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They are said to exist of common right, which, according to Sir Edward Coke, is only another epithet for common law. The common law of England is known by the various appellations of “ right," “common right,” “ public right," and " communis justitia.” When, therefore, it is said, that a man has a thing by common right, it is understood, that he has it by the common law. The common law is furthermore denominated “ common right,” because it is the common birthright or inheritance which the people have for the protection and safeguard of their privileges. And it is the excellency, says Sir Edward Coke, of the common law, that the receding from the true institution thereof introduces many inconveniences, and that the observation of it is always accompanied with peace and quiet, the end and centre of all human laws.3
The right of property in tide waters, and in the soil and shores thereof, is primâ facie vested in the king, to a great extent at least, as the representative of the public. To such an extent, that to the rights of navigation and fishery he has no other claim than such as he has as protector, guardian or trustee of the common and public rights. Hence the king has no authority, and since Magna Charta, has never had, to obstruct navigation, or to grant an exclusive
" Ib. ; 2 Inst. Expos. on Mag. Charta, 6, 21.
right of fishing in an arm of the sea.
The king's property in the sea, tide rivers, creeks, &c. is aptly compared by Lord Hale to the ownership of lords of manors in the common waste lands of the manor. The soil and freehold of the waste belong to the lord, but subject to certain rights of the manorial tenants; such as common of pasture, piscary, turbary, &c., claimed and enjoyed by them by the custom of the manor, in and out of such waste lands. So the king is lord of the great waste of the sea, subject to certain beneficial rights of fishing and navigation immemorially enjoyed by his subjects therein, by the custom of the realm, which is the common law. The important doctrine, that public rights, and such things as are materially dependent upon them, cannot be alienated by the crown, seems to have been established at a very early period. The rule, as laid down by Bracton, is, that these things which relate particularly to the public good cannot be given, sold, or transferred by the king, or separated from the crown. “ Res fiscalis dari non potest, nec vendi, nec ad alium transferri a principe vel a rege regnante et quæ faciunt ipsam coronam, et communem utilitatem respiciunt." ? The same rule was also admitted by the feudal law : “ Res ad coronam regis, vel utilitatem publicam pertinentes inter sacras
"Hale, De Jure Maris, 11.
numerantur ; neque recte in feudam dantur et quasi sacre dicuntur.” Hence the people of England are not only, primâ facie, entitled to the use of the sea, &c. for the purposes hereafter to be considered, but their right in this respect cannot be restrained or counteracted by any royal grant, on the ground that the king is the legal and sole proprietor. In favor of this view of the subject, we have the treatise of Lord Hale, and also the opinion of one of the modern Judges of the King's Bench, (Mr. J. Bayley),
says, “many of the king's rights are, to a certain extent, for the benefit of his subjects, and that is the case as to the sea, in which all his subjects have the right of navigation and of fishing, and the king can make no modern grants in derogation of those rights. It is unquestionably true, as regards the authority of the crown, as was asserted by one of the learned judges in Browne v. Kennedy, in Maryland, that “the subject has, de commune jure, an interest in a navigable stream, such as a right of fishery and of navigation, which cannot be abridged or restrained by any charter or grant of the soil or fishery, since Magna Charta at least.” 3 The king may doubtless
Crag. Jus Feud. L. 1; Shultes on Aquatic Rights. 2 See opinion of Bayley, J., in Blundell v. Catterall, 5 B. & Ald. R. 91, and App. p. xxx, xxxi.
3 Browne v. Kennedy, 5 H. & Johns. (Md.) R. 203. No grant, therefore, by the king, before the Revolution, can be set up in this country. It is indeed true, that the crown had originally the power to defeat and restrict the public right of fishing, for it is proved by the
grant the soil covered by tide water to an individual, but the right of the grantee is always subservient to
private rights which now exist in England, and which have ever been recognized as valid. In the Statute 2 Hen. VI. c. 15, A. D. 1423, which prohibits the standing of nets over thwart rivers, there is a saving to the king's liege people of their right, title, and inheritance in their fishings.” Blackstone assumes, that the crown had this power, but thinks that the exercise of it was prohibited by the charter of king John, and the sub nt charter of Hen. III., by which even all grants of private fisheries made under Richard I. were annulled; so that, he concludes, an exclusive right of fishing in a public river ought now to be at least as old as the reign of Hen. II. (2 Black. Comm. 39). But private rights in rivers, and consequently rights of fishing, were restricted by statutes of a later date, which prohibited all wears, kidels, &c., and the raising or enlarging of any built since the reign of Ed. I. 25 Ed. III. c. 4; 1 Hen. IV. c. 12; 12 Ed. IV. c. 7. (See these acts referred to in 20 Lond. Law Mag. 325, and in the case of Chester Mill, upon the river Dee, 10 Rep. 137 ; Williams v. Wilcox, 8 Adol. & Ell. R. 314). By the statute above referred to of Hen. VI. c. 15, all standing or fixed nets over thwart rivers are prohibited, with the saving of existing rights. By 3 Statute of Jac. I., c. 12, wears all along the coast, or within five miles of any haven, are prohibited in favor of the breed of fish. Now in strictness (see 28 Lond. Law Mag. sup.), the enactments cited above extend only to prevent the inclosing of navigable rivers and the destruction of the fry and breed of fish, but in practice, and in favor of the public right, they have been carried further, and they have accordingly been held, to prevent the crown from granting any right of fishery, should the same not require the erection of any wear, or permanent or stationary net, for it is clearly the common law understanding, that a private and several right to fish in a navigable river, must have its origin before Magna Charta (See Carter v. Murcot, 4 Burr. R. 2162). In the article referred to in the Lond. Law Mag. sup., the writer, after an attentive study of the authorities, concludes, that if a private right of fishing be proved, it must be presumed to have originated before Magna Charta, and then the crown was unrestrained. In Williams v. Wilcox, (8 Adol. & Ell. 314), it was held, that a wear appurtenant to a fishery, obstructing the whole or part of
the public rights above mentioned. “The soil,” says Mr. J. Best, “ can only be transferred, subject to this public trust; and general usage shows, that the public right has been excepted out of the grant of the soil.” 2
The law, as applied in the court of Exchequer, is, that where a part of the sea-coast or shore, being the property of the crown, and giving jus privatum to the king, is granted to a subject for public uses, and to be enjoyed so as to be detrimental to the jus publicum therein, such grant is void as to such parts as are open to such objection, or if acted upon so as to effect a nuisance by working injury to the public right; or it is a grant which does not divest the crown or invest the grantee. The crown may, by letters patent, grant to a municipal corporation, or the corporation of a town or borough which is caput portus, all the land which is between high and lowwater marks; but the subject matter of grant, as being a jus privatum in the king, must be subject to the jus publicum, or public right of the people to the passing and repassing over both land and water.
a navigable river, is legal, if granted by the crown before the commencement of the reign of Ed. I. And see post, Chap. II. and Chap. V. on the Public Right of Fishery.
1 See post, Chap. VII.
? Opinion of Best, J., in Blundell v. Catterall, sup. See also Mayor of Colchester v. Brooke, 9 Jur. 1090 ; Q. B., 5 Harr. Dig. 781. 3 Attorney General v. Parmeter, 10 Price, (Exchr.) R. 378-411. Attorney General v. Burridge, 10 Price, (Exchr.) R. 350 - 377.