Canada’s broad St. Lawrence River and its tributaries were the sites of intensive water use in the mid-nineteenth century. They served as fishing grounds, highways for water craft, conduits for floating logs and sources of power for both traditional grist mills and new industrial facilities. Uses and users often came into conflict, and these conflicts often landed up in court.
(Appleton's Cyclopaedia of American Biography, 1900)
Sewell was not alone in his affection for Kent and other American authority. Probably the most salient example was the dissenting opinion filed by Judge Thomas Aylwin in the appeal of Brown v. Gugy to the Queen’s Bench of Lower Canada. This judicial opinion was really a brief intended to set before the Privy Council Aylwin’s view of the law, as it was written especially to include with the appeal to the London court, well after judgment had been delivered by the Queen’s Bench and leave granted for further appeal to the Privy Council. Aylwin’s 1861 opinion included a verbatim quote of ten pages from Kent’s discussion of riparian rights, footnotes and all, and went on to say that the reasons given by the lower court ‘are in my opinion bad & I prefer the ruling of the Supreme Court of Louisiana in the case of Allard & al vs Lebau [sic, should read Allard v. Lobau (Martin’s Reports (n.s.) 2, p. 317 (1824))] cited at the bar.’
Yet reliance on American sources was not a simple matter even for Anglophone judges with American connections. It was Aylwin, formerly a Patriote politician, who had written, in a criminal case, a year before this opinion in Brown v. Gugy:
I will shew the danger of referring to American authorities in criminal cases […]. I hope we will hear […] no more of them. The practice of late has been to create great confusion, by the habit has prevailed to too great an extent of citing American, English and French authorities in all cases indiscriminately, and it is time to put an end to such confusion.Moreover, Francophone lawyers, too, relied on American water law sources. Advocates Simon Lelièvre and François-Réal Angers cited the American Joseph Angell’s Treatise on the Law of Watercourses in support of their position on property in water in a case before the Superior Court of Quebec City. This source, as well as Louis Houck’s Treatise on the Law of Navigable Rivers, was cited by C.B. Langlois in an appeal before the Queen’s Bench decided in 1877. B.C.A. Gugy, a lawyer who had campaigned against annexation of Canada to the United States, cited the American Angell’s treatise on the law of tidewaters in arguing his own case in a dispute with a landowner on the opposite bank of the Beauport River. Charles-Chamilly de Lorimier, a clerical-nationalist conservative and stalwart proponent of the civil law as a ‘bulwark of French Canadian and Catholic values’, nonetheless cited in a judicial decision a Wisconsin case among a string of Quebec cases on the question of whether a seasonally navigable stream was public or not. Most extreme was Lorimier’s Montreal law office partner Désiré Girouard, whose long and learned brief in a case in which he was a party cited and quoted (in French translation) a host of American sources on riparian law, from Thomas Jefferson to Angell to the latest American case law.
Why Canadian judges were drawn to American water law will be explored in the next post.