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. Ideòque 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 iis reponere, cuivis liberum est, sicut per ipsum fluvium navigare: sed proprietas earum illorum est quorum prediis adherent, et eâdem de causâ arbores in eisdem natæ eorundem sunt: et hæc intelligenda sunt de fluminibus perennibus, quiâ 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 exclusive right might be acquired in parts of the sea, admits that the sea was originally common to all, and (a) 3 T. R. 263. 1821. BLUNDELL against CATTERALL in lib. 1. 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 required such a law. But our books shew, that this passage has been adopted into our law. Mr. Justice Buller tells us, that Callis quotes it as English law, and I have often heard Lord Kenyon 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 Lawe, 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 Bracton speaks not of newly made rivers, but of such as were always navigable, 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, 1821. BLUNDELL against CATTEBALL. 1821. BLUNDELL against CATTERALL. ever has been, and ever should continue common to all who have occasion to resort to the sea. Thus, the case of Bail v. Herbert is distinguished from the present, and it must be recollected, that, in that case, Lord Kenyon said, "Some of the passages in Lord Hale which seem to favour the common law right, are rather applicable to banks of the sea, and to ports; and it is part of the king's prerogative to create ports, which was lately exercised at Liverpool." In Broke's Abridgement, tit. Customs, pl. 46., all the Judges agreed, "that fishermen may justify going on the land adjoining the sea, to fish in the sea; for this is for the good of the commonwealth, affording sustenance to many persons, and is the common law." If the right of fishing is only a part of that more general right for which I am contending, as appears from the passage in Bracton, and will appear from Lord Hale, then this is a decision in support of the general right. The reason on which my judgment is grounded is public advantage. The right of bathing in the sea, which is essential to the health of so many persons, is as beneficial to the public as that of fishing, and must have been as well secured to the subjects of this country by the common law. That the right of using the shore for the purpose of fishing does not depend on any particular law applicable to fishing only, but is part of the more general right of the subjects to the sea and its shores, is proved by Lord Hale, putting the practice of fishing as evidence of the general right. In part 1. cap. 8. de jure maris, p. 11., he says, "The king's right of propriety, or ownership, in the sea, and soil thereof, is evidenced principally in these things that follow; first, the right of fishing in the sea, and the creeks creeks and arms thereof, is originally lodged in the crown." This makes the judgment in Broke bear directly on the point in dispute. Lord Hale, in his treatise De Portibus Maris (cap. 6. p. 73.), says, "Before any port is legally settled, although the propriety of the soil of a creek or harbour may belong to a subject or private person, yet the king hath his jus regium in that creek or harbour; and there is also a common liberty for any to come thither with boats and vessels, as against all but the king. And, upon this account, though A. may have the propriety of a creek or harbour, or navigable river, yet the king may grant there the liberty of a port to B.; and so the interest of propriety and the interest of franchise several and divided. And in this no injury is at all done to A.; for he hath what he had before, viz. the interest of the soil, and consequently the improvement of the shore, and the liberty of fishing; and as the creek was free for any to pass in it, against all but the king, (for it was publici juris, as to that matter, before), so now the king takes off that restraint, and by his licence and charter makes it free for all to come and unload." Here, we have the distinct authority of Lord Hale, that although a man has the soil under an arm of the sea, and the soil of the shore, yet the public have not only a right to navigate on the waters, but to unload on the shore; and that this right can only be restrained by the king's prerogative. If they have a right to unload, they must have the right to come over the shore; for the right to unload would otherwise be useless. The right on the shore is declared by this passage to be as common to the public as the right on the water: that the water is open to the public for all lawful purposes is not denied. What 1821. BLUNDELL against CATTERALL. |