The Law Civil and Maritime: Quebec Admiralty Courts and the Development of in rem Procedure J. G. O’Connor Faculty of Law McGill University, Montreal A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Doctor of Civil Law April 2019 © J.G. O’Connor, 2019 Presentation Abstract The Law Civil and Maritime: Quebec Admiralty Courts and the Development of in rem Procedure explores the development of the admiralty action in rem during the eighteenth and nineteenth centuries, through a study of original archival resources from the courts of admiralty in Quebec and in London, many of which have never before been studied. The admiralty courts of Quebec include Canada’s first permanent admiralty court set up by the French, as well as a vice-admiralty court established by the English. Both courts would turn out to be the leading admiralty courts of their regime. That in rem process was developed by civilians is undisputed. However, the present enquiry traces the origins of the remedy through a study of Roman law, of continental civil and customary law and of French and English maritime law, all of which converge in the admiralty courts of Quebec City. The study of original court records in Quebec and in London illustrates the importance of in rem process, and helps solve the enigma of the true role of in personam process in admiralty. As shall be demonstrated, the only true admiralty remedy with links to the past is the admiralty action in rem. Cette étude explore l’évolution de l’action réelle en amirauté au cours des dix-huitième et dix- neuvième siècles. Elle s’appuie sur l’analyse des archives des cours d’amirauté de Québec et de Londres, dont la plupart n’ont jamais été étudiées auparavant. Les cours maritimes de Québec incluent celle constituée par les Français comme première cour permanente d’amirauté du Canada, puis ensuite celle constituée comme cour de vice-amirauté par les Anglais. Parmi tous les tribunaux maritimes des colonies des deux empires, ce sont ces cours qui ont connu l’achalandage le plus élevé. L’action réelle en amirauté est indéniablement d’origine civiliste. Cette étude retrace toutefois également les origines romaine, continentale, française et anglaise de ce recours, convergeant vers les tribunaux maritimes de Québec. L’étude des archives des cours d’amirauté de Québec et de Londres rappelle l’importance du recours réel et permet de dénouer l’énigme du rôle de l’action personnelle en amirauté. L’action réelle en amirauté constitue le seul recours maritime ayant un véritable lien avec l’histoire. -i- Presentation Acknowledgments It would take a lengthy text to truly thank all those who were instrumental in the preparation of this project. The work is indeed a project, in that it has resulted in 20 volumes and almost 10,000 pages of admiralty materials. At least three did not live to see the completion of the project. The late Dean Roderick Macdonald and the late Professor William Tetley of the McGill University law faculty, as well as the late Professor Denis Lemieux of the Laval University law faculty, were early proponents of the study, as was Justice Nicholas Kasirer, another former dean of law at McGill. More recently, Professors Jaye Ellis, Fabien Gélinas and Tina Piper of McGill have been actively involved in advising on the preparation of the present volume and their assistance has been greatly appreciated. But access to the archives of the admiralty courts could never have been achieved without the assistance of so many others. The archives of the Quebec Vice-Admiralty Court were found in the records of the Federal Courts, and the assistance of the Courts Administration Service, and especially of Claude Laflamme, in charge of the Courts’ documentation, resulted in generous access to the records, since transferred to the preservation centre of Library and Archives Canada in Gatineau. Access to the extant records of the French regime admiralty court has been kindly arranged by Rénald Lessard of the Direction des services aux usagers at Bibliothèque et Archives nationales du Québec, who offered continuous advice on the deciphering of pre-revolutionary French court hand. At the National Archives in Kew, England, the records of the High Court of Admiralty are so voluminous, and partly written in abbreviated Latin, that it would have been impossible to review so many without assistance. I would like to thank Ms. Jasmin Noryaly for her unwavering support in collecting materials and obtaining pictures of each record I requested. The preparation of so many volumes of materials is a typist’s nightmare, and I can only thank my former secretary, Andrée Allaire, for tirelessly copying and correcting the tables and transcription of the materials. All errors, whether of transcription or of opinion, are however, solely the responsibility of the author. Finally, I thank Gaëtane for putting up with me without complaint during what seems still to be a never-ending project. -ii- Presentation Preface The present volume is part of a research project involving the review of all extant records of the admiralty courts active under the French in Quebec City from 1700 to 1760, as well as all extant records of the Quebec Vice-Admiralty Court between the establishment of the court in Quebec City by the British in 1764 and Confederation in 1867. The project includes a table of all entries in the extant registers of hearings of the French regime court, as well as a re-constituted register of hearings in the vice-admiralty court. It also includes a table of all suits commenced in the vice-admiralty court, and a full-text transcription of select pleadings in each extant vice-admiralty suit between the creation of the court in 1764 and the commencement of the reporting of Quebec admiralty decisions in 1836. A table of all suits entered in the Warrant Books of the High Court of Admiralty in London over the entire period has been prepared in parallel, in order to compare and validate the importance of the Quebec admiralty courts. In all, there are 19 volumes of accompanying material from which the statistical foundations of the present volume have been drawn. The writings of numerous authors and courts have given rise to many of the questions canvassed in this volume. A few general comments on the origins of the modern admiralty jurisdiction of Canada’s Federal Courts were previously published in the Journal of Maritime Law and Commerce, and an overview of some of the questions canvassed was presented to a recent meeting of the judges of the Federal Courts. However, the present volume is otherwise entirely composed of original scholarship, never previously published, and based for the most part on the results of the review of the above archival documentation. The sheer size of the project is such, that it would be impossible to publish it in its entirety. However, with the availability of electronic publishing and research, it is hoped that Bibliothèque et Archives nationales du Québec and Library and Archives Canada, where the records tabulated or transcribed are found, will be able to make available several of the volumes prepared as part of the project. It is also hoped that the comments on these materials, and their publication as part of the project, will constitute a distinct contribution to the limited knowledge most of us have of the subject of -iii- Presentation admiralty procedure, and of the intriguing concept of the admiralty action in rem. And perhaps most of all, to encourage the study of the history of our courts, and of the importance of Quebec City in the development of Canadian maritime law. -iv- Presentation Outline The Law Civil and Maritime: Quebec Admiralty Courts and the Development of in rem Procedure explores the development of the admiralty action in rem during the eighteenth and nineteenth centuries, through a study of contemporaneous and modern writers on British, French and Canadian admiralty law, as well as through a modular study of original archival resources from English and Quebec admiralty courts, many of which have never before been studied. In rem process is a unique admiralty remedy. It is a procedure allowing a claimant to obtain the arrest of property upon which the claim is based. That property is usually a ship, but can also be a cargo or freight paid to carry a cargo. The arrest can be obtained without appearance before a judge, and regardless of the financial profile of the defendant. Proof of the likelihood of being able to execute a final decision on the merits of the claim is not required. This distinguishes in rem procedure from the seizure before judgment of modern civil-law jurisdictions and from the Mareva injunctions or freezing orders of modern common-law jurisdictions. But is in rem process simply a tool, developed by admiralty practitioners to coerce the in personam defendant to attorn to the jurisdiction of the admiralty courts, at a time when the common-law courts were contesting the in personam jurisdiction of those courts? Or is it a stand-alone remedy against the res itself? And how was in rem procedure developed? Is it a variation of the actio in rem of Roman or continental civil law? Or of the simple seizures of customary French law? Or was it borrowed from the mesne process of English common law? Or from the foreign attachment process granted to citizens in French and English medieval municipal charters? The present enquiry compares arrest process in Roman, French and English civil procedure with in rem process in admiralty, in view of trying to answer these queries and to establish the origin and development of the remedy.