through conquest and tribute made them consumers rather than producers; their genius for law enabled them to develop a system of contract law favourable to commerce, based upon the classic jus civile and inspired by the equitable principles of the jus gentium. This law was characterized by the same scientific unity as the English common law. Its scientific development was in part due to the large powers of the praetor to mould procedure, amounting almost to legislative prerogatives.

With the fall of the Western Empire and the domination of Europe by invading barbarians there followed a period of anarchy when commerce almost disappeared. An immense amount of wealth was destroyed and real property became almost the only kind of wealth recognized. Centuries were required for Christianity, and the germ of the ancient civilization to quicken society into self-consciousness. But while Christianity in so far as it liberated the individual and ennobled labour was favourable to commerce, yet through the Canon law it fettered it and led the Roman law away from a true economic development. With the rise of the Third Estate came a new era for commerce.

LAYTON B. REGISTER.

-University of Pennsylvania Law Review.

EDITORIAL.

LIBERTY OR LICENSE.

His Honour Judge Morson recently heard an appeal from the findings of the Police Magistrate of the city of Toronto of a certain drama which had been held to be immoral, and His Honour in an able judgment reversed the magistrate's decision. During the past two years a certain section of the community has arrogated to itself the right to decide what is proper or improper in theatrical matters and has assumed to impose its views upon the community at large. While freely admitting the right of any one to hold an opinion on any subject, so soon as it is sought to impose any particular view upon the public any person or section exceeds that right and naturally causes resentment from those who hold a different view. The people of Canada, it is hoped, have outgrown their swaddling clothes and do not require to be fed by bottle or spoon, but are able to form their own opinion of what is right or wrong without any dictation from any person or section.

Of the merits of the case we have nothing to say, but every thinking person, no matter what their calling, should, and undoubtedly will, resent uncalled for attacks from pulpit and press upon a Judge who does his duty fearlessly and who on account of the judicial position he occupies makes it impossible for him to reply. Some excuse may perhaps be made for those who, in excess of their zeal, overstep the bounds of justice and decorum, but no excuse can be offered for the Police Magistrate, if the newspaper reports of his utterances are correct, who deliberately misquotes the text of the judgment of an appeal from a decision of his own.

There is such a thing as Legal Ethics, but apparently it is a subject in which not only students but magistrates require some instruction.

The Law Times has been honoured by the permission of the Honourable Mr. Justice Middleton to publish his introduction to the draft of the revision of the Consolidated

Rules of Practice. Any comment as to the wisdom shown by the Premier in making so happy a choice would be superfluous, for the long and varied experience of the learned Judge has fitted him most eminently for the task intrusted to him, and it is hoped that the members of the Bar in general will avail themselves of the opportunity which His Lordship gives to forward to him "any changes which may be deemed desirable, before the report is sent to the Government."

DEAR SIRS :

OSGOODE HALL,

10TH APRIL, 1913.

In pursuance of instructions received from Sir James P. Whitney (acting Attorney-General), I have prepared a draft revision of the Rules of Practice and Tariff of Costs.

By the courtesy of the Attorney-General, I am permitted to submit my draft of these rules for criticism before reporting to him; and I am transmitting to you herewith the result of my labours, for your perusal and consideration. If on perusal you find occasion, I shall be glad if you will, at your earliest convenience, communicate with me, so that any changes which may be deemed desirable may be made before I send my report to the Government.

When the Judicature Act of 1881 was passed, a schedule of rules was also enacted, taken from the English Judicature Act of 1873. These rules did not purport to deal with the entire practice of the Court, but provided that in matters not dealt with the practice of the Courts consolidated, that was most convenient should be followed. This brought about much confusion, as standards of convenience differed; and in 1888 a revision of the rules took place, when an endeavour was made to formulate a complete code of practice. To the rules originally introduced from England were added others having an English origin, and many of our former Chancery Orders and Common Law rules; but throughout this revision there were many provisions that the practice should be as in the "Court of Chancery prior to the Judicature Act."

In 1897, the rules were again revised. Many of these allusions to former practice were eliminated, and much was done to remove difficulties that had developed in the working of the former rules; yet the composite origin of the system was plainly apparent, and there remained a

In

lack of uniformity of expression arising from this. many cases, also, there was an overlapping of provisions adopted from different sources, which occasioned obscurity and confusion.

In the present revision my endeavour has been to complete the assimilation thus begun, and the elimination of references to former practice. Comparatively few of those now engaged in practice had any experience before the Judicature Act, and any allusions to the practice, either at law or in equity, prior to 1881, are to the majority meaningless, and the occasion of needless research.

Many of the rules which contained no express reference to any prior practice were originally prepared for the purpose of modifying the practice then existing, and are only to be understood in the light of the situation at the time they were enacted. These provisions are frequently negative in form, and amount to no more than the repeal of former rules, or, more frequently, the annulling of a practice that had grown up apart from any express enactments.

Many other rules had their origin in an attempt to meet some particular difficulty, and have now become unnecessary by reason of some more far-reaching change in the practice or in general law.

Other provisions had their origin in a statute passed to remedy some particular matter; the main provision of the statute being accompanied by a number of ancillary provisions, in some cases differing in detail from somewhat similar general provisions of the rules, but now not necessary, by reason of wide general provisions. In this revision I have endeavoured to make the rules a consistent whole, capable of being understood without any reference to the origin of the particular rule or to any former practice.

I have also endeavoured to reduce the practice to the greatest possible degree of simplicity, and so to classify the rules that what is required to be known may be readily found. To this end, general provisions have been made, applicable to all procedure, and in this way much repetition is made unnecessary, e.g., in the former revisions almost every section conferring power upon the Court directed it to be exercised upon such terms as to costs and otherwise as may be just;" and almost every time limit is accompanied by the expression "or such further or other time as the Court or Judge may allow." The disappearance of these

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familiar expressions does not mean change, but merely that general provisions apply and render repetition unnecessary.

Another familiar expression eliminated is "the Court or a Judge." This expression had its origin in the theory that the expression "the Court" referred to the Court sitting en banc during Term; and, to enable a function to be exercised otherwise than by the Court so sitting, the words "or a Judge" were added. were added. This theory and expression appear to be obsolete. In these rules I have conferred all power upon the Court, and have by a general rule defined how the powers of the Court are to be exercised, i.e., by a single Judge sitting in Court, save in certain cases where that power may be exercised by a Judge in Chambers, Local Judge, or the Master in Chambers.

The former rules contained many detailed provisions concerning the officers of the Court and the discharge of their duty. These seem unnecessary; and it was thought better to leave these details to be worked out by Orders in Council dealing with the appointment of officers and their duties, and by directions from the Judges and the Clerk of the Crown and Pleas and to the Inspector of Legal Offices.

In addition to many minor changes embodied in the revision, in the interest of simplicity and uniformity some changes of importance are suggested; and to these attention is respectfully drawn.

One of the greatest problems in the framing of rules of practice is to devise a system which will at the same time. afford a simple and speedy mode of enforcing admitted or undisputed rights, and yet be sufficiently elaborate and elastic to be adequate to the working out of important disputes and the adjustmennt of intricate and complicated matters. To this end it is essential that there should be at the threshold some means of separating cases in which there is a real dispute from cases in which there is no real dispute, but an attempt to abuse the practice by the setting up of some pretended defence. At one time our Courts were congested with actions upon notes, bills of exchange, and mercantile accounts, where there was no real question as to the liability of the defendants, but which were defended, and had to be taken to trial before judgment could be obtained: At that time, with a population of less than one-tenth of that at the present day, the Assize lists were longer than

now.