Let us hope that we may see Spain, humbled in the unprofitable pride of power, take counsel of her ancient courage, and begin once more, in the vigour of her purification, and in her regeneration unashamed, to take her place with honour before the old world and the new.

PROVISIONS OF THE BRITISH NORTH AMERICA ACT

FOR UNIFORMITY OF PROVINCIAL LAWS.

BY B. RUSSELL, Q.C., D.C.L., HALIFAX, Nova SCOTIA.

Without pausing at the threshold to verify the assumption, I shall take it for granted that one of the prime objects of this association is to bring about an improvement in the form, if not in the substance, of the laws administered throughout the Dominion.

The substance of those laws, in Canada, as in every other democratic community, must depend upon the varying opinions and sentiments of the people, for which lawyers as such have no more claim to speak than any other class or profession. But the formal statement of the law, and the procedure by which its provisions are to be made effective, constitute the specialty of our profession, and no man can claim to have discharged his full duty as a member of that profession who has not, according to the measure of his ability and opportunity, endeavoured to make those formal statements and methods of procedure more clear and simple than he found them.

I know nothing that would entitle me to speak of the conditions prevailing in the province of Quebec. Our constitutional act bears witness to the tenacity with which the people of that province adhere to the principles that underlie the system they inherit, and the procedure to which they have been accustomed. Far be it from me to comment upon this disposition, to deprecate the perpetuation of that system or the constitutional provisions with respect to it, which were a necessary feature of the federal principle upon which our Union was established. But I suppose that the stoutest champion of the peculiar institutions of Quebec will concede that, however admirable and excellent the laws and procedure of that province may be, their excellency is not such as absolutely to preclude the possibility of improvement.

Of the conditions prevailing in the English-speaking provinces, I may speak with greater boldness. Our English law has been the subject of much exposition and no little criticism. It has been described as a medley of ancient customs, handed down.

from the days of the feudal system, of badly assimilated excerpts from the civil law, borrowed without perfect intelligence, and with no acknowledgment at all, but put forth as the spontaneous and all but inspired wisdom of the Bench, slowly and spasmodically modified from time to time according to the caprice of individual judges, disfigured by the anomalies, and clouded by the uncertainties attendant upon such a course of development, depending in great measure upon the sheer accidents of litigation, and exhibiting only such marks of intelligent design as are apparent here and there in the haphazard results of desultory and patchwork legislation. "Chaos tempered by Fisher's Digest," is the witty description that has been applied to our system of common law. But the expression presents a partial and one-sided view of the matter. For, after all, anomalous as is our system in many of its features, defective as it must be conceded to be, in many respects in which it might without difficulty be amended, it is, nevertheless, but the natural and inevitable expression of what is most characteristic of us as a nation.

Our common law, or to speak more broadly, our whole body of positive law made up of common law principles and the modifications effected by legislation, from time to time, has, no doubt, its many curious and costly anomalies, its unquestionable incongruities and absurdities, but those who would bring a railing accusation against it, should remember that it embodies Magna Charta and habeas corpus among its provisions, that the petition of Right and the Bill of Rights have been wrought into its fabric, that it recognizes Free Thought and guarantees Free Speech, that the independence of the Bench, and the subordination of the army, bear witness to its crowning distinction as the expression of government by law, rather than by force, and finally that in the course of its steady and progressive development, it has become the formal embodiment and expression of a system which amid all the disquietude and uncertainty, the shadows and clouds and darkness that gather about the dynasties and governments of the continent of Europe, presents to the world the inspiring and assuring spectacle of a throne "broad based upon the people's will and compassed by the inviolate sea."

But while all this is a good enough answer to the cavils of the flippant and superficial detractor, it is no answer at all to the critic who pleads the necessity for reform. The voice that calls for amendment and reform, is as genuine an expression of national

character as are the conditions against which that voice is raised, and it is for the purpose of giving direction and effect to the call for improvement that this Association has, among other wise purposes, been established.

We have at this moment no less than seven fully organized legislatures, all clothed with plenary authority in their respective jurisdictions, and each of them, subject of course to veto provisions that need not be enlarged upon, having full power within the territorial sphere of its operations to change materially the framework of our social system. These bodies, although frequently accused of a pernicious activity, are by no means as active in their legislative capacity as they might be, or as there might have been some grounds for supposing that they would be. It is a comparatively rare thing for them to meddle in a radical way with the groundwork of our legal system. A wholesome consciousness of the complexity and difficulty of the task, a dread of the unknown and unknowable consequences of meddling with the fundamental principles governing our social and domestic relations, the knowledge that legislation of such a character is the proper work of experts, who do not, in too great number, find their way into representative assemblies, the bad luck that has sometimes attended the experiments of reformers, with more zeal than wisdom, who have occasionally tried their hands at tasks of such dimension and character, and last but not least, the vis inertiae to which, however far from commendable it may be, in itself, we often owe many of the best blessings of life, all these causes have had a deterrent effect upon our provincial legislatures, and have led them to confine themselves to legislation which, however important and necessary, has not been of a revolutionary or radical nature.

Within these limitations they have all been busily engaged in legislating on the same class of subjects, and have produced enactinents that are many of them so much alike in all their leading outlines that the question has occurred to many persons why there should be any difference at all. On many subjects the provisions of their laws are in most, if not all of the provinces, exactly alike, or at least they are intended so to be, for on several subjects the intention of most, if not all of them, has been to adopt the law of England as it stands. Those cardinal provisions of the statute of frauds which govern the validity and authentication of contracts will do for a sample illustration. There may be slight verbal difference between the reproductions of these clauses in the differ

ent provinces, but these have probably been unintentional. The design has been to adopt these provisions from the English statute book, in their entirety, without the change of a word or a syllable. And it would have been unwise to depart even in the smallest particular from the phraseology of an act almost every significant word of which has received its construction through a long course of litigation and decision.

The same thing is true of many other provisions taken from the English statute book, notably in connection with the law of wills and the law of evidence. These provisions have been extracted from the English statute book without the change of a single word, and this method of legislating has been pursued even to the incorporation of the mistakes and blemishes of English legislation. In some provinces, for example, we have adopted the provisions of the original Factors' and Brokers' Acts, which have remained unamended upon our statute book for many years after the anomalous character of those provisions had been discovered and amended by appropriate legislation in the Old Country. In other provinces we have allowed provisions of the statute of frauds to remain upon our statute book for many years after they had been properly modified by amending legislation in England; cases also have been discovered in which, while we have accidentally escaped, in our own copying, the mistake of the British draftsman, we have introduced confusion worse than that of the original English blunder, by re-enacting here the English amending legislation, the sole purpose of which was to correct the mistake which our copyist had not followed. These things are among the curiosities of legislation which will furnish a fruitful theme to some future commentator, and upon which we need not at present linger.

On the whole we have not gone far wrong in our adoption of English statutes. My impression is that we might well have gone farther in this direction, and that we might still go farther in following the lead of the skilled and accomplished draftsmen who have done so much for the simplification and improvement of the English statute book. Whenever an act has been adopted in England for the purpose of drawing out in succinct and definite terms the principles and doctrines applicable to any particular subject or class of subjects, and that act has, after the experience of years, been proved to be a lucid and accurate statement of the law, we can avoid much uncertainty and avail our