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narrow ground of the incompatibility of the bathing with carriages, or on foot, in a place where a private fishery with stake nets, existed ; but on the contrary, they decided upon the broad ground, that a general common law right did not exist at all by ancient custom, of frequenting the shore for bathing. It
may be inquired, why should not a common custom of bathing upon the shore be entitled to as much respect as the common custom of fishing? There is no doubt, that the public have a right to take shellfish on the shore, though the right of soil in the shore happens to be private property. To exclude the public from such fishing, there must be proved, besides the mere ownership of the soil of the shore, what is denominated a several fishery, or, in other words, a sole and exclusive right of fishery, in the riparian proprietor. Grant of the soil does not necessarily convey a peculiar privilege to fish between high and low-water mark, because all the king's subjects would have a right to fish there, unless a particular person was entitled to it by specific grant. A public right to dig for shell-fish in a part of the shore which had become private property was recognized in the case of Bagott v. Orr, in England, and is maintained by the supreme court of Connecticut, in the case of Peck v. Lockwood ;and Kent con
1 Stratton v. Brown, 4 B. & Cress. R. 485, Per Littledale, J.
Bagott v. Orr, 3 Bos. & Poll. R. 472. * Peck v. Lockwood, 5 Day, (Conn.) R, 22.
siders, that the first mentioned case is virtually overruled by the case of Blundell v. Catterall."
It is very clear, that the only restraint, which by the common law is imposed upon the common liberty of bathing in tide waters, where no right of private property is involved, is that which is imposed by decency and a respect for public morals. The laws of decency must be enforced in all places which become the habitations of civilized man.? In a case in the court of King's Bench, in which the defendant was brought up for judgment on an indictment for undressing himself on the beach, and bathing near inhabited houses, that court were clearly of opinion, that the offence was a misdemeanor, and that the conviction was proper. It may be innocent and lawful to enjoy the recreation of sea-bathing in some places at certain times, when it would not be at other times or seasons. So it may be lawful to bathe on parts of the coast under circumstances which may subsequently alter, so as to render it no longer a lawful recreation on those spots. This was the case of the individual who was indicted for bathing in the sea at Brighton, opposite the east cliff. Until within a few years previously to the change there
3 Kent, Comm. 336. ? So ruled by McDonald, C. B., as referred to in 4 Petersdorf's Abr. (Am. Ed.) 160.
3 Ib. See 1 Sid. R. 168; S. C. 1 Keb. R. 620; 1 East, Pl. C. c. 1, s. 1; 2 Stra. R. 788; 1 Hawk. Pl. C. c. 5, s. 4.
Woolrych on the Law of Waters, 6.
had been no houses near the spot, and regiments of soldiers had been accustomed to bathe there. Afterwards, however, a row of houses was erected on that cliff, from which any person might be distinctly seen as he undressed himself and swam in the water. The defendant on a Sunday, in July, bathed from this spot, undressing and dressing himself upon
the beach. It however did not appear, that he had been guilty of any wanton indecency, or that he exposed his person any farther than was necessary for the purpose of bathing. In his defence, it was contended, that he had not committed an indictable offence, inasmuch as he had no intention to outrage decency; and that, in fact, the inhabitants of these houses had come to the nuisance, and hence had no right to complain. It was also argued, that if the building of a house within sight of a spot appropriated to public bathing, rendered it indictable to bathe there without a machine, the poor man would soon be de barred from bathing on the southern coast of the island. The defendant was found guilty; though when brought up for judgment (as the prosecution was the first of the kind in modern times) his discharge was consented to, upon a recognition to appear when called for to receive sentence.
1 Ib. And Rex v. Crunden, 2 Campb. R. 89
The territory discovered, acquired and possessed by the early English emigrants to North America, though properly no part of the realm of England, was yet a part of its royalty, or of the dominions belonging to it. The emigrants considered themselves as British subjects, and acted in that character. In the association held at Cape Cod, by the first of those who settled New England, on the 11th November, 1620, they acknowledged themselves the loyal subjects of King James. They, moreover, took possession of the country in the name of the king, and made war, by his authority, with the Indians. Seeking the protection also of their native kingdom, they acknowledged and adopted the English common law, in so far as was applicable to their situation. The common law was, in fact, imported by all the English colonists; ? was sanctioned both by royal charters and colonial statutes, and was subsequently, claimed by the congress of the United Colonies as a branch of those indubitable rights and liberties to which the respective colonies were entitled.' The fundamental principle of the common law, derived from the maxim of the feudal tenures, that the king was the original proprietor, or lord paramount of all the land in the kingdom, and the only source of title, continued to be recognized, until it was applied to our independent republican governments.? The rights of the crown devolved on the states by the revolution, and by the treaty of peace were confirmed to them in their sovereign capacity. Hence it is apparent, that, originally, not only the jurisdiction of the British sovereign extended over the territory acquired by the colonists from the native occupants, but also the same jus proprietatis, or right of property, in all the tide waters included by such territory, existed in the crown, to the same extent as in the tide waters of the realm, and were held like the latter (as laid down in the preceding chapter) subject to the public use ; and, consequently, the soil thereof could not be exclusively appropriated
i Chal. 102. * 1 Kent, Comm. 473; Ib. 343.
1 Dec. of Rights, of Oct. 14, 1774, Jour. of Congress, Vol. I. p. 28.
2 3 Kent, Comm. 377; Jackson v. Ingraham, 4 Johns. (N. Y.) 163 ; Jackson v. Waters, 12 Ib. 365. By the Revised Stat. of New York, the people are declared to possess the original and ultimate property in all the lands within the jurisdiction of the State. • Bennet v. Boggs, 1 Bald. (Cir. Co ) R. 60.