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Title: Roman Law and the British Empire
Date of first publication: 1950
Place and date of edition used as base for this ebook:
   University of New Brunswick, 1950 (First Edition)
Author: Harold Innis (1894-1952)
Date first posted: 31 October 2007
Date last updated: 31 October 2007
Project Gutenberg Canada ebook #32

This ebook was produced by: Iona Vaughan and Mark Bear Akrigg




ROMAN LAW
AND THE BRITISH EMPIRE


by

HAROLD A. INNIS

Dean of Graduate Studies and
Professor of Political Economy
University of Toronto

_One of a series of lectures commemorating
the 150th anniversary of the University_


Delivered at
The University of New Brunswick
March 30, 1950




When your President asked me to participate in a programme
to celebrate the hundred and fiftieth anniversary of the
University of New Brunswick I found it impossible to refuse,
since it is an institution particularly close to my heart as
the first to give me an honorary degree and since your
President is an old and persuasive friend. I shall not in
this gathering, where his reputation stands so high,
describe his methods of persuasion, not that I shall soon
forget them. I have perhaps a further reason since New
Brunswick is an ancestral home from which my forbears with
others moved to Upper Canada.

With characteristic generosity under the circumstances, the
President has given me complete freedom in the selection of
a subject. It seemed fitting that I should be concerned with
a country which has played an important role in the life of
this institution, namely the United States. This province
was created as a result of strategic plans of defense on the
part of the second British empire against the colonies which
had rebelled. Nova Scotia was divided into three separate
areas, Cape Breton, New Brunswick and Nova Scotia in order
to provide separate nuclei around which defensive measures
might be mobilized. Loyalists migrated to New Brunswick and
kept alive the memories of hostility to their native land.
Christopher Sauer, a prominent figure in the history of
printing in Pennsylvania, started the first newspaper in New
Brunswick. This university began as your calendar states
through the interest of loyalists in the education of their
children and, in the words of the memorial in 1785, the
"necessity and expediency of an early attention to the
establishment in this infant province of an academy of
liberal arts and sciences." It would be ungracious of me to
elaborate on the contribution of universities to the
Maritime provinces and to western civilization, since that
has been done so ably and so fittingly by the late Sir
Robert Falconer, the late J. C. Webster, Professor D. C.
Harvey and your own professor A. G. Bailey, Mrs. C. P.
Wright and others.

The late James Bryce attempted to throw light on the
problems of the British Empire by emphasizing parallels with
the Roman Empire and in particular suggesting the
contributions of Roman law and of common law to the
development of the respective empires.[1] At the very period
in which Bryce was revising his essays for separate
publication in 1914 the British Empire was undergoing
crucial change. Since they were published the development of
the Commonwealth after the first world war in the Statute of
Westminster and the changes in status of Ireland, India and
Newfoundland point to a need for reconsideration.

  [Footnote 1: James Bryce, =The Ancient Roman Empire and the
  British Empire in India: The Diffusion of Roman and English
  Law Throughout the World; Two Historical Studies== (London,
  1914).]

The name of Bryce will always be associated with the results
of the first major change in the Empire in _The American
Commonwealth_. The American Revolution was a result of
limitations of common law which have been discussed by a
large number of English, American and other scholars. Prof.
C. H. McIlwain has described the problem of common law in
the seventeenth century when parliament reflected the
influence of force in the substitution of the Cromwellian
regime for that of the Stuarts. The absolute power of the
Tudors was replaced by the absolute power of parliament and
both were regarded as encroachments on common law. Sir
Edward Coke defended the position of common law as stated in
the Bonham case in 1610. "When an act of Parliament is
against common right and reason, or repugnant, or impossible
to be performed, the common law will control it, and adjudge
such act to be void." But such limitations were not
recognized by parliament under Cromwell or in the
establishment of legal supremacy in the Revolution of 1689.
The English colonies in North America had been established
in the period before parliament had assumed this position
and were unable to accept its implications. James Otis
restated the position of Coke, and the Assembly of
Massachusetts on March 2, 1773, refused to recognize the
supremacy of Parliament. "We conceive that upon the feudal
principles all power is in the king; they afford us no idea
of parliament." Great Britain had seen the evolution of the
supremacy of parliament at the expense of common law, and
the colonies, determined to protect the position of common
law, introduced a constitution designed to check the power
of legislative machinery.

It will not be necessary to rehearse the steps taken by
Great Britain, and the colonies remaining within the empire,
to develop a constitution which would evade the disaster of
the first empire. The Maritime provinces succeeded in
building a second empire from the wreckage of the first in
which responsible government was achieved. The common law
came into its own with a recognition in Great Britain of the
limitations of parliament and recognition in the colonies
that the elaborate machinery of the United States to protect
the common law was unnecessary. In Great Britain the effects
of the common law were evident in the Reform bills and in
the extension of the franchise in the 19th century. Elements
in the constitution opposed to its effective operation were
steadily weakened as the House of Commons increased in power
at the expense of the House of Lords. Long and bitter
struggles characterized the change and still characterize it
but the legislation of 1911 definitely brought the power of
the Lords to an end. "The House of Commons after putting
under its feet the Crown and the House of Lords, has in its
turn been put under the feet of the caucus."[2]

  [Footnote 2: Goldwin Smith, =Essays on Questions of the Day=
  (New York, 1893) p. 98.]

The changes within Great Britain had profound implications
for the Empire. Indeed the legislation of 1911 was directly
linked to the problem of Ireland and the possibility of
establishing Home Rule. Defeat of the Conservative party was
followed by opposition to the Liberal party supported by
Irish and labor members first in the House of Lords and
finally in Ulster. The unsavoury story in which the army
joined hands with Ulster leaders and leaders of the
Conservative party, described by Prof. M. J. Bonn[3] as the
beginnings of fascism in Europe, need not be retold at this
point. For the first time parliament was openly and to some
extent successfully defied by force. During the first world
war Irish opposition became more determined and led to the
Easter rising of 1916 and eventually to the treaty and the
Irish republic. A common law parliament had become
impossible in the face of obstructionist tactics which
developed from the Irish question.

  [Footnote 3: M. J. Bonn, =Wandering Scholar== (New York,
  1948) p. 89; see also George Dangerfield, =The Strange Death
  of Liberal England== (New York, 1935).]

It has been suggested[4] that British imperialism succeeded
in areas in which native populations were eliminated as in
America and Australia or in areas in which a bureaucracy
could be established as in India and failed in areas in
which a strong cultural influence dominated garrisons of
settlers as in Ireland, but the suggestion overlooks the
role of common law. Men trained in common law such as Gandhi
were quick to see its possibilities in the protection of the
rights of individuals. After his training in London, Gandhi
carried on an effective campaign in South Africa on behalf
of Indian immigrants, and with the techniques developed in
South Africa contributed powerfully to the establishment of
India and Pakistan. A common law basis implied concern with
local customs and facilitated the development of the British
Commonwealth by peaceful means or by minor rebellions.

  [Footnote 4: M. J. Bonn, =op. cit.==, p. 101.]

We have perhaps said sufficient to indicate that the British
Empire under the influence of common law has pursued a
vastly different course from that of the Roman Empire. We
may now inquire more directly into the characteristics of
common law. Various writers have discussed the origins of
common law in England to show that it consisted of customs
which existed in unwritten form and that it was necessary to
discover these customs through the use of the jury system
and the calling together of representatives of different
communities in parliament. The words writ, oath, witness and
possibly gallows did not originate in France. Parliament was
concerned with the protection of individuals and not with
the provision of privileges enabling members to abuse
individuals outside its walls. In the words of Pollard, "A
foundation of common law was indispensable to a house of
common politics." Parliament until the rebellion of the
seventeenth century was pre-eminently judicial rather than
legislative.[5] With the increasing importance of
legislation particularly after the reform act of 1832
lawyers continued to play an important role in parliament in
the making and in the interpretation of statutes. Common law
countries favour the election of lawyers as legislators to
the exclusion for example of journalists, in contrast with
Roman law countries which seem to favour journalists as
legislators. In common law countries the state became a part
of customs and traditions and the revolutionary tradition
was weakened. Marx's withering of the state had reference to
Roman law and not common law countries. Common law
traditions which made politics a part of law and emphasized
the relation of the state to law implied an absorption of
energies in politics and a neglect of the cultural
development which has characterized Roman law countries. The
danger of imposing common law traditions on Roman law
countries has been evident in the difficulties of the
parliamentary system in those countries.

  [Footnote 5: C. H. McIlwain, =The High Court of Parliament
  and its Supremacy, an historical essay on the boundaries
  between legislation and adjudication in England== (New
  Haven, 1934).]

The implications of the dominance of lawyers are suggested in
remarks by Sir Henry Taylor.

    "Of law-bred statesmen (if they have had practice at the
    bar) the peculiar merit is a more strenuous application of
    their minds to business than is often to be found in others.
    But they labour under no light counterpoise of peculiar
    demerit. It is a truth, though it may seem at first sight
    like a paradox, that in the affairs of life the reason may
    pervert the judgment. The straightforward view of things may
    be lost by considering them too closely and too curiously.
    When a naturally acute faculty of reasoning has had that
    high cultivation which the study and practice of the law
    affords, the wisdom of political as well as of common life
    will be to know how to lay it aside, and on proper occasions
    to arrive at conclusions by a grasp; substituting for a
    chain of arguments that almost unconscious process by which
    persons of strong natural understanding get right upon
    questions of common life, however in the art of reasoning
    unexercised.

    The fault of a law-bred mind lies commonly in seeing too
    much of the question, not seeing its parts in their due
    proportions, and not knowing how much of material to throw
    overboard in order to bring a subject within the compass of
    human judgment. In large matters largely entertained, the
    symmetry and perspective in which they should be presented
    to the judgment requires that some considerations should be
    as if unseen by reason of their smallness and that some
    distant bearings should dwindle into nothing. A lawyer will
    frequently be found busy in much pinching of a case and no
    embracing of it--in routing and grunting and tearing up the
    soil to get at a grain of the subject;--in short, he will
    often aim at a degree of completeness and exactness which is
    excellent in itself, but altogether disproportionate to the
    dimensions of political affairs or at least to those of
    certain classes of them."[6]

  [Footnote 6: Sir Henry Taylor, =Notes from Life--The
  Statesman== (London, 1878) p. 384-5.]

As has been said of many lawyers all acts are to them free
and equal. An elementary discussion of the conditions under
which lawyers work in practising at the bar from a lay point
of view may suggest more clearly the important role of the
legal profession. The arrangement of the court room
emphasizes power and authority such as characterize
proceedings involving life and death. The bench sets off
sharply the position of the judge, and below him the witness
stand, the bar for opposing counsel, an inner bar for His
Majesty's counsel learned in the law, and beyond seats for
the public. The tradition of awe inspired by these
arrangements, insistence on the dignity of the court and
rigid prohibitions against smoking, chewing gum or other
distractions such as may include the reading from a
manuscript by counsel inspire a concern with the search for
truth and justice.

Encroachment on these traditions has been evident in the
demand for photographs for the press and in the interest of
criminal lawyers in publicity. The court has possibilities
of advertisement for young lawyers. Even members of the
supreme court appear to relish the appearance of their
photographs in the press. But while lawyers display a keen
interest in the details of crime such as those appearing in
the press they tend to dislike specialization in criminal
law and to prefer a mixed practice of civil and criminal
law. Concentration on criminal law is apt to be thought of
as having a deteriorating effect on character and
reputation.

Procedure involves dependence on the oral tradition in
eliciting testimony from witnesses who have been placed
under oath to give the truth, the whole truth and nothing
but the truth. Facts are determined by examination and
cross-examination and re-examination of counsel. Opposition
between counsel is designed to check and to produce evidence
from which the judge or the jury must decide the case. When
evidence has been elicited and established argument to
establish the law suited to the facts follows. Respect will
be shown in language and demeanour to the bench--cases of
dispute with the bench always being prefaced by the words
"with great respect." The maxim handed on to young members
of the bar "never talk down to the bench" reflects the
egoism of the bar and the necessity of emphasizing the place
of the bench. The significance of the oral tradition is
evident in the possibility of checking extravagant
statements made by counsel or by witnesses. With a
background of development prior to the spread of reading and
writing, the tradition of the importance of oral rather than
written evidence has persisted in the procedure of the court
and in the jury system. The common law has consequently been
responsive to the opinion of all classes of society
including the illiterate. This contact has possibly been
more effective than that of the church and religion since it
is without the elaborate ceremonial and the written
scriptures of the latter though it musters support from
religion in requiring testimony sworn on the Bible and may
exact severe penalties for perjury. English courts will
insist on the appearance of living authorities rather than
extracts from text-books written by them on the assumption
that such an authority may have changed his mind after
writing the book. In North America the difficulty of
transporting a living authority over long distances has
favoured a whittling down of the English rule and increasing
reliance on the text. The advantage of the oral tradition
shown in its sensitivity to constant change even during the
course of the trial becomes evident in the exposure of
weaknesses in evidence and in argument. The character of
witnesses is brought out in detail and the role of intent
more easily established. In the preparation of cases counsel
must study intensively the character of his own and other
witnesses and estimate strong and weak points if he is to
work out satisfactory tactics in presentation. The common
law gives great emphasis to character and to the study of
character from an objective point of view. Its success is
linked to individualism and necessitates a concern with the
influence of the state on character and of character on the
state. There is danger of forgetting the words of the Lord
Chancellor (2 Eden. 113) "Necessitous men are not, truly
speaking, free men."[7] "It is precisely because the force
of circumstances always tends to destroy equality: that the
force of legislation should always tend to maintain it."
(Rousseau).

  [Footnote 7: Cited E. S. Corwin, =The Twilight of the
  Supreme Court== (New Haven, 1934) p. 207.]

I am tempted to insert an editorial by Albany Fonblanque,
written in England in the middle of the 19th century.

    "It was but the other day, however, that a most tender and
    touching sight was presented in Lord Carlisle's Court of
    Inquiry--Mr. Serjeant Wilkins weeping for Mr. Ramshay, his
    learned bewigged head bent to the table 'like a lily borne
    down by the hail'. Perhaps, prosaically, it was more like a
    cauliflower on a block, but let that pass. What we have to
    consider is the zeal, or the fee-compelling-force, which can
    bow a wigged head to the table, and make the eyes overflow
    with tears such as either genuine pity, or genuine onion,
    elicits--tears such as learned serjeants shed. The eye that
    so weeps, however, must have seen a fee. An unfeed eye would
    on a similar occasion be as unmoved as a stone. The fee and
    the feelings go together: the word feeling, in legal
    diction, being derived from fee. What the precise charge for
    weeping is we do not pretend to know; nor whether it is set
    down in the brief as an extra, like consultation, or a
    refresher: but of late years we have had several exhibitions
    of this black grace. Chitty wept for Thurtell, and Fitroy
    Kelly for Tawell, and lastly Wilkins for Ramshay. Sweet
    sensibility! says the tender-hearted reader; but how is it
    that this same sensibility of the learned is so capricious,
    and that the same wigged man, who blubbers over one client
    so affectingly, will throw another overboard without a
    hesitation or a scruple? Why make fish of one and flesh of
    another? Why so strain the duty of advocate and client in
    some show cases, and loosen it in others, as we see in this
    example?

    "The complaisant husband who had napped during Caesar's
    visits, on finding that the same somnolency was expected
    from him by another gallant said, 'I do not slumber for
    everybody'. Mr. Serjeant Wilkins does not sob for everybody:
    but in common fairness and honesty he is bound to explain
    the rules of his service or disservice to his clients,
    specifying for which of them he goes through thick and thin,
    and which he throws overboard." (1851)[8]

  [Footnote 8: =The Life and Labours of Albany Fonblanque==
  ed. by his nephew, E. B. de Fonblanque (London, 1874) p.
  340-1.]

In stressing the importance of the oral tradition it is
necessary to keep in mind the role of the written and the
printed tradition. In England courts are more jealous of
their position and check discussion by newspapers when cases
are _sub judice_. The dangers of extravagant publicity
become acute when members of the jury may have come under
the influence of public opinion reflected in the press. A
more subtle problem arises with the spread of mechanization
in reports of proceedings of the court. Since questions and
answers are phrased in relation to a sworn record which may
become the basis of consideration and decision by the bench
they will tend to blur the sharp impressions characteristic
of an oral tradition. The oral tradition is carefully warped
in relation to the demands of a written or stenographic
tradition. A concern with the record implies an interest in
a type of question suited to reading and a neglect of the
transient impression of the spoken word. The tendency to
concentrate on the record has an advantage in that it
enables the bench to study the case in a dispassionate and
objective fashion but a disadvantage in that it enables the
bench to delay reaching a decision and perhaps encourages
continuance on the bench of men who by age or inclination
are reluctant to appreciate the importance of promptness in
the administration of justice. But there may be warrant for
the remark that truth will out even in an affidavit. The
legal profession in itself has an important influence on the
administration of justice. Counsel are constantly alert to
the artistic character of work done by members of the
profession and are continually engaged in the appraisal of
respective capacities of fellow members and of those of
their ranks appointed to the bench. The essentially feudal
character of the legal profession is evident in references
to my lord, my friend or my learned friend. Style has become
more prosaic and matter of fact and even conveyancing can
perhaps no longer be described as "a jungle of antiquated
fooleries kept up by the pedantry and interest of those who
profited by it."[9]

  [Footnote 9: Frederic Harrison, =Autobiographic Memories==
  (London, 1911) I, p. 149.]

The clashes between opposing counsel bring out sharply the
competition in ability. Each interest appearing before the
court is obsessed with its own advancement and becomes
extremely critical of counsel in cases of defeat. Courtesies
between members of the legal profession temper the
acerbities of conflict between interests and impose a severe
restraint on bitterness. The appearance of conflict in the
courts will meet the demands of interested parties and
permit the courtesies of the profession outside the court.
The protection of the courts and the interest of counsel in
clients ensures that questions of fact of an embarrassing
character will be brought out but the relative capacities of
counsel are apt to be reflected in the size of fees paid to
counsel and in the ability of interests to pay fees. Success
will depend on the ability of counsel but also on the size
of the legal firm. A large firm acquires enormous resources
in the specialized knowledge of its members and its ability
to attract energetic and able young juniors. The demands for
intense industry can only be met by younger men and explain
the general impression of relatively short lives in the
profession. The advantage of the large firm has become more
evident in the enormous increase in legislation and in the
numbers of digests, indexes and abridgements of reports of
cases. The large amount of printed material has been further
increased by the production of text books, commentaries and
the like and the growth of black letter law. Lawyers tend to
become lazy with the increase of indexes and digests, to
neglect a reading of cases with thoroughness and system and
to demand more indexes. Large earnings assume an enormous
importance in the administration of law. Ability is
maintained in the bar and restricted on the bench which is
apt to be impressed by counsel capable of securing large
fees. There appears to be a tendency for large companies to
secure protection in legal counsel and for counsel to be
able to win large fees in successfully protecting them. Law
tends to favour those earning large fees and to have a
commercialistic bent especially with need for an expensive
library and the use of abridgements. The spread of printing
weakens the oral tradition. The increasing importance of the
written mimeographed and printed tradition has been
accompanied by a decline in the position of the courts and
changes in the character of law.[10]

  [Footnote 10: I am indebted to Mr. F. M. Covert, K. C. and
  Mr. G. Demarais, K. C., for general views on this subject.]

Executorships of wills have largely gone to trust companies
and account collections to collection agencies. A marked
increase in the mortgage business of insurance and loan
companies has led to specialization and the handling of
business by larger law firms. So too corporation work has
become highly specialized and has come into the hands of
large firms. Practice of law in relation to automobile
accidents has fallen into the hands of lawyers acting for
insurance companies. Income tax law has become the concern
of legal specialists who are forced to compete with
chartered accountants. Labor law has become a special field.
The rise of boards of an administrative character has meant
a demand for specialists other than lawyers. Law has
followed the shift from individualism to collectivism. Able
young graduates from law schools are apt to become
immediately interested in office work rather than court work
to the great disadvantage of courts. Demands on the legal
profession have increased with the specialization which
characterizes the Western World. Cases are presented before
modern courts involving a mastery of highly technical
questions in a wide range of subjects. The expert appearing
as a witness, whether accountant, economist, engineer or
doctor must be subjected to intelligent examination and
cross-examination involving a mastery on the part of counsel
of the particular subject under consideration. There is a
well known maxim to the effect that one should never ask a
question in cross-examination of which one does not know the
answer. The legal profession must maintain a profound belief
in its capacity to master any evidence and to adapt all
questions to the demands of the court. Counsel are compelled
to concentrate intensively on particular problems and to
become obsessed with a knowledge of immediate details. The
common law with its emphasis on the oral tradition has
perhaps a greater interest in the ascertainment of facts
than other legal systems. Facts are more important than
principles. Litigious procedure for example emphasizes
circumstantial evidence in contrast with the inquisitorial
procedure of code countries. The importance of the jury
system and opposition to the use of hearsay evidence through
the fear of misinterpretation by the jury stands in contrast
with other systems and involves its own handicaps. For
example I am told that a purchase from a department store
can be proved by an appeal to the sales clerk but not by
reference to the more certain evidence of the department
store's records. The advantages of the common law system
with its emphasis on facts are probably evident in a society
favorable to the scientific tradition and industrial
development in the sense developed by Bacon. It is further
evident in the emphasis of a common law society on news.
Lawyers reflect the interests of newspapers in questions of
the moment. These advantages assume limitations.
Considerations involving continuity in time are rather
neglected and the long term factors ignored. A training in
law makes for a brittle, brilliant type of work. Lawyers are
compelled to master the intricacies of a case and after its
completion to forget it and to master the intricacies of the
next case. The memory tends to be neglected, general
principles to have limited attraction, and general theory to
be ignored. Law is apt to become anything "boldly asserted
and plausibly maintained". A neglect of the time problem
implies a lack of interest in theoretical problems. In
contrast the Roman law tradition in its concern with
principles attracts the highest intellectual ability to the
academic field and enhances an interest in philosophical
theory and theoretical speculation. In turn it becomes
possible to develop an interest in problems of continuity of
time, though the late Justice Holmes could write "People
want to know under what circumstances, and how far, they
will run the risk of coming against what is so much stronger
than themselves, and hence it becomes a business to find out
when this danger is to be feared. The object of our study
then is prediction of the incidence of the public force
through the instrumentality of the courts.... For the most
important and pretty nearly the whole meaning of every new
effort of legal thought is to make these prophecies more
precise, and to generalize them into a thoroughly connected
system."[11]

  [Footnote 11: Max Lerner, =The Mind and Faith of Justice
  Holmes== (Boston, 1943) p. 72.]

The capacity of large fees to attract able counsel weakens
the possibility of attracting them to the bench or to
political life but the bench has become attractive as a
result of income tax regulations and a prospect of holidays.
It has been pointed out that separation of the barrister and
the solicitor in England tempers the effect of finance on
the legal profession and that the combination of the two
positions in the solicitor in Canada greatly enhances the
impact of business and finance on the legal profession.
During periods of depression with decline in fees counsel
will perhaps turn more quickly to political activity.
Reluctance to forego large fees in the large cities tends to
favour acceptance of appointments to the provincial bench
rather than the Supreme Court in Ottawa. Dislike of living
in Ottawa is accompanied by the prestige of provincial
supreme courts in provincial capitals. Relative absence of
restrictions on age of retirement on the provincial bench as
compared with the federal court enhances the attractions of
provincial courts and explains to an important extent the
relatively high caliber of provincial appointments. Since
the salaries of judges in the provinces are uniform,
appointments in the smaller provinces with lower living
costs and much less business become extremely attractive.
Consequently lawyers assume an intense interest in politics
and premiers have become chief justices of the provinces.
Politics are apt to be dominated by lawyers and to be
slanted in the interest of lawyers. Appointments to the
federal Supreme Court and to the provincial courts on the
other hand are subject to restrictions in religion, region
and language. The Province of Quebec, partly because of the
importance of the civil code as well as common law, because
of French and English, has been given three judges, and in
turn the Province of Ontario is represented by the same
number one of whom must be an Irish Catholic. The Maritimes
are represented by one member and the Western provinces by
two members. The rigidity of conventions in appointments
reflects the power of the legal profession to defend its
interests. The domination of the Liberal Party in the House
of Commons, the Senate and the judiciary assumes a monopoly
of legal knowledge. The effects of these restrictions will
be tested more sharply with the abolition of appeals to the
Privy Council and they may well prove to have serious
consequences for the success of the federal system of
government.

Reluctance to accept appointments on the bench because of
the attraction of large fees tends to divide the profession
into two groups. Appointments to the bench are essentially
political and counsel less attracted to the court are
compelled to recognize the importance of political activity.
The second group of lawyers therefore enter parliament and
have a direct effect on legislation through statutes and
following a political career receive appointments to the
bench before whom practising lawyers must appear. Successful
practising lawyers are compelled to interpret legislation
prepared by and to practise before successful political
lawyers. Counsel trained in the common law tradition in
parliament and on the bench are concerned with legislation
reflecting a common denominator of public opinion and
registering the effects of a training with an emphasis on
facts. Legal training which assumes a capacity to ascertain
and to master factual presentation ensures that parliament
has at its command an array of ability particularly adapted
to its varied demands in the enactment of legislation
covering a wide variety of subjects. The effects of legal
training shown in the capacity for intense concentration and
the mastery of facts in a short period of time have been
evident in the success of lawyers in political life. The
effectiveness of legal Prime Ministers can be illustrated
with reference to Lloyd George not to mention illustrations
nearer home. In the words of Lloyd George "I should always
feel at liberty to override the findings of any body of
experts."[12] Lack of pensions for politicians contributes
to the attraction of parliament to lawyers whose chances of
appointment to the bench have been greatly improved by
political activity. The hazards of political life for the
lay politician and the absence of political pensions
accentuates the competition among lawyers for the bench or
for the Senate. As has been said of the United States
Supreme Court "The court is small, the cream (sometimes not
very fat cream) of a profession in which the political
impulse is strong."[13]

  [Footnote 12: Valentine Williams, _The World of Action_
  (Cambridge, 1938) p. 309.]

  [Footnote 13: E. S. Corwin, _op. cit._, p. 54.]

Traditions of procedure emphasizing the oral tradition in
common law countries in the court and in parliament imply a
background unsympathetic to the social sciences with their
emphasis on the written tradition. Inclusion of courses in
the social sciences in the lawyer's and of courses in law in
the training of the social scientist may contribute to a
solution of the difficulty and to a reconciliation between
law and the social sciences but on the other hand may weaken
the distinctive contribution of each. The advantages in a
legal training which permits a rapid shift from the
intricacies of one case to those of another are offset by an
inability to penetrate problems to an appreciable depth,
whereas the advantages of a training in the social sciences
in the mastery of complex problems are offset by an
inability to shift quickly from the intricacies of one
problem to another. The long and tedious process of working
through complex problems of the social sciences is in sharp
contrast with the demand for swift effective argument in the
law courts. Cross fertilization quickly reaches a point at
which its advantages are followed by the disadvantages of
cross sterilization. The type of social scientists
acceptable to the courts is marked by the ability to ask
questions intelligible to lawyers and to answer questions
intelligible to lawyers. This type of social scientist
rarely enhances his prestige among his fellow social
scientists and appears eventually to lose his prestige even
among lawyers who in turn become contemptuous of the
complications of the social sciences. Social scientists
concerned with fine spun abstractions tend to neglect a
sense of proportion and the practical matters of fact with
which common lawyers are obsessed. Social scientists
appearing in common law courts are necessarily concerned
with immediate problems and are consequently restricted in
the development and application of theory. They tend to
become advocates and to reflect the points of view of their
employers. The longest purse will produce the best
economist. The late Justice Holmes may have been right in
saying that "for the rational study of the law, the black
letter man may be the man of the present; but the man of the
future is the man of statistics and the master of
economics"[14] and that "every lawyer ought to seek an
understanding of economics" but he was certainly accurate
when he said that "the present divorce between the schools
of political economy and law seems to me an evidence of how
much progress in philosophical study still remains to be
made."[15] It is the function of the social sciences and the
bureaucracies to offset the effects of the obsession of
common law with nominalism. The hierarchy of the law
undoubtedly weakened the ecclesiastical and military
hierarchies. It has been influential in the development of
an effective business hierarchy which has dangers for the
hierarchy of law itself. The place of lawyers in business is
strengthened by their status in the courts and the place of
lawyers in the courts is strengthened by their status in
business.

  [Footnote 14: Max Lerner, _op. cit._, p. 83.]

  [Footnote 15: _Ibid._, pp. 85-6.]

Following these remarks on the character and implications of common law
I propose to turn to a discussion of the influence of Roman law in the
British Empire. The British emerged in part as a result of a balance
between the oral tradition and the written tradition, between common law
and Roman law.[16] The element of Roman law, especially as reflected in
the canon law, which persisted after the Reformation in England was
gradually reduced in importance in the British Empire and results were
evident in the Commonwealth. The divine right of the papacy was replaced
by the divine right of Parliament after the rebellion. Following the
submergence of the concept of fundamental law which eventually
precipitated the American Revolution, the written constitution of the
United States was designed to restore it and to protect its position.
Emergence of a federal government in a constitution which gave enormous
powers to the courts involved protection to fundamental law but in
protest against the divine right of parliament assumed the divine right
of the United States. Without a written constitution Great Britain was
able eventually to master the problem of Empire and to digest the
element of Roman law or rather to cast it out into regions which left
the Empire as in the United States or regions which insisted on
independence and autonomy within the Empire as in members of the
Commonwealth.

  [Footnote 16: See F. W. Maitland, _English Law and the
  Renaissance_ (Cambridge. 1901).]

The element of Roman law which became more powerful in other parts of
the Empire was evident in the insistence of small areas on their
autonomy and divine rights,[17] in the emergence of a federal system and
in conflicts over the concept ending in the United States in the war
between the states. Temporarily its significance was lessened but
supremacy in the north reflected the importance of the divine right of
union essential to effective opposition to the divine right of states.
With the return of southern influence through the democratic party the
principle of divine right in the states was protected in an emphasis on
the divine right of the United States expressed in such intangibles as a
way of life. The pattern of federal government in the United States was
followed by members of the Commonwealth notably in Canada and Australia.

  [Footnote 17: Brooks Adams, =The Emancipation of
  Massachusetts, the dream and the reality== (Boston, 1919).]

The reaction of the United States and members of the
Commonwealth in their attempts to protect fundamental law
has left them more imperialistic than the mother country. As
we have traced the reassertion of common law in Great
Britain and the decline of imperialism we must turn to its
decline in the other Anglo-Saxon regions and the right of
imperialism. In the English colonies in North America which
became the United States, rights were protected in the
constitution. Control over land within the boundary of each
state remained in control of the state but beyond the
boundary of the coastal states in the interior of the
continent it was in the hands of federal authorities until a
new state was set up and accepted in the union. Expansion
across North America proceeded to the Pacific Coast and new
systems of control were developed beyond the borders in
Alaska, Hawaii, the Philippines and other areas. It has been
said that the British Empire was acquired in a fit of
absent-mindedness, but the American Empire has grown up
during periods of imperialistic fanaticism marked by such
slogans as _Manifest Destiny_ and _54-40 or fight_, and
during periods when imperialism was thrust upon her as in
the Louisiana Purchase. In Canada we have seen the devices
at work in various forms ranging from the fisheries disputes
to protests against construction of the Canadian Pacific
Railway and the duress exercised by President Theodore
Roosevelt on the arbitrators in the Alaska boundary dispute.
Significantly other countries are beginning to see the
character of American imperialism. American publications
protest against appointments of certain cabinet members in
Great Britain. An American public body passed a resolution
demanding the settlement of the Irish question. Shades of
George III! It has been largely in response to the pressure
from American imperialism that Canada has developed her own
type of imperialism. Nova Scotia entered Confederation on a
condition that the resources of the larger federal unit
should be used to compel the United States to recognize her
rights in the fisheries. Canada has no hesitation in using
her influence to prevent a treaty between Newfoundland and
the United States which seemed to threaten her bargaining
position in the fisheries. The Act of Union was designed to
enable Ontario and Quebec to develop transportation
facilities which would meet American competition. Expansion
of Confederation westward was designed to check
encroachments from the United States. The policy of the
Dominion in the development of the Prairie provinces was
evident in the support of the Canadian Pacific Railway and
in land policies designed to check American aggression. In
resisting American imperialism we developed our own type of
imperialism: its character became evident in the growing
insistence on nationalism shown in the defeat of the
reciprocity treaty, in the peace treaty, in the Statute of
Westminster and finally in the acquisition of Newfoundland.
It would not be difficult to collect a series of slogans
comparable to those of the United States illustrating our
imperialistic ambitions. Fittingly enough they might begin
with the comment made at the beginning of the century, "The
twentieth century is Canada's." In the United States the
shift from an obsession with domestic concerns to foreign
policy becomes apparent towards the end of the last century.
The isolationism of Washington was replaced by the
imperialism of McKinley; but it was an imperialism with a
bad conscience and of unbelievable crudity to refer again to
the tactics of Theodore Roosevelt not only in the Alaska
boundary dispute but also in the Panama Canal negotiations.
It was perhaps best expressed in the phrase attributed to
him, "What is the constitution between friends?" Conscience
reasserted itself in the reduction of tariffs on newsprint
after the reciprocity treaty was defeated by Canada in 1911
and in the repeal of measures designed to improve
the position of other powers especially Great Britain in the
use of the Panama Canal. Rejection of the reciprocity treaty
by Canada was a protest against crude imperialism as was to
some extent the defeat of the Republican party in the United
States. The election of Wilson, the reluctance to become
embroiled in the first world war, the lofty sentiments
expressed by Wilson on the entry of the United States in the
first world war and the refusal to accept the League of
Nations were evidence of an uneasiness about imperialistic
tendencies. Such uneasiness proved in itself however to be a
spur to further imperialistic concern. Loans to European
countries were interpreted as debts and consequently as
subject to the payment of interest and ultimate repayment.
In the words of President Coolidge, "They hired the money,
didn't they?" Insistence on recognition of debts
strengthened the plea of debtors for loans from the United
States with which interest on debts to the United States
could be paid. The burden of reparations on Germany was met
by various devices in Germany and without, ranging from
inflation to the expedients of the Young and the Dawes
plans. The great merry-go-round which began with President
Harding's interest in normalcy ended with President Hoover's
earnest statement that the world was in a new financial era
and that technological advance was such that it could
support indefinite improvement in standards of living.
Unhappily not even presidential assurances were sufficient
to prevent the financial crash of 1929 and the consequent
depression. The whole elaborate house of cards collapsed.
Great Britain went off the gold standard, Hitler came into
power and Roosevelt II became President. Uneasy imperialism
or uneasy isolation had not paid off. Consequently the
depression was marked by a return to isolationist and
domestic policies. Roosevelt II without acknowledgement to
Thoreau proclaimed that the only fear we have to fear is
fear. The United States was concerned with legislation
designed to protect her from foreign entanglements.
Isolationist policies had been evident in high tariffs
notably the Hawley Smoot tariff and had compelled counter
measures in other countries notably the Ottawa agreements of
the British Commonwealth. During the period of retreat
Hitler began a programme of rapid expansion in Germany
paralleled to some extent by a similar programme of
Mussolini in Italy and by attacks on Manchuria from Japan.
Great Britain became involved in a long series of manoeuvres
ranging from the abdication of Edward VIII and the visit of
the King and Queen to the meetings in Munich designed to
delay the inevitable struggle, and to prepare with all
possible energy during the delay, notably by impressing on
North America a reluctance to engage in war and a
determination to become involved only on extreme
provocation. The results scarcely need to be detailed since
we are much too familiar with the history of the war and the
phases leading to our present discontents. Lessons had been
learned in the first world war of which full advantage was
taken in the second world war. Systems of controls had been
worked out during the long period of preparation after 1934
and were immediately applied on the outbreak of war. Devices
elaborated in Canada were used by American propagandists as
illustrations of possible improvement in American controls
with the result that Canadians reading the literature of
American propagandists obtained a very superior picture of
their superior virtues. In the United States the dangers of
large loans to allies were avoided by the ingenious system
of lend lease. As a result of the applications of the
lessons of the first world war the peace has been
characterized by new developments. Fear of Germany in the
east and the west following two world wars has prevented the
signing of peace treaties and left that country divided
between various interests. Fear of a depression during a
possible reconversion period from war to peace which
followed the first world war until the system of American
loans for repaying American debts was devised has favoured
an emphasis on military expedients ranging from the Marshall
Plan to the Atlantic Pact by which full employment can be
assured. Militarism becomes a necessity to the continued
export of goods and to continued employment. The emphasis on
communism has been an important element in persuading
Americans that they must buy their own business. It would be
unwise for me to comment on American foreign policy but
perhaps you will allow me to quote from American writers.
Archibald MacLeish in an article on "The Conquest of
America" in the August number of the _Atlantic Monthly_[18]
writes, "Never in the history of the world was one people as
completely dominated intellectually and morally by another
as the people of the United States by the people of Russia
in the four years from 1946 through 1949. American foreign
policy was a mirror image of Russian foreign policy.
Whatever the Russians did, we did in reverse." H. Ickes in
the _New Republic_[19] wrote "we have been subjugated by
Russia because of our fear of Russia." "I thank God that
Roosevelt is not here now to see a greater and a stronger
America not on its knees but on its hands and knees
grovelling before dangers of its own imagining." The outside
can perhaps see more clearly than these writers the truth of
their remarks in the work of the Committee on Un-American
Activities, in the reign of terror introduced as a result of
a revival of a system of informers in ex-communists'
rackets, in trials and penalties and in rumours of suicides
such as one heard in the stories from Germany and Italy.
Bertrand Russell has described totalitarian countries as
condemning people to lives of perpetual enthusiasm. In turn
we seem to be condemned to lives of perpetual hate.

  [Footnote 18: 1949.]

  [Footnote 19: October 17, 1940.]

Repercussions of these developments have been strikingly
evident in academic life in Canada. If a member of a staff
of a Canadian institution wishes to take advantage of even a
temporary appointment in the United States he must choose
his relatives and his friends with much greater care than an
American citizen. Presumably he must not belong to a party
such as the C. C. F. or be involved in any discussions which
might make him suspect as a threat to the American way of
life. A Canadian citizen may not only be refused admission
to the United States but the fact may be drawn forcibly to
the attention of the public in American publications.
Freedom of speech and of the press has not only been
weakened directly as a result of American influence but
indirectly as Canadians yield to the acceptance of standards
imposed by the United States. The academic world will not
overlook an attempt to humiliate its most brilliant scholars
by American immigration officials nor will Canadians
tolerate affronts to their pride at its most sensitive
point. Freedom has been perceptibly narrowed in Canada as a
result of American hysteria. In 1950, the middle of the
twentieth century, a holy year, surely the lowest ebb in any
civilization has been reached when it is possible to
threaten the lives of thousands of people with atomic bombs,
with scarcely a protest in the interests of common humanity.
Fortunately we can still turn to Great Britain and Europe.
Scholars turned back at the American border have felt much
satisfaction at being given honorary degrees by British
universities. But everyone must be disturbed by the
appearance of the problem of the American refugee. The
imposition of oaths for teachers has involved profound
disturbances to American academic life and led to a concern
of American scholars in appointments outside the United
States. The dangers of using militarism as a device for
maintaining full employment shown in American policy as a
mirror image of Russian policy are shown more sharply in a
mirror image of Russian policy such as we have in Canada.
Ideologies are the fig-leaves of militarism. T. S. Eliot has
referred to "a true satellite culture as one which for
geographical and other reasons, has a permanent relation to
a stronger one,"[20] and to the reasons against consenting
to its complete absorption into the stronger culture. The
first "it is the instinct of every living thing to persist
in its own being"; the second "that the satellite exercises
a considerable influence upon the stronger culture; and so
plays a larger part in the world at large than it could in
isolation." "The survival of the satellite culture is of
very great value to the stronger culture."[21] He proceeds
to suggest "that both class and region by dividing the
inhabitants of a country into two different kinds of groups
leads to a conflict favourable to creativeness and
progress"--a point emphasized almost two centuries ago by
David Hume. "I do not approve the extermination of the
enemy; the policy of extermination or, as is barbarously
said, liquidating enemies is one of the most alarming
developments of modern war and peace; from the point of view
of those who desire the survival of culture. One needs the
enemy.... The universality of friction is the best assurance
of peace."[22]

  [Footnote 20: =Notes towards the Definition of Culture==
  (London, 1949) p. 54.]

  [Footnote 21: =Ibid.==, p. 55.]

  [Footnote 22: =Ibid.==, p. 59.]

I have ventured to digress in these remarks as a means of
suggesting that my criticism of the United States and of
Canada is intended to be in the interests of both and to
protest against a policy of American militarism which
compels dependence on the United States. The distortions of
the Canadian mirror may be more clearly seen if I describe
in more detail the process by which what is called light is
reflected. I need only remind you of the influence of
American publication on Canadian books, and of the fact that
60 per cent of the circulation of periodicals is dominated
by Americans, a reduction from 80 per cent of a couple of
decades ago, but a reduction offset to an important extent
by the influence of radio broadcasting to be supplemented
shortly by television. The rapid advance of technology in
the field of communication and the vast American market make
it inevitable that the United States should dominate English
culture in Canada and that it should exercise a powerful
influence on French culture even though the latter is
protected by language. One might almost conclude that the
Canadian mirror is the American mirror but it is rather a
reflection in a smaller mirror in which the American image
is sharply focussed. If the American people have been
described as "on its hands and knees grovelling before
danger of its own craven imagining," the Canadian people
might be described as standing on their heads. The most
significant indication was the size of the liberal majority
in the last election. No satisfactory explanation of this
phenomenon based on the assumption that Canadians act
rationally has been forthcoming. It has been argued that the
Liberals showed themselves to be far more competent in
handling election campaigns, that Mr. Drew alienated support
by his application of provincial antics to the federal
field, that elation over the retirement of the Rt. Hon.
William Lyon MacKenzie King spurred Liberals to a new pitch
of enthusiasm and so on, but these are not adequate and are
scarcely sufficient to explain why the electorate felt that
a strong opposition was not important. It may be suggested
that militarism played its role in that emphasis was given
to it by all parties and that such emphasis could have no
other effect than strengthening the party in power. Nothing
is more ominous than the facility with which the tendency
toward totalitarianism has enabled governments to create and
exploit crises particularly in periods preceding elections.
Mr. Churchill's genius as a politician in the British
elections was evident in his recognition of this fact shown
in the popularity of his proposal for a discussion of the
problem of cold war at top levels. The threat of communism
was stressed by the Conservatives as a means of smearing the
C. C. F. In turn the C. C. F. was compelled to stress its
reactionary characteristics in order to evade criticism. The
weakness of smaller parties evident in their tactics became
a source of strength to the Liberals. As a result the
political shape of Canada began to assume characteristics
similar to those of Russia. The rise of a politburo in
Canada comparable and paralleling that of Russia effectively
diverts attention to its character by pointing to the
dangers of the politbureau in Russia. The distortion of
Canadian political life has been evident in the attempts of
the ambitious to acquire prestige by exploiting Russian
stupidity. The stupidity of Russians inciting the attacks of
ambitious Canadian leaders has been paralleled by the
stupidity of Canadians in recognizing the incitement. In the
field of labor the distortion has been evident in the
hardening of labour organizations following much publicized
purges of communists, by a more rigid discipline, a greater
capacity to exact demands and a greater determination to
carry out their plans. In Canada a powerful bureaucracy, in
part a product of bilingualism, built up in the depression
and during the war, continued to exercise a powerful
influence in a period of peace to an important extent by
insisting that war had never ceased. Centralization which
developed rapidly during the depression and was accompanied
by a strong civil service and a decline of cruder forms of
patronage was followed by the growth of provincial autonomy
parties. The stupefying effects of the bureaucracy have been
partly a result of the problem of a dual language in
government and administration which blunts political edges.
Mr. King as Prime Minister emphasized the importance of a
French partner but his successor Mr. St. Laurent has no
single individual who can take the place of Mr. King as an
English partner. He has rather a group of younger English
members of the Cabinet anxious ultimately to assume his
mantle. The technique of Mr. King of eliminating rivals at
the appropriate time has been to some extent denied his
successor. Of more serious consequence has been the
destruction of our sense of humour which has accompanied a
lack of sense of proportion and a lack of criticism. No one
can be a social scientist in Canada without a sense of
humour. I offer this remark as a footnote to an
understanding of Stephen Leacock. The appointment of the
President of the Canadian National Railway because he had
been deputy governor of the Bank of Canada and had built up
prestige in the Wartime Prices and Trade Board by violating
the traditions of anonymity in the civil service has created
no ripple of amusement throughout Canada. But perhaps I have
been forced to concentrate too much on Ottawa papers. Within
the space of a week or so he appeared as an authority on
trade, banking, combines and railways. In the words of Anita
Loos: "A joke is a joke but no one wants to die laughing."
The hazards of our profession are becoming serious.

The results of an overwhelming majority in the federal
government and of control by the Liberal Party of the Senate
and the bench have been evident in various directions. It
has left individual provinces as the only opposition,
enabled the premier of a province to become the Conservative
Leader of the Opposition, and accentuated the problem of
federal government. Parties other than the Liberal party
tend to dominate the provinces. Consequently
dominion-provincial relations occupy a more important role
in Canadian politics. Development of opposition from labour
and the C. C. F. in some provinces has been followed by
coalitions of liberals and conservatives. General
disequilibrium and instability have necessitated enhancement
of the power of the dominion evident in abolition of appeals
to the privy council and in attempts to develop formulae for
amendments to the constitution. The tendency towards
centralization has accentuated an interest in defense and
the creation of an impasse strengthening the influence of
the United States. The sense of omnipotence derived from an
emphasis on the theory of the divine right of legislatures
developed in the federal government compels a sense of
omnipotence in provincial governments and it is no accident
that the Province of Ontario outraged a sense of justice by
retroactive legislation and that the federal government
created a sense of futility by disregarding its own
regulations in the Department of Justice in dealing with the
Combines Report on flour milling. The divine right of
legislatures has contributed to the breakdown of the federal
structure. Destruction of political relations between the
parties of the federal government and those of many of the
provinces has widened the gap between the provinces and the
Dominion. A decline in the practice of the federal
government of recruiting politicians from the provinces and
resort to that of building up the federal cabinet from
federal politicians have sharpened the differences between
the provinces and the dominion. The problem has become more
acute as a result of increased emphasis on central monetary
policy. The basis of federalism in which the provinces
maintained or acquired control over natural resources has
been largely destroyed as a result of an increasing emphasis
on monetary policy and particularly on large scale resort to
income taxes. Provinces and municipalities have been
compelled to rely to an increasing extent on other taxes and
control of the federal government has been strengthened by
division of powers and decline of the principle of taxation
without representation. Decline of the principle of taxation
without representation has implied resort to agreements and
large scale arrangements for transfers between regions.
Conflicts arising from the dependence of regions on European
markets and of other regions on American markets and the
political power of the densely populated regions dependent
on the United States compels resort to political patronage
on a large scale to areas less effectively represented.
Federal patronage has been essential to the prosperity of
agriculture in Western Canada. The extreme complexity of
government and the inability of the average citizen to
understand its problems increases the responsibility of the
bureaucracy. The latter are compelled to insist on democracy
as a means of hiding the necessity of working contrary to
democratic principles. In turn scepticism, such as indicated
in this paper, of discussions of democracy are inevitable.
The franchise has been extended, redistribution carried out
with due regard to the advantages of the party in power, and
large numbers have been appealed to by the parties
concerned--all designed to strengthen democracy and
calculated to work out to the advantage of the bureaucracy.
The great art of political success dependent on keeping
Scottish Presbyterians and French Canadians in the same
party is no longer necessary. It is impossible in this paper
to discuss exhaustively the effects of the enormous majority
of the Liberal Party in Canadian life. Politics can no
longer be discussed in terms of principles and with
reference to abstractions. The power of the bureaucracy
precludes an appeal to principles and compels concentration
on details. Effective criticism becomes impossible with the
deliberate attempt to focus attention on external affairs
and emphasis on the necessity of presenting a unified front
to the point that essential control over military matters,
regarded as the essence of sovereignty, is geared to the
United States. There is still a fable to the effect that
supping with certain mythological figures should only be
done with a long spoon. We can appreciate the words of James
Fitzjames Stephen "'Le self government', which not
infrequently means the right to misgovern your immediate
neighbours without being accountable for it to any one wiser
than yourself."[23]

  [Footnote 23: _Liberty, Equality, Fraternity_ (London,
  1874) p. 268.]

It may be argued that all these problems will be solved by
the abolition of appeals from the Supreme Court to the Privy
Council. I have referred elsewhere[24] to the important
position of the legal profession in Canadian politics and it
becomes necessary to consider the problem of law at greater
length. Dicey has remarked that "federalism substitutes
litigation for legislation" and if we are to understand the
prospects of success of the federal system we must pay some
attention to the nature of the body before which litigation
is carried out.

  [Footnote 24: =Great Britain, the United States and
  Canada.== (Nottingham, 1948)]

The extent to which the new powers of an enlarged Supreme
Court may be able to solve the problems of a federal state
will engage the attention of citizens concerned with
continuation of the traditions of common law. Federal
constitutions provide hiding places for vested interests.
The rights of property entrenched in written constitutions
restrict possible developments of socialism such as have
been evident in Great Britain. Sharp differences emerge
between business and government. In federal constitutions
emphasizing the traditions of Roman law in common law
countries Supreme Courts occupy a crucial position. Common
law traditions assume that the state is part of the law and
the subject has greater difficulty in separating himself
from the state. Change is consequently more gradual and less
subject to revolution. Constitutions are largely protected
from drastic revision. But Roman law tradition favoured by
written constitutions in the United States and in members of
the Commonwealth lean toward imperialism, and threaten the
beneficient effects of common law in Western civilization.
Without a recognition of the flexibility of common law the
remark of Dean Pound that "legal precepts are almost certain
to lag behind public opinion whenever the latter is active
and growing" will become extremely pertinent. These
fundamental problems face the Canadian Courts and the
Canadian people. As a result of a firm belief in the
impossibility of the spread of communism in common law
countries and in the danger of American imperialism in
exploiting us through its propaganda about communism I have
felt compelled to seize this opportunity to describe our
difficulties. The sense of terror which has seized on
Canadian life has made it more imperative that I should
regard the 150th anniversary of the University of New
Brunswick as an occasion on which our faith in the
traditions of common law, which were reflected after the
American revolution in the founding of this university,
could be reaffirmed.




Transcriber's note:

The edition used as base for this book contained the
following errors, which have been corrected:

Page 4: pre-eminently judical rather than legislative
=> pre-eminently judicial rather than legislative

Page 11: intelligent examination and cross examination
=> intelligent examination and cross-examination

Page 11: plausibly mantained
=> plausibly maintained

Page 12: =The Mind and Faith of Justice Holmes (Boston, 1943)==
=> =The Mind and Faith of Justice Holmes== (Boston, 1943)

Page 13: success of lawyers in politcal life
=> success of lawyers in political life

Page 13: the competition among lawyears for the bench
=> the competition among lawyers for the bench

Page 14: E. S. Corwin, =op. cit.== p. 54.
=> E. S. Corwin, =op. cit.==, p. 54.

Page 16: periods of imperialistic fanticism
=> periods of imperialistic fanaticism

Page 17: an obsession with domestice concerns
=> an obsession with domestic concerns

Page 19: emphasis on military expendients
=> emphasis on military expedients

Page 19: buy their own business, It would be unwise
=> buy their own business. It would be unwise

Page 20: The academicworld
=> The academic world


[End of _Roman Law and the British Empire_ by Harold Innis]