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judge. The capacity of our codifiers, of course, can be determined only by their work, by the codes that have been adopted and by the codes that are proposed for adoption.

The code which has been most fully investigated is that which was prepared for New York, but which has not been adopted in this state. It has twice been passed by the legislature and vetoed by the governor; it has twice been rejected by the legislature. It is again before the legislature at this moment. Although it has not been adopted by the state for which it was prepared, it has been adopted as the civil code of California.

This code is not an accurate presentation of our common law. The testimony of the lawyers of California, who are living under it, and the testimony of the lawyers of New York, who are afraid that they may have to live under it, agree upon this point.1 Nor is it scientifically satisfactory in its general plan or in its details. Its general arrangement is based upon that of the code Napoleon; an arrangement which is now regarded, in Europe, as antiquated and unsatisfactory. It reproduces some of the worst features of that code; particularly in its abundance of definitions and rules of interpretation.

That these matters should not be inserted in a code is now a maxim of European codification. The Austrian commissioners appointed to draft a code, in 1772, were instructed to omit everything" which does not belong in the mouth of the lawgiver, but in the lecture room."2 The judgment of the French jurists of the present day concerning the rules of interpretation (of contracts and testaments) and concerning the definitions of the code Napoleon, has been energetically expressed by M. Huc, professor of the code in the law faculty of Toulouse. He stigmatizes them as "senseless rules (dispositions banales), which are use

1 See among numerous other publications: J. N. Pomeroy (Professor of Municipal Law in the University of California), The Civil Code in California, in the West Coast Reporter, vols. iii and iv, reprinted by the New York City Bar Association, 1885; James C. Carter, The Proposed Codification of our Common Law, 1884; The Annual Reports of the Special Committee of the New York City Bar Association, 1881-85, particularly the Fourth Annual Report, 1884. See also Sheldon Amos, An English Code, pp. 99-107, where the New York code is unsparingly condemned.

2 Behrend, Die neueren Privatrechts-Kodifikationen, S. 370, Anm.; Unger, Oesterreichisches Privatrecht, S. 7.

less when they are not dangerous, and which, in any case, belong exclusively in the domain of jurisprudence [la doctrine] and not in that of the legislator." 1

The New York codifiers have not only reproduced these "useless if not dangerous" provisions of the code Napoleon; they have outdone the French codifiers by reproducing, in their "maxims," Justinian's regulae juris, that title of the Digest which, as all students of medieval jurisprudence are aware, did more than anything else to confuse the law and make its application uncertain.

But these mistakes are venial in comparison with the great error of trying to force our law into the mould and form of a foreign system; because this cannot be done without modifying its spirit and substance. It seems that other codifiers besides those of New York have committed this error; for Mr. Stimson finds "civil" (i.e., European) law in all our private law codes. This ought to set us thinking. Why do all our codifiers go to France to find a scientific system? Is it not because they are unable to find it at home?

When it was proposed, in 1815, that a civil code should forthwith be constructed for Germany, Savigny objected that German legal science was not sufficiently developed to warrant the undertaking. To-day every German jurist admits that Savigny was right.

In the introduction to this article (page 105), I indicated that there were two distinct questions to be answered. I have discussed the first only, viz., the probable effect of codification upon the codifying state. The second, and, in my opinion, the more important question, viz., the effect of the general adoption of state codes upon the general development of American law, will form the subject of a second paper.

MUNROE SMITH.

1 Le Code civil italien et le Code Napoléon. 2me éd., Paris, 1868, t. i, p. 14.

THE HUDSON'S BAY HALF-BREEDS AND LOUIS

THE

RIEL'S REBELLIONS.

HE trend of political events in the Dominion of Canada during the year 1886 seems to indicate that the Conservative administration of Sir John A. MacDonald is drawing to a close. The legislative elections in the several provinces showed overwhelming Liberal and Reform gains and disastrous Conservative losses. At present the legislatures of Ontario, Quebec, New Brunswick, and Nova Scotia, the four most populous and important provinces, have Liberal and Reform majorities, while the Conservatives have control of only the three least important provinces - Prince Edward's Island, Manitoba, and British Columbia.

The most significant result of the year was the election in Ontario. Sir John MacDonald fully realized the close bearing of this preliminary battle upon the final engagement which was to follow in the general election for the next Dominion Parliament.1 As soon as the premier of Ontario, Hon. Oliver Mowat, ordered new elections, the shrewd premier of the Dominion, together with four of his cabinet officers and the leaders of the Ontario Conservatives, took the stump, and for two months waged one of the bitterest political strifes ever known in Canada. The Ontario election took place December 28, 1886, and resulted in a crushing defeat of the Conservatives.

Through all this fierce struggle the fate of Louis Riel, the leader of the Half-breeds in their political disturbances, was made to play an important part. To rouse the Orangemen of British descent to the support of the Conservatives, Riel the Roman Catholic, Riel the French Canadian, was execrated as a traitor; to rally the Catholic French Canadians to the standard of the Reformers, Riel was lauded as a patriot and martyr.

1 [The general election was held February 22, 1887. The Conservatives, as was anticipated, sustained severe losses; but, as the QUARTERLY goes to press, the indications are that they retain for the present a working majority. - ED.]

The animosity awakened by these appeals to race and religious prejudices drove more than one hundred thousand French Catholics over to the Reform ranks, and left the Orangemen of the Conservative camp deeply embittered. In this struggle the young Canadian nation received a terrible wound. The development of a national feeling, a sentiment of Canadian nationality, is not merely retarded by embroiling the British Orangemen with the French Catholics; it is hopelessly blocked as long as unscrupulous politicians can expect to obtain immediate advantage by fanning the flames of ethnic and confessional hate. Louis Riel, the leader of the rebellions of the Half-breeds in the Northwest Territories, has thus become an important figure in Canadian political history.

I. The Hudson's Bay Territory and its Inhabitants.

In order clearly to understand the causes which led to these rebellions, it will be necessary to describe briefly the origin and history of the Half-breeds of the Hudson's Bay Territory. To do this, we must go back to the time when the vast interior, west of Hudson's Bay, was explored and settled by rival French and English peltry traders; the former pushing northwest from the banks of the St. Lawrence, and the latter westward from the shores of Hudson's Bay.

The title to newly discovered territory rested, by the legal theory of the time, upon prior discovery; but in practice, as the history of the Hudson's Bay Territory shows, the right by actual occupancy commonly prevailed. The right of prior discovery was undoubtedly on the side of the English. After the early Scandinavians, the first Europeans who visited the continent north of the St. Lawrence were John Cabot and his son Sebastian, who, under commission of Henry VII of England, discovered Newfoundland as early as 1497. Cabot, in accordance with his duty under his commission, set up the standard of the crown of England and proclaimed his king's sovereignty over all lands and peoples he discovered. The voyage of the Cabots was followed by other expeditions under English aus

pices.1 Chief among these were three voyages by Sir Martin Frobisher, in the years 1576, 1577, and 1578; the same number by Master John Davis, 1585, 1586, and 1587; one by Captain George Waymouth, 1602; and another by Master Henry Hudson, 1610, on which he discovered that great inland sea which bears his name, the vast watershed of which comprises the territory now under discussion. Other expeditions followed in close succession, and in 1670 Charles II granted a charter to his cousin Prince Rupert and seventeen others, noblemen and gentlemen of England, incorporating them into the association which afterwards became known as the Hudson's Bay Company.

The charter of this company vested governmental as well as property rights in the corporation. It was entirely within his royal prerogative for Charles II to issue this charter, and its validity has been recognized at various times by treaties, statutes of Parliament, and royal licenses.2 The charter granted to the company all the territory watered by the streams that flow into Hudson's Bay, the bay itself and all waters leading thereto, in free and common socage in perpetuity, conditioned on the payment of two elks and two black beavers whenever the king or his heirs should visit the domain. The instrument expressly conferred upon the company plenary governmental powers over the whole extent of its vast possessions. It was given legislative power, being authorized to make laws, constitutions, orders, and ordinances in such form as may be best for good government, and to lawfully impose, ordain, limit, and provide such pains, penalties, and punishments upon all offenders against the laws as may be expedient, except, however, the laws and penalties must conform as near as possible to the laws, statutes, and customs of England. The executive authority was vested in a governor, deputy governor, and other deputies (to be appointed by the governor), and a committee of seven elected by the stock

3

1 Thomas Rundall, Voyages towards the North-West, 1496 to 1631, Hakluyt Society Publications.

2 R. M. Martin, Hudson's Bay Territories and their Chartered Rights, p. 45. 3 Ibid., Appendix.

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