BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE
Eighteenth Century Professorial Classification of English
Common Law
John W. Cairns*
Sir Robert Chambers was the successor of
William Blackstone in the Vinerian chair of
English law at Oxford. The reviewer surveys
the teaching of English law in universities in
the eighteenth century. He compares the an-
alytical structure employed by Chambers
with those of other lecturers of the era, par-
ticularly Blackstone. He concludes by re-
marking the importance of classification,
especially in English law, in the creation of
formally rational law.
Sir Robert Chambers succ~da A William
Blackstone fA la chaire Vinerian de droit an-
glais A Oxford. Le critique examine l’ensei-
gnement du droit anglais dans les universit~s
du dix-huiti~me sicle. I1 compare la struc-
ture analytique de Chambers avec celle
d’autres enseignants contemporains, et plus
particuli~rement Blackstone. I1 conclut avec
des observations sur l’importance de la clas-
sification pour la creation d’un droit formel-
lement rationnel et ce, tout spcialement en
droit anglais.
*Lecturer in Scots Law, University of Edinburgh.
McGILL LAW JOURNAL
[Vol. 33
A Course of Lectures on the Common Law Delivered at the University of
Oxford 1767-1773 by Sir Robert Chambers Second Vinerian Professor of
English Law and Composed in Association with Samuel Johnson. 2 vols.
Edited by T.M. Curley. Madison: University of Wisconsin Press. 1986. Pp.
xix, 483 and xv, 445 [$30.00 + $30.001. Reviewed by John W. Cairns.
Introduction
Sir Robert Chambers has been virtually forgotten. Yet in his own day
he was a well known man –
the friend of the remarkable Scott brothers,
of James Boswell, and, most notably, of Samuel Johnson. He served in
Bengal, first as a puisn6 judge, and then as Chief Justice, appointments
which involved him in the affairs of Warren Hastings. He was Sir William
Blackstone’s successor in the Vinerian chair of English law at Oxford, and,
on the evidence of his lectures, not an unworthy one.I Memory of Chambers’
tenure of the Vinerian chair was to some extent kept alive by his nephew’s
publication in 1824 of a part of the lectures as a Treatise on Estates and
Tenures.2 Much more recently, Chambers has attracted the attention of
scholars because his lectures are supposed to have involved him to some
extent in a collaboration with Samuel Johnson. Interest in this led to the
rediscovery in the British Library of the manuscript of the lectures now
published. This is not the text which Chambers read, but a copy made for
George III sometime before Chambers left for Bengal in 1774.3 That there
was a measure of collaboration between Chambers and Johnson in writing
the lectures seems clear, and comparison of the texts supposedly produced
by their joint efforts with known examples of their respective styles is cer-
tainly a possible method of differentiating their contributions. A note of
caution must nonetheless be sounded. Recent invigorating debates in the
discipline of Roman law have shown stylistic analysis to be a far from simple
method to employ in attributing authorship. In the absence of other evi-
dence, it may well remain uncertain whether certain passages should be
IH.G. Hanbury, The Vinerian Chair and Legal Education (Oxford: Basil Blackwell, 1958)
at 52-61.
Butterworth & Son, 1824).
2R. Chambers, A Treatise on Estates and Tenures, ed. by C.H. Chambers (London: Joseph
3See E.L. McAdam, “Dr. Johnson’s Law Lectures for Chambers: An Addition to the Canon”
(1939) 15 Rev. English Stud. 385; E.L. McAdam, “Dr. Johnson’s Lectures for Chambers, I1”
(1940) 16 Rev. English Stud. 159; S. Krishnamurti, “Dr. Johnson and the Law Lectures of Sir
Robert Chambers” (1949) 44 Mod. Language Rev. 236; A. McNair. Dr. Johnson and the Law
(Cambridge: Cambridge University Press, 1948) at 76-79; E.L. McAdam, Dr. Johnson and the
English Law (Syracuse: Syracuse University Press, 1951) at 65-122; Hanbury, supra, note I at
56; J.E. Reibman, Dr. Johnson and the Law (Doctoral dissertation in law, University of Edin-
burgh, 1979)[unpublished] at 188-309; T.M. Curley, “Johnson’s Secret Collaboration” in J.J.
Burke and D. Kay, eds, The Unknown Samuel Johnson (Madison: University of Wisconsin
Press, 1983) at 91- 112.
1987]
BOOK REVIEWS
attributed to Johnson or to Chambers. 4 This is unimportant. If Johnson
suggested, or even himself wrote, particular passages in the lectures, Cham-
bers nonetheless must always have agreed with the opinions expressed. We
thus can fairly represent the entire course of lectures as containing Cham-
bers’ views on English law, even if some of them were originally generated
by Johnson. Furthermore, should Johnson have been indeed a close col-
laborator on the lectures, it may also be the case that as a whole they
generally represent his views, though this is not a point we shall consider
further here.
Of much greater interest, however, is the place of these lectures in the
history of the development in the eighteenth century of university education
in law. In this review I propose to assess the work of Chambers by comparing
it with that of other professors of English law. The late Sir Rupert Cross
has already contributed a comparison of the treatment by Blackstone and
Chambers of some substantive legal topics.5 Here, therefore, I shall focus
on the analytical structure Chambers gave to English law. The first part of
the review will briefly discuss the early history of university lectures and,
in particular, the adoption of the structure of Justinian’s Institutes. This will
be followed by an account of the problems encountered by professors of
English law in setting forth their subject, and of the solutions they adopted.
The third section of the review will be a detailed analysis of the structure
Chambers used for his lectures in comparison with that used by Blackstone.
This will be followed by some general conclusions and observations.
I. University lectures and the institutional pattern
While lectures on civil (or Roman) and canon law had been traditional
in most of the European universities since their inceplion, 6 lectures on
national or local laws were a relatively novel phenomenon when the Vi-
4 0n the question of “style” as a means of attributing authorship see B.W. Frier, “Law on
the Installment Plan” (1984) 82 Mich. L. Rev. 856 at 858-63. Frier shows that what is imp6rtant
are quantifiable indicators of style such as mean length of sentence, word order and the like,
rather than the more obvious, showy words and expressions which are more readily imitated
by one writer under the influence of another. One could disentangle specific contributions of
Johnson to the lectures only with difficulty: more is required than a supposedly Johnsonian
“ring” to a sentence, or than the observation that a passage contains views known to have
been held by Johnson. But compare McAdam, Dr: Johnson and the English Law, supra, note
3 at 81-120 and Reibman, supra, note 3 at 310-17 (Appendix I). Curley is commendably cautious
in his Introduction to the work under review here: R. Chambers, A Course of Lectures on the
English Law Delivered at the University of Oxford 1767-1773… And Composed in Association
with Samuel Johnson, ed. by T.M. Curley, 2 vols (Madison: University of Wisconsin Press,
1986) vol. 1 at 4-11, and 68-79 [hereinafter Chambers]; but compare J.M. Lindsey, Book Review
(1987) 60 Temple L.Q. 117 at 119.
5R. Cross, “The First Two Vinerian Professors: Blackstone and Chambers” (1979) 20 Wm
& Mary L. Rev. 602; see also Reibman, supra, note 3 at 188-309 for a sustained analysis of
aspects of the lectures.
6H. Rashdall, The Universities of Europe in the Middle Ages, ed. by EM. Powicke & A.B.
REVUE DE DROIT DE McGILL
[Vol. 33
nerian chair was founded. In France and the Netherlands, such lectures
dated from the later seventeenth century, and in Scotland from the early
eighteenth century. In Spain and Portugal, lectures on national law only
started two decades after the foundation of the Vinerian professorship. 7 The
pattern was common throughout Europe. The traditional method of ex-
position of Roman law was to lecture, in two separate courses, on the In-
stitutes and the Digest, though from the late seventeenth century it had
become the practice to use, as the basis of the course, rather than the orig-
inals, textbooks which followed the sequence of the Institutes or Digest.8
For those teaching national or municipal laws there was not this obvious
expedient recourse.
In the emergent states of early modern Europe, the laws were typically
administered in a complex system of overlapping jurisdictions, and were
derived from a variety of different sources, such as civil law, canon law,
feudal law, and local customs. Applicable rules were to be found not only
in costumals, the Corpusjuris civilis, and the formal decrees of the church,
but also in local practice, statutes, and the decisions of courts. Ib expound
a legal system as a whole, it was necessary to synthesize this range of material
into a systematic, coherent form. By the late seventeenth and early eigh-
teenth centuries, in many countries this had been achieved in part through
the development of institutional literature. 9 Writers, such as Mackenzie in
Scotland, had adopted from Justinian’s Institutes the ultimately Gaian tri-
partite division of law: that relating to persons, that to things, and that to
actions.’ 0 Though not always ideal, the structure of the Institutes provided
a general framework within which national laws could be discussed, and
professors used institutional texts, or the institutional structure, as the basis
Emden, vol. 1 (Oxford: Oxford University Press, 1936) at 87-125 (civil law) and 125-41 (canon
law) and passin. On law teaching in early Oxford, see J.L. Barton, “The Study of Civil Law
before 1380” in The History of the University of Oxford, general ed. T.H. Aston, vol. I The
Earlt’ Oxford Schools, ed. J.I. Catto (Oxford: Clarendon Press, 1984) at 519-30; and L.E. Boyle,
“Canon Law before 1380” in Catto, ed. ibid. at 531-64.
7See, generally, C. Ch~ne, L’enseignemnent du droitfrancais en pays de droit ecrit (1679-1793)
(Gen~ve: Droz, 1982) at 3-4. See on the Netherlands: R. Feenstra & C.J.D. Waal, Seventeenth-
Century Leyden Law Professors and their Influence on the Development of the Civil Law (Am-
sterdam/Oxford: North-Holland, 1975) at 38; on Scotland: J.W. Cairns, “Institutional Writings
in Scotland Reconsidered” (December, 1983) 4 J. Leg. Hist. 76 at 94-98; on Spain: M. Pcset
Reig, “Derecho romano y derecho
en las universidades del siglo XVIII” (1975) 45 Anuario
de historia del derecho espafiol 273.
8See Feenstra & Waal, supra, note 7 at 36.
9See K. Luig, “The Institutes of National Law in the Seventeenth and Eighteenth Centuries”
(1972) 17 Juridical Rev. 193; A. Watson, The Making of the Civil Law (Cambridge, Mass.:
Harvard University Press, 1981) at 62-82; and Cairns, supra, note 7 at 76-88 and passiln.
10G. Mackenzie, The Institutions of the Law of Scotland, 2d ed. (Edinburgh: Thomas Broun,
1688) at 9-10. See J. Inst. 1.2.12; D.1.5.1; and D.R. Kelley, “Gaius Noster: Substructures of
Western Social Thought” (1979) 84 Am. Hist. Rev. 619 at 621.
.1987]
CHRONIQUE BIBLIOGRAPHIQUE
of their lectures, and sometimes, like Serres and Erskine, wrote their own.11
It is worth stressing that, while an author, such as Serres, might follow exactly
the Justinianic structure, others, influenced by theories of natural law, could
adopt differing schemes, suitable to their subject matter, roughly within the
Justinianic framework.’ 2 In some, the interaction of the institutional struc-
ture with natural law theories could result in philosophically sophisticated
expositions of the law. The prime example of this is John Millar in Glasgow,
who expounded Scots law in a structure derived from Adam Smith’s natural
jurisprudence. 13
II. University Lectures in English Law: The Problem of Structure
In the second half of the seventeenth century, Roger North regretted
that “[o]f all the professions in the world, that pretend to book-learning,
none is so destitute of institution [i.e. formal instruction] as that of the
common law.”‘ 14 In 1708, Thomas Wood called for the establishment of
lectures on English law in the universities. 15 With the initiative coming
primarily from private individuals, England followed the general European
trend, with the establishment of university teaching of national law in the
middle of the eighteenth century. 16 Perhaps aware of the impending Vinerian
bequest, Blackstone started to teach privately in 1752, being elected to the
Vinerian professorship in 1758, when Viner’s will was made effective. 17 Less
well known is the establishment in 1761 in the University of Dublin of a
Regius chair of Feudal and English Law to which ES. Sullivan was elected.18
1C. Serres, Les institutions du droit frangais, suivant l’ordre de celles de Justinien, accom-
inodees 4 la jurisprudence inoderne, & aux nouvelles ordonnances, enrichies d’un grand nomnbre
d’arrOtsdu Parlenentde Toulouse (Paris: Veuve Cavelier& Fils, 1753);J. Erskine, The Principles
of the Law of Scotland: In the Order of Sir George Mackenzie’s Institutions of that Law (Edin-
burgh: Hamilton, Balfour, and Neill, 1754) 2 vols.
2See Ch~ne, supra, note 7 at 290-307; Watson, supra, note 9 at 67-82.
1
13Compare John Millar, Heads of the Lectures on the Law of Scotland, in the University of
Glasgow (Glasgow: Dunlop and Wilson, 1789; found bound in Glasgow University Library,
MS Murray 83 and MS General 18 1/1) with the structure of A. Smith, Lectures on Jurispru-
dence, ed. by R.L. Meek, D.D. Raphael & PG. Stein (Oxford: Clarendon Press, 1978). On
Millar as the heir of Smith’s science of legislation, see K. Haakonssen, “John Millar and the
Science of a Legislator” (1985) Juridical Rev. 41.
14R. North, A Discourse on the Study of the Laws (London: Charles Baldwyn, 1824) at 1.
15T. Wood, Some Thoughts Concerning the Study of the Laws of England. Particularly in the
16See J.W. Cairns, “Blackstone: An English Institutist: Legal Literature and the Rise of the
Two Universities, 2d ed. (London: J. Stagg and D. Browne, 1727).
Nation State” (1984) 4 Oxford J. Legal Stud. 318.
17See L.S. Sutherland, “William Blackstone and the Legal Chairs at Oxford” in R. Wellek
and A. Ribeiro, eds, Evidence in Literary Scholarship: Essays in Memory of James Marshall
Osborn (Oxford: Clarendon Press, 1979) at 229-40.
‘8R.B. McDowell & D.A. Webb, Trinity College Dublin 1592-1952. An Academic History
(Cambridge: Cambridge University Press, 1982) at 65.
McGILL LAW JOURNAL
[Vol. 33
Furthermore, John Millar, Regius Professor of Civil Law in the University
of Glasgow from 1761 to 1801, in the late 1790s delivered lectures on English
law. ‘ 9 Millar arguably was the outstanding law teacher of his day, to whose
classes pupils came from throughout the British Isles, and of whom Arthur
Browne, Professor of Civil Law in Dublin, wrote in 1797 that, “above all,
the learned Professor of Glasgow … has acquired most deserved celebrity,
and has attracted many of the youth of this country, as well as of England
within the sphere of his instruction. ’20 Millar was an enthusiastic and en-
ergetic teacher, lecturing already on the Digest, the Institutes, Government,
and Scots law.2′ His aim, according to a letter of 1798, was to “facilitate
the study of the law of England to those who, by an academic education,
have become acquainted with the civil law and with the views and ways of
speaking adopted by the writers on jurisprudence.’ 22 Wood wrote, in 1708,
that “[i]t is to be much lamented, that we have not any complete System
of our Laws. We are forced to learn it chiefly by Tradition, and Observations
upon the Practice of it in the highest Courts. ‘ 23 This was particularly per-
ceived as a problem for English law. In his lectures in Dublin Sullivan said:
Another great difficulty the study of the law of England labours under, peculiar
to itself, is that want of method, so obvious to be observed, and so often
complained of in its writers of authority, insomuch, that almost all of them …
are too apt to puzzle and bewilder young beginners; whereas other laws, the
civil, the canon, the feudal, have books of approved authority, … calculated
purposely for the instruction of novices; wherein the general outlines of the
whole law are laid down, the several parts of it properly distributed, its terms
explained, and the most common of its rules and maxims, with the reasons
of them, delivered and inculcated. 24
In 1605 John Cowell had already published Institutiones Juris Anglicani,
ad Methodem et Seriem Institutionum Imperialium compositae & digestae,
19See J. Craig, “Account of the Life and Writings of John Millar, Esq.” in J. Millar, The
Origin of the Distinction of Ranks: Or, An Inquiry into the Circumstances which give rise to
Influence and Authority, in the Different Members of Society, 4th ed. (Edinburgh: William
Blackwood, 1806) at xxi-xxii; W.C. Lehmann, “Some Observations on the Law Lectures of
Professor Millar at the University of Glasgow (1761-1801)” (1970) 15 Juridical Rev. 56 at 73-
77.
20A. Browne, A Compendious View of the Civil Law, Being the Substance of a Course of
Lectures Read in the University of Dublin, vol. I (Dublin: R.E. Mercier, 1797) at 17.
21See Lehmann, supra, note 19.
22Ibid. at 74.
23Wood, supra, note 15 at 43.
24FS. Sullivan, An Historical Treatise on the Feudal Law, and the Constitution and Laws of
England; With a Commentary on Magna Charta, and Necessary Illustrations of Many of the
English Statutes. In a Course of Lectures read in the University of Dublin (London: J. Johnson
and J. Payne, 1772) at 16.
1987]
BOOK REVIEWS
which was translated into English in 1651.25 This indicated one method of
solving the problems pointed out by Wood and Sullivan. Cowell’s treatise,
which had several editions, followed Justinian’s Institutes exactly, title for
title. The course of the seventeenth century saw, in England as elsewhere,
the growth of an ever-increasing taxonomical interest in legal classification,
under the related influences of Grotian natural law and the new science. 26
Outstanding in this respect was the work of Sir Matthew Hale, especially
his Analysis of the Law. 27 The adoption of the institutional method of ex-
position of English law was strongly influenced by these developments.
Thus, Wood attempted to meet the need he himself had pointed out by
publishing An Institute of the Laws of England: Or, The Laws of England
in their Natural Order, according to Common Use.28 This work, which went
through several editions, was influenced not only by Justinian’s Institutes,
but also by Hale’s Analysis (which was itself influenced to a certain extent
by the Institutes). It is against this background that we must place the sub-
sequent work of the law professors of the eighteenth century in order to
appreciate the significance of Chambers’ lectures.
The elegant and complex analytical table of the divisions of English
law in Blackstone’s Analysis demonstrates his strong taxonomic interests. 29
As I have argued elsewhere, in the Vinerian lectures and the Commentaries,
Blackstone adopted a structure for his exposition derived both from Hale
and Justinian, with appropriate changes to make it suitable for the English
law of his day.30 He stated that “the primary and principal objects of the
law are RIGHTS, and WRONGS.” Rights are divisible into “‘jura person-
arum” and “‘jura rerum”. Wrongs are divisible into “private wrongs” and
“public wrongs”.3′ The class of “private wrongs” is not essentially a category
of torts, though they are included, but rather an account of the procedures
25J. Cowell, Institutiones Iuris Anglicani ad nethoduin et seriem Institutionuin Imperialiun
compositae & digestae (Cambridge: J. Legat, 1605); J. Cowell, The Institutes of the Laves of
England, digested into the Method of the Civill or Imperiall Institutions… Written in Latine
by John Cowel … And translated into English according to Act of Parliament, for the benefit
of all. By W.G. Esquire (London: T. Roycroft for J. Ridley, 1651).
26See B.J. Shapiro, “Law and Science in Seventeenth-Century England” (April 1969) 21 Stan.
L. Rev. 727; M.H. Hoeflich, “Law and Geometry: Legal Science from Leibniz to Langdell”
(1986) 30 Am. J. Leg. Hist. 95.
27 The Analysis of the Law: Being a Scheme, or Abstract, or the Several Titles and Partitions
of the Laws of England, Digested into Method (London: John Walthoe, 1713). I have used M.
Hale, The History of the Common Law of England, and An Analysis of the Civil Part of the
Law, 6th ed. (London: Henry Butterworth, 1820). See, above all, Shapiro, ibid. at 740-49.
28(London: Printed by E. Nutt and R. Gosling for R. Sare, 1720) 2 vols.
29W. Blackstone, An Analysis of the Laws of England (Oxford: Clarendon Press, 1756).
30Cairns, supra, note 16 at 340-52.
31W. Blackstone, Commentaries on the Laws of England, vol. I (Oxford: Clarendon Press,
1765) at 118.
REVUE DE DROIT DE McGILL
[Vol. 33
and actions whereby rights are protected and asserted. The class of “public
wrongs” deals with criminal law and procedure. The institutional pattern
can be detected. Within these four divisions, there is necessarily departure
from Justinian; but this is typical of the works of all institutists. Thus, in
the class of persons, Blackstone dealt with natural persons and corporations.
He discussed the relative rights of natural persons as they stood in public
relations with one another, where essentially he dealt with status relation-
ships in connection with the English constitution, and as they stood in
private relations as master and servant, husband and wife, parent and child,
guardian and ward. In the treatment of jura rerum, he discussed the clas-
sification of, and modes of losing and gaining title to, “things real” and
“things personal”.
Richard Wooddeson, Vinerian professor from 1777 to 1793,32 published
in 1783 Elements of Jurisprudence Treated of in the Preliminary Part of a
Course of Lectures on the Laws of England.33 This contained his six intro-
ductory lectures. He wrote:
I shall adopt the same threefold division which the Institutes of Justinian have
taught us, and which appears to me the most clear, and analytically just; con-
sidering our laws, first, as referred to Persons, or the several capacities of men
in civil life; secondly, as referred to Things or Property; and, thirdly, treating
of Actions. 34
In this work, he also provided an analytical table of his lectures. 35 Given
his approach, this table is simpler than that of Blackstone. Thus, he divided
persons into magistrates and subjects. Magistracy he divided into legislative,
executive, and judicial.3 6 His lectures on persons accordingly discussed, first,
the Parliament, then the King’s executive power, and then judges and
courts. 37 He wrote that:
Having thus spoken of the several kinds of dominion … we must contemplate
the body of the people governed. This will lead us first to consider the clergy
…. This … will introduce a detail of the legal establishment of the national
religion. I shall afterwards discourse of the state of persons (a phrase taken
from the Roman civil law) under which I shall include the legal effects of
certain distinctions, consisting chiefly in disabilities, as of infants and others.
32See Hanbury, supra, note 1 at 61-78.
33(London: T. Payne and Son, 1783).
34Ibid. at Il1.
351bid. at 115-18.
361bid. at I11.
37R. Wooddeson, A Systematical View of the Laws of England; As Treated of in a Course of
Vinerian Lectures, Read at Oxford, During a Series of Years, Commencing in Michaelnas
Term, 1777, 3 vols (London: T. Payne, 1792) vol. 1 at 1-288.
1987]
CHRONIQUE BIBLIOGRAPHIQUE
I shall then consider persons in their private, domestic relations; and shall
conclude this first general division, concerning the laws as referred to Persons,
with an account of corporations, to which an artificial personality is ascribed.38
This plan is followed. In “private, domestic relations” he discussed, in this
order: husband and wife; parent and child; guardian and ward; and master
and servant.39 With some variation, here Wooddeson essentially has fol-
lowed Blackstone. Perhaps the most notable difference is that Wooddeson
here has discussed the English courts, which Blackstone postponed to “Of
Private Wrongs”.
Wooddeson’s second division, “Of the Laws as Referred to Things or
Property”, is divided into two parts, “Of Real Estates”, and “Of personal
Property”. 40 It is closely related to, though by no means identical with,
Blackstone’s account of jura rerum. The third division, “Of Actions”, has
three subdivisions: first, “Of Criminal Prosecutions”, in which Wooddeson
set out the classes of criminal offences as well as discussing procedure;
second, “Of Private Civil Actions”; and third, “Of Suits in Courts of Eq-
uity”. 4′ It may be noted that, of Wooddeson’s sixty lectures, no less than
twenty-five were devoted to actions.
Wooddeson published the entire set of his Vinerian lectures in three
volumes over the years 1792-1793.42 In recent years, they have been gen-
erally ignored, except for a discussion by Professor Hanbury, 43 and they are
scarcely mentioned in the chapter on legal studies in the recent volume of
the history of Oxford University devoted to the eighteenth century.44
Wooddeson apparently revised his lectures after the publication in 1783 of
Elements of Jurisprudence; but the consciously institutional structure
remained.45
In Glasgow, John Millar covered English law in forty-eight lectures. 46
The first was devoted to its history. Millar described English law thus:
Though considered as a practical system of laws, the English is perhaps as
compleat as any system can be; yet it has in it this peculiarity, that is has not
38Wooddeson, supra, note 33 at 112.
39Wooddeson, supra, note 37, vol. 1 at 416-70.
40Wooddeson, supra, note 33 at 112-13, 117.
41Ibid. at 113-14, 118.
42Wooddeson, supra, note 37.
43Hanbury, supra, note 1 at 61-78.
44See J.L. Barton, “Legal Studies” in The History of the University of Oxford, general ed.
T.H. Aston, vol. 5, The Eighteenth Century, eds L.S. Sutherland and L.G. Mitchell (Oxford:
Clarendon Press, 1986) 594 at 605.
45See Wooddeson, supra, note 37, vol. 1 at 1-2.
46See “Notes from Profr: Millar’s Lectures upon the Law of England Glasgow College. Session
1800/1801”, Glasgow University Library, MS General 243.
McGILL LAW JOURNAL
[Vol. 33
like all other systems, been introduced by the speculations of philosophers and
legislators; but has arisen to its present state of perfection, slowly and gradually,
assisted in its progress by certain accidents, and completed by long experience
and observation. 47
The second lecture dealt with the “peculiarities” of English law, one of which
was its lack of systematic arrangement. Millar commented that “Blackstone
has done a great deal in this respect, yet much remains yet to be done.” 48
The third lecture was devoted to the sources of English law, and in the
fourth Millar explained his proposed method of exposition. He commented
that it was difficult to find “a sort of method corresponding with the divisions
observed by the English Lawyers” which would “enable us to form a distinct
idea of the whole system”, because of “the want of method in the writings
of the English Lawyers.” He decided that “the method followed by the
Roman Civilians, and in imitation of them, by the later writers upon Roman
jurisprudence, is the radical [i.e. basic] method we wish to follow.” He stated
that the civilians divided law into “two great classes, the doctrine of rights
and the doctrine of actions.” 49 Millar considered that only three writers had
“attempted an arrangement of the English law”: Hale, Wood, and Black-
stone. Hale’s Analysis was, however, both “very imperfect” and “only a
sketch”, while Wood was also criticised. 50 Millar told his class that “Black-
stone, in his well known Commentaries, has certainly improved upon
Woods’ method, though his arrangement is still liable to faults.”‘S After an
exposition and criticism of Blackstone’s structure, Millar said that he would
“adopt a method somewhat different, and … deviate a little from Black-
stone”. He continued:
We shall consider, first, Rights, and then Actions. We shall consider rights as
arising from the condition of persons, and things. Rights arising from the
condition of persons shall be treated of pretty much in the order of Blackstone:
and as to rights arising from the distinction of things, these shall be divided
into two great Classes; rights real and personal, or choses in possession and in
action, as they are called by the English Lawyers … Then, as to actions, having
already considered rights independent of actions, the doctrine of actions will
be much shorter. Our attention shall upon this head be principally directed to
the different Courts of Justice, and their forms of procedure. 52
47Ibid. at I.
48Ibid. at 17.
49Ibid. at 27.
50Ibid. at 30; see ibid. at 29: “[The English writers’] first view seems to have been, to consider
the different subjects of law, under the forms of action.”
51Ibid. at 30.
52Ibid. at 32.
1987]
BOOK REVIEWS
This basic division is derived by Millar from Adam Smith’s lectures on
jurisprudence. 53 It is evidently institutional, as Millar noted, both in these
lectures, and in his lectures on Scots law.54 By using this scheme, Millar
deliberately gave English law a civilian structure, no doubt to facilitate its
being learned by those familiar with Roman law, as he had hoped in his
letter of 1798. 55 One of the most obvious differences from the institutional
schemes of Blackstone and Wooddeson is the exclusion of public law from
the discussion of persons. In his fourth lecture, Millar said that “[i]n the
systems of the Civilians, the rights of a public nature are passed over; and
in this we shall probably follow their example.”‘ 56 In any case, Millar gave
a separate course of lectures on public law or government.57 Millar’s biog-
rapher, John Craig, described as follows the course on English law:
In this course it could not be expected that he should convey more information
than is contained in the best authors; but he greatly simplified and improved
the arrangement, and accounted for the various rules and even fictions of
English Law, in a manner more satisfactory, than by vague analogies, or that
last resource of ignorance, and unmeaning reference to the pretended wisdom
of our ancestors. 58
This meeting of Adam Smith’s science of legislation with English common
law deserves further study.
Francis Sullivan regretted that the books of authority in England were
unsystematic; yet in his own forty-three lectures on English law he dealt
with his material in historical, rather than formally structured fashion. This
was because his lectures only aimed to show the origins in feudal law of
English law and the English constitution. He did not expound the modem
law. Sullivan’s purposes were, first, to demonstrate that monarchy in Eng-
land had always been limited, and second, by focussing on the early land
53See Smith, supra, note 13 at 7-14, 399-401; see also K. Haakonssen, The Science of a
Legislator: The Natural Jurisprudence ofDavidHume andAdan Smith (Cambridge: Cambridge
University Press, 1981) at 99-134.
54See text accompanying note 49; and, e.g., Glasgow University Library, MS General 1078,
at fol. 4 on Scots law for an explicit statement that this scheme is that of the Institutes. On
the lectures on Scots law, see J.W. Cairns, “John Millar’s Lectures on Scots Criminal Law”
(1988) 8 Oxford J. Legal Stud.[forthcoming].
55See text accompanying note 22.
56See MS General 243, supra, note 46 at 28.
57See, e.g., Glasgow University Library, MS General 289-91; see also W.C. Lehmann, John
Millar of Glasgow (Cambridge: Cambridge University Press, 1960) at 57-58; H. Medick, Na-
turzustand und Naturgeschichte der bdrgerlichen Gesellschaft (G6ttingen: Vandenhoeck & Ru-
precht, 1973) at 186-89.
58Craig, supra, note 19 at xxi-xxii.
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[Vol. 33
law, to allow students to understand Littleton.5 9 Rejecting the institutional
structure, Sullivan considered students of the common law should start with
the land law.60
III. Chambers’ Approach: The Departure from Blackstone and the Institutes
It is now possible to assess Chambers’ approach. His course commenced
with four introductory lectures on: first, the law of nature, the revealed law,
and the law of nations and the primary sources of the law of England; second,
the origin of feudal government and of Anglo-Saxon government and laws;
third, feudal law and its effects on the English constitution and government;
and fourth, the general division of the laws of England. 6′ In the first intro-
ductory lecture, he explained the general divisions he imposed upon English
law. He noted the necessity in society “of some governing power, by which
those who are inclined to be happy at the cost of others may be compelled
to their part of the general task, –
and of a public wisdom, by which private
judgement shall be directed and controlled.” He accordingly deduced that
“the first care … of every new society” was “to select and establish gover-
nors” and that “its first law must constitute the power by which future laws
are to be made.” This was described by the English as “the constitution”:
“And the modes and forms of its operations may properly be termed the
politic law.” On this basis, he told his class that:
The legislative power … is … to be exerted in the security of its constituents
from all those evils which men bring upon one another, or which the care and
labour of men, whencesoever they proceed, can divert or remove. We never
hurt each other but by error or by malice. To the errors of individuals legislative
wisdom is opposed, and to their nalice legislative power. From our endeavours
to secure happiness against error, arise all the forms of conveying and securing
property … . To defend us against the malice or wickedness of each other, is
the general end of those laws which are enforced by penal sanctions ….
He thus claimed that “the positive institutions of any state” could be divided
into three: “public, criminal and private law.”‘ 62 This is rather neat.
He explained further:
[Public law] is … that law of government by which the supreme power in a
state regulates its own conduct and that of its subordinate officers, which con-
stitutes the existence, and modifies the operations of the supreme legislative
magistrates, which directs and limits (where it is limited) the agency of the
supreme executive, which prescribes the mode of delegation and the authority
delegated to all inferior public officers, and consequently comprises all the rules
59Sullivan, supra, note 24 at 18-22.
60Ibid. at 17.
6’Chambers, supra, note 4, vol. 1 at 83-123.
621bid. at 89; see also ibid. at 122.
1987]
CHRONIQUE BIBLIOGRAPHIQUE
relating to the public property and revenue, to councils of state and commerce,
to public messengers, courts ofjustice, inferior territorial magistrates, the civil
state of men with their various ranks and privileges, the different rights of
aliens and native subjects, the territory whose inhabitants constitute the state,
and such subordinate governments and societies as are either contained in the
state or dependent upon it.63
This accordingly was the first division of his lectures. It encompasses what
is dealt with in the first book of Blackstone’s Commentaries with some
exceptions. It omits, for instance, the latter’s class of relative private rights
of natural persons (that is, as master and servant, husband and wife, parent
and child, and guardian and ward), and in its ninth and tenth lectures
includes the type of material on courts which Blackstone substantially, and
deliberately, postponed to this third book.64 Chambers here departed from
Blackstone’s (and Hale’s) concept of “persons” as a means of organizing this
type of material, and relied on the idea of public law. It should be noted,
however, that he included corporations as an aspect of public law. In his
sixteenth lecture on public law he said:
In the subordinate parts of our political constitution it is necessary to
make particular mention of corporations; which have been scattered by our
ancestors over the whole kingdom by the natural tendency of the feudal polity
to divide itself into separate jurisdictions, and to make large grants of privileges
and immunities. 65
Under corporations he discussed: corporations sole (the king, every bishop,
many of the deans, all rectors and vicars); and aggregate corporations, both
ecclesiastical and lay (the chapters of cathedrals and collegiate churches,
and the governing bodies of cities and boroughs, seminaries of learning,
charities and the management of trade and commerce). Given that, for
Chambers, legal personality was not a major organizing category, this clas-
sification of corporations makes sense. It is of particular interest in Quebec,
where the code of 1866, following the Louisiana code of 1825, has included
corporations in its first book, “Of Persons”. 66 The Louisiana code has here
undoubtedly been influenced by Blackstone. 67 The codification commission
noted in its report that, in civilian systems, corporations had been tradi-
631bid. at 90.
64Compare Chambers, ibid. at 217-34 with Blackstone, supra, note 31 at 327.
65Chambers, supra, note 4, vol. 1 at 293.
66Compare arts 352-373 C.C.L.C. with arts 418-438 C.C.La (1825). See Report of the Com-
inissioners Appointed to Codify the Laws of Loiver Canada in Civil Matters (Second Report),
vol. 1 (Quebec: Desbarats, 1865) at 231 [hereinafter Second Report]: “[Title 11 is] in imitation
of that to be found in the code of Louisiana, from which, however, [the commissioners] have
obtained but little aid.”
67See J.W. Cairns, The 1808 Digest of Orleans and 1866 Civil Code of Loiver Canada: An
Historical Study of Legal Change, vol. 2 (Doctoral thesis in law, University of Edinburgh,
1980) at 559, n. 218.
McGILL LAW JOURNAL
[Vol. 33
tionally regarded as an aspect of public law.68 Chambers shows that this was
also a viable classification for the common law. More work could usefully
be needed on the development of the notions of corporations and legal
personality in the context of the growth of legal taxonomy.
Chambers’ second division is criminal law, the aim of which he regarded
as the prevention of “those mischiefs which the depravity of the human
heart unawed and unrestrained would frequently occasion.” He said that
“[i]ts subjects therefore must be the general and special nature of crimes
whether against the laws of God, the law of nations, or the municipal laws
of the state, the different degrees of guilt, the means of prevention and the
degrees as well as mode of punishment.” He noted that civil lawyers classed
criminal law as “a species of private law”; but he disagreed, arguing that in
feudal governments (of which the English constitution was one) crimes were
properly considered as public offences. He told his class that he had ac-
cordingly chosen in his “general distribution of law, to consider this as a
distinct part both from the public law of government, and that private law
by which the particular rights of subjects are protected.” This was because
crimes were both “very great injuries to him whose natural and civil rights
[were] … invaded” and also “very atrocious offences against the peace and
’69 He structured his lectures on criminal
good order of the commonwealth.
law as follows: the general nature and history of punishment and exemptions
from it; offences against the government (high treason, felonies and inferior
offences against the crown); offences against the general duties of citizens
(against subjects of other states, the persons and property of fellow subjects,
and the commonwealth –
established religion, public justice, public tran-
quility and public order); and agents and accomplices. 70
This classification of criminal law as partaking of the nature of both
public and private law is perfectly sensible. Though different, his account
is quite compatible with that of Blackstone. The most obvious feature is
the departure from the institutional structure.
In his introductory lecture, Chambers said little specifically about the
protection of the rights of citizens by the private law, other than to note
that it was “chiefly about those rights that fellow citizens contend.”‘ 7’ At
68Second Report, supra, note 66 at 229. The commission specifically disagreed with A. de
Saint-Joseph, Concordance entre les codes civils 6trangers el le Code Napolon, 2d ed., vol. 2
(Paris: Cotillon, 1856) at 477, who described the relevant arts of the Lousiana Civil Code as
“n’ayant aucun trait au droit civil proprement dit.”
69Chambers, supra, note 4, vol. 1 at 90-91.
7Ibid. at 305-461; in Chambers, ibid. at 304, a printed syllabus for Part II of the Lectures
is reproduced which helps explain the structure. See W. Blackstone, Commentaries on the Laws
ofEngland, vol. 4 (Oxford: Clarendon Press, 1769): “Of Public Wrongs”.
7 ‘Chambers, supra, note 4, vol. 1 at 91.
1987]
BOOK REVIEWS
the start of this third part of his lectures, he described English private law
as “that which with respect to private rights, suum cuique tribuit, examines
every man’s pretensions, and distributes to every man his own.” 72 This
appears to be an allusion to one element of Ulpian’s famous statement that
“[t]he precepts of law are as follows: to live honourably, not to harm another,
to give each man his due.”‘ 73 The other two parts of Ulpian’s tripartite
division are never quoted by Chambers; and one should not see it as relating
to Chambers’ threefold division of English law. He concisely described the
scheme of his lectures:
First I shall treat of the personal rights of men and of the injuries by which
those rights are violated, whether man be considered simply as an individual
subsisting merely for himself unconnected and independent, or as head or
member of that small society supposed to be contained in a single house, and
supported by a due reciprocation of domestic offices, or as extending his con-
nection wider through other modes of dependence, and systems of relation.
The next great subject of discussion will be the law by which possession is
distinguished and secured, by which every man is taught to know his property
with certainty, and enabled to use it without molestation. Property is called
by the law either personal or real. In treating of the several species of real or
immovable property, I shall for the most part follow the order observed by
Littleton, and endeavour to make my lectures a continued commentary upon
his first book of Tenures. But when we have followed him through the several
species of real property, it will be necessary to depart from him in the explication
of the conditions upon which estates are held, whether legal tenures, or arbitrary
stipulations. I shall then treat of the various kinds of joint interest as legally
distinguished into the rights of parcenersjoint-tenants and tenants in common.
I shall show how real property is acquired, lost or transferred, to what injuries
it is liable and how those injuries are redressed. I shall afterwards treat more
shortly of personal or movable property, of which there are many species ac-
quired and lost by different means, and injured or diminished by different
actions, which species it will be proper to enumerate and to show in what
manner they are protected by the law. And lastly I shall consider that mode
of justice and those kinds of remedies which are administered in courts of
equity.74
Following this plan, Chambers started with the personal rights of men and
the injuries affecting them absolutely as individuals in domestic relations
and in particular civil relations. Following Hale, he described the natural
rights of men as those of safety, liberty, and name and reputation. The right
of safety was that of being protected from violence, and Chambers enum-
erated various specific offences of violence which could be pursued crimi-
nally or made an action for damages before a jury. Under the right of liberty
he discussed habeas corpus. Injuries to name and reputation he considered
72Chambers, supra, note 4, vol. 2 at 3; see also vol. 1 at 122.
73D.I.I.10.1.
74Chambers, supra, note 4, vol. 2 at 3-4.
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[Vol. 33
to be malicious prosecution and defamation. 75 Chambers has here discussed
what Blackstone dealt with in the first chapter, “Of the absolute Rights of
Individuals”, of the first book of the Commentaries; but Blackstone also
included the’right of property as an absolute right, and grouped together
the rights of safety and reputation as the right of personal security. 76 It does
not seem, however, that Chambers excluded the right of property because
he denied it the status of an absolute right, but rather that he accepted Hale’s
preference of postponing discussion of it to jura rerum.77
After considering the absolute rights of men, Chambers turned in the
second lecture on private law to what he described as “mingled rights”,
which might in many instances be infringed without violence to the person,
and-diminution of property, but which were “necessary to be vindicated for
the teace and prosperity of society and the happiness and quiet of domestic
life.” These were, first, the rights of men in “economical or domestic re-
lations”, which were those of husband and wife, parent and child, and master
and servant, and second, “particular civil relations”, which were those of
guardian and ward, and landlord and tenant.78 The terminology and content
of these two classes is derived from Hale’s Analysis. 79 Blackstone, for in-
stance, had here only one class, that of “private oeconomical relations”,
encompassing master and servant, husband and wife, and parent and child,
as the “three great relations in private life”, to which he added a fourth,
guardian and ward, as “a kind of artificial parentage.” 80 Chambers differed
from Hale in excluding from “civil relations” ancestor and heir, and lord
and villein. For Chambers, the distinction between economical or domestic
relations and civil relations was that the former were natural and preceded
civil society and positive law, societies being assemblages of families, while
the latter were creations of positive law.8′ Here there is an important con-
ceptual difference between Blackstone and Chambers, where Chambers has
stayed closer to Hale’s Analysis. Furthermore, while Blackstone postponed
discussion of the injuries that could be done to the rights of persons to the
eighth chapter, “Of Wrongs, and their Remedies, respecting the Rights of
Persons” of his third book, “Of Private Wrongs”, 82 Chambers has integrated
this type of matter into his general discussion of the rights of persons.
75Ibid. at 4-17.
76Blackstone, supra, note 31 at 119-36.
77Chambers, supra, note 4, vol. 2 at 4.
7″Ibid. at 18.
79Hale, supra, note 27 at 29-37.
80Blackstone, supra, note 31 at 410.
81See Chambers, supra, note 4, vol. 2 at 19, 26 and 27.
12W. Blackstone, Commentaries on the Laws of England, vol. 3 (Oxford: Clarendon Press,
1768) at 115-43.
1987]
CHRONIQUE BIBLIOGRAPHIQUE
Turning to property, Chambers remarked that the feudal law “is wholly
conversant about land and such kind of property as is equally permanent
with land.” He rated that the nations which overran the Roman empire
established laws relating to land, succession, and crimes, but frequently used
the laws “they found already prevalent” in “respect to movable property
and personal injuries not amounting to crimes.” He concluded:
Hence the great weight which the civil law has retained in most of the countries
of Europe; and hence arises the difference which is so remarkable between
personal and real property in England.
Our rules respecting real property are almost all feudal, those which con-
cern personal estates are derived (as we shall see hereafter) either from the law
of nature or the civil law.83
Like Blackstone, Chambers divided his account of property into two main
divisions: real (the third through the fourteenth lectures) and personal (the
fifteenth through the eighteenth). The first five lectures on real property are
a commentary on the first book of Littleton’s Tenures. He explained that to
this treatise “the students of the common law are no less beholden than the
civilians to Justinian’s Institutes”, and that he could not “by any method”
give “more easily and efficaciously a general idea of the nature of estates”
than by commenting on Littleton.8 4 The lectures on real property generally
cover the matters Blackstone dealt with in the first twenty-three chapters
of the second book of the Commentaries,85 with the differences that Cham-
bers dealt with the history of the feudal system in his introductory lectures,
and also included two lectures on the injuries to real property and their
remedies, which Blackstone dealt with in the third book of the Commen-
taries, in chapters ten through sixteen. 86 The first three of Chambers’ four
lectures on personal property are equivalent to chapters twenty-four through
thirty-two of the second book of Blackstone’s Commentaries.87 The fourth
lecture, “Of the Injuries Affecting Personal Property and Their Respective
Remedies”, is equivalent to the ninth chapter of the third book of the
Commentaries.8
Chambers’ comment that English law has followed civil law as regards
personal property seems at first rather remarkable; but, though Blackstone
did not make a similarly bald statement, his chapters on personal property
83Chambers, supra, note 4, vol. 2 at 37.
841bid. at 38-39.
85W. Blackstone, Commentaries on the Laws of England, vol. 2 (Oxford; Clarendon Press,
1766) at 1-383.
86Blackstone, supra, note 82 at 167-253.
8 7Compare Chambers, supra, note 4, vol. 2 at 189-218 with Blackstone, supra, note 85 at
384-520.
“Compare Chambers, ibid. at 219-27 with Blackstone, supra, note 82 at 144-66.
McGILL LAW JOURNAL
[Vol. 33
occasionally noted the correspondence with, or derivation from, civil law
of some English doctrine. Blackstone, for example wrote that the English
courts considered personal property in a way “frequently drawn from the
rules which they found already established by the Roman law”, 89 and that
Bracton adopted into English law the Roman rules on accession. 90 It does
seem, however, that Chambers saw more correspondence with Roman law,
and in his account of transferring personal property by contract he made
many more allusions to the Roman law of contracts.9′
Chambers concludes his lectures on private law with four lectures (nine-
teen through twenty-two) on private rights as protected by courts of equity,
concluding with a few remarks on the study of law.92 Blackstone nowhere
offers such a full and specific account of the equity jurisdiction, the final
chapter of his third book being both procedural in orientation and slight in
comparison. 93 It is fair to point out, however, that neither Sir Rupert Cross
nor Professor Hanbury were particularly impressed with Chambers’ account
of equity.94
In obvious contrast to Blackstone’s Commentaries, Chambers’ lectures
lack any specific account of procedure and actions. Both Wooddeson and
Millar dealt with actions in their much more institutional schemes. Why
Chambers should have neglected this aspect is unclear. Partly, of course, he
has fitted some of the material from Blackstone’s third book into his account
of private law; but his accounts of injuries to persons, real property, and
personal property, and their remedies do not really amount to an adequate
treatment, when compared with Blackstone or Wooddeson. Similarly, in his
second part, on criminal law, his discussion lacks the treatment of the crim-
inal process, as distinct from substantive law, found in Blackstone’s fourth
book and Wooddeson’s account of criminal prosecutions. Chambers’ tri-
partite division of English law did not really permit a comprehensive treat-
ment of actions. In this respect, it was inferior to the more institutional
schemes of Millar and Wooddeson, and to Blackstone’s overarching division
of English law into rights and wrongs.
Reibman has suggested that “[t]he basic structure of [Chambers’] lec-
tures … closely parallels that of Blackstone’s [C]ommentaries as well as
following the scheme of issues and topics covered by Justinian’s Corpus
89Blackstone, supra, note 85 at 385.
90Ibid. at 404; see also ibid. at 390.
9 Compare Chambers, supra, note 4, vol. 2 at 209-17 with Blackstone, ibid. at 442-70.
92Chambers, ibid. at 261-263.
93 Compare Chambers ibid. at 228-61 with Blackstone, supra, note 82 at 426-55.
94See Cross, supra, note 5 at 621; Hanbury, supra, note I at 60.
1987]
BOOK REVIEWS
Juris Civi[li]s.”‘ 9 5 These claims are both exaggerated and somewhat mis-
leading, as well as vague. Chambers is more original than this. Similarly,
McAdam rather misses the point in suggesting that, when Chambers ex-
cludes, from his first book, Blackstone’s class of “private oeconomical re-
lations”, this is somehow merely an improvement on Blackstone. 96
Blackstone’s book on persons is not just an account of public law, with a
few chapters on persons eccentrically inserted. Chambers’ stronger use of
the division between public and private law ultimately gives his lectures,
in some respects, a more “modern” structure; but, of other professors of
English law in the eighteenth century, only John Millar also made this dis-
tinction, while, in contrast, Sullivan discussed the history of English land
law to explain the country’s free constitution.
IV. Conclusion
The eighteenth century’s concern with classifying law was of great im-
portance. In all legal systems, but perhaps especially in English law, it was
a significant step in the creation of formally rational law. The effects of the
categorizing activity on the substantive law are hard to specify, but Professor
Milsom has argued that Blackstone was important in the emergence of
English law as a system of substantive law.97 In this respect, it is significant
that Chambers sought to expound English law without an account of actions.
He treated it, insofar as he could, as a system of purely substantive law, in
the categories of public law, criminal law, and private law. But it should be
noted that Wooddeson, Chambers’ successor, and sometime deputy, reverted
to a much more institutional structure, with an essentially Blackstonian
conception of “persons”, which did not favour Chambers’ strict separation
of public from private law. This suggests that Chambers’ scheme was not
considered particularly suitable, especially, perhaps, because of its exclusion
of actions. The institutional structure continued to dominate thinking about
legal categories, as is shown by Millar’s institutional approach to English
law in the 1790s.
The publication of Chambers’ lectures is an important event for legal
historians. Though one cannot say, as one can for Blackstone, that the lec-
tures had a shaping effect on the development of the common law in England
and elsewhere, they demonstrate how an intelligent lawyer could conceive
of English law in the later eighteenth century. That he could discuss it as a
system of organized legal principles suggests the extent of the development
9sReibman, supra, note 3 at 190; see also Curley’s introduction to Chambers, supra, note 4,
vol. 1 at 39: “The basic structure of the course adheres closely to that of the Commentaries.”
96McAdam, Dr. Johnson and the English Law, supra, note 3 at 75.
97S.F.C. Milsom, “The Nature of Blackstone’s Achievement” (1981) 1 Oxford J. Legal Stud.
REVUE DE DROIT DE McGILL
[Vol. 33
of a view of English law which would facilitate, as Professor Simpson has
pointed out, the rise of the legal treatise in the nineteenth century.98
I hope –
This review has focussed on only one aspect of the lectures; but it is
not –
an unimportant one. They are, of course, of interest in
many other ways. A few examples may be selected. They could be discussed
in the context of the eighteenth century historiography of feudalism and
Gothic liberty.99 Study of Chambers’ sources would prove very interesting:
for instance, the use he made of Thomas Craig’s Jus Feudale as a source
for the history of feudal law.10 0 To examine his attitude to Roman law would
also be worthwhile. The lectures will also contribute to our understanding
of the science of legislation in the eighteenth century. It would also be in-
teresting to compare Chambers’ legal philosophy with the views of other
eighteenth century writers.
The University of Wisconsin Press has produced two handsome vol-
umes, and the editor, Professor Curley, has provided, as well as sensitive
editing, a useful introduction. This is an excellent addition to the canon of
works produced in the eighteenth century by the new university discipline
of national law. An edition of the student notes of Millar’s lectures on English
law would now be a further useful enrichment of the printed literature.
Finally, were it possible for a publisher to reprint Wooddeson’s lectures, then
the works of the first three Vinerian professors would be readily available.
Further scholarly advances in the field would thereby become easier to make.
of Legal Literatures” (1981) 48 U. Chi. L. Rev. 632.
99See now R.J. Smith, The Gothic Bequest: Medieval Institutions in British Thought, 1688-
98A.W.B. Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms
1863 (Cambridge: Cambridge University Press, 1987).
1(0 T. Craig, Jus Feudale, 3d ed. (Edinburgh: Thomas & Walter Ruddiman, 1732).
19871
CHRONIQUE BIBLIOGRAPHIQUE
Richard J. Goossen, Business Law and Practice in the People’s Republic of
China. Hong Kong: Longman, 1987. Pp. xvi, 254 [$55.001. Reviewed by
Gary Nachshen.*
Richard J. Goossen’s Business Law and Practice in the People’s Republic
of China’ fits neatly into two different genres of legal writing.
On the one hand, there is the time-honoured tradition of the practical
guide to doing business abroad. The emphasis here is on providing a no-
nonsense overview for the foreign lawyer or businessman of a particular
country’s laws, regulations and legal system. Exemplars of this tradition
include Doing Business in Canada,2 a three volume treatise available for
perusal in Canadian diplomatic missions around the globe, and the six
volume Doing Business in the United States.3
On the other hand, China being China, the advent of Beijing’s open-
door policy in 1979 has spawned a much newer tradition, one in which the
nascent Chinese legal system is examined as a cas d’espce. During the early
1980s, this remained an essentially theoretical and speculative exercise. But
as the codification process has picked up and the new laws have actually
begun to be applied, analysts have started to take a more empirical approach.
One of the earliest examples of this latter approach was Goossen’s own 1985
article, subtitled “A Progress Report on the New Foreign Economic
Legislation”.
4
Whether evaluated as a doing-business manual or as a study in Chinese
law, the book under review stands as a considerable, though not unqualified,
success. The author, a Canadian lawyer previously associated with the prom-
inent Hong Kong law firm of Johnson, Stokes and Master, has managed to
furnish all the basic information on how to structure ajoint venture, arrange
project financing, register patents and trademarks, and the like in just 254
pages. Moreover, he has accomplished this while remaining sensitive to the
unique characteristics of China’s socialist legal system.
Not unnaturally, Goossen spends considerable time examining specific
statutory and regulatory provisions of interest to the foreign investor, such
“B.C.L., LL.B. (McGill).
‘R.J. Goossen, Business Law and Practice in the People’s Republic of China (Hong Kong:
Longman, 1987). The book is available in Canada through Edgewood Eastasia Investments
Ltd, Vancouver.
2H.H. Stikeman and R.E Elliott, eds, Doing Business in Canada (New York: Matthew Bender,
1984).
3J.j. Spires, Doing Business in the United States (New York: Matthew Bender, 1985).
4R.J. Goossen, “Canadian Business Negotiations in Post-Mao China: A Progress Report on
the New Foreign Economic Legislation” (1985) 31 McGill L.J. 1.
McGILL LAW JOURNAL
[Vol. 33
as those of the joint venture law,5 the economic contract law,6 and the
arbitration regulations. 7 He avoids the temptation simply to paraphrase
these provisions, however, preferring to demonstrate how they have or have
not worked in practice. For instance, the chapter on joint ventures contains
an illuminating comparison of the merits of the heavily regulated equity
joint venture as opposed to the all but unregulated contractual joint
venture. 8
A particular strength of the book is the use it makes of anecdotes from
the modern-day China trade. This “inside information” is rarely dramatic;
instead, it serves to drive home the importance of attending to niggling
details a foreign lawyer or businessman in China might otherwise overlook.
For instance, the author cites the instance of Canton’s Garden Hotel fi-
nancing package to illustrate the importance of a mundane concept rarely
associated with Chinese law, namely notarization. 9 Similarly, he relates the
story of an investor whose putative Chinese partner claimed it was em-
powered to issue foreign exchange-denominated guarantees. The investor
wisely decided to seek an independent opinion on the matter from a rep-
utable Chinese law office. Sure enough, it turned out that the partner had
no such power, the moral being that a foreign investor should always obtain
an independent legal opinion before going into partnership with a Chinese
company or organization.’ 0
True to the demands of the how-to genre, the author writes brisk, pithy
prose. This style is not without its pitfalls; pithiness sometimes becomes
choppiness, which in turn occasionally degenerates into carelessness. Thus,
at one point we are told of an “underlining unity”,” which presumably
should read “underlying unity”. A few pages later, Goossen’s desire to tel-
5Laiv of the People’s Republic of China on Chinese-Foreign Joint Ventures (promulgated July
8, 1979), reprinted in China’s Foreign Economic Legislation, vol. I (Beijing: Foreign Languages
Press, 1982) at 1-7, (1979) 18 I.L.M. 1163, discussed in Goossen, supra, note I at 21-36.
6Econonic Contract Law of the People’s Republic of China (promulgated December 13, 1981),
reprinted in China’s Foreign Economic Legislation, vol. 2 (Beijing: Foreign Languages Press,
1986) at 1-27, discussed in Goossen, supra, note I at 75-83.
7Regulations of the People’s Republic of China on the Arbitration of Economic Contracts
(issued August 22, 1983), reprinted in China’s Foreign Economic Legislation, vol. 2, supra,
note 6 at 244-55, discussed in Goossen, supra, note I at 230.
8Goossen, ibid. at 21-24.
9Ibid. at 218.
‘Ibid. at 224.
“Ibid. at xvi (emphasis added).
1987]
BOOK REVIEWS
escope five years of political upheaval into a single paragraph results in his
confusing the arrest of the radical Gang of Four with their subsequent trial. 12
But these are only minor shortcomings which could easily be rectified
on the preparation of a revised edition. A new edition would also benefit
from the addition of an index and an appendix listing all the regulations
cited in the text. Given the fast pace of legal reform in China, Longman
would do well, too, to emulate the publishers of other how-to-do-business
guides by issuing future editions in loose-leaf format and thereby avoid
obsolescence.
Beyond these small additions and modifications, the book under review
would benefit from a stronger historical perspective. Goossen’s analysis of
the socialist legal system, while adequate in itself, reads almost as if the new
system had appeared out of thin air since 1979. In fact, many of the points
he makes about the predominance of ideology and the populace’s unfamil-
iarity with the notion of the rule of law could just as easily apply to the
legal system in dynastic times. 13 In a sense, the only significant change from
previous centuries is that the law is taking a back seat to a different official
morality: formerly that morality was Confucian, today it is Marxist. Surely
this has implications for the current campaign to entrench the rule of law
in Chinese society.’ 4
These quibbles aside, Goossen is to be commended for his achievement.
Business Law and Practice in the People’s Republic of China deserves a place
in the office of any foreign investor aiming to break into the China market.
121bid. at 5. Goossen writes that Deng Xiaoping and his pragmatic allies did not assume
control of the Chinese Communist Party until the trial of the Gang. In fact, the pragmatists
had begun to assert their control by the time of the Gang’s arrest in 1976, and Deng had
essentially consolidated his position by 1978. The Gang’s show trial was not staged until much
later, in 1980.
13For an interesting discussion of the nefarious effects this mindset had several centuries
ago, see R. Huang, 1587, A Year of No Significance: The Ming Dynasty in Decline (New Haven:
Yale University Press, 1981), c.7. Huang’s discussion should be treated cautiously, however, to
the extent that it seems to have been framed at least in part as a series of arguments on
contemporary Chinese issues dressed up in the guise of historical commentary.
14Indeed, there exists some doubt whether the campaign to entrench the rule of law even
constitutes a genuine endeavour.
REVUE DE DROIT DE McGILL
[Vol. 33
Micheline Patenaude, Le droit provincial et les terres indiennes. Montreal:
Yvon Blais, 1986. Pp. xviii, 198 [$18.95]. Reviewed by Peter W. Hutchins.*
Micheline Patenaude introduces her work Le droit provincial et les lerres
indiennes with a question:
Jusqu’ofi va le pouvoir fed~ral dans chacun de ces domaines [les Indiens et
les terres r~serv~es aux Indiens] ? Car, pour savoir dans quelle mesure une loi
provinciale peut affecter les Indiens et leurs terres, il faut d’abord determiner
1’6tendue de la competence exclusive fted6rale.’
Franqois Chevrette wrote recently:
Faut-il redire combien nous n’avons pas A regretter cette 6poque o6i nos
ouvrages de droit constitutionnel se limitaient A l’6tude du partage des com-
p~tences entre Ottawa et les provinces !2
Professor Chevrette was rejoicing in the fact that the second edition of
Peter Hogg’s Constitutional Law of Canada3 had transcended the tunnel
vision of legislative competence with which Ottawa and the provincial cap-
itals warily scrutinize each other and which, most unfortunately, seems to
mesmerize the Canadian body politic.
Despite the many merits of Micheline Patenaude’s Le droit provincial
et les terres indiennes, the author appears to have succumbed to this Ca-
nadian constitutional lethe. This is particularly unfortunate in an area of
law that has suffered more than most from juridical amnesia and self-serving
constitutional theory. This state of affairs was recently recognized and de-
plored by Chief Justice Dickson of the Supreme Court of Canada in a
significant decision relating to Indian treaties, Simon v. R.4
In the course of that judgment,5 the Chief Justice reacted strongly to
judicial pronouncements from the 1920s, specifically those of Mr Justice
Patterson in R. v. Syliboy.6 As Patterson J. would have it:
[T]he Indians were never regarded as an independent power. A civilized nation
first discovering a country of uncivilized people or savages held such country
as its own until such time as by treaty it was transferred to some other civilized
nation. The savages’ rights of sovereignty even of ownership were never rec-
ognized. Nova Scotia had passed to Great Britain not by gift or purchase from
*Of the Bar of Montreal.
IM. Patenaude, Le droit provincial et les terres indiennes (Montreal: Yvon Blais, 1986) at 1.
2E Chevrette, Book Review of Constitutional Law of Canada, 2d ed. by P.W. Hogg (1986-
87) 32 McGill L.J. 244 at 245.
3(Toronto: Carswell, 1985).
4[1985] 2 S.C.R. 387, 71 N.S.R. (2d) 15, 171 A.P.R. 15, 24 D.L.R. (4th) 390, 23 C.C.C. (3d)
238 [hereinafter Simon cited to S.C.R.].
51bid. at 398-99.
6(1928), [1929] 1 D.L.R. 307,50 C.C.C. 389 (N.S. Co. Ct) [hereinafterSyliboy cited to D.L.R.].
1987]
CHRONIQUE BIBLIOGRAPHIQUE
or even by conquest of the Indians but by treaty with France, which had
acquired it by priority of discovery and ancient possession; and the Indians
passed with it. 7
Having quoted this view on the matter of the status of the Indians of
Nova Scotia, Dickson C.J.C. observed:
It should be noted that the language used by Patterson J., illustrated in
this passage, reflects the biases and prejudices of another era in our history.
Such language is no longer acceptable in Canadian law and indeed is incon-
sistent with a growing sensitivity to native rights in Canada. With regard to
the substance of Patterson J.’s words, leaving aside for the moment the question
of whether treaties are international-type documents, his conclusions on ca-
pacity are not convincing. 8
While Madame Patenaude’s skilful and detailed analysis of the own-
ership of and jurisdiction over Indian lands inspires admiration for its thor-
oughness, it is, nevertheless, flawed in its lack of appreciation and treatment
of the constitutional “capacity” of Aboriginal peoples, both with respect to
ownership and jurisdiction over lands and resources. One gets the impres-
sion that, in this area, a pendulum swings between Ottawa and the provinces
“and the Indians pass with it”.
As a thesis presented for the degree of Master of Laws at l’Universit6
Laval, the work is divided into two chapters, the first dealing with Indian
lands and the second dealing with the application of provincial law to those
lands. In each case, the problem lies with the underlying premise rather
than the analysis itself.
In the first chapter, the author launches immediately into an interesting
and detailed discussion on the manner in which lands could be “set aside”
for Indians. However, this approach neglects to establish, at the outset, that
the proper backdrop against which this analysis must be viewed is aboriginal
occupation of, and title to, all lands in Canada.
As to the issue of jurisdiction, the author concentrates upon the issue
of conflict of laws between federal and provincial statutes, relegating abo-
riginal jurisdiction to the by-law power provided under the Indian Act. 9
While our courts have avoided explicit statements on the subject of inherent
aboriginal self-government powers, there has been implicit recognition of
the fact that Aboriginal peoples were historically self-governing.
As early as 1973 the Supreme Court of Canada had begun to put the
lie to two persistent myths of Canadian history and law: that Indian or
aboriginal title derived from the European sovereign and that no organized
71bid. at 313 and quoted by Dickson C.J.C. in Simon, supra, note 4 at 399.
8Simon, ibid.
9R.S.C. 1970, c. 1-6 [hereinafter the Indian Act].
McGILL LAW JOURNAL
[Vol. 33
self-governing societies existed in the northern portion of the North Amer-
ican continent prior to the arrival of Cabot and Cartier. Mr Justice Judson
stated the following in the landmark decision of the Supreme Court of
Canada in Calder v. A.G. British Columbia:’0
Although I think that it is clear that Indian title in British Columbia cannot
owe its origin to the Proclamation of 1763, the fact is that when the settlers
came, the Indians were there, organized in societies and occupying the land
as their forefathers had done for centuries. This is what Indian title means and
it does not help one in the solution of this problem to call it a “personal or
usufructuary right”. I
Madame Patenaude leads off Chapter 1, entitled “Les terres indiennes”,
with the statement that the jurisprudence has not, to date, supplied a def-
inition for the expression “lands reserved for the Indians”. 12 This is not
entirely true, as is evidenced by the author’s subsequent treatment of the
subject. More important, however, is the fact that constitutional provisions
are branches of a “living tree capable of growth and expansion”,13 not fossils,
silent and frozen. There exist no definitive definitions in constitutional in-
struments. The courts, in their interpretation of the expression “lands re-
served for the Indians”, have reflected this desirable flexibility. In referring
to section 91(24) of the Constitution Act, 1867,14 Lord Watson declared that
“the words actually used are, according to their natural meaning, sufficient
to include all land reserved, upon any terms or conditions, for Indian oc-
cupation”.’ 5 Dickson J. (as he then was), in a recent judgment, urged an
open approach in the determination of the nature of the Indians’ interest
in land reserved for Indians.16
Madame Patenaude gives us a good detailed analysis of pre-
Confederation statutes in order to establish the meaning of the expression
“Indians and lands reserved for Indians” as found in section 91(24) of the
Constitution Act, 1867. She concludes, quite rightly, that the expression
includes both traditional aboriginal lands and Indian reserves.
However, the author’s contention that the courts should have given
more weight to this pre-Confederation material, rather than to the common
law jurisprudence so often cited in characterizing the Indian interest in
10[1973] S.C.R. 313, 34 D.L.R. (3d) 145, [1973] 4 W.W.R. I [hereinafter Calder cited to
S.C.R.].
“Ibid. at 328.
‘ 2Supra, note I at 5.
13Edwards v. A.G. Canada (1929), [1930] A.C. 124 at 136, [1929] 3 W.W.R. 479 (PC.), Lord
14(U.K.), 30 & 31 Vict., c. 3 [hereinafter Constitution Act, 1867].
15St. Catherine’s Milling and Lumber Co. v. R. (1888), 14 A.C. 46 at 59, 58 L.J.P.C. 54, 5
Sankey L.C.
T.L.R. 125, 4 Cartwright 107.
‘ 6Guerin v. R. [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321, [1984] 6 W.W.R. 481, 55 N.R. 161.
1987]
BOOK REVIEWS
lands, must be answered. A reading of the early cases’ 7 certainly does not
leave the impression that the courts have ignored the pre-Confederation
legislation. Recent judgments of the Supreme Court of Canada have cited
and reviewed these earlier cases in some detail.’ 8
The author’s impatience with the courts’ use of common law jurispru-
dence serves to illustrate the fundamental flaw referred to at the outset of
lack of appreciation of the indigenous character of Indian
this review –
title and jurisdiction. In its pronouncements on these matters, the Supreme
Court of Canada has repeatedly cited, with approval, the position of Chief
Justice Marshall of the United States Supreme Court in leading cases such
as Johnson and Graham’s Lessee v. Mclntosh’9 and Worcester v. State of
Georgia.20 The important Commonwealth cases such as Amodu Tijani v.
Secretary, Southern Nigeria2l are also consistently invoked. The fact is that
there can be no meaningful inquiry into the nature or extent of aboriginal
title and interest without full consideration of the early American and Com-
monwealth cases. As Mr Justice Hall stated in Calder (although in dissent):
The case most frequently quoted with approval dealing with the nature of
It is the
aboriginal rights is Johnson and Graham’s Lessee v. McIntosh ….
locus classicus of the principles governing aboriginal title.22
It should be noted as well that there is an increasing appreciation of
the importance of the principles of conventional and customary interna-
tional law in this area. The application of international law principles is
ignored by the author in her treatment of the Indian interest in lands. When
the subject is broached in the context of the application of provincial laws
to Indian lands, the author refers to early jurisprudence 23 denying “Indian
sovereignty”. We have already seen what the Supreme Court of Canada
thinks of certain judicial pronouncements made during the 1920s on the
subject of the capacity of Indian nations. 24 It is significant that courts are
showing an increased sensitivity towards the historical treaty process and
its implications for an enhanced special status for Aboriginal peoples. 25
’70ntario Mining Co. v. Seybold (1902), [1903] A.C. 73, 72 L.J.P.C. 5, 87 L.T. 449, 19 T.L.R.
48, aff’g (1901), 32 S.C.R. 1; A.G. Canada v. Giroux (1916), 53 S.C.R. 172; A.G. Quebec v.
A.G. Canada (1920), [1921] 1 A.C. 401, 90 L.J.P.C. 33, 124 L.T. 513, 37 T.L.R. 125.
‘8See, e.g., Smith v. R. [1983] 1 S.C.R. 554, 147 D.L.R. (3d) 237, 47 N.R. 132; Guerin v. R.,
supra, note 16.
1921 U.S. 240, 8 Wheaton 543 (1823).
2031 U.S. 350, 6 Peters 515 (1832).
21[1921] 2 A.C. 399, 90 L.J.P.C. 236.
22Supra, note 10 at 380.
23E.g., Sero v. Gault (1921), 50 O.L.R. 27, 64 D.L.R. 327 (S.C.).
24See above, text accompanying notes 4-8.
25See, e.g., Simon, supra, note 4; Sioui v. A.G. Quebec (8 September 1987), Quebec 200-10-
000137-856 (C.A.).
REVUE DE DROIT DE McGILL
[Vol. 33
Academic research and writings reveal a history of “nation to nation” deal-
ings between French, English and Aboriginal peoples that courts simply
cannot ignore.26
The author’s treatment of the creation of pre-Confederation Indian re-
serves is sound. This reviewer does, however, have considerable difficulty
with her contention that lands that were not “Indian lands” as of 1867
cannot now be acquired by the federal government and set aside as “lands
reserved for the Indians”. The author appears to rely rather heavily on a
narrow reading of the reasons of Mr Justice Idington in A.G. Canada v.
Giroux. 27 Although there clearly exist restrictions on unilateral federal action
in the creation of new Indian reserves in lands not contemplated by section
91(24) of the Constitution Act, 1867,28 such reserves may be, and have been
established through a variety of techniques. 29
A section of the first chapter is devoted to examining the characteristics
of Indian land. Quite appropriately, emphasis is put on the collective char-
acter of the Indian interest. It would also have been appropriate here, how-
ever, to mention the growing concern for individual rights, both in Canadian
constitutional law generally and, more particularly, in the law applying to
Aboriginal peoples. A recent judgment of the Federal Court of Appeal in
Bover v. R.,30 which dealt with an Indian reserve land tenure issue, illustrates
the courts’ tendency to favour individual rights over collective rights in the
absence of specific legislative direction to the contrary.
Other conclusions in respect of the characteristics of Indian land are
quite accurate. The author correctly concludes that reserve status does not
depend upon who owns the land and seems to reason that the Indian interest
in reserve lands goes beyond a pure usufruct, that indeed it may extend to
ownership. It would have been interesting here for the author to refer to
recent examples of legislative initiatives recognizing substantial Indian in-
terest in Indian reserves or equivalent lands. The Cree-Naskapi (of Qu~bec)
Act 3′ recognizes that Cree and Naskapi Bands enjoy, in their Category IA
and Category IA-N land, rights practically equivalent to those of an owner. 32
26J.D. Hurley, Children or Brethren: Aboriginal Rights in Colonial lroquoia (Saskatoon: Univ.
of Sask. Native Law Centre, 1985).
27Supra, note 17.
28See Ontario Mining Co. v. Seybold, supra, note 17.
29Rapport de la Commission d’6udesur l’integritO d territoire d Quebec: Le domnaine indien,
vol. 4 (Quebec: Editeur officiel, 1971) (Chair: H. Dorion).
Canada) 65 N.R. 305 (C.A.).
30[1986] 2 FC. 393, (sub non. Re Boyer and R.) 26 D.L.R. (4th) 284, (sub non. Boyer v.
31S.C. 1984, c. 18 [hereinafter Cree-Naskapi Act].
32Ibid., s. 109(2). However, note that s. 109(1) clearly states that the province of Quebec
retains the bare ownership of Categories IA and IA-N land.
1987]
CHRONIQUE BIBLIOGRAPHIQUE
The Sechelt Indian Band Self-Government Act 33 transfers lands, formerly
constituted as Indian reserves, to the Band in fee simple. 34
On the question of extinguishment of Indian or aboriginal title, Ma-
dame Patenaude again seems to give too much attention to an analysis of
the respective powers of the federal and provincial governments and not
enough attention to the constitutional and common law limitations which
apply to these powers. As between the federal and provincial Crowns, the
author quite correctly favours exclusive federal authority in this area. The
author, however, does not sufficiently distinguish Parliament’s recognized
authority to limit the exercise of the aboriginal right through valid federal
legislation and its authority, if any, to extinguish that right. For example,
the protection now afforded aboriginal and treaty rights by section 35 of
the Constitution Act, 198235 is significantly underestimated. While the courts
have held that section 35 does not necessarily effect a limitation on the
ability of Parliament to modify the exercise of the right through valid leg-
islation, they have been far more reluctant to hold that this section means
absolutely nothing and that the rights therein referred to may be extin-
guished. The British Columbia Court of Appeal recently dealt with this “dual
issue” in the case of Sparrow v. R.,36 where it stated:
It is clear from the Derriksan line of cases that before 17th April 1982 the
aboriginal right to fish was subject to regulation by legislation, and that it was
subject to extinguishment. The question whether there is now a power to ex-
tinguish does not arise in this case but it is relevant to observe that extin-
guishment and regulation are essentially different concepts. Even if there cannot
now be extinguishment, it would not follow that there cannot be regulation.
It may be that a power to extinguish is necessarily inconsistent with the rec-
ognition and affirmation of aboriginal right [sic] in s. 35(1). There is no nec-
essary inconsistency with a power to regulate. 37
The shorter second chapter of Madame Patenaude’s work deals with
the application of provincial law to lands reserved for Indians. The chapter
opens with the contention that claims to “Indian sovereignty” have received
no support in the jurisprudence. 38 The examination is consequently nar-
rowed once again to a federal/provincial issue, in this case conflict of laws.
The approach is once more chronological. The period prior to the adoption
of section 87 (now section 88) of the Indian Act in 1951 receives the thorough
treatment we have by this point come to expect of the author. Concise
conclusions assist in a comprehension of this section.
33S.C. 1986, c. 27 [hereinafter Sechelt Indian Band Self-Government Act].
341bid., s. 23.
35Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.
36(1986), 9 B.C.L.R. (2d) 300, [1987] 1 C.N.L.R. 145 [hereinafter Sparrow cited to B.C.L.R.].
37Ibid. at 323.
38Supra, note I at 87.
McGILL LAW JOURNAL
[Vol. 33
With respect to the period following the adoption of section 87, one is
inclined to agree with Madame Patenaude when she writes:
Si le premier objectif recherch6 par le 16gislateur, en 1951, –
soit imposer des
limites A l’application du droit provincial aux Indiens – a W atteint, du moins
en partie, nous pensons que le deuxi~me visant A clarifier le droit a
t6 rat6.
Les tribunaux, i notre avis, se sont servis A souhait de l’article 88 de la Lot
sur les Indiens pour compliquer d’une fagon extraordinaire la question de
‘applicabilit6 des lois provinciales sur les terres r6serv6es aux Indiens. 39
The principal cases on this subject are discussed by the author and this
section provides a concise and factual account of the complex jurisprudence
on section 88 of the Indian Act. The conclusions drawn by the author,
however, must be questioned.
Madame Patenaude takes exception to the line of cases and doctrine
which supports the view that provincial law relating to the use of land should
not apply to lands reserved for Indians on the grounds that it affects the
pith and substance of a subject-matter of exclusive federal jurisdiction. The
author contends that this is yet another manifestation of the “enclave the-
ory”, propounded by Chief Justice Laskin, which postulates that Indian
reserves are enclaves shielded from the application of all provincial law,
unless such provincial law is incorporated into federal legislation. 40 While
it is true that the enclave theory has not fared well in the Supreme Court,
it is not accurate to state that challenges to provincial laws affecting the use
of lands reserved for Indians are manifestations of the theory. If exclusive
federal legislative competence over lands reserved for Indians does not pre-
clude the application of provincial law affecting the Indian interest in or
use of those lands, it is difficult to understand the purpose of section 91(24)
of the Constitution Act, 1867 as it relates to such lands. The prospect that
this may exclude the application of certain provincial legislation to extensive
tracts of traditional lands may be daunting, but it does not justify ignoring
or torturing the true sense of section 91(24).
The author identifies three tests respecting the rules for the application
of provincial law to lands reserved for Indians: (i) that a provincial law
cannot relate directly to lands reserved for Indians, (ii) that a provincial
law cannot extinguish the Indian or aboriginal title in lands, and (iii) that
a provincial law cannot conflict with a federal law which validly regulates
the exercise of the Indian interest in those lands or which authorizes such
regulation. Although these tests are accurate in and of themselves, they do
not go far enough.
39Ibid at I l1.
40See, e.g., Cardinal v. A.G. Alberta (1973), [1974] S.C.R. 695, 40 D.L.R. (3d) 553, [1973] 6
W.W.R. 205, 13 C.C.C. (2d) I.
1987]
BOOK REVIEWS
Particularly with respect to the third test, it should be noted that recent
federal legislative initiatives tend to limit the application of provincial law
with the primary purpose of permitting a full exercise of aboriginal juris-
diction. For example, both the Cree-Naskapi Act and the Sechelt Indian
Band Self-Governinent Act recognize substantially increased jurisdiction for
Indian bands over their lands. Section 4 of the Cree-Naskapi Act reads:
Provincial laws of general application do not apply to the extent that they are
inconsistent or in conflict with this Act or a regulation or by-law made there-
under or to the extent that they make provision for a matter that is provided
for by this Act.
This provision reverses the presumption in favour of the application of
provincial laws established in section 88 of the Indian Act.
In 1984, the Penner Committee Report on Indian Self-Government in
Canada 4’ recommended that Indian self-government be encouraged through
legislation adopted under the authority of section 91(24) of the Constitution
Act, 1867. Such laws would be designed, in the words of the Committee:
[T]o occupy all areas of competence necessary to permit Indian First Nations
to govern themselves effectively and to ensure that provincial laws would not
apply on Indian lands except by agreement of the Indian First Nation
government.
42
Madame Patenaude concludes that her three narrow tests for the ex-
clusion of provincial law on Indian lands will help to clarify the issue. This
reviewer does not share her optimism. The author appears to be begging
the issue. As Aboriginal representatives never tire of telling their provincial
counterparts, the corollary to reduced provincial jurisdiction over Indians
and lands reserved for Indians is not increased federal jurisdiction but rather
increased aboriginal jurisdiction. On this essential point, Le droit provincial
et les terres indiennes is silent.
The conclusion to this work is useful in many specific areas of the
subject-matter. The footnotes, list of jurisprudence consulted and bibliog-
raphy attest to prodigious research. On specific issues, one may quibble with
part of the analysis, but in many instances the research and the conclusions
are sound.
It is in the broader historical and constitutional context that Le droit
provincial et les terres indiennes must be considered wanting. Madame
Patenaude should have been examining a constitutional tripod rather than
the tired old Canadian constitutional bipod of federal/provincial ownership
41Canada, House of Commons, Report of the Special Committee on Indian Self-Gorernment
42Ibid. at 59.
(Ottawa: Queen’s Printer, 12 October 1983) (Chair: K. Penner).
REVUE DE DROIT DE McGILL
[Vol. 33
and jurisdiction. Gone is the era when lawyers could treat Aboriginal peoples
and their lands as mere objects of jurisdiction and, it is hoped, much out-
moded jurisprudence and doctrine will “pass with it”. Aboriginal peoples
are actors on the constitutional stage, a stage whose increasingly illuminated
backdrop shows Aboriginal peoples “organized in societies and occupying
land as their forefathers had done for centuries. ‘ ’43
43Calder, supra, note 10 at 328.
