Inter-imperial riparian law V: Encounters of legal empires in Miner?
Yesterday I discussed why American water law may have been attractive to judges applying French law in Canada. Today we move the focus back to London and the Privy Council:
The reliance by counsel in Miner v. Gilmour on American sources for a question of French law, along with the court’s conflation of the French law and the common law (discussed in Part III of this series), would seem to be a faithful expression of the water law of Canada East, with its own heavy reliance on American sources and blending of the French law and common law, often by way of citing those same American sources.
Moreover, the incorporation of the civil law into the common law of waters and the export of this mélange throughout the common-law world might be seen as the product not only of a one-time encounter with the law of Canada East in Miner v. Gilmour, but of an ongoing engagement with this odd jurisdiction, at once an integral part of the ascendant British Empire and the offspring of the old French Empire. Thus we find the Lower Canada case of St. Louis v. St. Louis, discussed earlier for Chief Justice Sewell’s use of Kent as authority for a point of French law, making its way to the Privy Council in 1841. The judge who delivered the judgment of the Judicial Committee, Stephen Lushington, a prominent and knowledgeable English civilian lawyer (he was a judge on ecclesiastical and admiralty courts, enclaves of civil law in the English legal system), was also a member of the panel that decided Miner v. Gilmour. Might the bold statement of the court in Miner, according to which riparian rights in the common law were essentially the same as in the civil law, have been influenced by Lushington’s exposure to precisely this attitude by the American-Canadian judge Sewell in St. Louis?
Sewell’s view in St. Louis may have influenced the common law of waters through yet another route, as well. Sitting alongside Lushington on the Judicial Committee to hear the appeal of Sewell’s judgment in St. Louis v. St. Louis was James Parke, the dominant judge on the English Court of Exchequer. Within the decade, his court decided two cases—Wood v. Waud and Embrey v. Owen—which were the first English cases to adopt the American law of riparian rights, relying heavily on Kent, Tyler v. Wilkinson, and French sources. Could the Lower Canada case of St. Louis v. St. Louis have made an impression on Baron Parke, leading his court to base modern English riparian law on French and American sources?
Here we encounter a methodological difficulty—distinguishing between inter-imperial influences on the one hand, and transnational influences of the ‘ordinary’ kind, between two national jurisdictions, whether imperial metropolises or not, on the other. Put more concretely, was the intermixture of the laws of the old French Empire and the new American one in the courts of the British Empire a true inter-imperial encounter? Or might it be better conceived of as a case of British judges being influenced by the laws of France and the United States, two national jurisdictions the laws of which they were inclined to consider by factors such as geographic proximity, cultural affinity, common legal origins and the availability of law books, independently of their crossed imperial histories?
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The reliance by counsel in Miner v. Gilmour on American sources for a question of French law, along with the court’s conflation of the French law and the common law (discussed in Part III of this series), would seem to be a faithful expression of the water law of Canada East, with its own heavy reliance on American sources and blending of the French law and common law, often by way of citing those same American sources.
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| W. Holman Hunt, The Right Hon. Stephen Lushington (1862) (Victorian Web) |
Sewell’s view in St. Louis may have influenced the common law of waters through yet another route, as well. Sitting alongside Lushington on the Judicial Committee to hear the appeal of Sewell’s judgment in St. Louis v. St. Louis was James Parke, the dominant judge on the English Court of Exchequer. Within the decade, his court decided two cases—Wood v. Waud and Embrey v. Owen—which were the first English cases to adopt the American law of riparian rights, relying heavily on Kent, Tyler v. Wilkinson, and French sources. Could the Lower Canada case of St. Louis v. St. Louis have made an impression on Baron Parke, leading his court to base modern English riparian law on French and American sources?
Here we encounter a methodological difficulty—distinguishing between inter-imperial influences on the one hand, and transnational influences of the ‘ordinary’ kind, between two national jurisdictions, whether imperial metropolises or not, on the other. Put more concretely, was the intermixture of the laws of the old French Empire and the new American one in the courts of the British Empire a true inter-imperial encounter? Or might it be better conceived of as a case of British judges being influenced by the laws of France and the United States, two national jurisdictions the laws of which they were inclined to consider by factors such as geographic proximity, cultural affinity, common legal origins and the availability of law books, independently of their crossed imperial histories?
Read more »
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