VOL. IX. No. 10.

OCTOBER, 1897.

THE

HE Province of Quebec, or Lower Canada, as it is still affectionately called by its people, has, in addition to a number of other interesting peculiarities, a system of jurisprudence and judicature which is comparatively unique.

Its civil law is practically the Code Napoleon, with certain changes, supposed to have been improvements; its commercial law is in effect similar to that of England; its constitutional law and criminal law and practice are distinctively English.

The use of both the French and English languages in the courts is a curious, if at times a cumbersome, feature; and the familiar jest of Mark Twain, when visiting Montreal some years ago, may be repeated. He was being entertained at dinner, and in his speech (Canadians have a wonderful. avidity for making and listening to speeches) said he had that day heard a lawsuit concerning six cords of wood tried in two languages, and, no doubt if the litigation had been about one hundred cords, there would not have been enough languages at the Tower of Babel to enable the suit to be tried.

However, every visitor to Montreal or Quebec hears about the dual language, and probably learns at the same time, from some illiterate cabman, that the French spoken in the Province is a rude patois and not the pure lingo of the boulevards; the fact being that Canadian French is pure Norman of the 16th century and, as spoken

by the educated classes, as good as any dialect of modern France.

One peculiarity, and a regrettable one, of her position as a civil-law province, is that she is isolated from the rest of the legal world, and the decisions of her tribunals and the careers and names of her jurists are unknown beyond the banks of the St. Lawrence.

And yet, from the day when in 1763 Great Britain, after administering, for a brief period, English law in the English language to the French-Canadian habitant, restored the use of the French law, practically the Coutume de Paris (codified in 1867), to the present time, Lower Canada has had a long line of able and learned English and French judges. Stuart, a giant in intellect, Sewell, Lafontaine, Duval, Dorion, Johnson, Cross, Ballgeley, Panet, Rolland, Ramsay, Taschereau, Mondelet, Sanborn, Monk, Loranger, Meredith, Tessier and Fournier have, in their time, done judicial work, and pronounced judgments of the highest value; but their names probably were never heard of by the American bar. To the proverbially ephemeral character of legal fame, therefore, an added obscurity is afforded in the case of the Quebec judges.

The Superior Court of the Province is the high court of original civil jurisdiction; all cases of over one hundred dollars are instituted before it. It consists of thirty judges, ten of whom sit in Montreal, four in Quebec, the remainder being scattered over the Prov

ince in districts, and being summoned occasionally to sit in the cities for the purpose of assisting their brethren. The court has an appellate jurisdiction as well, and three judges of the court sit in revision of judgments at Quebec and Montreal every month. A chief justice and an acting or assistant chief justice are appointed by the Governor General in Council, one residing in Quebec, the other in Montreal.

On the death of the late Chief-Justice Sir Francis Johnson, a man of great ability and an accomplished French and English scholar, a wit, a bon vivant, and the hero of all the Canadian Joe Millers, Mr. Justice Tait, the subject of this sketch, was selected to succeed him; but, in accordance with practice, the then Acting Chief Justice, Sir L. N. Casault of Quebec, was promoted to be chief justice, and Mr. Justice Tait made acting chief justice of the court at Montreal.

Sir Melbourne Tait was born in 1842 at Melbourne, a picturesque village on the St. Francis River in the Eastern Townships of the Province. His father was a leading merchant of the place, warden of the county and a Justice of the Peace, and was also a captain in the Canadian militia.

The future chief justice was educated at St. Francis College, Richmond, P. Q., and in 1859 began the study of law in Montreal, entering the law faculty of McGill University, where he graduated B. C. L. in 1862. He was admitted to the bar of the Province of Quebec in the following year and, after practicing law for a short time in his native place, he entered into partnership, in Montreal, with the late Sir John Abbott, Q.C., M.P., then, and for many years, one of the leaders of the Canadian bar, and afterwards Prime Minister of Canada.

The firm of Abbott, Tait and Wotherspoon had probably the largest practice in the Province, and were standing counsel for a large number of corporations, including the Canadian Pacific Railway Company and

several leading banks. Mr. Abbott becoming engaged in railway enterprises and subsequently in political affairs, the management of the firm devolved largely on Mr. Tait and Mr. Wotherspoon. Mr. Tait conducted most of the court business of the firm, and the law reports of the Province show that he was leading counsel in many of the heaviest commercial cases tried in Canada. For a number of years he was treasurer of the Montreal bar. In 1882 he was appointed Queen's Counsel and in 1887 he was appointed a judge of the Superior Court, being made acting Chief Justice for the Montreal division in 1894. Sir Melbourne Tait is a D. C. L. of McGill University, Montreal, and of Bishop's College, Lennoxville.

Since his appointment to the bench, he has been an assiduous and painstaking judge and, especially since his nomination as acting chief justice, he has manifested a striking executive ability and the power of organizing his associates successfully. He is a prodigious worker, and has the faculty of inspiring others with a like zeal.

It would be foreign to the scope of this sketch to refer at any length to the cases decided by Judge Tait, but it may be stated that he has been fortunate enough to see a very considerable number of his most important decisions confirmed either by the Supreme Court of Canada or by the Judicial Committee of the Privy Council. To those interested in the subject, reference might be made to The Shefford Election case, 10 L. N. 403; Vipond v. Findlay, 7 M. L. R., S. C., 242; Sise v. Pullman's Palace Car Company, 1 Off. Reports, S. C. p. 9; Canada Paint Company v. William Johnson & Sons (ltd.), 4 Off. Reports, S. C. 253; Lambe v. Fortier, 5 Off. Reports, S. C. 47; Canada Revue v. Fabre, 8 Off. Reports, S. C. 195; Rendell v. Black Diamond Steamship Co., 10 Off. Reports, S. C. 257; Beach v. Corporation of Stanstead, 8 Off. Reports, S. C. 178; Montreal Water &

Power Company v. City of. Montreal, 10 Off. Reports 209, and many others.

The decisions of Sir Melbourne Tait are perspicuous, direct and to the point. He does not indulge in any sententious verbiage nor burden his judgments with jejune platitudes or unnecessary philosophical reflections, and his remarks are delivered in excellent judicial manner. He may possess, but never exercises, a somewhat favorite judicial art or artifice of shirking a difficult point and basing a decision on some minor question, not touched upon by counsel. His demeanor to the bar is excessively courteous and urbane, without in any manner lacking the dignity and repose which befit a magistrate. In his social life, the learned Judge is a great favorite. When at the bar, he was a member of a well-known Dramatic Society the Social and Dramatic Club of Montreal and has performed leading parts in its productions with éclat. He is a member of the St. James Club of Montreal, and a church warden of Christ Church Cathedral. He is also a governor of Bishop's College.

occasion of her Diamond Jubilee, was an extremely popular appointment, and the Judge received many felicitations on his honor, and was on September the 10th presented with a congratulatory address by the Bar of Montreal. Lady Tait is an American, a native of Rhode Island. Sir Melbourne has an interesting family, his eldest son, Mr. Thomas Tait being Eastern manager of the Canadian Pacific Railway Company.

In the prime of life, possessed of a vigorous and robust constitution, fond of his work and competent to do it, respected and implicitly trusted by the profession and the public, Sir Melbourne Tait's lot is indeed. an enviable one. But his freedom from the vanity and petulance which sometimes mar the judicial character, and withal, the unaf-. fected modesty of his nature, render it impossible for his successes to excite the lower forms of envy or to evoke other feelings than the belief that he thoroughly deserves. his good fortune and the hope that he may long be spared to perform the important duties he is so admirably qualified to dis

II.

When the judgment of the University came, it was clear and distinct: Joan's visions and "voices" were lies, either manufactured by herself, or proceeding from Satan, Belial or Behemoth; her story of the sign was a presumptuous, seductory and pernicious lie, derogatory to the Church; she was declared to be rash in her beliefs, guilty of superstitious divination and vain boasting, murderous, cruel, bloodthirsty, seditious, tyrannical, a blasphemer of God and his commandments and revelations, undutiful to her parents, and the maker of rash promises to her king; she was called a coward and would-be suicide in leaping from Beaurevoir; she was uncharitable, and spoke contrary to the true faith in her statements about her saintly visitants; an idolater, invoker of devils, unsound in the faith, a swearer of unlawful oaths, a blasphemer of God, a despiser of His sacraments, a transgressor of the Divine law, Holy Writ and canonical ordinances, a follower of the customs of the heathen and the Saracen (in wearing men's clothes), a schismatic, a misbeliever, a heretic. When such was the verdict, what doubt could there be as to the sentence? St. Paul had forbade short hair, Moses prohibited a woman wearing that which pertained unto a man, such thing being an abomination unto the Lord God; and the stern old Jew had also said that a stubborn and rebellious child, disobedient to parents, should be put to death (far down the ages in Connecticut and New Haven that grim sentence was reëchoed). According to the Canon Law, to attempt suicide was infamous, and a self-destroyer died in mortal sin and could no more enter Paradise than could Judas, surnamed Iscariot; it held out no hope of mercy inter pontem et fontem, inter gladium et jugulum. To invoke devils was

heresy; blasphemy then was punished by death, as it was in Scotland (unless a person was distracted in his wits), in Virginia, Maryland and New England, even in the seventeenth century. In the Middle Ages heresy was not merely a sin, but the worst of all crimes; the Old World had short and summary ways of dealing with heretics and schismatics for centuries after the sweet Maid was done to death, and the New World, when its day came, learned and practiced the same dread lesson. Such being the judgment, such the law, no hope was left for Joan.

Even after these decisions were read to Joan she refused to obey and submit herself to the Church. On the morning of May 24th, she was taken from her cell to the cemetery of St. Ouen for sentence and execution. The pile was ready for lighting; a sermon was preached exhorting her to repentance and submission; priests earnestly, persistently urged her to submit, but she would leave all to God and to our Holy Father the Pope. Nothing seemed able to alter her determination. Cauchon at last. began to read the sentence of condemnation which gave her over to the secular arm, that is, to death; then, to entreaties, promises and threats, the poor girl yielded and offered to submit; she suffered her hand to be guided in scratching the sign of the cross to the form of abjuration. tion. Cauchon then gladly pronounced another sentence, which he had ready with him, setting forth her crimes, her abjuration, her contrition and return to the bosom of the Church, her release from excommunication, her sentence to perpetual imprisonment on the bread of adversity and the water of affliction. Vainly she begged to be sent to an ecclesiastical prison. Back she had to go to the vile cell she had known so long, to the

rough soldiers who kept ward over her. In the afternoon she put on woman's apparel, and had her hair arranged in feminine style. Her male garments were left in her cell.

Most of the English in Rouen were furious at the idea that Joan had escaped them; they thought Cauchon had betrayed them. But the Bishop was playing a deep game with a sure hand.

What happened during the next two days to Joan is a secret that lies buried in her dungeon. Doubtless her brutal guards, enraged at her escape from the flames, abused her shamefully; some say they beat her, dragged her by the hair, offered violence to her, until she felt that her man's dress was her only safety; others, that her "voices" reproached her for her weakness in recanting; others say that Warwick had her clothes removed as she slept; suffice it that in two days she had put on again her old time tunic and cloak and leggings. In a couple of days Cauchon, with the vice-inquisitor, several assessors and the notaries, went to the prison to establish formally the fact of Joan's relapse. She said at first merely that she had taken the dress; then, that it was more suitable for her where she was, that she had never sworn not to resume it; faith had not been kept with her, she had not been suffered to hear mass, she had not been released from her chains; could she hear mass and be released, she would return to the woman's dress; but she would sooner die than remain as she was; her "voices" had been with her, those of St. Catherine and St. Margaret, they came from God, and she believed them. Rambling, incoherent, contradictory, were her statements, far different from her manner during her trial, evidence that her jailers had done their work well and broken her spirit.

Cauchon had been successful at last. Joan was a self-confessed relapsed, and the Church had nothing to do with her, save abandon her to the secular arm; so the judgment was on the 29th of May pronounced, "Relinquenda justitiae seculari." This meant death by

burning; the ecclesiastical tribunal could not shed blood, but they were as willing as the Jewish priests of old that others should do it for them. When the dread sentence was announced to her, she was at first overcome with terror, but soon grew calm, saying she would not have relapsed had she been in one of the Church prisons; then she put on her woman's dress, confessed, and received the sacrament.

The next morning she was drawn on a tumbril to the Old Market, clad in a long black gown, with a high paper mitre on her head covered with the words "Heretic, Relapsed, Apostate, Idolater." The inevitable sermon was preached at her, asserting that she had been found guilty of schism, idolatry and witchcraft; that she had not truly repented of them, but had returned to her evil ways like a dog to his vomit. The English soldiery, wearied with the sermon, became restless; in the confusion the Bailiff of Rouen, as representing the State, forgot to pass the sentence of death. Joan was delivered over to the executioners; on the scaffold on which she was placed was the superscription written, "Joan, called the Maid, liar, wrongdoer, deceiver of the people, witch, superstitious blasphemer of God, presumptuous unbeliever, braggart, idolater, cruel, lewd, sorceress, apostate, schismatic and heretic." She kissed the crucifix; the flames were kindled. In her mortal agony her heavenly visitants came to her again. She was heard to speak the name of St. Michael, and the last words on her lips were "Jesu, Jesu." When her garments were burned away, the executioner parted the burning wood so that all might see that she was indeed a woman. Her ashes were gathered together and tossed into the Seine.

Twenty-four years afterward her mother and brother petitioned the Pope for a new trial. The Pope issued a bull to the Archbishop of Rheims and others to reopen the The court sat in the splendid cathedral of Paris. The mother, weeping bitterly, told amid the shouts and cries of the sym

case.