Yesterday I mentioned why American water regulation might have been engaging to judges making use of French regulation in Canada. In the present day we transfer the main focus again to London and the Privy Council:
The reliance by counsel in Miner v. Gilmour on American sources for a query of French regulation, together with the courtroom’s conflation of the French regulation and the frequent regulation (mentioned in Half III of this collection), would appear to be a devoted expression of the water regulation of Canada East, with its personal heavy reliance on American sources and mixing of the French regulation and customary regulation, usually by means of citing those self same American sources.
|W. Holman Hunt, The Proper Hon. Stephen Lushington (1862)
Furthermore, the incorporation of the civil regulation into the frequent regulation of waters and the export of this mélange all through the common-law world is perhaps seen because the product not solely of a one-time encounter with the regulation of Canada East in Miner v. Gilmour, however of an ongoing engagement with this odd jurisdiction, directly an integral a part of the ascendant British Empire and the offspring of the previous French Empire. Thus we discover the Decrease Canada case of St. Louis v. St. Louis, mentioned earlier for Chief Justice Sewell’s use of Kent as authority for a degree of French regulation, making its option to the Privy Council in 1841. The decide who delivered the judgment of the Judicial Committee, Stephen Lushington, a outstanding and educated English civilian lawyer (he was a decide on ecclesiastical and admiralty courts, enclaves of civil regulation within the English authorized system), was additionally a member of the panel that determined Miner v. Gilmour. May the daring assertion of the courtroom in Miner, in response to which riparian rights within the frequent regulation have been basically the identical as within the civil regulation, have been influenced by Lushington’s publicity to exactly this perspective by the American-Canadian decide Sewell in St. Louis?
Sewell’s view in St. Louis might have influenced the frequent regulation of waters via one more route, as properly. Sitting alongside Lushington on the Judicial Committee to listen to the attraction of Sewell’s judgment in St. Louis v. St. Louis was James Parke, the dominant decide on the English Court docket of Exchequer. Inside the decade, his courtroom determined two instances—Wooden v. Waud and Embrey v. Owen—which have been the primary English instances to undertake the American regulation of riparian rights, relying closely on Kent, Tyler v. Wilkinson, and French sources. May the Decrease Canada case of St. Louis v. St. Louis have made an impression on Baron Parke, main his courtroom to base trendy English riparian regulation on French and American sources?
Right here we encounter a methodological problem—distinguishing between inter-imperial influences on the one hand, and transnational influences of the ‘bizarre’ variety, between two nationwide jurisdictions, whether or not imperial metropolises or not, on the opposite. Put extra concretely, was the intermixture of the legal guidelines of the previous French Empire and the brand new American one within the courts of the British Empire a real inter-imperial encounter? Or would possibly or not it’s higher conceived of as a case of British judges being influenced by the legal guidelines of France and america, two nationwide jurisdictions the legal guidelines of which they have been inclined to contemplate by elements resembling geographic proximity, cultural affinity, frequent authorized origins and the supply of regulation books, independently of their crossed imperial histories?