Some Notes on Benjamin on Sale of Goods

Thanks to our neighbour, Mary Saulig of Goodmans for lending me her copy of an old acquaintance, Benjamin on the Sale of Goods. But this post isn’t about presumptions of delivery or FOB contracts. It’s about one of the most remarkable stories of a legal author I’ve heard.

Let’s start at the Cimetière du Père Lachaise‎ in the 20th arrondissement, though the website doesn’t list this grave, which has this inscription on the tombstone:

Judah Philip Benjamin, Born St. Thomas West Indies August 6,1811, Died in Paris May 6,1884, United States Senator from Louisiana, Attorney General, Secretary of War and Secretary of State of the Confederate States, of America, Queen’s Counsel, London

This doesn’t sound like an author on sales law, but bear with me. The lawyer we’re discussing was

* The first Jewish Cabinet member in a North American government
* The first Jewish lawyer to be nominated to the US Supreme Court
* The most successful Jewish politician in American history
* US Senator
* Attorney General, February 25 to September 17, 1861;
* Secretary of War, September 17, 1861, to March 23, 1862;
* Secretary of State, March 18, 1862, until the end of the Civil War.
* Described as The Brains of the Conspiracy or The Confederate Kissinger
* Journalist
* Queen’s Counsel
* Bencher of Lincoln’s Inn

At the front of the new edition of Benjamin is an essay by the New Zealand scholar, Leonard S. Sealy, Professor of Corporate and Commercial Law at Cambridge, that tells the remarkable story of the original author of Benjamin, Judah P. Benjamin. This account is drawn from it, and The Times obituary from the 9th of May, 1884.

Judah Philip Benjamin’s English parents set out in 1811 for New Orleans. Before reaching the Gulf of Mexico they learned that the Mississippi was blockaded by a British fleet, although war had not yet been officially declared. The ship put into St. Croix, in the Virgin Islands, then British, next Danish and now USVI. Here Judah Benjamin was born and spent the first four years of his life.

He attended Yale College from the age of 14, but left three years later without taking a degree. He joined a lawyer’s office in New Orleans in 1832, studied law, and at night compiled a digest of the reported cases in the local court. Later with his friend Thomas Slidell he published the first systematic collection of the law of Louisiana, called a “Digest of the Reported Decisions of the Superior Court of the late Territory of Orleans, and of the Supreme Court of the State of Louisiana.” The Digest covered Spanish Law as well as the French Civil Code. Later in his career before the Privy Council it was said;

There was no man in England at the time who possessed his encyclopaedic knowledge of Comparative Law.

Benjamin was already too busy as a litigator to remain a text-writer. “His clear, silvery voice was heard, and his figure, short but strong, on which was set a resolute, square face, animated by piercing eyes beaming with intelligence, was seen constantly in the courts”. He had also thrown himself into politics, became a Whig, and when that party collapsed joined the Democrats. New Orleans was the centre of the cotton trade, and Benjamin became the leading lawyer serving the industry.

From 1842 to 1844, he sat in the Louisiana State Legislature at Baton Rouge. He was known as a sugar plantation owner and as an active promoter of railroads in the southeast of the United States. He was elected to the United States Senate in 1852 and again in 1857. He married Natalie St. Martin, although the union was not very happy and she spent most of her life in Paris.

He was offered two major appointments by President Pierce in 1853. He turned down both a seat on the United States Supreme Court and the ambassdorship to Spain. In the civil war, he stood with the southern states serving both as attorney general and secretary of war to Jefferson Davis, the Confederate leader. Upon the surrender of General Lee, his property was declared confiscated and a warrant for his arrest was issued.

He escaped through the backroads, eventually taking ship on an open boat to the Bahamas and to Havana. In taking ship to England, the sponge boat that he initially took sank and he was picked up by an English war ship and taken to St. Thomas. The second ship that he took to England caught fire, his effects were destroyed and he arrived in England almost penniless.

At the age of 55, he was admitted as a student in Lincoln’s Inn on January 13, 1866, serving as a pupil to Charles Pollock. In London, his early letters reveal extraordinary contacts for someone who was technically a barrister-pupil:

“I have been treated with great kindness and distinction and have been called upon by Lord Campbell and Sir James Ferguson, the former a peer and the latter of the House of Commons… Mr. Disraeli also wrote to a friend of mine, expressing the desire of being useful to me when he should arrive in town, and I have been promised a dinner at which I am to be introduced to Gladstone and Tennyson as soon as the season opens here.”

That June he was admitted to the Bar. His briefs were slow in coming, and so he embarked on writing the book later known as, “A Treatise on the Law of Sale of Personal Property With Reference to the American Decisions to the French Code and Civil Law” or more simply “Benjamin on Sale.”

Benjamin, J. P. (Judah Philip), 1811-1884.
A treatise on the law of sale of personal property: with references to the American decisions and to the French code and civil law.
London: H. Sweet; Washington, D.C.: W.H. & O.H. Morrison. 1868
xxiv, 715 p.; 26 cm.

“Benjamin on Sale” was, as he explained in his preface, an attempt to develop the principles applicable to all branches of the subject, while following “Blackburn on Sale” as a model for guidance in the treatment of such topics as are embraced in the work. The book commanded immediate attention. It was not a crude collection of decisions, as such publications too often are. It was a reasoned and orderly presentation of the law, a discussion of its principles, accompanied by illustrations from the best of the reported cases, and a merciless rejection of those which were repugnant to general rules. It is said that Baron Martin would never take his seat without this invaluable treatise of the commercial lawyer beside him on the bench.

He took silk six years after being called to the Bar, and was the most successful barrister of his time. The Privy Council was his favourite tribunal; his wide acquaintance with foreign systems of law qualified him in an eminent degree to deal with the cases from the colonies which came before the Judicial Committee. His great faculty was that of argumentative statement. He would so put his case, without in the least departing from candour, that it seemed impossible to give judgment except in one way.

From a Canadian perspective, a heresy abroad forty years accused him of smuggling confederate ideas into the early decisions of the Privy Council decisions on the British North America Act, 1867. A review of his cases scotched the view – see C. O. Johnson, ‘Did Judah P. Benjamin Plant the “States Rights” Doctrine in the Interpretation of the British North America Act?’ 45 Can. Bar Rev. 454, since he appeared both for Ottawa and the Provinces with divided success on each side.

When he retired in 1883, a farewell banquet was held at the Inner Temple hall. It was said at his retirement dinner:

From the first days of his coming he was one of us. We had been taught by the same teachers, Coke and Blackstone; Kent and Story had been, or at least ought to have been, our common guides, and it may be that the broad view of jurisprudence which Mr Benjamin ever displayed taught us to know that it was not from English juries alone that a true exposition of our law was to be gathered.

He moved, ill, to Paris. His health declined when he was injured jumping off a tram and he died in Paris on May 6, 1884 from a heart attack brought on by diabetes.

Finding the story takes us to a variety of sources. Research for a biography was not easy. Here is his memorial house built in 1842. Here is a great biographical article; the Sealy piece doesn’t seem to be available electronically.

JPB

Benjamin on the currency

And a video on Benjamin’s career.

And he is buried in Père Lachaise.
Grave

As was said in a recent glowing tribute to Judge C.G. Weeramantry, Lord Diplock said, “Judges make law in bits and pieces; Authors write entire texts and make law out of whole cloth”.

Remember that when you take it off the shelf.
Benjamin

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Comments

  1. Thank you, Simon. That was fascinating.