Butler Journal of Undergraduate Research
Volume 1
2015
Civil and Common Law: A Historical Analysis of Colonial and Postcolonial Canada
Patrick S. Stroud Wabash College, [email protected]
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Recommended Citation Stroud, Patrick S. (2015) "Civil and Common Law: A Historical Analysis of Colonial and Postcolonial Canada," Butler Journal of Undergraduate Research: Vol. 1 , Article 8. Retrieved from: https://digitalcommons.butler.edu/bjur/vol1/iss1/8
This Article is brought to you for free and open access by the Undergraduate Scholarship at Digital Commons @ Butler University. It has been accepted for inclusion in Butler Journal of Undergraduate Research by an authorized editor of Digital Commons @ Butler University. For more information, please contact [email protected]. Civil and Common Law: A Historical Analysis of Colonial and Postcolonial Canada
Cover Page Footnote I owe a lot of gratitude to countless mentors and friends for aiding me in this article. Specifically, I would like to thank: Dr. Scott Himsel, for the days in his office spent anglingwr my writing style; Dr. Stephen Morillo, for his direction and his advice; Jeff Beck (Wabash College Lilly Library) for his aide in navigating databases; and Deborah Polley (Wabash College Lilly Library), for finding the strangest of books in the farthest of places.
This article is available in Butler Journal of Undergraduate Research: https://digitalcommons.butler.edu/bjur/vol1/ iss1/8 BUTLER JOURNAL OF UNDERGRADUATE RESEARCH, VOLUME 1
CIVIL AND COMMON LAW: A HISTORICAL ANALYSIS OF COLONIAL AND POSTCOLONIAL CANADA
PATRICK STROUD, WABASH COLLEGE MENTOR: STEPHEN MORILLO
Abstract
Legal historians divide European law into two principal families: common law (British law) and civil law (continental European law). Common law judges favor cases; courts “discover” law on a case-by-case basis and those cases make precedents for future ruling. Civil law courts favor codes; courts compare cases to existing laws and those laws control judges’ rulings. The two rarely interact, save one prominent example: Canada. British common law supposedly superseded French legal traditions in colonial Canada. But is history so binary? Did British common law truly “conquer” French civil law? Through analysis of Canadian legal history, this article demonstrates how French civil law has been part of legal development in Canada throughout its history and plays a role in the country’s modern, hybridized legal system.
Introduction—How Historians Have Failed in Canadian Legal History
Some three decades after France ceded the provinces of New France (Nou- velle-France) to the British Empire following the Seven Years’ War, Admiral Sir George Cranfield Berkeley of Her Majesty’s Navy recorded his opinions of Britannia’s latest conquest and its feasibility as a future home for British language, culture, and law. A naval commander against the French allied fleets in the American War of Independence, Berkeley’s predicted rebellion for the young state, the new region of Lower Canada (Quebec). In his 1791 appraisal of Upper and Lower Canada, the Admiral wrote that “the Laws, Language, Customs and Religion of Lower Canada will always keep it dis- tinct” and that the region’s extensive French influence gave it little merit or utility for the purposes of legal or cultural reform.1 As such, Admiral Berke- ley saw no future for Lower Canada other than as a potential member of the young United States.
1 Graham, Gerald S. Sea Power and British North America, 1783-1820. Cambridge: Oxford University Press, 1941.