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 LEGAL INTELLIGENCE. 
 
 Vt 
 
 r 
 
 In an article under the above written head, published in the 
 Chronicle of the 16th of January instant, in re Gugy va. 
 Brown, Chief Justice Dtivali is reported to have expressed 
 himself in the following language : — 
 
 ItBST Sbntenoe. — ^** The Appellant would not, I think, 
 ^' hav9 succeeded in his action even in the 'Jourts in France." 
 
 Second Sentence.-^" Domat. ^ho cit<5s the ordinance of 
 *^ 1539, says, that ordinance Lad gone almost out of use." 
 
 Tht^d Sentence. — ** It appears, however, to have been 
 « revived for vexatory actions, under the modem law of 
 France." 
 
 He opened in that manner. Those are his very words, 
 taken by a stenographer of ability— words which I heard and 
 naturally noted. That I may do him no injustice, I shall 
 submit to a discriminating public the meaning which I attach 
 to the foregoing words. 
 
 If.'* 
 
 His Honor speaks neither SngUsh nor French with ele- 
 gance, nor indeed always with propriety, but he probably 
 intended to convey the meaning which the readers of this 
 note will gather from the underwritten words. 
 
 " In my opinion the Appellant (Gugy) would not have 
 " succeeded even in France, for the ordinance of 1539 had 
 << (according to DomiSt^aiiDbftt^lenw^ *r 
 
 57785 
 
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 " It appears, however, under Uie modem law of France, to 
 ** have been revived for vexatious actions." 
 
 The word "vexatory" is not English, and, for obvious 
 reasons, I am unwilling on this occasion to use the words 
 << gone almost out of use." 
 
 But applying my faculties to the subject, and hoping that 
 the reader will tbllow me, I venture to say that I understand 
 the Chief Justice to have given bis opinion and the grounds of 
 his opinion. It is as if he had said, '^ The Appellant would 
 '< not have succeeded in France because thjd ordinfinpe had 
 '< almost fallen into disuse." 
 
 Here, then, appealing to every lawyer, to every man of 
 sound judgment and common sense, I would enquire whether 
 the word '^ almost " does not so far qualify the sentence as 
 to prove the Chief Justice to have assigned an insufficient 
 reason, to have proclaimed j&om the Bench a non sequitur. 
 It may, it is true, be proper to refrain from enforcing a 
 law fallen entirely into disuse. Admitting, in favor of 
 the Chief Justice, that proposition, I maintain that a law may 
 be sud to have ^' gone almost out of use," not because it is 
 a bad law, but, on the contrary, because it is so good a law 
 that it has not for n long time been violated, or that trans- 
 gressors have been few and far between. Thus the law pre- 
 scribmg the double sleigh^ which was an excellent law in 
 winter, but a dead letter in summer, might be said every 
 autimm to have *^ almost gone out of use." Would that justify 
 the refusal of the Chief Justice on fitting occasion to enforce 
 it? 
 
 Taldng, ibr example's sake, the city of New Yoik, I submit 
 that thete:tlie.t^d^,pi:efis.*i' eijUha^l^Q gallows and hang- 
 
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 " man have gone almost out of use,** or in equally elegant phra- 
 seology, that " hanging for murder is playe^ out ! " This 
 statement is assuredly better proved than that of Bomat, a 
 single witness. Now, one would like to know the opinion of 
 the Chief Justice upon this most imnortant fact. Punishment 
 for crime, an institution as old as man, is in abeyance. Does 
 the Chief Justice approve of that condition of society? Does 
 it, in his opinion, conduce to the safety of person and pro- 
 perty, and to the well-being of the citizens ? Were an 
 attempt made to revive it and to hang for murder, would ho 
 sneer? Is the habitual recourse to the revolver, begotten 
 there by judicial corruption, a preferable mode of obtaining 
 lustice? , ,, •.--.. 
 
 Again, adverting to the merits of the question, and holding 
 with the Chief Justice that my action was founded on the 
 ordinance of 1539, whereof I submit a translation in a note, 
 I allege that His Honor hm quite overlooked the question of 
 time, an important element. 
 
 He himself draws a distinction between the period at which 
 Domat wrote and modern times. He says or *' thinks " that 
 I would not have succeeded in France because the ordinance 
 " nad gone almost out of use," and his quo+^^ation of Domat 
 fixes the period. But with more sincerity than discretion ho 
 adds that the ordinance has " been revived *' for what he calls 
 " vexatory " actions in the modern law of France. '' 
 
 Now, it seems to me, upon Ms own showing, (for I will not 
 travel out of the record) upon Ms own showing, I say, to fol- 
 low, that although I might have failed 100 years ago when 
 Domat wrote, I should succeed now. This is, in my view of 
 the case, all the more plain, because oppression under color 
 
 * 
 
'W^ 
 
 
 of law, because the grinding of the poor by the rich,becanse 
 the curse of usury and its attendant horrors, of all which I 
 have, during now twenty years, been the victim, may after . 
 Domat's time have increased so fiightfully as to necessitate 
 the reyiyal of the ordinance ; and its revival would produce 
 no effect unless it were enforced. 
 
 As a reason for its application here, I would refer to a well 
 known fact. France is peopled by a homogeneous popu- 
 lation, professing one religion, speaking one language, and the 
 influence of more or less of charity, of sympathy, must be felt 
 in every circle. Our society is composed, on the contrary, of 
 heterogeneous materials. We have English, Scotch, Welsh, 
 Irish, many German, French, and Yankee immigrants, 
 contending in the same walks of life with natives of French 
 descent and of English descent, and veiy prodigally manifest- . 
 ing their dislike or their contempt for both. Kow, I am 
 simply a native Canadian, and Brown, my enemy and my , 
 neighbor, whose property would certainly be very nicely 
 rounded off " by mine ** if he could get it, is a recentiy im- 
 ported European. A single fact will prove how utterly devoid 
 of charity he has been in his intercourse with me. 
 
 In the case in question he his admitted, and eleven judg^ , 
 ments pronounced in actions brought hy himself against me . 
 prove, that I am the proprietor of the ground which he covets ^ 
 as Ahab coveted Naboth's vineyard, and which he has smce .. 
 September 1852 been attempting to wrest from me. Among 
 other means to effect his purpose, he has resorted to the buy. 
 ing up of my debts — a fact which he has admitted on oath, ^u. 
 But that is not all. I have proved, to the evident conviction = 5;.. ^ 
 of the ,Jpfyj,,that ^declftyed, should he die before he effe<?te4,^^(' 
 
P!WW|PVjlPj^,^^^3?aBaBtB*PiR'= 
 
 his purpose, he would hj his will impose upon lus heirs and 
 legatees the datj of continuing the litigation until they suc- 
 ceeded in wresting from me my property ! This is a fact, and 
 I confess that, startled, alarmed hy the possible fate of my 
 descendants, I resolved to anticipate the posthumous war with 
 which they were threatened. 
 
 Judges Duva)., Badgly, Meredith and Stuart, it is true, 
 are against me ; but I trust in God and in trial by Jury. 
 Impoverished as I have been by this litigation, I may not 
 immediately have the means of paying for the publication of 
 such notice of them as each may deserve ; but it is perfectly 
 plam that every man in this community may be treated by 
 them as I have been. 
 
 Reverting to Chief Justice Duval, of whose manner of 
 dealing with the most important questions I have given a 
 sample, I will only add that his whole allocution on that 
 occasion, as on every occasion upon which I have been present, 
 has been quite equal to the foregoing sample. 
 
 In open court, except at a price which no father, the sole 
 stay of a young family, can afford to pay, it is impossible to 
 resist judicial arrogance, to expose and pumsh judicial inca- 
 pacity or unfitness. But I may here safely inform the Chief 
 Justice that whether the ordinance had at any time '^ gone 
 almost out of use'' in France is of no kind of importance, 
 nor is what *' Domat says " on the subject worth noting, 
 though the " reviving '^ of the ordinance for actions such as 
 mine certainly militates in my favor. For the information of 
 the Cluef Justice, however, I submit that my success de- 
 pended upon the fact that, on the 13th September 1759, on 
 the day of the capitulation which followed, at the time of tho 
 
 * !■ 
 
e 
 
 treaty by which Canada was coded to Great Britain, the 
 ordinance was most certainly in force. This is fully settled 
 by the judgment pronounced by his own court in this very 
 cause, upon the 29th of June 1865. Now, although the 
 Chief Justice, availing himself of his position, may safely treat 
 such a man as I am in a characteristically o£fensive manner, 
 he might evince some show of respect for the tribunal of 
 which he is the organ. Nor shall I affect to conceal my 
 indignation and disgust that after such a decision, and after 
 six years of litigation, after a trial by jury which lasted 24 
 days, after tho examination of 81 witnesses and countless 
 documents, and after from $2000 to $3000 of costs had been 
 incurred, the Chief Justice should set about sustaining, and 
 by such language, an imaginary demurrer, the ofispring of his 
 own bram, certainly not suggested by the able counsel who 
 appeared at the Bar on behalf of my adversary. 
 Verily the death of Chief Justice Lafontaine, like that of 
 
 Caligula, was followed by strange results. u <:n 
 
 , ri, i;-,^n: A. GUGY. ),i 
 Quebec, 22nd January, 1872. 
 
 P.S. — ^Fearing that my impecuniosity may long continue, 
 I desire that the public will notice how continually the Judges, 
 the very Judges, differ. Now, they can't be all right, and it 
 seems to me that those who use jefune language, who can 
 neither group the facts nor draw just conclusions, nor apply 
 the law, are very probably persons who occupy positions for 
 wluch they are not qualified. On that ground alone a little 
 criticism, some gentle castigation, may have its use. But 
 let the contrast be noted. A Judge by a wrong decision 
 entails upon a family (includmg unborn generations) all the 
 
horrors of destitution. But you must refrain from ascribing 
 bad motives. You must be respectful, deferential. You must 
 profess, indeed (to avoid evil consequences), you must profess 
 great admiration for him, and ** lick the hand that sheds 
 your blood." 
 
 The underwritten extract from Domat may, with advan- 
 tage as a test of judicial capacity, be compared with the 
 words of the Chief Justice : — 
 
 '^ Among all the causes in which a condemnation to pay 
 ** d&mages may originate, there are but few of such frequent 
 *< occurrence as the injustice of those, who, by undertaking 
 " and supporting unjust lawsuits, entail upon their adversaries 
 " not merely an expenditure which a judgment for costs 
 '' seldom makes good, but other evils of which such lawsuits 
 " are the sole cause. For example, the loss of time, especially 
 " for those who cannot live without labor, and several other 
 '^ results of the injustice and of the chicane of evil-disposed 
 '^ litigants. In such cases, when the vexation is such as to 
 " cause damage, it is very just that the wrongdoer should be 
 '^ condemned to make compensation. And though this rule 
 '^ is so seldom enforced that it seems as if it had been abolished, 
 "yet, inasmuch as it is founded in equity as it is a principle of 
 " natural law, and inasmuch as it has been re-enacted by the ordi- 
 " nancesj it is the duty of the Judges to enforce the rule whenever 
 *' the injustice, the chicane, the vexation have been such as to call 
 " for repression." 
 
 N.B. — I have the audacity to express my unqualified 
 regret that the lines which are hereinabove italicised should 
 have escaped the acumen of the Chief Justice. J 
 
 i ? A. G. 
 
 
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