Yesterday I discussed why American water regulation might need been partaking to judges making use of French regulation in Canada. Within the current day we switch the principle focus once more to London and the Privy Council:
The reliance by counsel in Miner v. Gilmour on American sources for a question of French regulation, along with the courtroom’s conflation of the French regulation and the frequent regulation (talked about in Half III of this assortment), would look like a faithful expression of the water regulation of Canada East, with its private heavy reliance on American sources and mixing of the French regulation and customary regulation, often via citing these self identical American sources.
|W. Holman Hunt, The Correct Hon. Stephen Lushington (1862)
Moreover, the incorporation of the civil regulation into the frequent regulation of waters and the export of this mélange all via the common-law world is probably seen as a result of the product not solely of a one-time encounter with the regulation of Canada East in Miner v. Gilmour, nonetheless of an ongoing engagement with this odd jurisdiction, instantly an integral part of the ascendant British Empire and the offspring of the earlier French Empire. Thus we uncover the Lower Canada case of St. Louis v. St. Louis, talked about earlier for Chief Justice Sewell’s use of Kent as authority for a level of French regulation, making its choice to the Privy Council in 1841. The resolve who delivered the judgment of the Judicial Committee, Stephen Lushington, a excellent and educated English civilian lawyer (he was a resolve on ecclesiastical and admiralty courts, enclaves of civil regulation throughout the English approved system), was moreover a member of the panel that decided Miner v. Gilmour. Might the daring assertion of the courtroom in Miner, in response to which riparian rights throughout the frequent regulation have been principally the an identical as throughout the civil regulation, have been influenced by Lushington’s publicity to precisely this angle by the American-Canadian resolve Sewell in St. Louis?
Sewell’s view in St. Louis might need influenced the frequent regulation of waters by way of yet another route, as correctly. Sitting alongside Lushington on the Judicial Committee to hearken to the attraction of Sewell’s judgment in St. Louis v. St. Louis was James Parke, the dominant resolve on the English Court docket docket of Exchequer. Inside the last decade, his courtroom decided two situations—Wood v. Waud and Embrey v. Owen—which have been the first English situations to undertake the American regulation of riparian rights, relying intently on Kent, Tyler v. Wilkinson, and French sources. Might the Lower Canada case of St. Louis v. St. Louis have made an impression on Baron Parke, predominant his courtroom to base stylish English riparian regulation on French and American sources?
Proper right here we encounter a methodological drawback—distinguishing between inter-imperial influences on the one hand, and transnational influences of the ‘weird’ selection, between two nationwide jurisdictions, whether or not or not imperial metropolises or not, on the other. Put further concretely, was the intermixture of the authorized tips of the earlier French Empire and the model new American one throughout the courts of the British Empire an actual inter-imperial encounter? Or may or not it is larger conceived of as a case of British judges being influenced by the authorized tips of France and america, two nationwide jurisdictions the authorized tips of which they’ve been inclined to ponder by components resembling geographic proximity, cultural affinity, frequent approved origins and the provision of regulation books, independently of their crossed imperial histories?