Yesterday I mentioned the in depth use water regulation judicial selections within the courts of Decrease Canada, with its pre-revolutionary French property regulation, fabricated from American sources. At present I talk about why they might have regarded to a jurisdiction that had by no means belonged to the previous empire from which the native regulation derived, and now not belonged to the brand new empire of which Canada was now a component.
In his dissent within the 1859 case of Boswell v. Denis Choose Aylwin indicated one motive why Canadians could have most well-liked American regulation over French in some circumstances. In line with French regulation, a ‘navigable and floatable’ river was a public one, during which the general public loved rights that might not be impaired by the riparian homeowners. Because the river in query in Boswell, the Jacques-Cartier, contained rapids and was due to this fact not ‘navigable’ by boat site visitors, nearly all of the courtroom straightforwardly utilized the French check and dominated that it couldn’t be thought of a public river. Aylwin objected to this evaluation: ‘Our rivers can’t be in contrast with these of France or Europe; the Jacques Cartier is an effective sized river and has loads of water,—it has rapids it’s true, however […] I imagine the river to be each navigable and flottable.’ Following a practice going again to Montesquieu and additional, Aylwin argued that French regulation couldn’t apply unmodified in North America, because it was developed for a distinct set of environmental circumstances. Equally, in a 1905 case Justice Trenholme of the Quebec King’s Bench famous that American authorities on the query of navigability ‘possess greater than strange curiosity for Canadian Courts, because the circumstances there have been and are exactly like these in our nation’.
But it appears this was not the one motive for Canadians’ flip to American water regulation. Returning to Brown v. Gugy, it’s important that the American case which Choose Aylwin most well-liked over the decrease courtroom’s ruling was from Louisiana, the one American state which based mostly its authorized system on (French) civil regulation. Furthermore, Kent’s dialogue of water regulation (like his discussions of many different topics) was replete with references to civilian sources. Within the pages quoted in Aylwin’s opinion (sections 6 and seven of Kent’s Lecture 52), the American jurist cited numerous American and English circumstances, as was applicable for a piece purporting to be a commentary on American regulation, however his very first citations have been to civilian sources: Justinian’s Digest, Pothier’s Traité du Contrat de Société and Toullier’s Droit Civil Français. Later within the part, he cited once more to Pothier, quoted with approval a maxim of Roman regulation and said that the Code Napoléon established the identical rule as mentioned maxim.
Later commentators have divided as to what extent Kent’s use of civilian sources was substantial or quite mere window dressing, with Alan Watson arguing that Kent’s use of the Roman and French sources within the part cited above was riddled with errors and that it supplied little help to his exposition of riparian rights. Nonetheless evidently Choose Aylwin noticed Kent as civilian supply, prefacing his lengthy quote from the Commentaries thus:
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