North American. [volume] (Swanton, Vt.) 1839-1841, 1840-07-15


pers, find that those variaus actions rx-
eer4 eso0 900, OF which about ninrieen
twralieihs have arose from mercantile
tFsn&setioas.
The use or necessity found in applying
digsren, usnlslioas If laws from different
eosaifies to be taken on aad considered ny
the court IN giving their judgment, proceed
el from studied attention on my part m
the hsgining OF my practice in THIS court, To
discover what fixed or certain laws guided
the court in making and iom'og Their
Judgment, and from the variety ol deci-
sians given ia similar csyes, which con-
crivrd entilleh 10 similar judgments, con-
eludeI that no fixed law, or any general
rule or principle of law, governed them N
making % the same bot, on the contrary,
hal reason tn believe, that their Judgments
were in general arbitrary, and governed
either by The character and quality of the
partirs, or from their own ideas OF right
aud wrong, without adverting 10 any law;
from which observation, have given
onin;ops In risk trials, where the govern
in. law of the province has not been lavor-
able 10 nv cause, conliding wholly iof
success IN that uncertainty which appear
cd tn me to petvadc the whole OF their
judgments from those motives, and w
der those circumstances, l cited such law
as could meet with in any degree appI'-
cable 10 nv case, and when my client has
no, been totally out Of favor with the
court, have frequently prevailed.
Ihave myself publicly complained, and
heard every practitioner at the Bar com
olain. OF the uncertainty OF the proceed
ings, and OF the judgments of the said
court, for the want OF having or knowing
any determinate law, by which causes
in general, or causes of any particular ma
ture, real or personal, before the said
court, would he adiudgcd and | have
myself complained, and heard every prac-
tilioner complain of the irregularlty oil The
proceedings Of the said court, and OF lis
delays in hearing and adjudging causes be-
fore il.
have heard Mr.. Justice Fraser declare,
that the ancient laws as used, and in force
in this province prior 10 the conquest,
were the laws TO prevail for the gov
eminent Of all civil actions and suits before
his maiesty's courts !; have likewise heard
Mr.. Justice Southouse give his opinion,
though | cannot positively say whether
from the Bench, that the law OF England
was the law that he should follow ~ the
determination Of suits between English
men and EngIishmen."
The testimony OF Arthur Davidson,
Esq, 10 which we have already referred,
goes on to reveal many cases OF The
greatest turpiiude on the part Of those
who were entrusted with the judicial au-
thority. Ignorance and rancorous preln-
dices seemed to have complete sway. Let
us hear Mr.. Davidson -
"Many causes, have no doubt would
have been determined differently from
what they were, had some ediets or ordi-
nances which, it is my opinion, were le-
paly in force in this province since the
the Quebec Act took effect, been admitted
as law but whether such causes, as may
have been so determined, were tried and
Judged in the said court upon the custom
OF Paris, or Roman and civil law, is best
known to the court and Judges who tried
them. having seldom or never lad the
satisfaction TO be told, or TO know on what
law their decisions were founded and
mos, of the decisions, have no doubt in
my own mind, having been given not in
proper legal conformity to any known law,
bot according to the ideas and will or
pleasure or the Judges.
And that the power heretofore exercised
by the said Judges of granting conserva
tory seizures, (every one OF which. i'll my
opinion, makes The person, against whom
il is pat in force, to all intents and pur-
poses bankrupt, il OF a situation or pro-
fession TO become one, in The most unIim-
tied manner, and upon the most vague
and frivolous suggestion and ptelence, was
of most illegal, dangerous, and unwar
rantahle nature, and big with danger 10
the first men in this district, and there Is
no law in this or any other country, hav-
ing the least pFetensinns TO freedom, that
can or ought TO arm Judges with snch dis
creiionary powers, as TO make the FIRST
characters in the community, AND parllcn-
larry mercantile characters, tremble at a.
Judges nod.
Nv mode Of conducting my clients caus
es in the said court, as the means most
likely to be attended with success, has
been TO use such arguments as | have
found best adapted 10 what | cannot call
less Than the prejudices Of the Judges, al.
ter experiencing, 10 my great diSsaiIsiac-