Eric H. Reiter

Imported Books, Imported Ideas: Reading European Jurisprudence in Mid-Nineteenth-Century Quebec

In the early 1860s, during his tenure as one of the commissioners working to codify Quebec private law, Augustin-Norbert Morin compiled a lengthy bibliography of foreign works on law and jurisprudence, filled with obscure German titles from the eighteenth and early nineteenth centuries.¹ The list contains several hundred alphabetically organized entries over 284 pages and includes a wide variety of authors and periodicals, from prominent names like Savigny, Hugo, Thibaut, Puchta, and Zachariae, to more obscure figures like Johann Brunquel and Georg Friedrich Schutzenberger. Such erudition would be an impressive sign of extremely wide reading (not to mention access to a formidable library), except that Morin compiled the entire list from the bibliographies of two general works on jurisprudence: Jules Beving's 1846 French translation of Ferdinand Mackeldey's manual of Roman law, and William Belime's 1856 work on the philosophy of law.² Moreover, though the majority of titles listed are in German, Morin himself apparently could not read the language and so relied on his French sources both to translate the works' titles and to situate them in particular legal schools.³	1
A decade earlier, Maximilien Bibaud, the polyglot gadfly of the Mont-real legal community, announced in the pages of the newspaper Mélanges réligieux the program of instruction of his newly founded law school, the first of its kind in Quebec.⁴ Bibaud confidently advertised that his program would be modeled on those of the universities of Bonn and Leipzig, praising their practice of beginning students with general theoretical orientation before introducing specialized and practical subjects. He went on to describe the Collegia practica at Bonn, in which procedure was taught, and the Repetitoria at Leipzig, discussion sections for small groups. As with Morin, however, Bibaud's knowledge of the German legal world was secondhand. His information on German universities came not from personal experience, nor even from the works of German writers on the subject, but from an article by Édouard Laboulaye in the Revue de législation et de jurisprudence of 1845, a Paris periodical that was important in disseminating knowledge of German developments to francophone (and even anglophone) jurists.⁵ Again like Morin, Bibaud did not himself read German.⁶	2
My point is not to cast doubt on Morin and Bibaud's learning or intentions. Rather, their armchair tours of the German legal world tell us a great deal about how exotic European jurisprudence traveled in the nineteenth century and about the roles such sources played in shaping lawyers' intellectual world views. In particular, they underscore that, though ideas travel easily, they are modified and shaped by the cultural assumptions and expectations of those who encounter them and pass them along. Savigny, for example, who will be a recurring example in this article, occasionally came to Quebec readers directly, but more often as reported by French periodicals. The result was that the Savigny of Quebec lawyers was not the same as Savigny in France or Scotland or Germany, and the same is true of Pothier, Thibaut, and other such iconic figures. This multilevel process of jurisprudential acculturation—in which reception depends on the internalization and translation of legal ideas into the particular local idiom—is an important though often obscure aspect of the formation of legal identity.	3
Quebec is an interesting case study in this regard, since the reception of the work of foreign jurists there illustrates especially clearly the tensions between ideas and audiences. The legal community in Quebec had a dual nature: both expansive and narrow, open and closed, cosmopolitan and parochial. On the one hand, elite Quebec lawyers—and particularly those involved in the private law codification of the 1860s—were keen observers of the world of European jurisprudence and were aware of the latest fashions in historical jurisprudence and codification theory.⁷ They subscribed to innovative French periodicals, read the latest imported books on legal philosophy and history, and provided booksellers with an important market for older classic works of jurisprudence from the eighteenth century and earlier. On the other hand, and at the same time, the legal community of Montreal and Quebec City was small, inward-looking, and oriented toward practice. Both sides were important, however, and in the end, even though the interest in contemporary European developments remained insulated from the 1866 Civil Code of Lower Canada, European jurisprudence did help Quebec jurists frame questions, articulate critiques, and clarify their own national program of legal reform.	4
My goal in this article is to use the case of Quebec in the years before codification to explore this tension between outward-looking curiosity and inward-looking conservatism. To do this—to develop a picture of what foreign jurisprudence actually meant to nineteenth-century readers—we must move beyond the strictly doctrinal realm of ideas and instead examine the material side of legal culture: the books and periodicals that Quebec lawyers read and that provided them with the ideas that informed their debates and controversies. Books give ideas a physical form that grounds them in specific times and places; we get a clearer, more nuanced picture of legal scholarship when we identify exactly which intellectual channels brought particular ideas to particular scholars. The nexus between people and books puts questions of the transmission and reception of legal ideas into the foreground, which allows the historian to bridge the often nebulous connections between people and ideas. This in turn helps elucidate the crucial interplay in any legal system between dependence on foreign models and distinctive homegrown innovations.	5
This article has four parts. Part I is a case study of legal book culture in Quebec during the first two-thirds of the nineteenth century, using as evidence surviving records of book collections. One purpose of this case study is to understand more clearly how legal ideas traveled, in particular innovative and current legal theory such as German jurisprudence. More important, this approach suggests how the intellectual constitution of a particular legal culture—here Quebec—influences both which ideas find an audience and how that audience will interpret those ideas. Part II examines the substance of what readers in mid-nineteenth-century Quebec were reading and, in particular, how German jurisprudence was recharacterized and reinterpreted in the (mostly French) books and periodicals to which Quebec readers had access. Part III considers the role that this reinterpreted European jurisprudence played in Quebec legal reform, as both supporters and opponents of codification constructed and used their own versions of European ideas to justify their positions. Finally, Part IV examines the nationalistic nature of early nineteenth-century jurisprudence and legal reform movements, in order to understand the role that European ideas circulating in Quebec played in the Civil Code of Lower Canada.	6

I. Legal Book Culture in Quebec before Codification
Though like any Western legal system the practice of law in nineteenth-century Quebec retained some aspects of oral culture, but books played a central and defining role in shaping the legal worldview of Quebec lawyers. All aspects of the law displayed a fundamental dependence on the written word as the vehicle through which ideas were transmitted.⁸ This was obviously true of the written aspects of the law (such as treatises and written judgments), but even oral exchanges (such as pleadings, lectures, and what we know of private conversations) were shaped fundamentally and irrevocably by the mindset engendered by familiarity with legal writing.⁹ Quebec lawyers moved in a world of books and talk about books, a situation reinforced by Quebec's continuing connection to old French law, which had to be laboriously mined from a vast range of books. In other words, in a culture like nineteenth-century Quebec, when the written word is not in the foreground, it is always in the background.	7
For the historian, this paradigm places great importance on the material aspects of written culture. It is not enough simply to assert that ideas were in the air: lawyers' reliance on written texts means that ideas were being transmitted through the mediation of physical books read by identifiable individuals. The history of books, a relatively new field, provides a methodology for the study of this material side of intellectual history, and there is a growing body of literature on printing, publishing, and reading in Quebec. Though little has been done on legal book culture in nineteenth-century Quebec (despite Sylvio Normand's 1993 call for further research), and most of the existing literature concentrates on quantitative studies, there is rich evidence on book ownership, library use, and imports of foreign legal materials that awaits qualitative and contextual analysis.¹⁰	8
In this part, I survey the material side of Quebec lawyers' intellectual world to get a sense of how widely they read and thus what range of legal ideas they were drawing on. It is worth expressing a caveat: the lawyers represented here comprised a relatively small group of well-connected, affluent individuals who had both the leisure and the means to read widely. Furthermore, my research is skewed toward elites because records of their book collections are more likely to have survived, since their collections were substantial enough to have been auctioned off after their death. Still, as I argue more fully below, these lawyers exercised influence on Quebec legal culture that was out of proportion to their numbers. If cautiously used, the evidence of their books and reading provides a useful case study in the effects of foreign jurisprudence on Quebec law.	9

A. Legal Publishing in Quebec
Historians have commented on the paucity of legal literature published in early nineteenth-century Quebec. Codification changed this somewhat by promoting the production of domestic commentaries on the code, but before Pierre-Basile Mignault's Le droit civil canadien at the end of the nineteenth century, the number of treatises by Quebec authors was astonishingly small.¹¹ Aside from the prolific Maximilien Bibaud, discussed below, the pre-codification era produced little more than a few small pamphlets on specific areas of the law¹² and a lively culture of newspaper commentary.¹³ The longer works that were produced tended to be handbooks on the state of the law for practitioners or students, with little engagement with deeper issues of legal history or theory, such as N. B. Doucet's Fundamental Principles of the Laws of Canada of 1841, written "with the view of assisting Law Students, in directing them in the course of their studies."¹⁴ Even after codification, large-scale works on Quebec law were more often reference works like Lorimier and Vilbon's La Bibliothèque du Code civil—written under the influence of the French exegetical school—than analyses or interpretations of jurisprudence or legal history.¹⁵	10
The more wide-ranging commentary—such as there was—tended to be in lecture form. Learned societies, libraries, and academic institutions frequently invited prominent advocates to address them on topics of historical and political interest, and law reform was one such subject.¹⁶ The influence of these talks extended beyond the immediate circle of auditors, since they were frequently published as pamphlets or journal articles and circulated among the intellectual community. One example is Chief Justice Jonathan Sewell's lecture on French legal history, presented to the Literary and Historical Society of Quebec in 1824, in which he called for public instruction in law based on scientific principles.¹⁷ Sewell's lecture gained renewed exposure when it was republished more than twenty years later in the Montreal journal Revue de législation et de jurisprudence.¹⁸ Another example is Frederick Torrance's inaugural lecture, upon assuming his chair at the McGill Faculty of Law, in which he surveyed the history of Roman law.¹⁹ Given the relatively small community of lawyers in Quebec—divided further into linguistic groups—such special-interest subjects were doubtless more easily covered in the form of lectures or pamphlets than in more large-scale publication projects that would have been less economically viable.	11
The lack of local periodicals was certainly an important factor limiting commentary. Before codification authors had few outlets where they could publish interpretive works outside of newspapers like the Journal de Québec and La Minerve, and these were limited in the space they could devote to such commentary. The appearance of the Montreal Revue de législation et de jurisprudence in 1845 provided lawyers with a welcome outlet for their thoughts, and from the start the journal published wide-ranging commentary on the state of the law in Quebec and proposals for its reform.²⁰ The journal lasted only three years, however, and already in its second year more emphasis was being put on reports of decided cases than on analysis. The demise of the Revue de législation left a gap that was not filled until the founding of the Revue légale in 1869.²¹	12

B. Imports and Exotica
Despite the scarcity of domestic legal literature in the pre-codification period, the Quebec legal community was not starved for intellectual sustenance: ideas can easily cross jurisdictional boundaries, and the influence of imports must be taken into account in reconstructing the mental world of Quebec lawyers. If considered only from the point of view of local writers Quebec legal culture was undoubtedly parochial and limited. Elite lawyers, however, eagerly purchased books and periodicals from elsewhere, particularly from France, the United Kingdom, and the United States, and this imported literature opened up wider vistas for intellectually inclined Quebec lawyers and connected them with the latest legal developments, controversies, and approaches from Europe. In what follows, I survey this little-studied aspect of Quebec legal history in an effort to reconstruct some of the paths through which jurisprudential exotica entered mainstream legal discourse.²²	13
Quebec lawyers could easily add foreign exotica to their libraries, though this cachet did not come cheap. A.-N. Morin, for example, spent a significant part of his income on his library, even flirting with financial ruin for a time, and a letter among his papers shows him instructing his Paris bookseller in how the books should be shipped to avoid excessive duties.²³ Still, the regularity with which foreign books show up in the libraries of lawyers and notaries is evidence that the difficulties were not insurmountable and that the rewards of access to such material outweighed the expense and trouble of procuring it.	14
Book auctions thrived in early nineteenth-century Quebec, and lawyers, being relatively affluent and part of a strongly textualized profession, regularly provided the books put up for sale and purchased those offered.²⁴ Interested buyers could pick up copies of anything from sixteenth-century editions of the works of medieval glossators to the latest commentaries on the Code Napoléon coming out of France—some of the sales, in fact, featured far richer collections than the law libraries open to lawyers in Montreal and Quebec City. Many elite lawyers of the codification generation built up impressive collections from the sales of earlier generations' libraries. The collections of F. W. Torrance, Robert Mackay, and R. J. Wicksteed, for example, feature numerous rare and unusual items from the auctions of the collections of James Stuart, Alexander Buchanan, and others.²⁵ The offerings sometimes seem to have outstripped the needs of buyers, however, and many items remained unsold. The huge library of Chief Justice James Stuart, for example, was offered on three different occasions,²⁶ while the collection of Chief Justice Louis-Hippolyte La Fontaine was offered twice.²⁷ Copies of the catalogues of some sales annotated with prices indicate that many items regularly remained unsold.²⁸	15
Booksellers also offered periodic catalogues of law books, which they sold either in their shops, by subscription, or at auction. The booksellers acted as middlemen and importers, often gathering interesting-looking books in Europe and bringing them across the Atlantic to find buyers. The advent of the Code Napoléon in 1804, in fact, provided Quebec lawyers with a bibliographic bonanza of old French law books, as French booksellers diverted the newly obsolete commentaries on the ancien droit toward the Quebec market where they were still relevant.²⁹ One of the earliest such catalogues appeared in 1801 (even predating the French code), promoting an auction in Quebec City of a selection of books from Paris. It allowed Quebec lawyers to benefit from the disorder that saw many French lawyers separated from both their books and their heads. The title page advertises (with a rather suspicious use of the passive voice): "The collection of these books was made at Paris during the last two years: they are generally in very good condition and the best editions; in part drawn from private libraries, when they were not found at booksellers'. They can be seen the day before the sale."³⁰ The sale, which included a number of Roman law works as well as an extensive selection of works of the ancien droit, seems to have been a success.³¹ This speculative catalogue thus served to introduce a great many rare titles into circulation in Quebec, such as a ten-volume edition of Cujas's Opera omnia (Paris, 1658), which sold for twelve pounds, and a five volume set of the works of Charles Du Moulin (Paris, 1681), which sold for £7 16s.³² Other catalogues included less sumptuous but perhaps more useful offerings, mixing the occasional exotic title with extensive lists of working law books like Pothier's works. J. B. Rolland of Montreal, for example, specialized in imports from France and Belgium. In 1855 he called particular attention to the second edition (Brussels, 1850) of the Strasbourg jurists Aubry and Rau's Cours de droit civil français, a work particularly important in the transmission of German legal ideas to the non-German-speaking world.³³	16
Lawyers were clearly an important and coveted market, and booksellers sought to tap into it where possible. Lawyers also took the initiative themselves, corresponding with booksellers to order the specific titles they needed. F. W. Torrance, for example, was in regular correspondence with the Boston firm Little, Brown & Co., making numerous orders for American works on commercial law.³⁴ A.-N. Morin dealt regularly with the Paris (formerly Montreal) bookseller Hector Bossange, maintaining his book purchases (of both law books and works on his hobby, agriculture) even in the face of personal financial difficulties.³⁵ Morin's library, as discussed below, was filled with up-to-date Parisian works that reveal his keen interest in the European publishing scene.	17
Periodicals, however, were the most important source of new ideas, as they are today. Ideas could be disseminated more rapidly in scholarly journals than through books, novel and even odd ideas could be tested in print without the relative permanence of book publication, intellectual developments could be followed relatively inexpensively, and journals provided more of a sense of the debate and varied perspectives surrounding key issues. As with books, imported periodicals more than made up for the lack of domestic journals, and the evidence from both institutional and private libraries shows that certain key titles were indispensable in a well-stocked legal library. Little work has been done on the history of the circulation of these periodicals in Quebec, but it is clear that they were widely available in elite legal circles, and informal lending among colleagues doubtless made the ideas in them travel more widely still.	18
Three French periodicals in particular made up the crucial conduit through which European—and especially German—jurisprudence entered Quebec: Thémis: ou Bibliothèque du jurisconsulte, the Revue de droit français et étranger, and the Revue de législation et de jurisprudence.³⁶ The earliest of the three is Thémis, which began publishing in Paris in 1819 and lasted only ten volumes, ending in 1830 after the death of its founder and guiding spirit, Athanase Jourdan. Jourdan explicitly modeled Thémis on Savigny's Zeitschrift für geschichtliche Rechtswissenschaft [Journal for Historical Legal Science], which had begun publishing in 1815. He was joined on the editorial board by Leopold August Warnkönig, a German admirer of Savigny's ideas, then professor in Liège. Jourdan saw it as the journal's mission to introduce French lawyers to the exciting developments from across the Rhine: "In 1819 no work published in Germany since Heineccius was known in Paris. In 1826 not a Code, not a book appears but that one month later Thémis has it, and I end this article with a translation of a chapter whose original has not yet appeared in Berlin."³⁷ Jourdan also managed to get contributions from leading German lights themselves, such as Gustav Hugo and Savigny, as well as advance printing of translations of new German works by Savigny and others.³⁸	19
There was an essential tension in the journal's plan, however, which reflected its liminal role between French and German jurisprudence. In the first issue, Jourdan set out the journal's goals: "To make known the current state of legal science, to help the progress of this science, and to contribute to the perfection of legislation, such is the goal that the publishers of this new journal propose."³⁹ Such a juxtaposition of scientific jurisprudence and faith in legislation would have been anathema to Savigny and his disciples, but to their French admirers it opened a via media that attempted to synthesize the scientific current of German jurisprudence and the "perfection of legislation" deriving from French jurists' admiration for their own code.	20
After a brief interruption, the tradition of Thémis was continued by the Revue de droit français et étranger, popularly known as the Revue Fœlix after its founder, J. J. G. Fœlix, which began publishing in 1834. Its emphasis was on comparative legislation and private international law, again with particular emphasis on Germany, but ranging much more widely.⁴⁰ Its contributors included many of the key figures of contemporary Germanophilic jurisprudence, such as Karl-Josef-Anton Mittermaier, Henri Klimrath, Charles Aubry, and Charles Rau on the philosophical side, and Warn-könig and Jules Bergson on the historical side.	21
A year later the Revue Fœlix was joined by perhaps the most influential of the three, the Revue de législation et de jurisprudence, popularly known as the Revue Wolowski after its Polish-born founder, Louis Wolowski. While Thémis and the Revue Fœlix tended to present their readers with reports of German developments, the emphasis in the Revue Wolowski was the application of new developments in scientific jurisprudence to French law. As such, the journal helped in the domestication of the new jurisprudence of Savigny, Thibaut, Puchta, and others, turning it from a foreign school of jurisprudence into a methodology acceptable to receptive French jurists.	22
These three journals—along with their successor, the Revue critique de la jurisprudence en matière civile, administrative, commerciale et criminelle⁴¹—presented francophone readers with a predigested, as it were, version of German jurisprudence, adapted to the particular needs of the French legal community. Moreover, these journals turn up regularly in the records of the book collections of prominent Quebec lawyers. Alexander Buchanan and F. W. Torrance each had a complete run of Thémis, and Thomas McCord owned five unbound volumes. The Revue Fœlix is rarer, but A.-N. Morin owned ten volumes. The Revue Wolowski was most widely available. Buchanan, George-Etienne Cartier, and La Fontaine each had extensive runs, Dominique Mondelet had ten volumes, and Charles Dewey Day owned two volumes. Finally, both Cartier and Torrance held long runs of the Revue critique, while Day owned ten volumes and McCord three. In addition to these private collections, the library of the Bar of Lower Canada held fifteen volumes of the Revue Fœlix, a complete run (1835–53) of the Revue Wolowski, and an ongoing subscription to the Revue critique, thus making all these journals available to Montreal-area members.⁴²	23
Knowledge of these periodicals seems to have filtered through the Quebec legal community in various ways, perhaps a combination of word-of-mouth and bookseller notices. A draft letter among the papers of A.-N. Morin provides a glimpse of how one Quebec lawyer gained information about them.⁴³ Written perhaps to Bossange in Paris, Morin inquires about subscribing to a "Revue de Législation" (presumably the Revue critique, since he never owned the Revue Wolowski), noting that "If it is easy to get, I would like also to have what preceded it (unbound), only as far as a new series that is supposed to have started very recently." He continues with a question about the Revue Fœlix: "Also, I want to know if one can still find at Durand's at reduced price the collection of the 'Revue de Droit français et étranger,' and if the work is still being published." Morin's uncertainty about the state of publication of these journals is not surprising, given the ephemeral existence of many periodicals, but he was clearly convinced enough of their importance to expend some energy in making inquiries.	24

C. Quebec Lawyers and Their Books
Not surprisingly, most collections of law books—even most of the larger collections for which auction catalogues or other inventories survive—contained mainly practice-oriented commentaries and treatises on the law in force in Quebec. Most Quebec lawyers were strictly practitioners bent on earning a living, and Savigny's musings about the organic development of the law across the centuries would have been a useless curiosity, if not utterly incomprehensible to them.⁴⁴ Alongside these workaday practitioners, however, we find a significant minority of mostly elite lawyers with extensive collections that included many foreign and theoretical works. Moreover, though they were a minority, they were influential: many were high-profile and important lawyers like Cartier, Morin, Day, Bibaud, and McCord who were in a position to influence others and even to steer the course of private law reform in Quebec. Of course, the evidence from surviving books and library catalogues can only ever be impressionistic— the mere presence of a book in a library does not mean that it was read. The sum total of these impressions, however, helps trace the outlines of the mentalité of Quebec lawyers in the pre-codification era. In what follows, we move from considering what was generally available to analyzing what particular individuals had access to: in other words, to make the material connections between individuals and ideas that the history of books allows.	25
Private libraries are an obvious place to start, since it is reasonably certain that most of the books in them were personally chosen (if not necessarily actually read) by the owners. Moreover, in the case of lawyers or judges their private books were doubtless more frequently consulted, both since they were near at hand and since the paucity of publicly accessible collections made library research difficult. Some private libraries were truly extraordinary and point more to the aesthetic sensibilities of the collector than to the intellectual curiosity of the scholar. The library of Chief Justice James Stuart, for example, was easily the largest private legal library in Quebec, more than twice the size of its nearest rival, that of Augustin-Norbert Morin. It contained 2538 titles, more even than the library of the Legislative Assembly for Lower Canada, and was particularly rich in French ancien droit and in Roman law.⁴⁵	26
In the stratosphere of giant collections, the most interesting is that of Alexander Buchanan, judge, founder of the Montreal Advocates' Library, and chair of the 1842 commission to revise the acts and ordinances of Lower Canada.⁴⁶ Like virtually all Quebec lawyers' collections of the time, Buchanan's library contained a mix of English and French law, covering the standard works of practice like Domat, Pothier, and Chitty, as well as the essential texts of Roman law.⁴⁷ A closer look, however, reveals certain extraordinary differences between Buchanan's collection and those of most of his contemporaries.⁴⁸ First, he collected important works of theoretical and historical jurisprudence alongside practically oriented material. Second, he subscribed to the crucial French periodicals through which German ideas entered wider circulation. Finally, and most importantly for our purposes, Buchanan seems to have been one of the few Quebec lawyers of the period who could actually read German. His library was filled with the latest works of German scholarship on Roman law, including all of Savigny's major works in the original (among them the only copy of his key work Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft that I have located in any language in Quebec), several of Thibaut's later works, and books by Hugo, Mackeldey, and a host of less well-known authors. He had also collected some of the key German legal periodicals, all extremely rare in Canada, such as Savigny's Zeitschrift (fifteen volumes), the Archiv für die civilistische Praxis (thirty-two volumes), and the Rheinisches Museum (seven volumes). What became of these books is unknown; there certainly would not have been many buyers whose linguistic skills would have allowed them to benefit from them.⁴⁹	27
Huge collections like Stuart's and Buchanan's were exceptional, of course, even among elite members of the Quebec legal establishment. More typical of elite lawyers were collections of a hundred or fewer books, weighted toward the needs of the practitioner. Maximilien Bibaud, for example, though hardly an ordinary practitioner, possessed only a modest collection of law books, and his library was probably typical, even among lawyers with an intellectual bent.⁵⁰ Aside from materials relating to Quebec codification (including an autographed copy of the Civil Code of Lower Canada presented to Bibaud by Cartier), his collection comprised only about a dozen legal texts, surprising for a jurist (admittedly an impecunious one) who flaunted erudition to the extent Bibaud did. His library also tended toward older works, such as Heineccius and Vattel, as befitting a jurisprudential conservative like Bibaud.	28
Finally, even those lawyers whose means limited them to only the most modest library could be exposed to innovative doctrine by borrowing books, either informally or through the various institutional libraries that collected legal works. Well-connected lawyers could borrow books from the library of the Torrance-Morris law firm, which regularly lent out books and kept a record of their goings and comings.⁵¹ One of the first recorded loans was a copy of Savigny's treatise on possession, borrowed by Judge Robert Mackay on 13 March 1860. The chief resource for Montreal lawyers, however, was the Advocates' Library and Library of the Bar of Lower Canada.⁵² This had a rich and up-to-date collection: by 1871, with more than 8000 volumes, it was the largest library in Montreal.⁵³ Its catalogue shows an extensive collection of French, English, Canadian, and Roman law in French, English, and Latin, covering all of the standard works and many more exotic books as well. In recent European doctrine, the library had Savigny's Droit Romain, Klimrath's Histoire du droit français, Warnkönig's Corpus Juris Romani, Zachariae's Cours de droit civil français (as translated and revised by Aubry and Rau), and the surveys of legal history by Lerminier and Mackeldey, both of which were important in introducing German jurisprudence into the French-speaking legal world.⁵⁴ In addition, we have already seen that the library subscribed to several of the key French journals of the period. Though access was limited to members and certain others,⁵⁵ the Advocates' Library and Library of the Bar was in many ways a more publicly accessible reflection of the elite private collections many Quebec lawyers amassed. Though heavily weighted toward the demands of legal practice in the pre-codification era, it nevertheless provided valuable resources for study of the theory and history of the law.	29
All of these libraries, whether private, public, or somewhere in between, required will on the part of the reader to seek out and read new and unusual books. The audience for this esoteric European doctrine was quite small, especially given the absence of an academic tradition in Quebec law: it never comprised more than a small elite at the top of the Quebec legal profession, those with the money, the leisure, and the inclination to read more widely than the demands of practice required. Among this elite, however, the ideas in these works did have an influence. F. W. Torrance, for example, cited his copies of Irving, Savigny, Lerminier, and the Paris Revue de législation in his inaugural lecture on the Roman law at McGill.⁵⁶ We have already seen that A.-N. Morin combed through several of his books on legal history to compile his bibliography of works on German law. Maximilien Bibaud indicates a familiarity with the Revue Wolowski in his writings, which he probably used at the Advocates' Library, as well as citing his copy of Heineccius on numerous occasions.	30
There was certainly an element of ostentation in all this, as elite lawyers sought to impress their peers through such public displays of learning, as Brian Young has pointed out.⁵⁷ Still, it is clear that new European ideas did circulate in Quebec and that they were discussed, coming out in the more academic jurisprudential writings of elite lawyers. Given that some Quebec lawyers were reading exotic books, what exactly were they reading about?	31

II. The Reception of German Jurisprudence outside Germany
No Quebec jurist with a modicum of intellectual curiosity could have failed to notice the debates coming out of Germany in the post-Napoleonic era on codification, the proper role of legislation, and the nature of jurisprudence.⁵⁸ The German codification dispute worked itself out in a series of pamphlets by two leaders of the German academic legal community: Friedrich Carl von Savigny, professor at the University of Berlin, and Anton Friedrich Justus Thibaut, professor at the University of Heidelberg.⁵⁹ Thibaut advocated a single German code to unify the various principalities, while Savigny rejected codification in favor of an evolutionary view stressing the organic development of the German common law, which he saw as the Roman law. Though the intensity of the conflict ebbed and flowed, it remained a current and pressing interest among German academic lawyers into the 1860s, involving many more scholars as it developed. Furthermore, given Savigny's unparalleled reputation in Europe and beyond (he more than any other early nineteenth-century jurist was a household name among lawyers on both sides of the Atlantic, especially in France),⁶⁰ any dispute in which he was involved was bound to be noticed, especially one dealing with a matter of current concern such as codification.	32
The German debates about the nature of law and the place of legislation in it were followed eagerly outside Germany. This was particularly true in France, whose own ongoing experiment with codified law allowed French jurists to be both curious and smug about the news coming across the Rhine, but Scottish civilians too followed the developments and wrote synthetic works that spread news about German jurisprudence still farther. As we have seen, though the original works of German scholars were barely in evidence in Quebec libraries due to the linguistic barrier, the ideas contained in them were readily available through the translations, summaries, and laudatory reports found in imported books and periodicals.	33
In considering the problem of intellectual transmission and influence, the views of Thibaut and Savigny themselves are less important than how contemporaries outside Germany perceived and used them. Language barriers were not insurmountable, and a few well-placed interpreters could present the gist of the complex German developments to a non-German-literate audience.⁶¹ There was a price, however: ideas are transformed through the process of reception and retransmission, and the German codification debates were no exception. As tends to happen with all influential theoretical models, jurists recreated Savigny and the Historical School in their own likeness, taking what they needed while reinterpreting or simply ignoring the rest.⁶² The notion of the Volksgeist, the need for an organic connection between a people and their law, and the general historicist message of Savigny's jurisprudence proved most portable, while his more radical ideas on the impotence of legislators and codifiers were left behind.	34
As the nuances of the actual debates fell away in transmission, contemporaries came to see the dispute as primarily concerning an attitude toward the past (particularly the Roman law) and its implications for the present and future. Warnkönig, for example, a professor of German origin but with close connections to France, offered a typical résumé of Savigny's jurisprudence: "The character of the method which is generally adopted there, is to be critical. While respecting the authority of the great jurisconsults, it believes one can go directly to the sources, study them thoroughly, and make use of everything that history, the study of languages, and philosophy can offer as aid. It sees the study of Roman law as the foundation of all jurisprudence."⁶³ The crux of the dispute, according to Warnkönig, "was to know whether one might hope for more advantages from the establishment of positive legislation than from the perfecting of legal science."⁶⁴ It was, in other words, a conflict over the proper place within law of history (and history of a particular, source-critical kind), and the ways in which this history could be used to illuminate the present. This comes out more clearly in a later article by Warnkönig in the Revue Fœlix: The contrast between M. Savigny and his inner circle on one side, M. Thibaut and his friends on the other, centered on the method of exposition of law, and especially Roman law. The Historical School attached to the history of law itself a principal and often exclusive interest, whereas for its opponents, jurisprudence was a practical science, whose principles one studies in order to apply them. In their eyes, the history of law is for the jurisconsult just another means for grasping the true sense of principles; it is an auxiliary science that has no importance in itself.⁶⁵ Warnkönig was an important translator of German ideas for French consumption: as a German academic (at Freiburg) his judgment was respected, and his linguistic abilities allowed him to occupy a key position mediating between these two legal worlds.	35
Praise for Savigny (and to a lesser extent Thibaut) came from all over, however. In many ways the most enthusiastic supporters of the Historical School were Scots, and the most ardent of these was undoubtedly David Irving, Keeper of the Edinburgh Advocates' Library. Successive editions of his An Introduction to the Study of the Civil Law presented ever more laudatory surveys of German historicist scholarship, starting in the second edition in 1820. Before his third edition Irving had traveled to Göttingen and made numerous key contacts, including Gustav Hugo. Irving's praise of German scholarship was limited mainly by his aesthetic difficulties with the "very barbarous phraseology" in which it was expressed, though these perceived infelicities were not insurmountable: "Those who shudder at the grim aspect of the German language, may derive a competent knowledge of the German discoveries and speculations from his [Warnkönig's] French and Latin publications."⁶⁶	36
Other Scottish jurists too looked to German scholarship for inspiration, and their works proved to be important vehicles for introducing new developments to the anglophone world, especially to the United States. John Reddie, for example, wrote a book on historical jurisprudence in 1826 that praised German jurists,⁶⁷ while Elias Cathcart published a partial translation of Savigny's history of Roman law in the Middle Ages.⁶⁸ Finally, though Savigny and the Historical School most captivated the foreign imagination, the Philosophical School was represented as well, as in the Scottish jurist Nathaniel Lindley's An Introduction to the Study of Jurisprudence, based on Thibaut's work.⁶⁹	37
French observers of the developments in German jurisprudence were generally more circumspect than Irving and Reddie, even great admirers like Athanase Jourdan and Edouard Laboulaye. Though journals like Thémis, the Revue Fœlix, and the Revue Wolowski eagerly tracked German publications and educational advances and regularly published material about the latest German ideas, this material was rarely presented in the tone of unquestioning admiration that one finds in some of the Scottish writings. When the Historical School and its general conception of jurisprudence were under attack, its French supporters could be as effusively positive as Irving. In 1826, for example, Thémis published an anonymous reader's letter arguing that further study of Roman law had become useless: "The interpretation of Roman law is from now on struck with sterility: six centuries old, tired by the long childbirth of several thousands of volumes, this science finally perished of decrepitude and exhaustion around the middle of the eighteenth century," the reader wrote. The Romanists had literally had their last gasp in the century before: HEINECCIUS received the last breath of the deceased, and in his Élemens and his Pandectes he drew up the inventory post-mortem. Pothier put into a methodical order the scattered bones of the Roman jurisconsults and of their modern interpreters, and on the Pandectes justiniennes, the veritable in-folio catacombs of Roman jurisprudence, one must carve for the future this inscription: Here lies the science of the interpretation of Roman law.⁷⁰ Athanase Jourdan responded by drawing a clear line in the sand. Roman law, he argued, is "a science whose death is a blasphemy against the human spirit." One need look no further than the works of Hugo, Savigny, and the historian Niebuhr to find "the whole exterior and interior history of Roman law." Must we, he asks, "abandon all these conquests, strip ourselves of all these riches, in order to bear witness to our veneration for Heineccius and Pothier?"⁷¹	38
In general, however, French historical jurists were more balanced, tempering their enthusiasm for the Historical School's exciting methodology and its promise of scientific rigor with a strong skepticism about the applicability of the German developments to the singular situation in France. The remarks of A. Vuy, in a review of Thibaut's 1838 essay Über die so-genannte historische und nicht-historische Rechtsschule [On the So-called Historical and Non-historical Schools of Jurisprudence], are typical: Alongside admiration there is legitimate room for blame and critique: the same qualities of learned Germany produced certain almost inevitable excesses.... Finally, what is there to say about those blind admirers of the past who live as strangers in the midst of their contemporaries, of whom they understand neither their ideas nor their sympathies? Absorbed night and day in the contemplation of the dead letter, removed from the affairs and the intellectual movement of our time, they are devoid of practical sentiment and of higher thoughts, without which there is no true understanding of history, but only a haughty and false erudition.⁷² In this way, the French historicists—on the one hand beguiled by the promise of German scholarship, but at the same time products of the post-code era in France—sought to occupy a middle ground between Savigny's historical and Thibaut's philosophical jurisprudence, a position that would be anathema to a purist like Savigny. At its heart, this position moved closer to Bentham than to Savigny or Thibaut: theoretical jurisprudence was all well and good, but in the end practical results were needed.	39
An important reason for this never-quite-wholehearted approval of German jurisprudence was quite simply the lingering paternalism and air of superiority of French jurists toward their colleagues across the Rhine. Time and again Savigny, Thibaut, and the others were compared to the glories of Pothier, Cujas, Du Moulin, and others and found wanting. This is especially clear in Charles Giraud's generally positive review of the French translation of Savigny's System du droit romain actuel, which concludes: "There remains perhaps to regret for the learned and generous Germany, peopled with eminent jurisconsults who are its pride and glory, some founders of its practical law such as Domat and Pothier, and a language as clear, as precise as the French language."⁷³ Of course, this French snobbery had its analogue in the lingering resentment in Germany over the Napoleonic wars, which manifested itself in a healthy dose of reverse snobbery that painted the French as dalliers without the scholarly credentials bestowed by German education and the tradition of Wissenschaft.⁷⁴	40
This strong admixture of nationalistic polemic and the willful blindness that tended to accompany it meant that the German developments were not always understood, or at least not always entirely accurately reported in the French literature. Victor Chauffour, for example, presented Savigny's historical method as little more than antiquarianism, criticizing "a puerile love for historical study in itself" that "threw the anchor into the past and left the present and the future adrift. Separating the legal idea from its object, which is to govern the world, it made a means out of an end and sought nothing in learning but learning."⁷⁵ As we saw, Vuy was even more frank in his assessment of what he thought to be Savigny's pedantry, criticizing "these blind admirers of the past" blithely working on history to the utter neglect of the present.⁷⁶	41
Remarks like these clearly show the tendancy of French jurists to overemphasize the dependency of Savigny and the Historical School on the past, so as to chide them more effectively for not embracing the future (that is, codification). Even so able an observer as Warnkönig tended to exaggerate Savigny's historicism and Thibaut's presentist practicality.⁷⁷ Given the situation in France and its experience with codified law, this was hard to resist. Chauffour perhaps betrays this tendancy most plainly: after critiquing Savigny's historical method and its influence on the law, he remarks that "it is incontestable that the true remedy for the situation is codification; but it is also true that this codification must not break with existing law, nor pretend to dethrone science."⁷⁸ This desire to find a middle way allowed French jurists to take from Savigny what seemed to them most useful (his scientific historicism) and to juxtapose it with their own praise of codification and its results, without dwelling too long on the contradictions this raised.	42
The Quebec jurists who read about these contested developments were the heirs to this mutual antagonistic admiration. Since they read about German ideas virtually exclusively at second (or third) hand, and since they were not involved in the historic tensions between France and Germany, their impression of German jurisprudence often diverged markedly from the original. Still, this second-hand access did allow innovative ideas to enter circulation among Quebec legal intellectuals. Quebec's own legal writing at this time was hardly cutting-edge. Doucet's Fundamental Principles of the Laws of Canada of 1841, for example, provides a stark contrast to the state of legal thinking overseas, relying as it does entirely on an eighteenth-century natural-law view of the law and a strongly providentialist historical methodology for its theoretical underpinnings.⁷⁹ Just how out of touch Doucet was with contemporary developments in jurisprudence is clear from his survey of Roman law, which omits any mention of the discovery of the complete text of Gaius's Institutes in 1816, a find that rocked the scholarly world in Europe and North America alike.⁸⁰ A work like Irving's, by contrast, dependant as it is on the recent developments in historical jurisprudence in Germany, is far more up-to-date, emphasizing the then-innovative scientific view of historical study as source-based criticism rather than as the unfolding of divine providence.	43
Still, among some Quebec lawyers there was strong interest in foreign—and particularly German—jurisprudence, despite linguistic obstacles. Morin in particular devoted considerable effort to remaining abreast of the writings of German jurists.⁸¹ In addition to his bibliography of German works, he also seems to have served as collection development advisor for the reestablishment of the Parliamentary Library after its destruction in the riots of 1849, and in this capacity he recommended the purchase of various recent works of German jurisprudence by Savigny, Hugo, Thibaut, Warnkönig, Mittermaier, Puchta, and others.⁸² He also compiled numerous other lists of German books, periodicals, and editions of sources of Roman law.⁸³	44
If nothing else, this curiosity tells us that Quebec legal elites saw Germany as somehow important in the development of contemporary law, and that an educated lawyer needed at least to be able to drop key names.⁸⁴ At the same time, however, curiosity about German jurisprudence was more than simply fashion: like the interdisciplinary appeal of French literary theory at the end of the twentieth century, the Historical School and its opponents provided lawyers with a new methodology for illuminating their own particular national law. The German debates over codification presented Quebec lawyers with models of competing methodologies for dealing with historical sources and for understanding the role of legislation in a legal system, both thorny methodological problems confronting codifiers of Quebec private law in the years leading up to 1866.	45

III. Codification in Quebec: Private Law, Public Commentary
The debates surrounding codification in Europe were echoed in striking ways a few decades later in Quebec. Given the publicity surrounding the dispute between Savigny and Thibaut and the wider European debates about the role of legislation and the desirability of codification, we might anticipate that those involved in Quebec private law codification drew on the European experience as a model or point of departure for their own endeavors. In particular, we might assume that there would be some grappling with the problems of importing non-native legal structures and ideas, which was a central concern in Germany, and which had obvious relevance for Quebec. Instead, the formal process of codification in Quebec proceeded almost without reference to the theoretical and practical concerns voiced in the European debates. This is surprising, since the ideas that underlay the European codification debates certainly circulated among the very legal elites entrusted with carrying out or commenting on private law reform in Quebec. As we will see, however, there was a pronounced gap between the institutionally mandated formal process of codification and the wider public discussion about it in the legal community. European ideas played little role in the former, but they were an important factor in the latter. This rupture between theory and practice needs explanation.	46

A. The Codifiers and Their Sources
The political and institutional background to the drafting of the Civil Code of Lower Canada has been ably analyzed elsewhere and need not be recounted here in detail.⁸⁵ After years of calls for law reform, Attorney General George-Étienne Cartier developed a plan to codify Quebec private law and procedure, which was given institutional form in the 1857 An Act to provide for the Codification of the Laws of Lower Canada relative to Civil matters and Procedure.⁸⁶ Under its terms Cartier appointed three commissioners, judges René-Edouard Caron, Augustin-Norbert Morin, and Charles Dewey Day, who along with secretaries Joseph-Ubalde Beaudry and Thomas Kennedy Ramsay (replaced in 1862 by Thomas McCord) were given the job of reviewing the state of the existing law and proposing a code based on it and following the organization of the Code Napoléon. After issuing seven progress reports for review and discussion (of which there was virtually none)⁸⁷ the final draft code was submitted to the legislature in January 1865, which recommended a relatively small number of changes and passed An Act respecting the Civil Code of Lower Canada, which was given assent in September 1865.⁸⁸ The new code came into force on 1 August 1866.	47
Less familiar than the institutional history of codification, however, is how the debates surrounding the process in Quebec resembled—indeed in some cases depended on—the similar debates in Europe on legal science and legislation that followed in the wake of the 1804 Code Napoléon. Commissioners Morin and Day⁸⁹ and secretary McCord followed these European debates, but as codification progressed, whatever wide-ranging tendencies the codifiers might have had were largely constrained by statute, by political expedients, and by the institutional dynamic of the commission. The result was a divergence between theory and practice, as the more wide-ranging debate among Quebec lawyers about the commission's work seems to have had relatively little effect on what went on behind the closed doors of the commission's offices.	48
Statutory constraints were certainly an important force limiting diversity. Had the commissioners gone no further than a strict reading of the Codification Act, they need not have consulted non-French materials at all. The projected advantages of codification were to be realized not by a thoroughgoing rethinking of the entire edifice of private law, but by carefully reworking existing law along the lines of the most successful codification to date, the Code Napoléon. While there was never a question of going so far as simply adopting the French code mutatis mutandis, as an editorial in the Journal de Québec advocated,⁹⁰ articles VI and VII of the Codification Act made it clear that the commissioners were to look to France and to the law currently in force in Lower Canada and not search out novelty for its own sake. Looking beyond French doctrine was not expressly forbidden, but the Codification Act strongly implied that to do so would be a waste of valuable time. The commissioners were free to propose amendments to the existing law (and this was the window through which more wide-ranging influences could and sometimes did enter the project), but the Codification Act made it clear that this was to be the exception rather than the rule.	49
Attorney General Cartier, the project's political shepherd, reinforced these principles in his speeches regarding the project. When he presented the draft code to the legislature in 1865, he noted that "this work was done in imitation of the French code, and in walking in its footsteps, there was no fear that we would not succeed."⁹¹	50
In its public face, then, as a legislatively mandated reform of private law, the project was to be—and the commission in fact was—quite conservative in terms of its sources, following Cartier's plan closely. The innovations—and innovations there certainly were—came mainly from the American and English commercial law that strongly influenced Judge Day's reconceptualization of obligations and commercial law, as Brian Young and others have pointed out.⁹² In the end, the final code shows no visible signs of any engagement with the German historicist ideas that were circulating among elite lawyers in Quebec.	51
Behind closed doors the situation was only somewhat different. John Brierley's discovery of Judge Caron's working papers for the commission provides an invaluable (though inevitably sketchy and puzzling) glimpse into the provisioning of the commission's offices.⁹³ One of the first jobs was to develop a commission library and to establish an initial list of sources to be consulted, which Caron set out in a detailed working document that outlined the practical aspects of the task ahead.⁹⁴ Though this official bibliography is only part of the intellectual context in which the codifiers worked, it does give a sense of what parts of the general intellectual milieu were to be carried forward into the work of codification and what parts were to be excluded from the beginning.	52
Not surprisingly, Caron's plan stayed close to the commission's mandate as described in the Codification Act: Caron was sufficiently practical to realize that the undertaking was vast enough without making it even more complex. In his section "Codification—(Modus operandi)" he provided a general rationale for the hierarchy of sources: "On the subjects left out of the above enumeration it is necessary to consult French jurisprudence before the Revolution, Roman law, the case law in France and [Louisiana]. Pothier, Domat, Merlin, the new Denizart will serve to fill the gaps in our positive law, but above all the Code Napoléon, which it is necessary to follow in all cases in which it did not introduce new law."⁹⁵ Under "Authors to Consult," Caron included only two categories: "New Works on the Code" and "On the Old Law."⁹⁶ Not surprisingly, the first authors listed—and the bulk of the list—are new works on the Code Napoléon, particularly the commentaries of Toullier, Troplong, and Merlin, as well as the influential Cours de droit français of Zachariae (as translated and reworked by Aubry and Rau). Complementing these were of course les anciens: Domat, Pothier, and the various commentators on French customary law.	53
Caron foresaw that the commission would not be able to answer all their questions from these older works and the Code Napoléon itself, and so he (and his co-commissioners) brought various other sources into the mix. Day, of course, needed recent works of English and American commercial law, and a long list of titles were borrowed from the Library of Parliament and shipped to Montreal for his use.⁹⁷ Caron's notes also call for the Paris Revue de législation, though significantly he included it in the category "New Works on the Code," indicating that he looked to it more for current doctrinal commentary on the French code than for more wide-ranging jurisprudential discussion.⁹⁸	54
Caron's notes do not reveal cutting-edge research: the commission would hardly have been able to do their job had they lost themselves in arcane theoretical debates, and so they naturally looked mostly to works that would answer the practical questions they would have to solve. Caron's plan did, however, call on the commissioners to recognize and grapple with basic aspects of the wider debates surrounding their mission. Perhaps the most telling indication of this is a cryptic query in Caron's section "Code Napoléon (Remarks on the)," where he muses "Which example should we follow?" but unfortunately provides no elaboration.⁹⁹ The only explicit suggestion that the commission would be discussing the debates in Europe over codification (in this case the Benthamite project to reform the Common law in England, rather than the German controversies) is a brief note that an article in the London Quarterly Review of 1859 contains "discussion of the question of whether a well executed revision of a country's laws is not preferable to a Codification of these same laws."¹⁰⁰ Beyond this Caron makes no reference to any concerns of a more theoretical nature.	55
The situation is similar in the commission's published reports. Judging from the authorities provided in the margins of the draft code, the codifiers seem to have used the lists Caron drew up and to have followed Cartier's general directive to stick as close to the text of the French code as possible. A rough indication of the range of these sources can be gleaned from Thomas McCord's list of abbreviations to his edition of the finished code. The majority of cited authors are French (including an extensive list of thirty-six individual abbreviations for the works of Pothier), English, and American. By contrast, the only other Europeans in evidence are the eighteenth-century Roman law commentators Heineccius and Johannes Voet and the more recent jurists Savigny and Zachariae.¹⁰¹ However, only two provisions in the code itself seem to be based directly on Savigny: one in the Preliminary Title on a point of private international law, the other in the title on obligations, where he is simply used to support the point that the civilly dead are incapable of contracting.¹⁰² Despite having written a widely known and highly respected work on the Roman law of possession, Savigny is cited neither by Morin in the book on prescription nor by Caron in the book on property.	56
The commission's first report, however, authored mostly by Day, does suggest in an oblique way some of the more existential issues with which the commission grappled. This is clearest in Day's defense of the commission's departures from their model, which reveals the guiding motivations and justifications of the project. The main problem was the perceived inadequacies of the French code, which the codifiers solved by balancing the demands of the Codification Act with a rough-and-ready historical method: It would, of course, be inexcusable in the Commissioners to have carried their respect for the model proposed to them so far as to copy its acknowledged faults. They have tried to avoid them, and have sought for the means of doing so in the original sources of legislation on the subject, in the writings of the great jurists of France as well under the modern as the ancient system of her law, and in the careful comparison of these with the innovations which have been introduced by our local legislation and jurisprudence, or have silently grown up from the condition and circumstances of our population.¹⁰³ In the case of obligations this meant following Pothier in order to restore the "symmetry and logical connection" he brought to the law, which the French codifiers had tampered with.¹⁰⁴ Pothier's work, however, must be harmonized with the "condition and circumstances of our population," an idea that perhaps has distant echoes of Savigny's Zeitgeist. This is speculative, however: the codifiers' reports are practical documents presenting the work of the commission for the legislature; whatever theoretical discussions the commission engaged in tended to remain unexpressed in the background.	57

B. Discussion of Codification outside the Commission: Supporters and Opponents
The deliberations of the commission were but the formal center of a more broadly based and often free-wheeling discussion among Quebec jurists on the desirability of codification, on the role of legislation more generally, and most fundamentally on the nature and status of the Quebec legal system. Some of these debates were directly connected to the codification process, but others were tangential to it and ranged more widely, such as the discussions surrounding the issue of legal education in Quebec. Taken together, these debates reveal an extensive pre-codification legal discourse that left only a few slight traces on the finished code.	58
Both supporters and opponents of codification used ideas and language that recall the European debates. Savigny's ideas in particular were marshaled both for and against codification: the rhetorical value of historicist legal science was such that it could support a wide range of perspectives (much as it did in Germany), and Savigny's applicability was increased by a certain lack of rigor or accuracy in the reporting of his ideas by participants in the Quebec debates. Thus Savigny and to a lesser extent Thibaut and others were a presence in Quebec legal reform, invoked as icons of either conservative historicism or positivist modernism as appropriate.	59
Cartier's codification proposal neither came out of the blue nor ran contrary to prevailing opinion. Evelyn Kolish has found calls for codification in Quebec as early as 1831,¹⁰⁵ while in 1846 an anonymous author argued vigorously for codification in the Montreal Revue de législation et de jurisprudence in terms that closely anticipated Cartier's own program.¹⁰⁶ The author of this piece, who Brierley among others has suggested might have been Cartier himself, paints a bleak picture of the current state of the law in Quebec: What old, anomalous, contradictory laws subsist in all branches of our legislation! What disorder and uncertainty in the laws that govern persons and things, property, commerce, police! What anachronisms in the most important arrangements of our social order! What mind is big enough to embrace and know this infinite variety of edicts, customs, maxims, ordinances, statutes, jurisprudence of every kind? Codification is the way out of the morass, which the author characterizes as "this legal Babel" and "[the] chaos of our jurisprudence." The author emphasizes the progressive advantages of codification, arguing that what is needed is "the reformation of the old codes that govern ancient societies" for the purpose of "attaining the level of the progress of civilization."¹⁰⁷	60
To a large extent this anonymous piece seems to have set the tone and the issues for debate, and the reactions of the majority of the interested public were similar. The chaos of the Quebec legal system, in fact, became a topos of Quebec legal discourse, turning up in legal periodicals and newspapers alike, and the idea of legislation as progress too was heard frequently in the Quebec debates.¹⁰⁸ The very ubiquity of these ideas, however, makes it difficult to distinguish direct influence from parallel developments. The idea that codification is necessary because of the chaos of existing law is a natural argument to make in support of codification, voiced alike by Thibaut in Germany, Bentham in Britain, and Field in New York.¹⁰⁹ Codification is by its very nature an ordering process, if for no other reason than that it gathers laws from disparate sources and collects them in one or at most a few books.¹¹⁰	61
Despite the often formulaic rhetoric of the Quebec debates, supporters did sometimes use language and ideas that suggest direct debts to European jurisprudence. Given that reaction to the project of codification was generally favorable (though we consider several important critics below),¹¹¹ many commentators naturally looked to Europe for validation in their efforts to understand and praise the project.	62
We might expect supporters to turn to Thibaut for inspiration, and indeed it is tempting to hear Thibaut's call for a pan-German code behind, for example, the 1857 letter to the editor of La Minerve by one "Marcus," in which he described the code as "this monument to our nationality."¹¹² If we omit the reference to a code, however, this phrase could just as easily have come from Savigny, who advocated "an organically progressive jurisprudence, which may be common to the whole nation."¹¹³ Thomas Ritchie too, whose pamphlet on the title on obligations was one of the most significant commentaries on the draft code, expressed his support of the enterprise in language reminiscent of Thibaut's view of a code (though of course it reflects the general eighteenth-century natural law view of a code as well): The idea of a Code has been well apprehended by the Commissioners. A Code should be a comprehensive body of practical rules of law, expressed in language pure, concise and unambiguous. It ought to exclude mere definitions and legal axioms; for it can never supply the place of scientific treatises upon legal subjects. Nor ought it to be encumbered with more details and examples than are absolutely necessary to a practical understanding of the rules laid down. It is scarcely necessary to add that the subtleties in which many authors delight, would be entirely out of place in a body of positive legislation such as a Civil Code.... [T]he articles of [a code] ought to be not unlike the jewels composing a diamond necklace, pure, simple and transparent.¹¹⁴ These words have strong parallels to Thibaut's call for clear laws in the face of the current tendency to go deeper and deeper into "philology and history," which has the effect of dulling the people's sense of right and wrong.¹¹⁵ Of course, Ritchie's ideas echo Bentham as well;¹¹⁶ the point is that whether at first or at second hand, they reflect ideas coming to Quebec from overseas. Even Cartier echoed the ideas of the Historical School. In a speech to the Legislative Assembly upon presentation of the finished code, he develops an idea that strongly echoes Savigny's Volksgeist: The law of a country is not just the result of arbitrariness, and does not form itself by caprice; it is the result of the custom of the people, applied to all acts of life so as to govern them. Our law has the same origins as current French law, and it was drawn from the same sources. It is taken in large part from new law, which is regarded by all who study it as superior to anything that could be produced by other peoples.¹¹⁷ It is interesting that Cartier takes this Savignian notion of the organic development of a national law and adduces it in support of codification; Savigny's notion of the Zeitgeist was eminently portable and could easily be enlisted as a nationalistic argument in favor of codification.	63
In all these cases, of course, the language in question was general enough that it could have been drawn from any number of sources, including contemporary French descriptions of the Code Napoléon. The influence of the German Historical and Philosophical Schools in France as well as their cachet among intellectually inclined jurists, however, suggests that there might be a more direct influence at work, especially considering that Cartier, at least, had access to these ideas through the French periodicals to which he subscribed.	64
The echoes of the European debates were not always distant and vague, however, and a number of Quebec lawyers brought these ideas into their writings in support of codification directly. The most striking example is C. F. S. Langlier, professor of Roman law at Laval University, who framed a long defense of the draft code in the Journal de Québec with a discussion of the German codification disputes.¹¹⁸ Langlier's source for this overview of German jurisprudence is unclear but is almost certainly one of the French surveys of the dispute published in the Revue Fœlix or the Revue Wolowski. Not surprisingly, given his strong approval of the work of the Quebec codifiers, Langlier comes out on the side of Thibaut (domesticated to "Thibault") and philosophical jurisprudence. According to Langlier, Savigny's law is effectively static, since it develops entirely divorced from human endeavor, and so from essential progress. Langlier presents Savigny as arguing that the law is what it is, and so it must be good. He writes: Without doubt, the law of every people, in every epoch of its history, is, to a certain point, the best; but, it is an error to pretend that one can never conceive of something better.... For what does history serve, if not to show us the qualities and the faults of institutions and the government of past peoples, and to engage us, by the means of the consequences that have transpired, to imitate some and avoid others?¹¹⁹ In fact, however, Savigny rejected this very position in Vom Beruf, his initial response to Thibaut. The historical method of jurisprudence, Savigny writes, does not consist, as some recent opponents have strangely maintained, in an exclusive admiration of the Roman law; nor in desiring the unqualified preservation of any one established system, to which, indeed, it is directly opposed.... On the contrary, its object is to trace every established system to its root, and thus discover an organic principle, whereby that which still has life, may be separated from that which is lifeless and only belongs to history.¹²⁰ As Savigny expresses it more succinctly, "Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality."¹²¹ In other words, far from being static, law is in constant development, in much the same way as language is in constant development. To replace this organic historical development with the arbitrary will of the lawgiver, Savigny argues, is to cut law off from the source of its vitality.	65
By misrepresenting Savigny's ideas in this way, however, Langlier is able to coopt historicism for the purposes of defending codification. He turns around Savigny's conservative use of history to apply it progressively, not as a model for how things should remain, but as a lesson in how things should change. History, then, becomes grist for the legislator's mill: The true progress in legislation consists in giving to each people the legislation that suits it, its natural legislation.... If the character of a people and its needs can change, one will avow that these changes take time to come about. Moreover, its nature does not change: human nature is today what it will be from now to the end of the world. All laws founded on human nature are thus immutable. Therefore, these are the laws that make up the largest part of a code of civil law.¹²² In this passage and elsewhere Langlier shows his natural-law assumptions, which bring his ideas more closely in line with Thibaut's. Here again, however, Langlier freely interprets his source: "All the works of jurisconsults must tend toward finding the true formula of the law that best suits the nation, and when this formula is found, one makes from it a code that must never again change."¹²³ This is Langlier, not Thibaut, or at best Thibaut very freely interpreted, and it reveals more about Langlier's assumptions than it does about Thibaut. To Langlier, society can be improved through rationally conceived legislation that draws on the lessons of the past to fine-tune the present. For this reason Langlier criticizes Cartier's plan for codification, because it ordained a code based on the laws actually in force, rather than a code based on "the laws, which in [the commissioners'] judgment the needs of the country require."¹²⁴ A philosophically based code would be better than a historically based one, since the law is perfectible, not perfect. For this reason Langlier praises the commissioners' amendments, by which they rationally adapted the received law to the current needs of Quebec society.	66
In contrast to these expressions of support, the process of codification generated surprisingly little opposition from contemporaries, certainly when compared to many modern law reform initiatives. Opinion was not unanimously positive, however, and a small but vocal minority had reservations—sometimes grave—about the proposed code and its predicted effects on Quebec society. Most criticisms of the proposed code were relatively minor technical quibbles with particular doctrines or matters of presentation.¹²⁵ Two writers, however, had more fundamental ideological objections to the project. Edouard Lefebvre de Bellefeuille, who wrote a long critique of the draft code's provisions on marriage, faulted the commissioners for not following the letter of Catholic canon law and allowing too many innovations from the suspect Code Napoléon to enter.¹²⁶ His attack on the codifiers reflects the strongly conservative Ultramontane Catholic strain in Quebec legal culture, an ideology that looked with suspicion on French developments and rejected their applicability to Quebec society. In fact, his attack evoked a response from the more moderate Catholic A.-N. Morin.¹²⁷ More serious, however, were the criticisms of all parts of the code by Lefebvre de Bellefeuille's teacher, François-Maximilien Bibaud.	67
Bibaud, a fascinating figure deserving a modern intellectual biography, was by far the most vocal and persistent opponent of the new code.¹²⁸ Possessed of the deadly combination of an absolute certainty in his own intellectual infallibility and a constitutional inability to be diplomatic, his ambitious program to set legal education and private law reform in Quebec on a conservative path of intellectual rigor was doomed to failure.¹²⁹ Bibaud's frequent contributions to the debate provided some of the most interesting discussions about the nature of law and the place of legislation to appear before the twentieth century.	68
Bibaud was certainly no friend of codification. His opposition to the proposed code began as soon as Cartier announced the project, and his antipathy is clear in most of his writings of the 1850s and after. Most bluntly, in a manuscript work on the history of Canada, his entry for the year 1866 reads in part: "Publication of a badly digested Civil Code of Lower Canada, the work of judges Day, Caron, and Morin and of the clerk Beaudry; total scrambling of our ancient French laws, where the Conseil Spécial had already sown disorder by the Ordonnance des Bureaux d'Hypothèques: the drafting itself of this repertory of legislation is injurious to French idiom!"¹³⁰ His specific criticisms would make an interesting study. He had something to say about almost every part of the code, often basing his critique on Catholic canon law and general tenets of morality. To cite just one example, he had strong words about the codifiers' rejection of lesion between persons of full age: I had not realized that in the treatise on obligations the honorable commissioners have suggested the abolition of lesion between persons of full age! I certainly hope that the legislature will reject this suggestion, improper, because it is from natural law, if not primary, at least secondary, that equality is required in commutative contracts of sale, exchange, etc. The commissioners simply want to abolish commutative contracts, since they believe they have already suppressed by a stroke of the pen unilateral contracts. They want, as in the United States, that one can acquire in a valid manner something that costs one thousand louis for a dollar!¹³¹ Here, however, I want to concentrate not on the specifics of his attack on the codification project, but rather on its ideological underpinnings and on his intellectual debts (acknowledged or unacknowledged) to European jurisprudence.	69
Given his hostility toward the very idea of codification, it is tempting to cast Bibaud in the role of Savigny in the Quebec production of "Codification Disputes" (against a Thibaut played perhaps by Langlier, perhaps by Morin), but to do so would be a distortion. While Bibaud clearly had intellectual affinities with Savigny—both were conservative, suspicious of legislation (particularly as manifested in the French code), and saw the ancien droit as validated by time—their positions differed in important ways, and Bibaud's version of conservative historicist jurisprudence makes an instructive contrast to that of Savigny.	70
In a general way, Bibaud's critique is reminiscent of Savigny's in that he attacks codification as on the one hand premature, and on the other a dangerous and ill-conceived break with legal tradition. Like Savigny, Bibaud argued that to attempt codification without a full understanding of the Roman law underlying the ancien droit would be premature: "It was a great temerity to undertake a code without knowing Roman law, and one can say without hesitation that the commissioners seem not even to have suspected its existence."¹³² Again like Savigny, to Bibaud the foundation of any legal system must be its continuity with the past, which is not lightly (if at all) to be overthrown in the name of faddish progress. In a passage dripping with sarcasm, Bibaud attacks the codifiers' audacity: "I admire the presumption of three Canadian legists who have undertaken to denature everything that the collective wisdom of centuries has sanctioned."¹³³ Legislation had to grow naturally out of the existing law, and given the state of the existing law in Quebec, the chances for this were highly unlikely.	71
Bibaud's application of these general principles, however, diverges markedly from Savigny's. To Savigny Roman law, adapted through organic development to the needs of the Volk, was the essential expression of the Volksgeist. To Bibaud Roman law was important for purely historical reasons, and its applicability to Canada was questionable at best: it could not simply be treated as ratio scripta.¹³⁴ For Bibaud the expression of the Quebec Volksgeist was not Roman law, but rather the customary law of the ancien droit. Savigny had grave misgivings about the utility of German customary law, which he regarded as distinctly inferior to the Roman law. Bibaud's strong affirmation of customary law reveals some distance from Savigny, despite the strong evocation of an idea akin to Volksgeist: Law borne by custom is a convention coming from the customs of the nation, appreciated in its bosom, perpetuated by a mutual competition. Such a law represents unceasingly more the customs of a nation than the rigidity of a law.... [Every citizen] received it from his fathers with respect, he observes it with religion and perpetuates its observation scrupulously. A citizen who transgresses, an enemy of this law can thus only be a controversialist hateful in society.¹³⁵ Over the course of his writings it is clear that among German jurists, Bibaud's guiding spirit was not Savigny but the eighteenth-century jurist and historian Johann Gottlieb Heineccius. Heineccius's writings combined natural law with a historicist impulse that looked back to older humanist jurisprudence,¹³⁶ and so his views of history and custom would have been more congenial to Bibaud's particular kind of conservatism. Bibaud cited Heineccius on numerous occasions, and it is significant that this was usually in the context of dismissing aspects of the jurisprudential novelties of modern Europe. A telling example is a passage in which Bibaud dismisses both German scholarship and the French periodicals that transmitted it (to himself as well): If I dare express an opinion, however glorious the avowal of the Revue de Wollowski [sic] might be for Germany, I find singular the assertion that the science from across the Rhine is indispensible, and that France is just a pupil alongside her. I try hard to get and to read translations of German books, to savor their erudition, as long as it appears to me to be moderate; but that the light might arise from fifty, perhaps one hundred treatises which are probably almost as many different systems, that is what is difficult to believe. I would rather follow myself and give you the advice that a German himself gave to his students, one of the most judicious—Heineccius, counsellor to Frederick the Great....¹³⁷ In general, then, for Bibaud it was les anciens who should be the guides. Despite his often progressive ideas on legal education (apparent in his modeling of his law school curriculum on Bonn and Leipzig, which we saw at the outset), Bibaud had a profound distrust of modernism, and this was his chief criticism of the codification project. Bibaud faulted the commissioners for their reliance on more modern commentators like Toullier, Troplong, Marcadé, and Zachariae, while at the same time chastising them for daring to rework and reorder Pothier.¹³⁸ Interestingly, Bibaud's respect for les anciens brings his ideas back into harmony with Savigny on at least one point: that the current crop of jurists was far from up to the job of codification. At the end of one of his didactic works, Bibaud lists a veritable who's who of eighteenth-century (and earlier) jurists (including Savigny among them, curiously enough), all at the expense of his current students of law: Without speaking of the ancients, Grotius, Puffendorf, Heineccius, De Vattel, Savigny among the Germans—chancellor Morus, Sir Mathew Hale, Blackstone, Sir James Marriot, baron Mazères, lord Mansfield among the English—De Thoù, l'Hôpital, Domat, D'Aguesseau, Talon, Pothier, Lamoignon, Le Camus among the French, they were complete men as well as powerful geniuses. Without doubt, no one among you would dare claim—no one among you will find in this province the opportunity to reach the same eminence, whatever great talents that were distributed to you by nature; but you can—you must each shine with the same ray of virtue.¹³⁹ Bibaud's jurisprudence—and thus the perspective from which he criticized Cartier's codification scheme—was like his educational program: "at once historical, methodical, philosophical, and practical."¹⁴⁰ His alternative to the project was in the end not Savigny's plan to purify and perfect the Roman law through textual study, but simply to retain the existing law, since it was the foundation of Quebec society. To discard the ancien droit—especially in favor of a new code modeled on the fundamentally suspect Code Napoléon—would be to endanger the social and particularly the moral underpinnings of Quebec society. Though Bibaud's position was somewhat extreme, and was always expressed in such a way as to guarantee the widest possible opposition, this conservative stance was influential in the debates and helps explain why the Civil Code of Lower Canada was not a more progressive document.	72

IV. Legal Theory, Legal Nationalism
Why did the European developments in theoretical and historical jurisprudence that many elite Quebec lawyers followed have so little apparent influence on the actual course of Quebec private law reform, despite their obvious relevance? By way of conclusion, I would like to suggest several hypotheses for why the theoretical interests of many Quebec lawyers could remain insulated from the finished code itself. The Quebec experience in turn suggests broader conclusions about the dynamics of the transmission and reception of legal ideas in the nineteenth century.¹⁴¹	73
On one level, codification in Quebec was a means to an end, a way to achieve legal clarity and predictability and so to answer the chief criticism leveled against the old law, namely its messy, convoluted, and almost unknowable state. Given this utilitarian purpose, the philosophical and historical explorations of Savigny, Thibaut, and their French and Scottish followe

Imported Books, Imported Ideas: Reading European Jurisprudence in Mid-Nineteenth-Century Quebec

Eric H. Reiter

I. Legal Book Culture in Quebec before Codification

A. Legal Publishing in Quebec

B. Imports and Exotica

C. Quebec Lawyers and Their Books

II. The Reception of German Jurisprudence outside Germany

III. Codification in Quebec: Private Law, Public Commentary

A. The Codifiers and Their Sources

B. Discussion of Codification outside the Commission: Supporters and Opponents

IV. Legal Theory, Legal Nationalism