On Friday we mentioned the place of French and American legislation in Privy Council water selections, main as much as the seminal 1858 case of Miner v. Gilmour. At the moment we'll have a look at how Miner grew to become an inter-imperial authority, as Lord Kingsdown's abstract of the relative rights of riparian homeowners was cited extensively all through the British Empire and past (for examples of the case's affect, see the article on which this collection relies).
Although arising in a case through which the relevant legislation was the previous French legislation of Canada East, on the imperial periphery, it was taken as a trustworthy exposition of the frequent legislation of England, the imperial metropolis. Within the 1876 case of Lyon v. Fishmongers’ Firm, for example, coping with the correct of entry of riparian homeowners to the River Thames, the Home of Lords (on the time the very best courtroom for circumstances arising in Britain itself) referred to it as one among ‘one of the best authorities’ on riparian doctrine.
|"a lord of attraction" [Colin Blackburn].
(Spy, Self-importance Honest, 19 Nov. 1881)
Maybe probably the most fascinating reliance on Miner (for our functions) within the water jurisprudence of the British Empire got here in two selections authored by the British decide Colin Blackburn. Within the Home of Lords case of Orr Ewing v. Colquhoun (1877), Blackburn rejected the rule of Scottish legislation utilized by the Scottish courtroom beneath, arguing (inter alia), "If such be the legislation of Scotland it’s totally different from what Lord Kingsdown, in [Miner v. Gilmour], states to be the legislation of England and France". Lord Blackburn, it appears, was prepared to switch the legislation of the metropolis (albeit of Scotland, a jurisdiction of secondary significance, and one through which the civil legislation, not the frequent legislation, utilized), bending it to evolve to the legislation as laid down in Miner, a case ruled by the legislation of a international empire.
A couple of years later got here Commissioners of French Hoek v. Hugo, an attraction to the Privy Council of a judgment of the supreme courtroom of the Cape Colony, in at the moment’s South Africa. Governing the dispute over the waters of two small watercourses was what is called Roman-Dutch legislation. This was the legislation in pressure within the Cape Colony when it was ceded by the Dutch to the British on the finish of the Napoleonic wars (the metropolitan Netherlands had by this level adopted the Napoleonic Code to be used within the dwelling nation), and, because the colony had been conquered from one other state, not “settled”, this was the legislation that remained in pressure below British rule. Just like the pre-Revolutionary French legislation in pressure in Quebec, Roman-Dutch legislation was based mostly largely on the writings of discovered ‘civilian’ jurists writing within the Roman legislation custom. Certainly, along with Cape Colony circumstances and Roman-Dutch sources, attorneys for the appellants cited French treatises in help of their argument.
Writing for the Privy Council in French Hoek, Lord Blackburn referred approvingly to the abstract of the legislation of riparian rights in Miner v. Gilmour, seeming to connect some significance to the same positions of the Roman-influenced civil legislation in Canada East and the Cape Colony: