Inter-imperial riparian law II: The Law in Miner v. Gilmour

Continuing where yesterday's post left off:

As the judges of the Privy Council recognized, the law governing the conflict between Miner and Gilmour over the waters of the Yamaska was not English law. Quebec, before being conquered by the British in 1760, had been part of the French Empire. A royal edict of 1663 had declared the law of New France to be the law as applied in the Parlement of Paris.  This law included royal ordinances, Roman law as expounded by jurists, and the sixteenth-century official collection of the customary law of Paris known as the Coutume de Paris. The Quebec Act of 1774, passed by the British Parliament a few years after the British conquest of Canada from France, declared that the laws of property existing in the province of Quebec pre-conquest would remain in force under British rule.

The water law applicable to the case at hand was thus the law of the old French Empire, that is to say the law of ancien régime Paris, ironically no longer in force in France itself after the adoption of the Napoleonic Code in 1804, but preserved in British colonies that had been conquered from the French. Indeed, the lawyers arguing the case before the British court in Westminster cited the civilian Digest of Justinian, the great French scholar Pothier and said Custom of Paris.

Sitting of a Judicial Committee of the Privy Council
(Illustrated London News, vol. 8, no. 206, 11 April, 1846, p. 1)

The encounter between French and English law did not end with this infusion of French imperial law into a British imperial courtroom, nor with its application by British judges at the seat of imperial power. Despite the lack of formal authority for English common law in the civil-law jurisdiction of Canada East, the lawyers for Miner and Gilmour before the Privy Council cited not only the civilian sources mentioned above, but also recent English case law on the subject of riparian rights. The judges of the Judicial Committee were impressed with the ‘great learning and ingenuity’ displayed by counsel, and scheduled an unusual second round of oral arguments. Yet after all this learning and argument, they arrived at a surprising conclusion: ‘It did not appear that, for the purposes of this case, any material distinction exists between the French and the English law.’ According to both legal systems, the court opined, Miner could not demand that Gilmour keep the dam gate closed all the time, since a riparian proprietor had ‘no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury’.

The decision’s exposition of this and other principles of what Lord Kingsdown, writing for the court, termed the ‘general law applicable to running streams’—that is to say the law of riparian rights, according to him common to French and English law—went on to be cited extensively throughout the British Empire and beyond as the definitive statement of the rules of riparian rights in the common-law world, as will be discussed in a later post.

One might frame this episode as one in which the expanding British Empire encountered legal norms of the old French Empire through conquest, assimilated them into the common law, and then spread them throughout its possessions around the world. Alternatively, one might frame it as one in which British lawyers, despite their professed recognition of the legal distinctiveness of the civil-law province, essentially ignored French law and imposed, in an expression of imperial power, their own law on the conquered land. Yet deeper reading in the law of Canada East reveals that the crossed legal histories of the British and French empires was more complex than either of these two stories suggests.

So do two hints in the Miner opinion itself. The first is the Privy Council’s reference to ‘the general law of running streams’. This way of presenting the legal environment went beyond a simple statement that the water law of pre-revolutionary French law in force in Canada East was essentially the same as the common law in force in most of the rest of the British Empire; it seems to rather have reflected a view that there was a ‘general law’, not specific to particular legal systems, that applied in the case at hand.

The second hint that something more than simple merging of two imperial legal traditions was at work involves the sources cited before the court. In addition to the civil-law sources discussed above, the parties relied upon two sources neither French nor English, but American: James Kent’s Commentaries on American Law, a highly influential work by one of the premier American jurists of the age, and the leading American water case of Tyler v. Wilkinson. To understand why American sources were cited in a British court adjudicating an issue meant to be determined by seventeenth-century French law, we need to go back across the Atlantic to Canada East and Lower Canada.

Next: American sources of French-Canadian water law

For the complete series of posts, see here. For the article, see here.