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Colonial Cases

Duboulay v. Duboulay, 1866

[family name, property in]

Duboulay v. Duboulay

Windward Islands
1866
Source: W.H. Greaves, Report of Judgments of Windward Islands Court of Appeal (Gale, 1905)

 

ST. LUCIA, 1866[1]

DUBOULAY, Appellant, v. DUBOULAY, Defendant.

Family name, property in - Assumption of, by stranger - Action to restrain use of - English law on assumption.

   WOODCOCK, C.J. Tobago.   The baneful influence of slavery in the West Indies, under which the possession of the slave renders the unfortunate bondwoman the mere creature of her master's lusts, produced a race degraded by the mother's shame and the father's crime.  Although this class for many years were refused an entrance within the circle of refined society, and although the law denied to its members, as being illegitimate, an inheritance, the present suit is the only attempt I have ever heard of to deprive them , or their progeny, of a name; and this after thirty years of emancipation, and after the grand children and great grand children of the almost forgotten slave have by education and integrity won for themselves an equal place with their fellowmen.  Thank heaven, I know of no law, which I can be called upon to administer, by which such an attempt can be supported.

   The case is in a nut shell. The present appellant is the issue of a manumitted slave, and has assumed, and for some time borne, the name of DuBoulay; and the present suit is instituted to deprive the appellant of this patronymic.  The Court is to enquire whether there be any law in force In Saint Lucia by which the object of such a suit can be attained.

   It was stated, from authority, at the bar that there was a time when in France names were changed without any solemnity, but such a latitude was prohibited by an Ordinance of 11th April 1803.  Without any hesitation I say that ordinance is not in force in St. Lucia.  No Ordinance of France was deemed to be in force in her Colonies unless registered there, or extended to the colonies by the order of the parent state.  The Coutume of Paris was the law of the French Colonies; but why?  Because the 33rd Article of the Arret of the Conseil d'Etat du Roi of May 1661, establishing the West India Company, expressly declares it to be of obligatory effect in the West Indian Colonies, as it had been established in the French Colonies in the East.  The Coutume of Paris is still continued as the law of Saint Lucia.  It does not appear that the Ordinance of April 1803 was extended by its terms or by any other edict of the French Government to its Colonies, and it has not been registered in St. Lucia. 

   The history of St. Lucia throws some further light on this subject.  About two months after the passing if the Ordinance of 1803, that is to say, on the 22nd June 1803, St. Lucia capitulated to the British Arms under General Greenfield, and it has remained a British Colony ever since.  Now, regard being had to the unsettled  condition  of France in its state of transition at the time of the passing of the ordinance; to the existence of war, by which the irregularity in the communication then existing between Europe and the Antilles was necessarily increased; to the length of time consumed in a voyage across the Atlantic in those days; and to the slowness that attends on all government action, it is not too much to presume, in absence of any evidence to the contrary, that this edict was unheard of in St. Lucia at the time of its conquest in 1803.

   By treating a name as a property which may be wrongfully taken from another, as would seem to be attempted by the Respondents here, one commits oneself to this ridiculous paradox.  A takes from B his property, while B still remains in possession of it.  The Appellant takes from the respondents their surname, they being at the same time in the possession and enjoyment of it.  I do not deem it necessary to prolong the present enquiry further.  I can come to no other conclusion than that the judgment of the Court below be reversed with costs of suit there, and in this Court.

   GRESHAM, C.J. Granada.  I am of the same opinion.

   ATTHILL, C.J. St. Lucia dissented.

Note

[1]      This judgment was confirmed by the Privy Council. See L.R. 2 P.C. 430.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School