Sunday, July 30, 2017

Inter-imperial riparian law VI: Miner as an inter-imperial legal authority and Conclusion

On Friday we discussed the place of French and American law in Privy Council water decisions, leading up to the seminal 1858 case of Miner v. Gilmour. Today we'll look at how Miner became an inter-imperial authority, as Lord Kingsdown's summary of the relative rights of riparian owners was cited widely throughout the British Empire and beyond (for examples of the case's influence, see the article on which this series is based).

Though arising in a case in which the applicable law was the old French law of Canada East, on the imperial periphery, it was taken as a faithful exposition of the common law of England, the imperial metropolis. In the 1876 case of Lyon v. Fishmongers’ Company, for instance, dealing with the right of access of riparian owners to the River Thames, the House of Lords (at the time the highest court for cases arising in Britain itself) referred to it as one of ‘the best authorities’ on riparian doctrine.

"a lord of appeal" [Colin Blackburn].
(Spy, Vanity Fair, 19 Nov. 1881)
Perhaps the most interesting reliance on Miner (for our purposes) in the water jurisprudence of the British Empire came in two decisions authored by the British judge Colin Blackburn. In the House of Lords case of Orr Ewing v. Colquhoun (1877), Blackburn rejected the rule of Scottish law applied by the Scottish court below, arguing (inter alia), "If such be the law of Scotland it is different from what Lord Kingsdown, in [Miner v. Gilmour], states to be the law of England and France". Lord Blackburn, it seems, was ready to modify the law of the metropolis (albeit of Scotland, a jurisdiction of secondary importance, and one in which the civil law, not the common law, applied), bending it to conform to the law as laid down in Miner, a case governed by the law of a foreign empire.

A few years later came Commissioners of French Hoek v. Hugo, an appeal to the Privy Council of a judgment of the supreme court of the Cape Colony, in today’s South Africa.  Governing the dispute over the waters of two small watercourses was what is known as Roman-Dutch law. This was the law in force in the Cape Colony when it was ceded by the Dutch to the British at the end of the Napoleonic wars (the metropolitan Netherlands had by this point adopted the Napoleonic Code for use in the home country), and, as the colony had been conquered from another state, not “settled”, this was the law that remained in force under British rule. Like the pre-Revolutionary French law in force in Quebec, Roman-Dutch law was based largely on the writings of learned ‘civilian’ jurists writing in the Roman law tradition. Indeed, in addition to Cape Colony cases and Roman-Dutch sources, lawyers for the appellants cited French treatises in support of their argument.

Writing for the Privy Council in French Hoek, Lord Blackburn referred approvingly to the summary of the law of riparian rights in Miner v. Gilmour, seeming to attach some importance to the similar positions of the Roman-influenced civil law in Canada East and the Cape Colony:
In Miner v. Gilmour this Board had to decide as to the Canadian law, which is founded on the old French law, not on that law as altered by the Code Napoléon, and Lord Kingsdown, in delivering the judgment, used […] expressions which have often been cited, and always with approval. He said: “It did not appear that, for the purposes of this case, any material distinction exists between the French and the English law.”
Finding, however, that an important difference was said to exist between Roman-Dutch law—in which a landowner might do as he pleased with a stream arising within his land, without regard to effects on downstream riparians—and the English common law as laid down in Miner—according to which a riparian owner could in general not interfere with the uses made by downstream owners—Lord Blackburn made an odd argument, explaining that his court had ‘a very grave doubt, whether that which was alleged to be the Dutch-Roman law could be so, the English law as laid down by Lord Kingsdown being so much more convenient.’

Blackburn’s attitude to the plural legal world of the British Empire is thus revealed as ambiguous. On the one hand, he recognized that the governing law in Miner v. Gilmour was the law of the old French Empire, a fact that seemed to imbue it with particular relevance for the case at hand, also governed by pre-Revolutionary, Romanist civil law. On the other hand, the Privy Council’s rejection in French Hoek of the accepted understanding of the Roman-Dutch law (as expounded by the Roman-Dutch authority Voet, the lower court sitting in the Cape and appellants’ counsel) in favour of what it termed the “English law” as laid down in Miner, seems to reflect a sort of legal patriotism or at least homogenizing tendency, with the British judge not bothering to determine the applicable law imported from another imperial system, since the English rule was "so much more convenient". In this encounter with the law of a foreign empire, far from making the British law conform to the foreign imperial law, as in Orr Ewing, Blackburn made the foreign law (in force in the British Cape) conform to the English common law.

It should be noted that Blackburn was no foe of the civil law of the Continent, no common law chauvinist; one of his most noted judgments, on English contract law, made heavy use of civilian sources. So his rejection of the Roman-Dutch rule in French Hoek in favour of the “more convenient” English law seems not to have been the product of a general predilection in favour of English law, but of a preference for the specific rule of the common law of water rights relevant to the case over the Roman-Dutch one. Nonetheless, his varying characterizations of the rules of riparian rights explained in Miner v. Gilmour, first as based on ‘the old French law’, then as ‘the English law as laid down by Lord Kingsdown’, raise the question of whether the Canadian case’s wide influence on the law of the British Empire should be properly viewed as reflecting the impact of French imperial law on the British, or simply as the result of particularly persuasive British authority.


It is clear, then, that Quebec/Lower Canada/Canada East was a fertile ground for the transfer of legal norms from the French Empire to the British one. It is also clear that it was the site for the intermixing of laws from the civil and common law systems, catalysed with the aid of legal sources from a growing, third, empire—the American one.

What is less clear is whether this inter-imperial mixing was primarily a local phenomenon, limited to the law of this one province of the British Empire, or whether its influence radiated back to the imperial metropolis, Britain, and from there outwards again throughout the empire. British courts in Westminster made use (like their subordinate counterparts in Quebec City and Montreal) of French and American sources to work out the relative rights of private citizens and the public in watercourses, and were certainly cognizant to some extent of water-law developments in Canada. The appellate review by the Judicial Committee of the Privy Council of a Canadian dispute, Miner v. Gilmour, was the occasion for the authoritative judicial pronouncement on the unity of French and English water law, and for the export of this homogenized conception of the law to lands as far afield as India, Australia and South Africa. Yet we cannot say for certain that it was the particularly imperial combination of the French and English law in Canada that led to this transplantation of American and French law into the common law; factors inherent in the development of English law itself, on its home turf, may have been responsible for the reception.

For more thoughts on inter-imperial law, see the article. For the rest of this series, see here.

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