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Lorsque Ie document est trop grand pour dtre reproduit en un seul cliche, 11 est film6 d partir de Tangle supirieur gauche, de gauche d droite, et de haut en bas, en prenant Ie nombre d'images nicessaire. Les diagrammes suivants illustrent la m6thode. by errata led to ant jne pelure, a^on d 1 2 3 32X 1 2 3 4 5 6 ,t. ■'^^m CANADA I PUBLIC ARCHIVES ARCHIVES PUBLIQUES *• .=: AAjibMbli A LECTURE OK THE LAW OF LOWER CANADA. DELIVERED BEFOBE. THE MBACANTILE LIBftAAT ASSOCaATION OP MONTKBAL ON TBE S7Ta JANUART, 1846. BT EDWARD LEWIS M0NTIZA?IBERT, ADVOdA^TiS, LAW CLBBK 0|F THE HONOBABE.B THB JJEQiaULIVm OOtfHOII. OS" CANADA. MONTREAL: PRINTED BY LdVBI.L AMD GIBSON, 8AINT NICHOLAS STREET. 1848. WIMPiPIPf¥iP(f¥¥HPlf> mMn«rvvvi^«¥«< !¥¥¥¥¥y' ,?! >imk'n''''^i'k-t s - -^i' JMl^liiii' '. '^i«:i.^it^fe!^.^^fc.X8^A w^^^wU^ /. - '»vt':ti '^m-^^ i%a^! x,W>jf ■?, v^lr*^^-V-i'i ^'•^"■■■''*.A:^.i.-: A LECTURE ON THE MERCANTILE LAW or LOWER CANADA. DELIVERED BEFORE THE MERCANTILE LIBRARY ASSOCIATION OF MONTREAL ON THE 27th JANUARY, 1848. BT EDWARD LEWIS MONTIZAMBERT, ADVOCATE, LAW CLERK OF THE HONORABLE THE LEGISLATIVE COUNCIL OP CANADA. •'A Sp \'C^< MONTREAL: FEINTED BY LOVELL AND GIBSON, SAINT NICHOLAS STREET. 1848. Entered, according to Act of the Provincial Legislature, in the year 1848, Bt Edwabd Lewis Momtizambebt, In the Office of the Registrar of the Province of Canada. ^:. A LECTURE 0.1 THB MERCANTILE LAW OF LOWER CANADA. 1 HE choice of a subject having been kindly left to me when 1 was honored with an invitation to deliver a lecture before this Association, 1 have selected that of " The Mercantile Law of Lower Canada." To prejudiced or unreflecting persons, involving all legal topics in one indiscriminate condemnation, as dry, barren and unin- teresting, it may seem that such a subject is but ill calculated for a popular lecture, and that it must be next to impossible to treat it in such a way as to render it acceptable to any but a profes- sional audience. And indeed I should hesitate myself to broach it on the present occasion, if it were not for the '*e luliar attractions it must be supposed to possess for the Membt. s of this Association from its intimate connection with their own daily and hourly pursuits ; although I am fully convinced that many branches of legal learn- ing are highly calculated to interest the general student — and perhaps none more so than those which relate to commercial transactions. Next to the study of Religion, that of the science of Law or Jurisprudence is undoubtedly the most exalted and interesting 4 LECTURE ON THE MERCANTILE LAW tliiil can t'iij^ii{,'e the attention ol' tlic human mintl. Its dignity and importance iiave been asserted, both in ancient and modern times, by men of tlie highest order of intellect; and I hojie I may be excused lor citing the testimony ol" a few w riters of this class in our own language, in refutation of the too coninionly receiveij notion that Law is but an art, and not even entitled to a high place as such. ^ " The science of jurisprudence," says that eloquent and high- ly-gifted philosopher and statesman, Edmund Burke (^), " the pride of the human intellect, vvhich with all its defects, redundan- cies and errors, is the collected wisdom of ages, eondjining the principles of original justice with the infmite variety (»f human concerns." " There is not, in my opinion," says Sir James Mackintosh C-^), *' in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence, wheic we may contemplate the cautious and unwearied exertions of a suc- cession of wise men through a long course of ages, withdrawing every case as it arises, from the dangerous power of discretion, and subjecting it to inflexible rules, extending the dominion of justice and reason, and gradually contracting within the narrowest pos- sible limits the domain of brutal force and of arbitrary w ill." Even the learned and dogmatical Dr. Johnson has condescend- ed to admit, with less than his usual pedantic circumlocution, that " Law is the science in which the greatest i)owers of under- standing are applied to the greatest number of facts." And Sir William Jones, whose fine intellect and vast acquire- ments would entitle his opinion to respect, even if he had not been an enlightened jurist as well as a profound and varied scholar, spoke of the legal science as being " entitled to claim an exalted rank in the Empire of Reason." The science of Law or Jurisprudence, for which so exalted a rank is here claimed, admits of many divisions and subdivisions. For instance, it is divisible into what may be called, for want of a more appropriate name, International Jurisprudence, or the (1) Works, 4o. vol. 3, p. 134. (^) Discourse on the study of the Law of Nature and of Nations, p. 77. OF LOWER CANADA. science of those rules which jjoveni tlie intercourse of civilized conimmiities, commonly called the Law of Nations, — and what may he called Municipal Jurisprudence, or the science of those rules which regulate the conduct of the indiv iduals of which com- munities are composed, in their relations to each other and to the individual members of other communities, connnonly called the Municipal Law. From the necessary absence, not only of any tribunal to which dilTerenccs between nations can be referred, but also of any earthly power competent to frame rules for their guidance in their relations with each other, It is obvious that the law of nations must rest entirely on generally received principles of justice and natural equity: but the nuinicipal law may be com- posed in whole or in part of positive rules — and it is therefore su8cci)tible of division into two branches, one of which will em- brace all its conventional or positive rules, and the other all those principles of good faith, reason and convenience, to which Judges must resort for the decision of questions not provided for by those rules. The study of the former, that is to say, of conventional rules or positive law, I will admit to be tiresome and uninteresting in the last degree. Even the most zealous and enthusiastic student must turn at times in despair from the effort to fix in his memory the endless details of minute regulations, for the observance of which no better or other reason can in many instances be given than that " so the law is written." The only alleviation of the monotony of his dreary journey is experienced when he has advanced to either or both of what Lord Bolingbroke calls the vantage grounds of Philosophy and History — when he has it in his power to take a broad survey of the desert he has passed — to generalize a multitude of details, and extract from them those leading principles of which the abstract reasons may be studied by the light of metaphysical knowledge — or to trace the succes- sive additions and modifications to which the manners, customs, and received opinions of different ages have given rise, and mark how history illustrates law and law illustrates history. But it is otherwise with respect to the remaining branch of municipal law, — the foundation of which is not mere will, nor even 6 LECTUUE ON THE MERCANTILE LAW cxpeilicncy or necessity, but rij^ht, and reason, and good sense, and the immutable rules of justice and equity. No man of a well regulated mind can fail to derive a degree of pleasure from the study of such parts of any system of laws as rest entirely or chiefly on these foundations. The application of admitted prin- ciples of natural equity to tiic solution of the complicated ques- tions arising out of the business and concerns of daily life, must be interesting to all who can feel the force of such principles and judge of their apj)licability. The less technical, therefore, and the more directly referable to natural principles is any branch of law, the greater will be its interest for those who have not made a study of the science. Now, if there be one branch of municipal law more free from artificial subtleties or even positive rules, and more generally conformable to the standard of reason and equity than any other, it is certainly that which regulates the transactions of the com- mercial world. I say the commercial world, and I say it advisedly — because, from the ubiquity of commerce and the intimate relations it pro- duces between the citizens of diflfercnt countries, there is a cha- racter of universality about the " Law Merchant," which has caused it to be, not inaptly, termed a portion of the law of nations. But it is also, as I have already said, part and parcel of the municipal law of every commercial country — so that the prin- cipal subject of inquiry as to any given system of Mercantile Law will naturally be how far it has been made to vary from the general standard by the operation of local usages, decisions or enactments — how far, to borrow Lord Bacon's beautiful meta- phor, these streams from the fountain of natural justice have taken tinctures and tastes from the soils through which they have run. It is with reference, chiefly, to these questions, that I propose to give a slight sketch of our mercantile law — not wearying you with more details than may be absolutely necessary to trace its history or to illustrate my meaning while delineating its broad outlines and general features, and vindicating its character for conformity to the principles of universal jurisprudence. OP LOWER CANADA. In the course of this sketch I hope I shall succeed in shewing tiiat certain strong prejudices entertained against tliis branch of our law, on diametrically opposite grounds, are as unfounded as they arc inconsistent with each other. I allude, on the one hand, to those persons who object to it on account of its origin, which they hastily assume to be exclusively French, and its consequent, supposed, incongeniality to British commercial transactions — and on the other hand, to those who look at it with a jealous eye as a portion of the English law, gradually introduced hero in violation of privileges solemnly guaranteed to the descendents of the old inhabitants. I commence by inviting your attention to the provision in the Imperial Statute of 1774 (14 G. 3, c. 83), commonly called the Quebec Act, to the effect that in all matters of controversy rela- tive to property and civil rights, resort should be had to the laws of Canada for the decision of the same — and that all causes that should be instituted in any Courts of Justice here should with respect to such property and rights be determined agreeably to the said laws and customs of Canada, until they should be varied or altered by the local Legislature. Now these laws and customs of Canada consisted : 1st. Of the Custom of Paris, to which all the old French Colonies were sub- ject ; 2nd. Of the Edicts and Ordinances of the French Kings promulgated before the establishment of the Sovereign Council of Quebec, in 1663 ; 3rd. Of such subsequent ones as had been registered by that body, together with its own enactments ; and lastly, In the silence of all these, of the rules of the Roman Law, called by way of distinction the Civil Law, which prevailed in such cases, according to some with the force of law, or according to others with the authority of written reason only. No Edicts or Ordinances on the subject of commerce were registered by the Sovereign Council of Quebec ; and the only one of the kind extant at the time of its erection was an Edict of Charles the Ninth, promulgated in November, 1563. It is true that the celebrated Ordonnance du Commerce^ enacted by Louis the Fourteenth in 1673, was at one time held to be in force in Canada. Indeed, there are preserved among the archives of the Sovereign Council itself, — which was a Court of Appeal as 8 LECTURE ON THE MERCANTILE LAW well as a legislative body, — judgments expressly founded ou that Ordinance; but it was never registered by the Superior Council, and has never been considered in force since the cession of the country. It has been said also, that the no less celebrated Ordonnance de la Marine, mvAe by the same Monarch in 1681, was received as law in the Court of Admiralty, under the French Government of Canada. " But admitting this to be the fact, and that it was even enregistered in the Sovereign Council of Quebec," said Chief Justice Sewell, in giving judgment in the case of Baldwin vs. Gibbon, in the Court of Queen's Bench at Quebec in 1813, — " it is clear that it formed no part of the Common Law of Canada, and that it must have been received in the Admiralty as a part of the public law, in which case it was superseded, as well by the tacit effect of the conquest as by the introduction of the Admi- ralty jurisdiction of England, by the King's Commission of Vice Admiral to Governor Murray, in 1764, and the subsequent estab- lishment of the Court of Vice Admiralty (*)." So that we are fairly warranted in assuming that with the exception of a few Articles of the Custom of Paris, no positive laws on the subject of commerce were revived by the clause of the Quebec Act already cited. In fact, it was only under the administration of the great Col- bert, who became Prime Minister to Louis the Fourteenth on the death of Cardinal Mazarin in 1661, that commerce and manufac- tures began to flourish to any considerable extent in France ; and we have already seen that the establishment of an independent Legislature in Canada followed close upon that event, and preceded by many years the enactment of the Ordinances, constituting a complete code of naval and commercial jurisprudence, compiled under the auspices of that distinguished statesman. As the Sovereign Council did not register either of these, it is not to be wondered at that it abstained from any acts of legisla- tion of a general nature on the subject of commerce. The Edict of Charles the Ninth, of 1563, merely provided for the annual election by the Merchants of Paris, from among their (>) Stuart's Reports, p. 74. OP LOWER CANADA. 9 own number, of a Judge and four Consuls, who were to hear and decide in a summary manner all questions of a mercantile nature between merchants — and that without appeal unless the amount in dispute should exceed five hundred livres (a considerable sum in those days) : it forbade the employment of either Counsel or Attorney, requiring the parties to appear in person before these courts — whose mode of proceeding it pointed out with precision ; and it fixed the rate of interest in judgments against merchants at 8J per cent. Similar commercial tribunals were from time to time erected in other cities in France, until they became so numerous that it was mentioned as an extreme case for the inhabitants of any city to have none within fifty or sixty miles of them. There were nearly seventy of these jurisdictions in existence when the Revolution broke out (i). But they were never established in Canada, so that the Edict is of authority here only in an indirect way, as I shall have occa- sion to shew presently. The fact is there was but little trade here in the time of the French Government, and that little was chiefly monopolized by public companies. But even if the commerce of the countiy had been ever so extensive, and the controversies arising from it ever so frequent, these would for the most part have been decided upon purely equitable grounds and without reference to legal subtleties — for not only is the French law, derived in a great measure from the Roman, peculiarly equitable in its nature (so much so that wherever it obtains the distinction between courts of law and courts of equity is unknown) but the French com- mercial tribunals were even dispensed from the observation of any legal rules whatever. " II ne favit done pas," says Serpil- lon (2), " exiger des Juge-Consuls une observation des regies de droit ; la bonne foi qui est la plus grande regie du commerce doit etre celle des Juges qui en ont la connaissance ; ils doivent plutot suivre I'equite que les subtilites du droit qui leur sont inconnues ; c'est le motif de I'Edit de leur etablissement." On referring to the Edict itself we find this to be really the (•) Nouveau Denizart, vol. 5, pp. 354, 357. (") Code Civil, p. 234. B 10 LECTURE ON THE MERCANTILE LAW I C 1] n ti tl case, the preamble setting forth that it was enacted " sur la requetc ct remontrance j\ nous faites en notre Consell de la part des Marchands dc notre bonne ville de Paris, et pour le bien public et abbreviation de tons proces et diffurends entre Mar- chands qui doivent negocier ensemble de bonne foi, sans etre astreints aux subtilitez des Loix et Ordonnances." It was with reference to evidence particularly that this latitude was allowed to the Juge-Consuls. The Ordinance of Charles the Ninth, of February, 1566, com- monly called the " Ordinance of Moulins," required proof to be made by iiotarial deed of all matters exceeding one hundred livres — but the Juge-Consuls were countenanced by the superior courts in their practice of receiving proof by witnesses even in such cases — and their exemption from obeying this rule was indi- rectly confirmed by the Ordinance of Louis the Fourteenth, of 1667, which was registered by the Sovereign Council of Quebec, and now forms a part of our law. Pigeau tells us, that in cities where there were no consular jurisdictions, commercial cases were to be tried and decided by the ordinary tribunals in the same way as they would have been by the Juge-Consuls if there had been any (i). And the same rule is observed in France under the modern code. Pardessus says — " Partout oii il n'y a pas de tribunal de Commerce le tri- bunal Civil en fait les fonctions, et se conforme k toutes les regies de la legislation commerciale (2)." The usage and custom of Merchants was also admitted in France, and would no doubt have been admitted in Canada as a fair and legitimate ground of decision in such cases {^). Indeed, Pardessus refers to a minute of the French Council of State, to the effect that the commercial tribunals, which still exist in that country, should decide according to their convictions, and in conformity with the letter and spirit of the Code de Com- merccj and, in its silence, according to the Common Law and the usage and custom of Merchants (^) — and he accordingly recog- (>) Procedure Civile, vol. 1, p. 88. (*) Cours de Droit Commercial, vol. 6, p. .5. (^) Journal du Palais, vol. 1, p. 242. (♦) Cours de Droit Commercial, vol. 1, p. 2. w inacted " sur la onseil de la part et pour le bien 3nds entre Mar- ie foi, sans etre that this latitude uary, 1566, com- lired proof to be ng one hundred 1 by the superior ntnesses even in his rule was indi- iie Fourteenth, of ouncil of Quebec, were no consular I and decided by would have been And the same code. Pardessus Commerce le tri- i\ toutes les regies also admitted in sd in Canada as a ases (3). French Council of lunals, which still ) their convictions, the Code de Com- mon Law and the accordingly recog- OP LOWER CANADA. n nizes three sources of commercial law, viz : the Code, the com- mon law, and commercial usage. Here then are several things worthy of observation with refe- rence to this part of our subject. First, That for two centuries preceding the cession of Canada there had existed in France tribunals composed of persons engaged in trade, who decided all *[uestions of a commercial nature in a summary and equitable manner, and according to the usage and custom of merchants, without being held to the observance of the strict rules of law. Second, That such cases were to be decided in the same manner by the ordinary tribunals in places where these special tribunals did not exist, as for instance in Canada. Third, .That during the ventury immediately preceding the cession of Canada, no im- provements effected in the laws of the mother country on the subject of commerce extended to Canada or were adopted here. Fourth, That during the greatest part of that century, viz : from 1673 to 1763, old France had a complete code of positive law on this subject. Fifth and last, That the Canadian courts founded their decisions on this code, which, however, was not legally in fttrce here— so that those decisions cannot now be referred to as precedents. The Roman or Civil Law, then, so equitable in its whole spirit, and so admirable in its rules respecting personal contracts, whe- ther express or implied, together with the treatises and commen- taries of French writers on these different rules, incorporated as Ihcy were for the most part into the common law of France, and the usage and custom of merchants, were the chief sources of the mercantile portions of the laws and customs of Canada in 1774, Conspicuous among these writers stands M, Pothier, Professor of French Law in the University of Orleans, from whose works the greater portion of the modern civil code of France has been taken — his very language having been adopted in many in- stances. Although he wrote at a time (from 1761 to 1772) when the legal reforms of a whole century had separated the law of Canada from that of France, his opinions are founded to so great an extent on general principles and the profound legal wisdom of the Roman Digest, that they are implicitly followed in the deci- sion of every question arising in our courts on which they cam 12 LECTURE ON THE MERCANTILE LAW be brought to bear in any way whatever. He is, in fact, tlie oracle par excellence of tlie civil and commercial law of Lower Canada. Before proceeding to give an account of the alterations elTected by local legislation in the mercantile law of Lower Canada, as above described — the tendency of which alterations has been to assimilate it in many respects to that of England, it will be well to take a cursory view of the origin and history of the latter system also. If we find it to be of ancient date, composed entirely or in a great measure of positive rules, and drawn from sources peculiar to itself, we may pronounce at once that its introduction here could only be effected by legislative enactments, and would be productive of great derangement and inconvenience to the rest of our system : but if, on the contrary, we find it to be of compa- ratively modern growth, and to be chiefly founded on principles and drawn from sources similar to those of our own civil and mercantile jurisprudence, we may safely infer that most of its doctrines and rules will harmonise with those of the latter, and may be freely incorporated into it even without the aid of the legislature. The facts of this case are so well known and so little contro- verted, that it would be easy for me to condense them into one general statement, for the truth of which my own assertion would no doubt be taken as a sufficient guarantee ; but I prefer to quote the very words of persons who have written on the subject, with- out bias, and without reference to the use we are about to make of their statements. In the first place, then, I avail myself of the testimony of the late John William Smith, in the introductory remarks on the origin, history and importance of that branch of English juris- prudence, prefixed to his valuable Compendium of Mercantile Law : " As the mercantile law of England concerns a great variety of interests and pos- sessions, so it '\i derived from a variety of sources and authorities. In ascertaining the legal rights arising out of commercial transactions, it frequently becomes ne- cessary to have recourse to the volumes of international law, frequently to the con- temporaneous laws of foreign nations. So far as it affects title to lands, it depends npon those feudal institutions from which the rules, that, in our country, govern i % OP LOWER CANADA. 18 is, ill fact, the law of Lower ations effected er Canada, as s has been to it will be well y of the latter ntirely or in a ources peculiar roduction here and would be ice to the rest be of compa- d on principles own civil and lat most of its the latter, and the aid of the little contro- them into one ssertion would prefer to quote subject, with- about to make itimony of the imarks on the English juris- of Mercantile interests and pos- . In ascertaining lentiy becomes ne- uently to the con- lands, it depends ur country, govern such property, originate. It is deducible in groat purt from the imperial code of Rome, in great part from the different maritime codes of ancient Europe, and all these, its components, while they arc interspersed and qualified by a multiplicity of statutory enactments, are explained, blended, and applied, and the cases for which they have omitted to provide are solved, by the decisions of our English Courts of law and equity. " Numerous, however, as are its subsidiaries, it is to the maritime and the imperial laws that it is most largely indebted. Personal property is the chief object of com- merce; with that kind of property, therefore, is the mercantile law chiefly conver- sant. Now the English law, so far as it concerns that branch of property, is deducible in great part from the laws of Home. Our ancient jurists, devoted, almost altogether, to the explanation of the feudal system and its consequences to the tenure of real property, seldom discuss the nature of what they considered a far inferior species of possession ; and, whenever they do touoh upon personal pro- jjcrt}', adopt almost verbatim the doctrines and language of the civilians. The fact is, that when commerce and commercial property began, during the reigns of John and his son Henry the Third, to attract some little attention (as we may gather from the famous stipulation in Magna Charta, in favour of foreign merchants, and the enactment of the Statute de Mercatoribus a few years afterwards for the secu- rity of trading debts,) questions respecting trade and personal property began more frequently to intrude themselves upon the notice of the judges, who, finding that those principles of feudal law which had been the main object of their previous study were often wholly insufficient to meet the exigences of these new cases, were glad to have recourse to the already mature system exhibited in the compilations of Justinian, which had been discovered about a centurj^ before, a system which must have appeared the more applicable to personal property, as it had been adopt- ed by the ecclesiastical authorities to whom the administration of such property, after its owner's death, was already intrusted. Thus it came to pass, that the imperial law, which, at this very time, was so indignantly repelled from any inter- ference with the landed interest of the Kingdom, was adopted as the governing principle of a description of property destined ultimately to compete in importance with the landed interest itself. " The maritime law, to which our courts are so considerably indebted, is a system, or rather a collection of systems, which grew up in Europe upon the revival of commerce after the dark ages. Some parts of it are indeed of far greater antiquity, being confessedly derived from a Greek origin, particularly from the celebrated law of Rhodes, the masterpiece of ancient jurisprudence. " It would be wrong to quit this part of the subject without mentioning the most perfect of all foreign ordinances, that of Louis the Fourteenth, " composed," to use the words of the ablest English writer on commercial law, " in the reign of a poli- tic prince, under the auspices of a wise and enlightened minister, by laborious and learned persons, who selected the most valuable principles of all the maritime lavrs then existing; and which, in its matter, method and style, is one of the most finished acts of legislation that ever was promulgated. " These various systems of commercial law have been discussed, improved, and illustrated by several extremely able writers. The names of Valin, Fothier, and Emerigon, are familiar to every English as well as every foreign lawyer. It was 14 LECTURE ON THE MERCANTILE LAW not till lately that our own country could boast of any names fit to compete with those of the continental jurists; that of Molloy could scarce be cited in answer to this reproach, which is now, however, completely effaced by the industry and ability of many valuable writers, at the head of whom may be placed Lord Tenter- den, Mr. Justice Park, and Sir John Bayley. America too, whose authors, resem- bling us as she does in laws and language, may be fairly reckoned with our own. has, of late, contributed much to the elucidation and improvement of commercial Jaw. And it would be unpardonable in me while touching, howevt^r cursorily, upon this topic, to omit the mention of Chancellor Kent and Judge Story. " Fortunately for the prosperity of this country, our tribunals, when they first began to direct their serious attention towards commercial subjects, found that the customs which had, by long acceptation, ripened into law, whether originally taken from the sources above pointed out, or devised, as many of them doubtless were, by the good sense of the people themselves, were all extremely reasonable; and they were consequently enabled, without deviating from that analogy to old rules which they were bound to preserve while promulgating new ones, to build up, on the foundation which had thus been laid, a system under which England has ar- rived at her present unexampled height of commercial prosperity. " Much was now done for commerce, not merely by the legislature, but by the eourts, which were now filled with learned and liberal minded men, anxious to apply the law so as to meet the exigences of the subject. Among these stands pre-eminent the Lord Chief Justice Holt, whose name no English lawyer ought ever to pronounce without great veneration. He was a man of profound learning and unflinching integrity, and he possessed a fund of strong natural good sense which rendered him peculiarly capable of dealing with commercial questions, many valuable decisions on which are referable to his time. Indeed, I have no hesitation in saying that Lonl Holt alone accomplished more for English mercantile law than the whole body of the English judges prior to his elevation. Those who desire to estimate 'lis powers of mind and mode of dealing with important legal questions, will do well to peruse his celebrated judgment in Coggs vs. Barnard, Lord Ray- mond, 909, in which, availing himself of his acquaintance with the civil law, he settled the law relative to bailments on its present footing. " At last — a great epoch in our commercial history — the Court of King's Bench was presided over by Lord Mansfield. " The character and qualities of this great man were singularly well adapted to the work he felt himself called on to achieve, that of communicating form and symme- try to the then rude and shapeless mass of our commercial law. Sprung from a noble family, he had enjoyed an education suited to his birth. He was versed not only in the laws and history of his own country, but in those celebrated writings which constitute the noblest monuments of ancient greatness. To these he could recur as guides in doubt, and models of arrangement, from these he learned to regard law as n science, to be expanded by ti*." development of principles, not merely amplified by the accumulation of precedents. He was imbued too with a taste for polite literature, and this he turned to its true use, not to efface or super- sede his graver studies, but to embellish their results with the graces of clear, -appropriate, and energetic language. E LAW OF LOWER CANADA. 15 mines fit to compete with arce be cited in answer to ced by the induatry and ly be placed Lord Tcnter- 00, whose authors, resem- y reckoned with our own. provenient of commercial J, howev(;r cursorily, upon idge Story. ribunals, when they first 1 subjects, found that the whether originally taken ' of them doubtless were, itremely reasonable; and hat analogy to old rules cw ones, to build up, on r wliich England has ar- sperity. e legislature, but by the minded men, anxious to 3t. Amon« these stands 10 English lawyer ought lan of profound learning ong natural good sense imercial questions, many eed, I have no hesitation lish mercantile law than Those who desire to portant legal questions, vs. Barnard, Lord Ray- with the civil law, he Court of King's Bench arly well adapted to the ating form and symme- il law. Sprung from a th. He was versed not )se celebrated writings 5SS. To these he could n these he learned to ment of principles, not was imbued too with a not to efi^uce or super- I the graces of clear. " It is needless to recount here what has taken place since the decease of this great judge. It will be found in the ensuing pag.'s, and is in the recollection of many of our own contemporaries. Suffice it to sr,y, that the course on which he entered has been pursued with no less zeal tbun wisdom by his successors. One great man, Lord Stowell, has done much lo laiso the reputation of his country: his judgments — models of judicial argument and eloquence — are cited and admired not merely in our courts, but in those of I'very commercial nation in the world. The legislature has, in the meanwhile, done Its part, and, while it has not been slow to supply defi» ciencies and correct mistakes, it has, hitherto, fortunately abstained from any vexatious interference with arraii^'cments dictated by that best of legislators — Experience. " The mercantile law of England is, in pnint of fact, an edifice erected by the mer- chant, with comparatively little assistance either from the courts or the legislature. The former have, ii. very many instances, oniy impressed with a judicial sanction, or deduced proper and reasonable consequences from, those regulations which the experience of the trader, whether borrowing from foreigners or inventing himself, had already adopted as the most convenient. The latter, wisely reflecting that commercial men arc notoriously the best judges of their own interests, have inter- fered as little as possible with their avocations, have shackled trade with few of those formalities and restrictions, which arc mischievous, if only on account of the waste of the time occupied in complying with them. The mercantile law of Eng- land is perhaps of all laws in the world the most completely the o£fspring of usage and convenience, the least shackled by legislative regulations. Thus, the per- formance of one of the most obvious parts of the duty of a merchant, and one which the laws of most other countries enforce by many and anxious provisions, viz: the keeping a correct account of his transactions, is left by us to be enforced solely by public opinion and by the dread of that reproach and loss of credit which would follow the detection of any gross irregularity. It is, perhaps, in consequence of this that we find such high and peculiar sentiments of commercial honour prevalent »mong English merchants. When trade began to flourish in this country, those occupied about it soon discovered that the law had provided but few rules for the guidance of their transactions, and that it was, therefore, necessary that they should themselves adopt some regulations for their own government. Thus, they, in early times, erected a sort of mercantile republic, the observance of whose code was en- sured, less by the law of the land, than by the force of opinion and the dread of censure. The law is now indeed more copious, but the spirit which had been thus called forth has ever since continued to pervade our mercantile community, and has conduced to a more scrupulous observance of good faith and punctuality than could have ever been enforced even by the most anxious efforts of the legislature." In Spence's History of Equity Jurisdiction (vol. 1, p. 247), we read : " It is under the action of assumpsit that the modem Law Merchant has been incorporated into the Common law. In the time of Edward III, we discover, that in the ordinary transactions amongst merchants, that is, members of the trading community, a distinct law prevailed, of a more liberal nature than the general law, and that it was more summarily and expeditiously exercised. This was called the lex mercatoria: it had, in all probability, silently prevailed in London, and 16 LECTURE ON THE MERCANTILE LAW .>i other commercial towns, in some shape, throughout the whole of the Anglo-Saxoji times. " By the statute 27, Edward III, (stat. 2) in each town whore the staple was or- dained, a mayor was to be chosen, skilled in the law merchant, to do right to every man according to that law. The lex mercatoria is expressly mentioned by Fortes- cue. In common societies of merchants, and in mutual contracts, says Selden, equity and good conscience, rather than strict law, is required; and he mentions a case in the time of Edward II, where, following up this principle, the defendant in an action of debt brought, secundum legem mercatoriam, for some corn sold, was not permitted to wage his law, though he might have done so in an ordinary action of debt. It would seem, too, that merchants had always been specially favored, by having a more summary process in the King's Court. " As regards the modern law merchant. In the reign of James I, it was held, that if a merchant direct a bill of exchange to another merchant, payable to A, or to order, and the other accept it; by the law merchant a promise was to be implied in the acceptor to pay it; afterwards an action of assumpsit was given to every indorsee to whom the bill was assigned. " So every indorser who assigned such bill, was held liable to an assumpsit by every subsequent indorsee; and if the merchant to whom it was directed refused it, the director (drawer) was liable to every indorsee; — and so the law continues. " A comprehensive and rational system of law, on the subject of Bills of Exchange and Promissory Notes, has, with some help from the legislature, been established by the judicial decisions of Lord Mansfield and his colleagues, and their distin- guished successors. " Through the medium of the action of assumpsit, also under the auspices of Lord Mansfield, the law of Insurance was formed into a system, which has been found to be adapted to all the exigencies of society; indeed, the whole of the modern system of commercial law may be said to have almost originated with the same eminent Judge. " This system, which is admitted to exhibit a comprehensive and enlightened spirit of jurisprudence, is based upon very different reasons and principles from those which govern real property law, and is derived from a variety of sources and authorities — from international law — the different maritime codes of ancient Eu- rope, — but, far above and beyond all, from the Imperial Code of Rome." The following passage is from an article on Mercantile Law, in the first volume of the Law Magazine, viz : " Yet, although so multifarious in its details, and so extensive in its application, the mercantile code of this country is by no means intricate or confused. On the contrary, it is remarkably simple and harmonious. Indeed, it is a system of sud- den and comparatively modern growth, having been begun, matured and perfected within the limits of the last half century. It has therefore passed through few hands, and is the work of a succession of Judges as vigorous in understanding and of as enlightened and comprehensive views as any that have adorned the bench, — of Mansfield, Kenyon, Ellenborough and Tenterden. But though from this cir- cumstance it has derived a more than ordinary unity and consistence, it has never- theless the disadvantage, in consequence, of remaining still in a great measure an undigested heap of particulars. It is not many ages since England became deci- 4 i i \ LW OP LOWER CANADA. 17 of tho Anglo-Saxon )re tlio staple was or- , to do right to every nentioncd by Fortes- ntructs, says Selden, ]; and he mentions a iple, tho defendant in ine corn sold, was not an ordinary action of specially favored, by fames I, it was held, ant, payable to A, or lise was to be implied was given to every >Ie to an assumpsit by as directed refused it, le law continues, t of Bills of Exchange ture, been established ;ues, and their distin- r the auspices of Lord lich has been found to of the modern system ith the same eminent isivo and enlightened and principles from ariety of sources and codes of ancient £u- of Rome," i3rcantile Law, in vc in its application, 3r confused. On the is a system of sud- atured and perfected passed through few n understanding and idorned tho bench, — lough from this cir- istencc, it has never- a great measure an Dgland became deci- dudly a trading country, In tho old text-books of the law, therefore, little ia to be found on the subject cf mercantile dealings. It is evidently considered a matter of minor importance ^ and whilst unwearied labour is bestowed in digesting, illus- trating and commenting upon every part of tho law which concerns the realty, whatever relates to the mere personalty, that unsubstantial everchanging property, which was almost beneath the regard of the lordly proprietor of lands and manors, is either altogether passed over or dismissed with an occasional notice." In the Life of Lord Chief Justice Holt (^), in the eleventh volume of the Law Magazine, it is remarked : *' Lord Holt may be said to have sat by the cradle of our system of commercial law, which afterwards, under the fostering genius of Lord Mansfield, was expanded and matured into such growth and symmetry. " Like Lord Mansfield, he not unfrequently illustrates his reasonings by refe- rences to the corresponding provisions of the Civil Law. " To the most important branches of our mercantile law — those of shipping and marine insurance— tb 3 Courts were as yet comparatively strangers. From the Revolution down ;o Lord Mansfield's elevation to the Bench, in 1756, not more than fifty insurance causes were tried in all; and instead of the luminous and admi- rable elimination of legal principles which the summings up and judgments of that great lawyer presented, the Judges were accustomed to leave the whole mass of facts to the jury together, and trust to the remedial effect of a general verdict one way or the other. Unformed, however, as our mercantile code remained, until the multiplied relations and complicated interests of commerce increased a hundred fold, called into exercise the powers of its great architect, whoever looks through the reports of Lord Holt's decisions, will find a vast number of Interesting points redeemed from uncertainty and confusion by bis learning, experience and good sense." In the Life of Lord Mansfield, in the fifth volume of the same work, we read : " And this his favourite object of enlarging, as it were, the boundaries of justice, he had opportunities of achieving by other means besides his spirited interpretation and eqiutable administration of the laws already established. As no body of laws, however excellent and however copious, can possibly foresee or provide for the countless variety of circumstances that are made the occasion of litigation, every Judge must of necessity be more or less frequently obliged to take upon himself, in some degree, the office of a legislator; and this duty Lord Mansfield was called upon to perform far oftener than any magistra e who has ever presided in our courts. The length of time during which he sat on the bench, would of itself be sufficient to account for such a peculiarity as this in his career. But there were also other causes that increased it beyond all proportion to the mere difference in point of duration of judicial authority between himself and other judges. During the latter half of the eighteenth century, the rapid growth and extension of our foreign commerce gave birth to a host of novel sources of litigation connected, for («) Lord Chief Justice of England from 1689 to 1709. 18 T-FXTURE ON THi: MERCANTILK LAW \ the most part, with matters wliich hail not only beei» cutii'cly overlooked by th« legislature, but had been very little brought before the notico of thf courts, or when they had been referred to them, had been decided with reference not so much Id any settled principles as merely to the facts of each particular case. Lord Mans- field treated them in a very differenc mode. * Within tlicso thirty years,' said Judge Duller, on giving judgment in the case of Liclvharrow vs. Mason, in 1788. • the commercial law of this country has taken a very difTerent turn from what it did before. Wo find in Ince and I'rescolt, (1 Atkyiis), tluit Lord llardwicko him- self was proceeding with great caution, not establishing any general principle, but decreeing on all the circumstances put tugetlu r. Beforf ti)at pt'iiod, wo find that, in courts of law, all tho cvidunco iu niercantilo cases was tiirown together; they were left generally to a jury, and they producid no ginerul principle. From that time, wo all know, tho great study has been to find some certain general principlo which shall be known to all mankind, not only to rule tho particular caso then un- der consideration, but to serve as a guide for the future. Most of us have heanl these principles stated, reasoned upon, enlarged, and explained, till we have been lost in admiration at tho strength and stretch of the understanding. And I should be very sorry to find myself under a necessity of differing from any caso upon this subject which has been decided by Lord Mansfield, who may be truly said to bo the founder of the commercial law of this country.' " The fact that there were no precedents or authorities to control the exercise of hifl judgment in this department of law, as it must add considerably to our admira ■ tion of the wisdom that dictated his decisions upon it, so it has also materially con- tributed to enhance their utility, and to widen the application of them. Not being here, as elsewhere, under the necessity of reasoning on principles that, though they still hold good their footing in Westminster Hall, are virtually obsolete elsewhere, and are totally at variance with the actual customs and exigencies of society; having no occasion, for instance, as in some real property cases, to frame a judg- ment at the close of the eighteenth century on the same grounds that Glanvil might have done in the reign of Henry the Second, he was enabled to indulge without restraint his favourite wish of accommodating the administration of justice to the spirit and the wants of his own time. Among other obvious advantages which this has imparted to his decisions in mercantile cases, it is by no means a trifling one, that they are of equal authority in courts of law and in courts of equity. • During the fifteen years I have sat on this bench,' said, on one occasion, the distinguished judge whoso testimony we have just quoted, (Tooke vs. Hollingworth, 5 T. R. 215) • I have never known any case which established a distinction between courts of equity and courts of law, on subjects of this kind. I have always thought it highly injurious to the public, that different rules should prevail in different courts on the same mercantile case. My opinion has been uniform upon that subject. It some- times, indeed, happens that in questions of real property courts of law find them- selves fettered with rules from which they cannot depart, because they are fixed and established rules; though equity may interpose, not to contradict, but to cor- rect, the strict and rigid rules of law. But in mercantile cases, no distinction ought to prevail.' Nor is it in English courts alone, whether of law or equity, that this uniformity subsists with respect to Lord Mansfield's decisions on matters of com- mercial jurisprudence. As thoy were invariably framed iu conformity with those broad principles of jn.ve havo been rstanding. And I should g from any case upon this 10 may bo truly said to bo 1 to control the exercise of insiderably to our admira- it has also materially con- ition of them. Not being rinciples that, though they tually obsolete elsewhere, nd exigencies of society; y cases, to frame a judg- rounds that Glanvil might nablod to indulge without istration of justice to the ous advantages which this y no means a trifling one, ourts of equity. ' During iccasion, the distinguished ollingworth, 5 T. R. 215) notion between courts of always thought it highly in different courts on the 3n that subject. It some- y courts of law find them- rt, because they are fixed to contradict, but to cor- :;nscs, no distinction ought )f liiu or equity, that this sions on matters of com- in conformity with those ved the unanimous assent OF LOWi:U CANADA. 19 1 nnd sunetiim of all civilised commuuilies, furm liie groundwork of what ((ot want of a more correct term) is culled tliu law of Muti(jns, it may safely bo affirmed, that there are very few tribunals in Europe where they might not bo quoted as autho- rities. " To all thoito who are conversant with these judgments it would bo superfluous, and to those who are nut so, impossible (ut least within such space as wo could hero afford) to point out how much of their intrinsic merit, and of their extended application, is attributable to Lord Mansfield's knowledge of the civil law. This ftplendid monument of human wischjni was to him a well filled storehouse of reason- ing, from which a ready supply wf iirineiples and of rules might always bo drawn to guide hiin in the decision of cases unprovided for by our own jiuisprudi'iice. And it was not only in such cases as these that ho derived advantage from it. There are very few departments of our own law on which some light may not bo thrown by it, in the way of iinulogical illustration; and, with respect to vi-ry many, us ho has frequently had or-crision to shew, it is of more direct application, being, in fact, the si 'uce from which they have been either partially or entirely deduced. The happy facility with which, in each of these points of view, he so often brought it to bear on the legal questions submitted to his notice, must excite the admiration of every one who is competent to appreciate the merits of a judge; that the same quality should ever have been made the ground of censure or invective by any one, would, doubtless, seem little less than incredible, but for the jealousy of the civil law notoriously prevalent among tho vulgar of this country. This most unfounded prtyudice, we might almost say superstitiim (and, like all other superstitions, it is the offspring of fidly and ignorance), has been turned to account by Junius in a manner that proves the writer either to have been strongly imbued with it himself, or at least to have been perfectly conscious of its prevalence, and, consequently well awaro of tho effect he might produce by humouring it. ' In contempt or ignorance of the common law of England,' he writes, addressing himself to Lord Mansfield, ' you have made it your study to introduce into the court where you preside, maxims of jurisprudence unknown to Englishmen. Tho Roman code, tho law of nations, and the opinion of foreign civilians, are your perpetual theme; but who ever heard you mention Magna Charta, or the Bill of Rights, with approba- tion or respect? By such treacherous arts, the noble simplicity and free spirit of our Saxon laws were first corrupted. The Norman conquest was not conqilete, until Norman lawyers had introduced their laws, and reduced slavery to a system.' This is quite as well calculated to catch the attention of the mob of readers, and td excite the contempt of sensible men, as the charges so often repeated by the same powerful libeller against Lord Mansfield, that he was a Scotchman, that ho had once drunk the health of King .Tames, and that he had a brother who had been in the service of the Pretender. The insinuation, that tho spirit of the civil law is incompatible with tho spirit of freedom, is, in truth, as admirably adapted to find favour with those who, having no knowledge of the subject, cannot detect the utter falsehood of it, as the assertion concerning the Saxon laws and the Norman lawyers, to pass current with such as, exercising no reHection of their own, cannot at onca detect it to be worse than irrelevant as connected with tho matter under considera- tion, and do n(jt instantly perceive that whatever principles, and maxims, and sta- tutes the Norman lawyers may havo introduced, those very principles and maxims and statutes it is tho duty of an English judge to interpret and to aed, were they originally ley were addressed to tlie lied against men in power ire to iind abundance of Listed a predisposition to , word, during a ticason of er fails to honour at sight idcd they be presented to may have, for the time, 's commentaries on one who is certainly iterested witness on ' Agency are brought to t cannot escape the obser- rinciples which regulate it Europe and Scotland, and I latter, however, we are I exposition of these prin- of them to the daily busi- ihe proudest achievements I common law have been ped by her judges, with a er excelled, Westminster ciples of her commercial )olicy which have com- for it an authority and se acquired by her arts or ech, on the Reform IS, said : and is far purer and freer ■ises from its later origin, been formed by degrees )ted, too, in many of its ial to all trading nations, in his Essay on the ; some of his admirable ed contracts; and here I e treatises to the EngUsh if his great Master Lit- iminous method, apposite examples, and a clear manly style, in which nothing is redundant, nothing defl- olent, ho will surely bo delighted with works in which all those advantages are combined, and the greatest portion of which \h liiw ut Westminster us well us at Orleans: fur my own part, I am bo charmed with lliem, that, if my undissemblod fondness for the simly "f jurisprudi'nco were nuvtr to produce any greater benefit to the public than buroly the iutr>>Juction of I'otliicr to the ac(|uuintance of my countrymen, I should think thut 1 hmd in some measure discharged the debt which every man, (i''"ording to l) Pozer vs. Meildojnhn, K. B. Qiiebcr, 14th April, 1808. Pyke's Reports, p. H, and Stuart's Reports, p. 122. •4 I II t E LAW OF LUWKk CANADA. France on this sub- of ascertaining what of this clause— and uld have been cog- hiws are subject to icing into our system be at first supposed, rule of evidence may can be plainer than :ts arc required to be if proving them — and ; are rules both of the Ji lawyers in Lower ey shall be considered e effect of this uncer- frcquency of reference )vlded for by our own c said that the most stimony is received in amount in dispute — [IS exceeding one hun- before Notaries. And k^ailed in France, made in our mercan- y laws on the model luses in one of these which I must draw ausc, by which it is , sold and delivered to [jnt shall be allowed to ayment of the price of ds be entitled to claim for the price thereof, [)f the bankrupt at the I, 1808. Pyke'a Reports, p. time of the bankruptcy, in the same state and condition as when sold to him ; but the vendor may, in case of the failure of the purchase, stop in transitu, or reclaim the goods sold by him, and the price of which has not been ))aid to him, as may, under simi- lar circumstances, be doiu; according to the law of England, and not otherwise." This clause virtually repeals as to cases of bankruptcy the 17Gth and 177th Articles of the Custom of I'aris — and the history of the rule it introduces in its stead is somewhat singular. The common law of England did not, as the French law did, allow the unpaid vendor to take back his goods without the con- sent of the purchaser — but it was decided by the Court of Chan- cery in 1690, that on the bankruptcy of the purchaser, if the vendor, being un^iaid, could by any means get his goods again into his hands, or prevent their coming into the hands of sucli pur- chaser, it was but laioful for him so to do, and very allowahh in equity ; and forty years later l..ord Chancellor iliirdwicke used this strong expression in a similar case : " If the unpaid vendor got the goods back again by any means, provided he did not steal them, I would not blame him." Now it so happened that in no case in which this doctrine was acted upon had the goods reached the hands of the purchaser — so that there were precedents only in favor of stopping the goods on their passage, now called stop- page in transitu; and these precedents were followed by the courts of law even before Lord Mansfield's time, and constantly by him and his successors — though it was called a " graft from the courts of equity." Judge Duller says distinctly : " The right of the vendor to seize goods in transitu is founded only on equitable principles. It is a right with which he is indulged on principles of justice, originally established in courts of equity, and since adopted in courts of law." The framers of the modern French " Code de Commerce " pre- ferred this doctrine so much that they adopted it, in 1807, to the ex- clusion of the old rule of the Frcncli Law, Avhich however remained in full force here until 18;J9, whon this clause was first enacted ('). (>) Ordinance of tlie Special Council of Lower Canada, 2 Vic. c. 3G, s. 23. The draught of this Ordinance was prepared by one of whom it would bo saying little to term him learned, but whom I esteem it a privilege to be able to call my friend, the Honorable Henry Black, Q. C, Judge of the Vice Admiralty Court of I nvcr Canada. 24 LKCTURE ON THE MERCANTIl.E LAW 11.; I The otlier clause to which I would draw your attention is the 75th, by which it is provided, " That in all questions not other- wise provided for, the laws of Upper Canada and of Lower Canada, respectively, shall be resorted to as the rule of decision in all questions respecting bankrupts, as the said laws now res- pectively obtain in each section of the Province, and in cases unprovided for in the existing laws above mentioned, then resort shall be had to the laws of England, as such rule of decision in that part of this Province heretofore Upper Canada, and that only." This is the only case in which our courts are forbidden to resort to the laws of England for guidance, as we have seen that the English courts did to those of France, in the silence of their own laws. In the last Session of the Provincial Parliament two very important alterations were made in the mercantile law of Lower Canada. , The first consists in the introduction of the provisions of the English Act called the Factors' Act, by which persons contracting with Agents for the purchase of goods entrusted to them for sale, or making advances on such goods, are protected from loss. The Act on this subject extends to Upper Canada also, and the mercantile community is indebted for it to the learned Attorney General for that section of the Province, Mr. Sherwood. The second alteration consists in the adoption, with reference to commercial matters only, of some of the provisions of an Eng- lish Act relating to the limitation of actions and other matters. This Act is confined in its operation to Lower Canada, and was brought in by Mr. Aylwin, the talented and able Member for Quebec (*). Whether these alterations will be beneficial or not remains to be ascertained by the best of all tests, that of experience. It will be seen even from the above rude and imperfect sketch that our mercantile law is by no means either bad in itself or 1:1 (') On the change of Ministry, in March, 1848, Mr. Aylwin was re-appointed Solicitor General for Lower Canada, and he soon afterwards became a Puisne Judge of tho Court of Queen's Bench at Quebec. ;i ' LAW OF LOWER CANADA. 25 your attention is tlie luestions not other- lada and of Lower the rule of decision e said laws now res- •vince, and in cases entioned, then resort 1 rule of decision in r Canada, and that rts are forbidden to IS we have seen that the silence of their Parliament two very antile law of Lower ;he provisions of the 1 persons contracting sled to them for sale, ected from loss. The %nada also, and the the learned Attorney . Sherwood. )ption, with reference )rovisions of an Eng- s and other matters, ver Canada, and was md able Member for ial or not remains to of experience, and imperfect sketch ither bad in itself or \ Aylwin was re-appointed ^terwards became a Puisne very dissimilar to that of England. On the contrary, it is com- posed, in great part, of the same materials. And in this respect it may claim a still closer affinity to the general spirit of the commercial law of France apart from positive enactments, to say nothing of its conformity through these two systems to those of other commercial countries, and to the standard of universal com- mercial jurisprudence. What we have most to lament is the unprofitable mode in which those materials have been employed, I have abstained from all allusion to our peculiar laws and practice in relation to the conduct, trial and decision of suits, as compared with those of England, because they are not, properly speaking, a part of the mercantile law, though they exert a powerful influence upon it, and are even calculated to produce results widely different from what would be produced in England or elsewhere in cases where the same principles of law are strictly applicable. And I abstain now from alluding to our system of judicature, not because I consider it faultless, or by any means well ada])ted to the establishment of an uniform system of mer- cantile law on a satisfactory and permanent basis, — but because I feel that the present is not a proper occasion for pointing out the necessity of reforms which can only be eflFected by the legis- lature. It happens, however, that the chief obstacles to the improve- ment of our mercantile law are such as may be easily removed by the joint exertions of the commercial community and of the profession to which I have the honor to belong. The great evil of our system is its uncertainty. This is owing chiefly to two causes, viz : First, the blending of the functions of judge and jury, and the consequent grounding of most of the judgments of our Courts upon mixed considerations of law and fact. And second, the almost total absence of reports of the decisions of our courts. Attempts have been made to remove the first of these causes of uncertainty by requiring that the reasons of every judgment shall be stated in it : but this is obviously insufficient ; the true remedy will be found, I think, to consist in a more frequent resort to the trial by jury, which is optional in cases of a commercial nature. When the trial by jury becomes general there will be D 26 LECTURE ON THE MERCANTILE LAW no difficulty in regularly and accurately reporting the decisions of our courts — which it is next to impossible, and would be of very little use, to do under the present system. I do not mean to say that the evil of uncertainty would be entirely removed from our mercantile law by the application of these remedies : but I do mean to say that until both of them are applied we shall have nothing that deserves the name of a system in that department of our jurisprudence. At present all the sums that are expended in litigation and in the administration of justice are thrown away, so far as the chief use of either is concerned, namely, the establishment of fixed principles of jurisprudence. Comparatively few of the judgments that are rendered do more than settle the matter in dispute be- tween the parties : and if by chance there is laid down a rule of law susceptible of general application, the remembrance of it is purely traditional, and soon dies away. The labour of investigation has to be renewed in almost every case that arises ; the necessity for a resort to judicial decision can seldom or never be obviated by a confident opinion as to its result ; the materials to be used are known, but it is often diffi- cult to foresee what use will be made of those materials : the question whether we have laws of our own that are applicable to any given case — and if not, how far rules of law that in England have long been settled beyond the shadow of a doubt may be invoked for its settlement, remains constantly open — and the task of its discussion is a " never ending, still beginning " one : not only are judges and lawyers thus condemned to endure a punishment like that of Sisyphus, but the difficulty of obtaining a competent knowledge of our mercantile law is immeasurably increased to the student. " Cases as they arise " are never, to use the words of Sir James Mackintosh, " withdrawn from the dangerous power of discre- tion," or, as Sir William Jones (i) has it, " that dangerous and most tremendous power, the discretion of the judge," because they can never be authoritatively settled, with a knowledge that the soundness of the decision itself, instead of only the principles on which it rests, will be the subject of future discussion. (^) Essay ua the Law of Bailments, p. 25. m J LAW OP LOWER CANADA. 27 •ting the decisions of nd would be of very neertainty would be by the application of ntil both of them are the name of a system in litigation and in ly, so far as the chief itablishment of fixed few of the judgments latter in dispute be- s laid down a rule of remembrance of it is jwed in almost every , to judicial decision lent opinion as to its 1, but it is often diffi- those materials: the hat are applicable to law that in England of a doubt may be open — and the task ginning " one : not mned to endure a |ifficulty of obtaining w is immeasurably words of Sir James [us power of discre- that dangerous and [he judge," because 111 a knowledge that only the principles discussion. So long as our judiciary is composed, as it has hitherto been, of men of spotless integrity, this latitude of discretion may not be attended with danger to the public : but the state of things I have endeavoured to describe is a complete bar to the establish- ment of anything like judicial reputation as well as settled jurisprudence. It is not thus that Holt and Mansfield have been immortalized. We are told by the biographer of the former that he " redeemed , a vast number of interesting points from uncertainty and confu- sion by his learning, experience and good sense " (^). We know that in one celebrated case, availing himself of his acquaintance with the civil law, he settled the English law of bailments on its present footing (2) — that the law of England as it now stands with regard to bills of lading originated in his decision of another (3). The latter earned for himself the title of the great architect of the commercial law of England, not only by enlarging its bounds in a similar way, but also by being the first to correct the abuse of leaving the whole of a case to a jury, so that no general principle was produced. And yet it is by the aid of Reports alone that these advantages have resulted from the labours either of the one or of the other. Lower Canada has not been without eminent judges who have united great natural abilities to profound legal attainments, and whose minds have been thoroughly imbued with the principles of commercial jurisprudence. We have had our Sewells (*) and our Valli^res (^), to say nothing of the living oracles of our law, or of him whose mortal remains we have this day followed to the tomb {^) : but how little they have been able to effect towards (') Supra, p. 17. — (^) Coggs vs. Barnard, Lord Raymond, 909. (») Evans vs. Martlett, 1. Lord Raymond, 271. (♦) The Honorable Jonathan Sewell, L.L.D., Chief Justice of Lower Canada from 1808 to 1838. (*) The Honorable Joseph Remi Vallieres de St. Real, Judge at Three Rivers from 1829 to 1842, and from thence to his death, in 1847, Chief Justice of Her Majesty's Court of Queen's Bench for the District of Montreal. («) The funeral of the late Honorable James Reid, formerly Chief Justice at Montreal, had taken place in the morning, and had been attended by the Bar in a body, as well as by the Judges, and by a large concourse of the citizens of Mont- real — so p;fneral was the respect entertained for his memory. Mr. Reid's judicial career extended from 1807 to 1838, when he retired on a pension. For the first sixteen years of that period he sat as a Fuisuc Judge of the Court in which he afterwards so ably presided. '-mv=^ rk ':i;i 15 28 LECTURE ON THE MERCANTILE LAW OF LOWER CANADA. establishing our men utile law on a permanent basis I A fe^v of their decisions have been reported — a few more may be pre- served in the memories or notes of those who heard them ; but even these are destitute of the requisite authority — while the many stately edifices they reared with great labour fell to the ground as soon as they were completed — and it may still be said with truth that our mercantile law is a confused heap of mate- rials, in the selection of which for use the student and the practi- tioner are alike without a guide. I may have expressed myself warmly on this subject, but it is one on which I feel strongly. It was said by Chief Justice Sewell on an occasion like the present, with reference to our municipal law generally, that it is most admired by those who know it best (^), and in like manner I would seek to justify my zeal for the settlement of the mercantile portion of it by saying that the more it is examined the more it will be found to deserve preservation and arrangement. (») Essay on the Juridical History of France, so far as it relates to the law of the Province of Lower Canada: Eead at a special meeting of the Literary and Historical Society of Quebec, 31st May, 1824, p. 34. A critical notice of this work in the American Jurist for April, 1838, (No. XXXVII, vol. 19, p. 249,) — concludes with the following remarks, which may prove of some interest in this connection : " It is a curious fact in juridical history, that the French law, as it existed prior to the immense reforms which it underwent during and immediately subsequent to the revolution, is the basis of the common law of a wide region at one extremity of this continent; whilst the same law, purified and reformed by the fiery ordeal of the revolution, lies at the foundation of the legal system of a rich and powerful state at the other; and both, since the periods of their establishment, have received great modifications by the int -eduction of much of the peculiar spirit and many of the characteristic institutions of the English common and statute law. The legal s}'8tems of Lower Canada, and of Louisiana, have, therefore, for this if for no other reason, a strong interest for the philosophical jurist; and we hope that the example of chief justice Sewell will stimulate others to follow in the track so ably and satis- factorily pursued by him, in his Essay on the Juridical History of France." r OF LOWER CANADA. erraanent basis I A few -a few more may be pre- ose who heard them ; but lite authority — while the great labour fell to the —and it may still be said a confused heap of mate- lie student and the praeti- ' on this subject, but it is is said by Chief Justice it, with reference to our st admired by those who vvould seek to justify my | e portion of it by saying t will be found to deserve , so far as it relates to the law of ial meeting of the Literary and | 4. ;n Jurist for April, 1838, (No. I )wing remarks, which may pro\ e French law, as it existed prior and immediately subsequent to wide region at one extremity of I reformed by the fiery ordeal ofl system of a rich and powerful I eir establishment, have received I the peculiar spirit and many ofl ion and statute law. The legal 1 therefore, for this if for no other I and we hope that the example I V in the track so ably and satis- 1 ical History of France."