McGILL LAW JOURNAL
Volume 14
Montreal
1968
Number 4
Quebec’s Civil Law Codification
Viewed and Reviewed
John E.C. Brierley*
Introduction ……………………………………………………………………………………………..
I. Circumstances Leading to Codification ………………………………………………..
A . Political Factors ………………………………………………………………………………
B. Legal or Technical Factors ………………………………………………………………
i) D iversity of Sources ………………………………………………………………….
ii) Problem of the Language of the Law ……………………………………..
iii) Absence of Legislative or Doctrinal Synthesis ……………………….
iv) Availability of Foreign Models ………………………………………………..
II. Modus Operandi of the Codification Commission ………………………………….
A. Consolidation of the Laws ………………………………………………………………
B. Codification of the Law ………………………………………………………………….
i) Plan and D ivisions ……………………………………………………………………..
ii) Style of Legislative Expression ………………………………………………..
C. Reform of the Law …………………………………………………………………………….
C onclusions ……………………………………………………………………………………………………..
Appendix
I: Bibliographical Note …………………………………………………………….
Appendix II: Chronology of Codification ……………………………………………………
522
526
527
533
534
535
538
540
542
544
554
559
562
565
573
575
581
* Associate Professor of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 14
Introduction
Three events have been of capital importance in the history of
the private law of what is now the Province of Quebec. These three
events, in as many centuries, have successively secured a place for
the development in Canada of a body of law rooted in the French
tradition of le droit civil. In its origins and sources, its guaranteed
place in the evolving Canadian constitution, and its final legislative
expression in the form of a “civil code”, Quebec’s private law has
thus had a distinctive development in Canadian legal history.
Its origins lie in the seventeenth century when Louis XIV adopted
measures 1 by which the colony of New France was provided with
the first elements of an organized legal system and, more lasting
in importance, an initial body of customary but written law in the
form of the Coutume de Paris, the “common law” (droit commun
coutumier) of northern France, upon which many of the Quebec
Civil Code’s provisions were subsequently to be based. In the eigh-
teenth century, the place in the constitution of Canada of such “Laws
of Canada”, that is to say, the French private law on “Property and
Civil Rights” as understood in the new English possession at the
end of that century, was assured by the imperial legislation popularly
known as the “Quebec Act” of 1774.2
The third event, the codification of this body of law, occurred in
the second half of the nineteenth century and formed part of a
general effort to bring about wide-ranging legal reform in many
areas. It followed closely upon the restructuring of the judicial
organization in 1857, involving a decentralization upon which our
present court system is in large part based.3 But the law to be
administered by such a reformed court system was itself urgently
in need of re-organization and modernization. Whereas most of the
province was still ruled by the French seigneurial system, in other
specific portions of territory the English private law seemingly
applied. The “settling” of this anomalous legal condition ruling
1 The idits of April 1663, creating the Conseil souverain, Edits, Ordonnances
royaux, (Qu6bec, 1854), t. 1, p. 37 and that of May 1664 establishing the Com-
pagnie des Indes occidentales, section XXXIII, ibid., p. 40.
2An Act for making more effectual Provision for the Government of the
Province of Quebec in North America, 14 Geo. S, 1774, c. 83.
3 An Act to amend the Judicature Acts of Lower Canada, 20 Vict., S.C. 1857,
c. 44.
No. 4]
QUEBEC’S CIVIL LAW CODIFICATION
some lands,4 and the abolition, finally achieved in 1854 5 after many
difficulties both legal and political, of the French seigneurial sys-
tem in force throughout the largest part of the province, were two
measures which necessarily had to precede any recasting of the
private law in general. The corporate organization of the legal pro-
fessions of notary and lawyer was achieved somewhat earlier. e
It is somewhat surprising how little is known about the circum-
stances surrounding the creation of Quebec’s now century-old Civil
Code which came into force 1 August 1866. Few sources give any
picture of events leading up to the enactment of the 1857 Act 7
which provided for the naming of three “fit and proper persons”
to act as Commissioners to codify the laws. And what information
we do possess respecting the actual working methods of the Com-
mission, which began its work two years later, in 1859, is derived
principally from the published Reports of the Commission itself,
issued between 1861 and 1865.8 Apart from these Reports, the ful-
lest account of the circumstances surrounding the Commission’s
work remains, even today, that provided by Thomas McCord, whose
English-language edition of the Code, containing an informative
Preface and Synopsis of the changes in the Law, was first published
in 1867. It is a contemporary account of particular value since McCord
was one of the secretaries to the Commission during much of its
work.9 The principal commentators and historians of the later
nineteenth century are brief in their accounts of the codification.
They were, in fact, too close to the event and therefore either con-
cerned primarily with expounding the provisions of this new legal
instrument itself, as in the case of de Montigny and Loranger,10
4 An Act for settling the Law concerning Lands held in Free and Common
Soccage, in Lower Canada, 20 Vict., S.C. 1857, c. 45.
5 An Act for the abolition of feudal rights and duties in Lower Canada, 18
Vict., S.C. 1854, c. 3.
6An Act for the organization of the Notarial Profession in that part of this
Province called Lower Canada, 10-11 Vict., S.C. 1847, c. 21; An Act to incorporate
The Bar of Lower Canada, 12 Vict., S.C. 1849, c. 46.
7 An Act to provide for the Codification of the Laws of Lower Canada relative
to Civil matters and Procedure, 20 Vict., S.C. 1857, c. 43.
8 The chronology of these and other relevant dates is given in Appendix H
infra.
9 Thomas McCord was named English-language secretary to the Commission
in 1862; see Appendix I.
1OB.A.T. de Montigny, in his Histoire du droit canadien, (Montrdal, 1869),
in his treatment of codification, was mainly concerned with providing a practical
McGILL LAW JOURNAL
[Vol. 14
or with investigating the much earlier antecedents of the Quebec
legal system, as in the case of Doutre and Lareau.11 More recent
authors, in the absence of any new sources, have not been able
to investigate further the method of the Commission, or chosen
to examine closely the background of the period during which it
functioned.
It should therefore be made known that recent researches, under-
taken on the occasion of the celebrations marking the centenary
of the Quebec Civil Code held in Montreal- in the fall of 1966,12
led to the discovery by the present writer of a considerable body
of documents either used by, or recording the work of, the Commis-
sion during the period 1859-1865. These documents, in the custody of
the archives of two Quebec institutions, are now available to students
of Quebec legal history. This material provides new information about
the attitudes and methods of the three Commissioners and, to the
extent to which it contains information not found in the published
Reports, may shed new light, when examined in detail, on some of
its specific provisions.
This documentation –
a full bibliographical presentation and
description of which is given in Appendix I below –
is made up
of a folio volume containing the private notes of the apparent
prisident of the Commission, Ren6-Edouard Caron, compiled shortly
after his appointment in 1859; a large but unfortunately incomplete
run of the Commission’s actual working papers and drafts of many
portions of the Code, in various stages of development, of which those
having belonged to the English Commissioner, Charles Dewey Day,
are of greatest interest; the minute book of the Commission formally
recording its regular meetings throughout the whole period in ques-
tion; and certain other miscellaneous items and fragments.
“livre de consultation” in which he endeavoured to make the contents of the
Reports more accessible by correlating their contents to the final arrangement
adopted in the Code, indicating amendments adopted in the Legislative Assembly
and the final corrections made by the Commissioners (matters not contained in
the Rleports); see the Preface, p. 7 and at pp. 596-961; T.J.J. Loranger, Com-
mentaire sur le Code Civil, t. 1, (Montreal, 1873), pp. 80 et seq.
11 G. Doutre & E. Lareau, Le droit civil canadien, (Montr6al, 1872), trace the
history of Canadian law to 1791; cf. also R. Lemieux, Les origines du droit
franco-canadien, (Montr6al, 1901), pp. 446-450. The later work of E. Lareau,
Histoire du droit canadien, (Montrdal, 1889), pp. 276-296, provides a summary
of the substantive changes made to the private law, and was based on the work
of Loranger.
1230 September- I October 1966, under the presidency of Professor Andr6 Morel,
Facultd de droit, Universiti de Montrdal.
No. 4]
QUEBEC’S CIVIL LAW CODIFICATION
The documents containing the draft articles and discussions there-
on, in the form of cahiers, will not, certainly, constitute “aids”
in any process of strictly legal interpretation of the Civil Code such
as the finally published Reports themselves provide. These Reports,
as travaux pr6paratoires, have traditionally been admissible as guides
in interpretation –
and indeed must be in virtue of one of the
final articles of the Code itself,13 which creates a presumption in
favour of the continuing effect of the prior law. But their continued
relevance to a progressive interpretation of Quebec civil law has,
rightly, declined over the last hundred years and should, in any
event, be very much doubted at the present time. These newly
uncovered documents, therefore, the raw materials upon which the
Reports were written, are in themselves principally of historical
interest. A greater understanding of the method of Quebec’s first
codification commission may nonetheless be significant today, in
view of the current efforts to renew the whole range of Quebec
civil law undertaken by the recently re-organized Commission for
Revision of the Civil Code, 14 even though this body must necessarily
approach its task in today’s conditions with an outlook and methods
quite different from those of the Commission of 1859.
The principal purposes of this article, therefore, are first to make
known the existence of these new sources and, secondly, to provide
a statement of the modus operandi of the Commissioners of a century
ago. The first of these objectives is most appropriately executed in
the Appendix I, already mentioned, which provides merely a descrip-
tion of this new body of documents. The analysis of the method
adopted by the Commission in the execution of its task during the
period 1859-1865 (for which an Appendix II, providing a chronology
of events is designed to simplify the account), is based for the most
part upon an examination of these new sources. The method of the
Commission of 1859, however, will be better understood when placed
13 Art. 613 C.C. provides (in part):
The laws in force at the time of the coming into force of this code [i.e.
1 August 1866] are abrogated in all eases:
In which there is a provision herein having expressly or impliedly that effect;
In which such laws are contrary to or inconsistent with any provision herein
contained;
laws relate[.]
In which express provision is herein made upon the matter to which such
Cf. in general, F.P. Walton, The Scope and Interpretation of the Civil Code of
Lower Canada, (Montreal, 1907), pp. 103-107.
14 Most recently constituted by 3-4 Eliz. II, S.Q. 1955, c. 47 and 8-9 Eliz. II,
S.Q. 1959-1960, c. 97.
McGILL LAW JOURNAL
[Vol. 14
against the background of the years preceding the enabling Act
of 1857, and to this end a first section is devoted to gathering together
the available elements of information concerning the circumstances
leading to the birth of the idea of codification in Quebec.
SECTION I:
Circumstances Leading to Codification
After six years of work by its draftsmen, the Civil Code of
Lower Canada entered into force on 1 August 1866 –
a mere eleven
months prior to the creation of the new Canadian confederation
on 1 July 1867, but ten years after the mechanism for its compilation
had been set up in virtue of the enabling legislation of 1857. The
completion of the Code was, as Thomas McCord wrote in its first
privately published English-language edition, “an event which forms
an epoch in our history” and one “suggestive of many considera-
tions.” 15
Apart from his valuable remarks concerning the place of the
Code as a work of legislation and legal reform, McCord himself does
not develop upon any other such “considerations” he may have
held to be significant. Later observers, however, have been rather
more quick to see the codification as a work not merely of legal
but also of political significance; as not only an important step in
legislative reform but also, and perhaps above all, as evidence of
a desire on the part of French Canada to protect this element of its
French cultural heritage on the eve of entering into a union with
the other British North American colonies of different legal tradition.
In reviewing the reasons why any codification took place, it is
certainly important not to neglect the political (or economic or
social) context of the country in which it occurred. At the saine time,
it is manifestly dangerous to attempt to elucidate the circumstances
leading to or contemporaneous with such event by means of attitudes
that have only been produced by later historical developments. This
is in part the problem in the case of the Quebec codification: there
was clearly a series of compelling legal, technical and even linguistic
reasons for advocating the codification of the law, and these alone still
provide sufficient justification on which to view it historically. To
15 T. McCord, Synopsis of the Changes in the Law effected by the Civil Code
of Lower Canada in Civil Code of Lower Canada, 1st ed., (Montreal, 1867), p. 1.
No. 4]
QUEBEC’S CIVIL LAW CODIFICATION
what extent, on the other hand, is there evidence to support the
view that political considerations also figured in the idea that a Civil
Code be drawn up? If they were present, how important was their
role? Each of these aspects will now be considered, the political
and the legal or technical factors contributing to the birth of codifi-
cation.
A. Political Factors
That political factors played any great role in the inception of
the idea of the codification of the laws of Lower Canada is perhaps
more easily inferred than demonstrated, and this despite the closeness
in time of the coming into force of the Code, on the one hand, and the
creation of the Canadian confederation on the other.
When McCord, our principal contemporary observer, was writing
he was concerned primarily with expounding the nature and organiza-
tion of the Code and the substance of the changes it had effected in
the law. He endeavoured to situate this impiortant event in the general
context of the development of Quebec’s legal institutions rather
than in that of the political events of his day. These tasks he accom-
plished in a skilful summary of some thirty pages which even today
retains its value as the most complete statement of the transition
between the old and the new orders brought about by the Code in
the law of civil relations. In passing he did, however, make the
following observation:
In view of a union of the British American provinces, the codification of
our laws is perhaps better calculated than any other available means
to secure to Lower Canada an advantage which the proposed plan of
confederation appears to have already contemplated, that of being the
standard of assimilation and unity, and of entering into new political relations
without undergoing disturbing alterations in her laws or institutions.1 6
An interesting reflection, certainly, on the part of one writing
a mere ten days prior 17 to the coming into force of the British
North America Act. But is it, as some authors declare, a basis upon
which to affirm that codification itself was the instrument “officially”
affirming the French fact, for the benefit of French-speaking resi-
dents of the soon to be created Province of Quebec, within the new
16 Ibid., at pp. 1-2.
17 His Preface is dated 20 June 1867, although the remarks cited are drawn
from his Synopsis dated July 1866.
McGILL LAW JOURNAL
[Vol. 14
Canadian nation ?is The suggestion implicit in this view is, of course,
that the French law of Lower Canada was, in the period preceding
confederation, threatened with either extinction or some degree of
absorption by the common law of the surrounding jurisdictions.
That the Quebec codification has since been viewed in such a light,
or has represented for some an instrument of legal nationalism, is
not perhaps surprising –
indeed, as remarked elsewhere, such nation-
alism has almost everywhere been one of the results of the nine-
teenth century European codifications. 19 It is probably also true to
say that, as the plan for the Canadian political union took shape, the
codification of the civil law came to be looked upon, more and more,
in the light of its “political” significance. The importance of Lower
Canada entering any kind of proposed union with a well-established
system of laws had formed a specific point in a communiqu6 issued by
the Canadian government between the Charlottetown and Quebec
Conferences in 1864. It revealed that Lower Canada “insisted” upon
local control of the whole body of civil and municipal law in the dis-
cussions on the subject of the powers and duties of the proposed
local governments. 20 The same idea is implicit in the terms of the
Quebec and London Resolutions of 1864 and 1866; Lower Canada was,
Is The Code has been characterized as an “arme d6fensive de la race canadien-
ne-francaise” and as having been “n6 des besoins de la survivance frangaise”
by Professor L. Baudouin in his Le droit civil de la Province de Quebec,
(Montreal, 195S), p. 61; the same author has enlarged upon this thought in
later publications: “La rception du droit 6tranger en droit priv6 qu6becois” in
Quelques aspects du droit de la province de Qudbec, (Paris, 1963), p. 3, at p. 18:
“Il semble… qu’A l’6poque, la codification apparaissait comme l’instrument
permettant l’affirmation officielle du fait frangais dans cette province d’origine
purement frangaise”; Professor Baudouin considers that the remarks of McCord,
cited in the text above, “reflte certainement l’impression g6ndrale que l’on se
faisait alors du r6le d’un code pour cette province, et qui devait Ure sur le plan
du
