Friday, July 28, 2017

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.

W. Holman Hunt, The Right Hon. Stephen Lushington (1862)
(Victorian Web)
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?

Some support for the latter framing might be found in the fact that significant Roman-law influence on English water-law cases had a long pedigree dating to medieval and early modern times; in the period under discussion it was evident already in the important King’s Bench case of Mason v. Hill. Chief Justice Denman’s decision in that case, quoting extensively from Justinian and the Dutch civilian commentator Vinnius, was handed down in 1833, eight years before the Privy Council ruled in the Lower Canada case of St. Louis v. St. Louis.

As for American and French water law, English judges were exposed to these independently of cases coming up from Canada. One important channel was Gale’s Treatise on the Law of Easements, the first edition of which was published in London in 1839, a couple of years before the appeals of Sewell’s decision in St. Louis was heard by Lushington, Parke and the other judges sitting on the Privy Council appeal. In the preface to the work Gale explained that a majority of English cases on easements made recourse to the Romanist civil law, and so his treatise would rely on civilian authorities on servitudes. Moreover, he wrote:
With the same view the authority of decisions in the American Courts has been called in aid upon the subject of water-courses—questions which the value of water as a moving power, and the frequent absence of ancient appropriation have often given rise to in the United States. In those judgments the law is considered with much care and research, and the rights of the parties settled with precision. The result of the authorities is stated by Chancellor Kent, in his well-known Commentaries, with his usual ability. 
Like the Canadian judges discussed above, Gale, too, thus viewed American sources, especially Kent, as authorities on the civil law. When it came to water law, Gale did not cite Kent, but he quoted extensively from the leading American case Tyler v. Wilkinson.

There is no doubt that English courts were influenced by Gale on Easements. The Court of Exchequer in Wood v. Waud and Embrey v. Owen, and counsel arguing before Privy Council in Miner v. Gilmour, all cited Gale’s discussion of water rights under American law, along with Tyler v. Wilkinson. They all cited, too, to Kent’s exposition of riparian rights, particularly the pages (discussed in the previous installment in this series) in which he summarized the law, relying on civilian sources.  Given that Gale did not cite these pages, it can be assumed that while they may have read Tyler only as quoted by Gale, they read Kent in the original.

What brought the English lawyers and judges to turn to Kent’s discussion of water law? It is possible that Kent’s coverage of the topic was simply the best that was available at the time, and it is possible that Gale’s recommendation pointed them in that direction, but it is also possible that their exposure to the opinions of Canadian judges and their reliance on Kent in St. Louis v. St. Louis and later in Miner v. Gilmour were decisive, or at least primed them for the easy acceptance of American and French authority on water law. In any case, the conflation of the civil and common law of waters continued in the reception of Miner v. Gilmour into the law of the British Empire, as we will see in the next installment.

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

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