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namely, to assist mariners in distress. They acquire, by
bathing, confidence amidst the waves, and learn how to
seize the proper moment for giving their assistance. It is
found as a fact, in this case, that it has been the custom
for the public to cross the spot in question on foot for
the purpose of bathing. Bathing machines were used
before my time, and I believe before that of the oldest
person mow alive, and I think the use of them is essen-
tial to the practice of bathing. Decency must prevent
all females, and infirmity many men, from bathing, ex-
cept from a machine. Attempts have been made to
make those who use machines pay soune acknowledg-
ment to the lord of the manor where they were used;
but I cannot find that any of those attempts have yet
succeeded. I shall presently shew from authority, that
the right to fish is only a part of the general right of
the subjects of England. Persons have also crossed
the beach for the purpose of fishing in the sea, and
have brought back their fish over the beach, both
on horses and in carriages. These acts of the fisher-
men are instances in support of the common-law right
of way.
The practice of a particular place is called a custom.
A general immemorial practice through the realm is the
common law. Many of our most valuable common law
rights have no other support than universal practice.
In Ball v. Herbert (a), Lord Kenyon says, “Common
law rights are either to be found in the opinions of
lawyers, delivered as axioms, or to be collected from the

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1821.

Bluxor L1, against CATTERALL1821,

Blundell against Carrrkall.

the existence of an universal custom in favour of a public right of way over the sea shore. It has been at all times the policy of this country to encourage navigation. The free passage of the sea shore is essential to the convenience and safety of navigation. Cases of immediate necessity or imminent danger may be said to form exceptions to general rules; but there are many cases in which there is neither immediate necessity nor imminent danger, in which boats must pass between ships at sea and the shore, letters and provisions must be sent, passengers require to land or to embark, intelligence necessary to the further prosecution of a voyage is desired, or a pilot is wanted. For many leagues of coast, there is no public passage marked out, by which persons may go to or from the sea. But fixed places will not do. Winds or currents make it necessary, that the greatest part of the shore should be left open for persons to land on, and embark from. There is no statute, or rule of common law, that secures the right of passage over the shore for purposes connected with navigation; those who have passed over the shore for those purposes, have been trespassers, if they were not justified under the general common law right of free passage. Is it to be supposed, that, in a country, the prosperity and independence of which depends on mavigation, that which is so necessary to navigation as a road for all lawful purposes to the sea, should not have been secured to the public, particularly when it might be done without injury to the interest of any individual? There is no clear and express declaration on this point, either in the statutes or in the common law. But this right is so important to the best interests of

the country, that had not the constant exercise of it

--- been

been considered sufficient to establish it, the legislature would no doubt have declared it to be in the people of England. Bracton, lib. 1. cap. 12. sec. 6., says, “Publica vero sunt omnia flumina et portus. Ideoque jus piscandi omnibus commune est in portu et in fluminibus. Riparum etiam usus publicus est de jure gentium, sicut ipsius fluminis. Itaque naves ad eas applicare, funes arboribus ibi natis religare, onus aliquod in is reponere, cuivis liberum est, sicut per ipsum fluvium navigare: sed proprietas earum illorum est quorum prediis adherent, et efidem de causã arbores in eisdem natae eorundem sunt: et haec intelligenda sunt de fluminibus perennibus, quiá temporalia possunt, esse privata.” This passage proves all that I am attempting to establish. It shews that all persons have a common right on rivers; that the right of fishing exists only as a part of that common right, and that the banks of rivers are as much open to the use of the public as the rivers themselves. The passage has been supposed to prove too much, and therefore it has been said, that its authority cannot be relied on. Mr. Justice Buller, speaking of it, in Ball v. Herbert (a), says, “that it plainly appears to have been taken from Justinian, and is only part of the civil law; and whether or not it has been adopted by the common law, is to be seen by looking into our books; and there it is not to be found.” I admit that Bracton agrees with the civil law, and I must add, with the law of all civilized nations. Selden,

who wrote his “Mare clausum,” to prove that an ex

clusive right might be acquired in parts of the sea, admits that the sea was originally common to all, and

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1821.

Bluspxll against CATTERAll.

1821.

BLUNDELL

against CAEBALL.

in lib. I, cap. 2., he has collected from the works of
the learned of all nations, as well philosophers, divines,
and poets, as lawyers, that the sea and its shores were
common to all men, as much so as the air that blows
over them. This I think proves, that the doctrine is
reasonable, and ought to be adopted into our law, unless
there be something in our particular situation to exclude
it; and so far from this being the case, there never was
a country, the local situation of which, and the habits
and interests of the inhabitants of which, so much re-
quired such a law.

But our books shew, that this passage has been
adopted into our law, Mr. Justiçe Buller tells us, that
Callis quotes it as English law, and I have often heard
Lord Kenyone speak with great respect of that writer.
Bracton has not stated this as civil law, he has made it
part of his book, De legibus et consuetudinibus Angliæ.
He was Chief Justice of England in the reign of Henry
the Third; and Lord Hale (Hist, of the Common Law,
ch. 7.,) says, that in his time the common law was
much improved, and the pleadings were more perfect
and orderly than in any preceding period of our history.
Surely such a man is no mean anthority for what the
common law was at the time he wrote. In Fortescue,
p. 408., Lord Chief Justice Parker says, “ As to the
the authority of Bracton, to be sure many things are
now altered; but there is no colour to say, that it was
not law at that time, for there are many things that
have never been altered, and are law now.” As law is
a just rule fitted to the existing state of things, it must
alter as the state of things to which it relates alters. I
do not say, that the whole of the passage in Bracton is
now good law: 'it was all good law at the time he wrote,

and

and all of it that is adapted to the present state of things is good law now. It is objected, that Bracton says, “that any one may, in any river, fasten vessels with ropes to the trees on the banks, and unload the cargoes on the banks.” Undoubtedly the public cannot now pretend to claim this right in all navigable rivers, Many rivers have been rendered navigable since Bracton wrote, which in his time were private streams. The public have no greater right on the banks of such rivers, than the owners of the adjoining lands granted them when such rivers were made, from private streams, public rivers, and the extent of the grant must be ascertained from usage. This is the case with a new made road. If one dedicates to the public a right of way over his lands, the public must take the road with gates on such parts of it as the owner thinks proper to erect at the time he makes the dedication. But Braeton speaks not of newly made rivers, but of such as were always havigable, and the banks of which had been as open to the public as their waters. This I take to be the law with all inland navigations in the reign of Henry the Third. These, like the sea and its shores, were then

the property of the public, and the right of the public

in them was not acquired by any compromise with the

interest of any individual. On some rivers that have

been navigable from time immemorial, the public using

but one of the banks for a towing path, the other has been usefully occupied by the owner of the adjoining

land, and so an exclusive right has been established to,

the part so occupied. But the barrenness of the greatest part of the sea shore has prevented it from becoming the subject of exclusive property. It is useful only as a boundary and an approach to the sea; and therefore,

- CWCT

1821.

BLUN pell. against CAttkhall.

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