Inter-imperial riparian law IV: The attraction of American law

Yesterday I discussed the extensive use water law judicial decisions in the courts of Lower Canada, with its pre-revolutionary French property law, made of American sources. Today I discuss why they may have looked to a jurisdiction that had never belonged to the old empire from which the local law derived, and no longer belonged to the new empire of which Canada was now a part.

 Hon. Justice T.C. Aylwin (Library and Archives Canada)

In his dissent in the 1859 case of Boswell v. Denis Judge Aylwin indicated one reason why Canadians may have preferred American law over French in some cases. According to French law, a ‘navigable and floatable’ river was a public one, in which the public enjoyed rights that could not be impaired by the riparian owners. As the river in question in Boswell, the Jacques-Cartier, contained rapids and was therefore not ‘navigable’ by boat traffic, the majority of the court straightforwardly applied the French test and ruled that it could not be considered a public river. Aylwin objected to this analysis: ‘Our rivers cannot be compared with those of France or Europe; the Jacques Cartier is a good sized river and has plenty of water,—it has rapids it is true, but […] I believe the river to be both navigable and flottable.’ Following a tradition going back to Montesquieu and further, Aylwin argued that French law could not apply unmodified in North America, as it was developed for a different set of environmental circumstances. Similarly, in a 1905 case Justice Trenholme of the Quebec King’s Bench noted that American authorities on the question of navigability ‘possess more than ordinary interest for Canadian Courts, as the conditions there were and are precisely like those in our country’.

Yet it seems this was not the only reason for Canadians’ turn to American water law. Returning to Brown v. Gugy, it is significant that the American case which Judge Aylwin preferred over the lower court’s ruling was from Louisiana, the only American state which based its legal system on (French) civil law. Moreover, Kent’s discussion of water law (like his discussions of many other subjects) was replete with references to civilian sources. In the pages quoted in Aylwin’s opinion (sections 6 and 7 of Kent’s Lecture 52), the American jurist cited a large number of American and English cases, as was appropriate for a work purporting to be a commentary on American law, but his very first citations were to civilian sources: Justinian’s Digest, Pothier’s Traité du Contrat de Société and Toullier’s Droit Civil Français. Later in the section, he cited again to Pothier, quoted with approval a maxim of Roman law and stated that the Code Napoléon established the same rule as said maxim.

Later commentators have divided as to what extent Kent’s use of civilian sources was substantial or rather mere window dressing, with Alan Watson arguing that Kent’s use of the Roman and French sources in the section cited above was riddled with errors and that it provided little support to his exposition of riparian rights.  Nonetheless it seems that Judge Aylwin saw Kent as a good civilian source, prefacing his long quote from the Commentaries thus:

I think it proper to avail myself of the valuable observations of Chancellor Kent, upon the subject of possessory rights in running streams acquired by prior occupancy. They are so apposite and so conformable to the principles of Civil Law, that I cite them with as much confidence, as if I were citing from Civilians or French writers. 

Aylwin, it seems, while wary of using American legal sources indiscriminately (as indicated by his quote the last post), was more than willing to use American sources as statements of the civil law, applicable in his Canadian jurisdiction.

Aylwin was not the first to think this way. Returning to St. Louis v. St. Louis, we find Chief Justice Sewell citing Kent as the last in a string of French authorities supporting the proposition that a riparian proprietor had to return the water he used to the stream before it reached his neighbour’s land. Kent himself in the relevant passage cites the Digest and Pothier. It seems that Aylwin, here, too, was citing Kent as an authority on the French law applicable in Canada East, not on American law.

But perhaps the clearest instance of reliance on Kent as a civilian writer was in Oliva v. Boissonnault. Here Sewell cited Kent not only in support of his discussion of American law, as discussed above, but also in support of another proposition: ‘In the law of France, navigable rivers have always been regarded as public highways and as such dependencies of the public domain; and floatable rivers (rivieres flottables, as they are there termed) have been viewed in the same light.’ The referral to Kent in support of a description of French law was no mistake, as Kent writes on the cited page: ‘In the French law, navigable or floatable rivers, as they are termed, have always been regarded as dependencies of the public domain.’ So here, too, an American source was explicitly cited by a Canadian judge as authority on French law.

It seems, then, that Canadian lawyers and judges were attracted to American water law not just because of similar geographic conditions, but because they saw the law expounded in the American sources, particularly Kent’s Commentaries, not as American law per se, but as reflecting the French law of waters applicable in their jurisdiction, as well.

As remarkable as this reliance on American sources as authorities on ancien régime French law might seem, it should be pointed out that some of the French sources cited by Canadian courts were themselves authorities on the relevant French law only at a remove. Toullier’s exposition of water law quoted by Chief Justice Sewell in Oliva v. Boissonnault, for instance, was actually a commentary on the Code Napoléon, law which had no legal force in Canada, having been legislated decades after the Quebec Act confirmed the force of French law in Quebec as it existed at the date of British conquest. While courts were often correct in presuming that the rules enshrined in the Napoleonic Code reflected pre-Revolutionary French law, this reliance on contemporary French legal sources to explicate norms of old French law was only a step removed from using American sources to do the same.

Next post: Encounters of legal empires

For the full series of posts, see here. For the article, see here.