La controverse sur la nature du droit applicable après la conquête

Type of resource
Author/collaborator
Title
La controverse sur la nature du droit applicable après la conquête
Abstract
The capitulation of Montreal on September 8, 1760, marked the end of French sovereignty in Canada. During the military period that followed, the law originating from France nonetheless still applied. The author points out that the Royal Proclamation of October 7, 1763, merely declared that the inhabitants of the new Province of Quebec would henceforth enjoy the "Blessings of the British Laws", while at the same time specifying that courts would adjudicate criminal and civil matters "according to law and equity, and, as near as may be, agreeable to the Laws of England." He argues that although the Ordinance of September 17, 1764, established the Court of King's Bench and the Court of Common Pleas, the applicable law governing these jurisdictions remained unclear. The author points out that some scholars have long held that the 1764 ordinance introduced all of England's civil and criminal law at once, without promulgating it. Other scholars, he demonstrates, have supported the opposite view, that in practice the main rules of French civil law were continued. The author argues that if French law continued to apply in Quebec, even to subjects of British origin, this application was definitively generalized after the Quebec Act of May 1, 1775, came into force, despite the fact that it was sometimes requested that English law apply. In the end, he believes that it becomes clear that the nature of the law invoked by the parties strictly depended on the cause to be defended and on the best way by which to do this.
Publication
McGill Law Journal/Revue de droit de McGill
Volume
Vol. 56
Issue
no. 3
Pages
489-542
Date
Avril 2011
Language
fr
URL
Citation
Decroix, Arnaud. “La controverse sur la nature du droit applicable après la conquête.” McGill Law Journal/Revue de droit de McGill Vol. 56, no. 3 (Avril 2011): 489–542. http://www.erudit.org/revue/mlj/2011/v56/n3/1005131ar.html.
Find in a library
Permalink