What is novel in the belief that prosperity can be advanced by doles or bonuses or subsidies, distributed in the public name? Bread and circuses kept many a politician afloat at Rome; but their cost returned to plague the honest citizen, and the State rotted away under a false pretense of plenty. And who shall have the credit for inventing the government of the community by and for a class if not the first sturdy buccaneer who gathered his followers about him and set out to prey upon his fellows?

Adam Smith, a man once reputed wise and to whose wisdom the world will turn and turn again with profit, wrote that

"Little else is required to carry a state to the highest degree of affluence from the lowest barbarism but peace, easy taxes and a tolerable administration of justice; all the rest being brought about by the natural course of things."

The sentiment is worth pondering in a day when the whole world is trying to lift itself by pulling on its legislative bootstraps. Easy taxes are perhaps beyond the reach of this generation; but peace is ours, at least on this side of the Atlantic, and a tolerable administration of justice is the boast of our common stock.

To-day, as always under democratic forms of Government, "the house of the lawyer is the oracle of the whole state." There is encouragement in the thought that the lawyers of Canada and the United States share their burdens, and face their common problems united in sentiment and firm in purpose. Long may they continue to give their united strength to the cause of liberty under law, with a solemn sense of their joint and indivisible responsibility.

ADDRESS OF MAITRE HENRI AUBEPIN.

Gentlemen,

When the very honourable and distinguished Secretary of the Canadian Bar Association wrote to our Chief, the Batonnier of the Paris Bar, to ask him to choose a representative for the meeting of the Canadian Bar, his request was received with the greatest pleasure. And when I was designated to answer to the cordial invitation made to our Order, it was for me a great honour and a great joy. So many memories attach us to you. The consonance of names of many of you, our old French tongue spoken in one-fourth of your country would suffice, if necessary, to recall the bonds which unite us. Besides, we owed you a visit. When we celebrated the centenary of our Order, we had the immense satisfaction of having with us the Batonnier of Montreal. Le Batonnier! You have kept that old word which is so dear to the heart of every French lawyer. It comes to us from the distant past. It sums up all our traditions. Under the ancient regime, the Chief of the Order carried as a sign of authority and of command a baton. In our old Palais de Justice, situated on an island the River Seine surrounds with its two arms, the cradle of our city, which to this day is called "la Cite" and within whose walls so many events of our history took place, for it was at first the palace of our kings-it was there that the "clers de la basoche," that is, all the young men who were preparing themselves for the practice of law, celebrated gaily their fraternal fetes. The Palais de Justice no longer knows those jovial days. It is now the sanctuary of justice, where the great law-suits are tried. But the Order of Lawyers is living and is very much alive. During the period of the Great Revolution, the Order had been suppressed. Napoleon re-established it. One hundred years after this great event of our professional history, we celebrated its anniversary and you took part in our celebration. To-day I thank you for it. Nor have we forgotten the reception you gave our dear and so much regretted confrere Labori. In the last months before his death, so premature and so cruel, he loved to tell us how deeply touched he had been by that manifestation of your friendship.

I should like to speak to-day of our Civil Code. You live in a country where the lex scripta and the lex non scripta intermarry. You apply them both as I understand with complete success in the Province of Quebec. You know it is charged that

customary law is vague and uncertain and on the other hand. that the written law is so rigid that no improvement or progress is possible under it. Is this the fact? Is it true that the written law confines the power of the judge within a narrow text, forbidding him all initiative and not permitting him to adapt the text to new conditions and to situations created by the evolution of things which the Legislator when enacting the law had not foreseen?

I don't wish to weary you. I wish merely to tell you how it came to pass that we obtained the "Code Civile” in my country. You know that France formed the greater part of Gaul, which was conquered by Julius Caesar and the Roman law was applied. Then came the invasions and the fall of the Roman Empire. After the period of conflict this was the situation: South of the Loire (?) the Roman law prevailedthe written law-and the provinces of this part of France were called the country of the written law. North of the Loire the old usages were followed and it was the country of customary law. The revolution which followed has been well described by a distinguished professor of the University of Paris, Mr. Gaston May.

In 1453, King Charles VII., by the Ordinances of Montiles-Tours, took the initiative by reducing to writing the customs of all the French provinces. This work was continued under Louis XI., Charles VIII., Louis XIII. and Francis I. These local customs were transformed into legal rules and made obligatory by a royal edict. The reign of customary law was then ended. But the written law was not uniform throughout France. Each province had its customs, written, to be sure, but differing from those of other provinces. This diversity of legislation had serious inconveniences. The lack of unity was unsuited to a country tending towards unification. And from the 17th century when the Kings of France undertook to settle by law the questions which customs written had failed to touch, they published General Ordinances applying to all provinces. Let me cite among them under Louis XIV., the Ordinance on Civil Procedure, the Marine Ordinance, the Water and Forestry Ordinance, the Black Code, the Ordinances on the administration of Cities; and under Louis XV. the Ordinance touching donations, wills, substitutions, forgery.

The Kings had then accomplished a considerable task; they had put an end to uncertainty arising from custom, in many respects they had unified the law. But this work they had not

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completed. It was the Revolution which continued the work, and Napoleon I. brought it to its conclusion. Now, we live under the rule of the written law applicable to all parts of France, contained in a series of Codes and Laws which include all social relations. The long continued efforts for centuries have thus succeeded, written law more precise and certain has prevailed over unwritten law; unity has replaced diversity.

The success of our Napoleonic Code was such that in 1814, a German jurist, Thibaut, Professor at Heidelberg, published a pamphlet in which he demanded a written law like the French Codes, general in its application, for the whole of Germany. That project met with strong opposition in certain quarters. The well known German jurist, Savigny, chief of the Historic School, came out with an eulogy of the unwritten law. Custom, he maintained, is the most perfect expression of law and most in conformity with human nature, for it is spontaneous, flexible and most likely therefore to follow progress and to express it. Statutory law is oppressive, it hinders the autonomous development of law, and restricts its natural evolution. Thus spoke Savigny and thus spoke his disciples. The truth is that the thesis of Savigny was nothing else but a war machine, erected against the conquered France of 1814, whose ideals had no longer any weight with German thinkers. Later on their point of view changed. Germany, which had formed her unification, thanks to the policy of Bismark, felt the necessity of crowning her unification by proclaiming a written law. M. Gaston May, from whom I have made this quotation, I need not tell you is a determined adversary of customary law and a fervent partisan of the written law. At this time I expressed no opinion of my own. To know the arguments of the adversaries of customary law, I will sum up M. Gaston May's opinion. Custom is no doubt the reflection of a popular juridic feeling, but this feeling is not always very precise and is often changeable. Law born of custom is lacking in certainty. Individuals cannot therefore know exactly what they are subject to in a given case.

"Ignorance of the law, so prejudicial to a multitude of interests, proceeds also from a second cause, the difficulty of ascertaining the existence of the customary rule, even supposing it to be well established and fixed. Nobody in fact has ever proclaimed this rule on a given day. People may then pretend that it does not exist and they will surely do so when it is in their interest to do so. But who will judge between the parties? Witnesses will be called, an enquiry will be made; individuals

chosen expressly will be asked if they know of the existence of such and such a rule habitually followed in a given case. Experience proves that such an enquiry has many chances of error in it. Everybody knows how treacherous is man's memory, when it is necessary to establish a simple fact. The more so when it is a question of ascertaining a general principle.

"True one has then another resource. If the memory of private persons gives no certain response, one may search for the decisions of the courts in similar instances. But who shall have taken the pains to record judicial precedents? Once again reliance on the memory of men, so often treacherous! And even

if one has preserved the remembrance of precedents, are we really sure that the actual case is absolutely similar to the case already decided?

To these difficulties which individuals meet when they wish to know the rule of law applicable, another danger is added. The rule being written only in the mind of the judge becomes liable to the mistakes and frailties of human nature. Summing it up, the freedom, the fortune of private individuals, their most sacred rights, are at the mercy of ignorance, of the arbitrariness or the partiality of the judge.

Finally, it happens at times that the law born of custom is, at a given moment, lagging behind practical life, removed from the needs created by new facts. For customs once anchored have a tendency to remain anchored, to survive the causes which give them birth. In the law the instinctive tendency never to change is especially marked. Every man wishes to maintain his actual situation, to preserve the existing state of things, first, because it is within his experience, and also because he fears that a new state of things will be no better. It is this which leads us to say that law is essentially afraid of change, that men who practice and apply the law are imbued with conservatism.

"But if customary law once adopted has a tendency to remain stationary, life itself moves on. It outdistances the law. Social relations are transformed under the influence of many causes which act slowly although at times suddenly, as in scientific discoveries. New rules then appear necessary. Customary law is too slow in adapting itself to the new social relations, to express itself in rules. Customary law lagging behind then becomes an obstacle to progress." So speaks M. May.

The fixity of law! Its rigidity! but this is the very reproach. which the partisans of customary law hurl against the written