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Thread: The Ancient and Modern

  1. #1
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    Default The Ancient and Modern

    The public right of navigation is so ancient that no-one can identify a time when it didn't exist. Much of the evidence for it is also old and has sat on dusty library shelves for centuries. But now, thanks to the internet and programmes digitising old documents and texts, this evidence is being made available and recognised again.

    One such document is "Instructions for Jury-Men on the Commission of Sewers" a 61 page publication from 1664 which educated and briefed Jury-Men on the law and their duties in applying the law. It contains some very clear references to the nature of navigation which was protected by the Commissions of Sewers. Such as

    "Now the Commission of Sewers, in a matter of such great import as this of Navigation, is very exact and careful
    1. First in respect of all Navigation,

    Whether it be with Vessels of the greatest bulk, as ships
    Or Vessels of the smallest kind, as Boats
    Or with Vessels of a middle nature, as Ballingers; ..........

    2. Secondly, In this Point of Navigation the Commission is very exact in respect of all Waters that be in any manner Navigable; ..."

    and

    "..... and though this, as all other streams of this nature, be Navigable but with boats, that is with Vessels of the smallest size only, yet as I formerly told you, such Navigation is to be preserved."
    There is no indication in these "Instructions" that public navigation rights were confined to tidal waters or to a few "Great Rivers" and yet if such limitation did apply, they would clearly be mentioned. Every few weeks we find more evidence of this nature and it all supports the notion that all rivers (and streams of flowing water) were considered navigable subject only to the physical constrains of the rivers and the nature of the craft using them.
    Keith

  2. #2
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    Very interesting document. Just had a quick look through it and spotted this sentence:

    "The law of this land is, and always hath been very careful of navigation, and will admit nothing that shall be to the deterioration, much less to the destruction of it."

  3. #3
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    As an aside, people today often say how clean rivers must have been in the past. But clearly, as this implies, they probably weren't as clean as we like to think. At least it was organic pollution!
    http://www.davidwperry.blogspot.co.uk/

  4. #4
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    Good find, very interesting.

    David: The small streams may have been clean but any waterway with a town on it would have been horrendous as all the sewage and industrial waste would have been dumped into it untreated. The reports of the filth in the Thames are legendary.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

  5. #5
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    Looks an interestng source, any details on its provenance? Who produced it and was it produced under any statutory authority and where was it found? Great source though and hat's off to whoever came across it.
    Mike

  6. #6
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    There are multiple copies in existence, e.g. University of Cambridge, National Library of Australia, VillaNova University - Falvey Memorial Library, University of Michigan, Digital Library Production Service, 2008 September (TCP phase 1) who publish an online version here. All give the author as "England and Wales. Court of Sewers (Lincolnshire, England)". At the time this was written all printing had to be licenced and the licence for this is recorded on the second page.
    Keith

  7. #7
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    Those that oppose recognition of public navigation rights claim that such rights were limited to a) tidal waters and b) a very limited number of "great rivers".

    This extract from "THE LEGAL OBSERVER OR JOURNAL OF JURISPRUDENCE" (published 1833) - page 357, includes "all rivers, streams, sewers and watercourses, which are navigable ....". Is it in anyway possible that a stream or sewer could be adjudged to be a "great river" or is this just one more source that exposes such claims for the utter nonsense that they clearly are?

    Jurisdiction of Commissioners

    10 Walls, banks, culverts and other defences, whether natural or artificial, situate by the coasts of the sea, and all rivers, streams, sewers and watercourses, which are navigable, or in which the tide ebbs and flows or communicates with any such navigable or river, stream or sewer, and all walls, banks, culverts, bridges, dams, floodgates and works upon or adjoining such rivers, streams, sewers or watercourses, shall be within jurisdiction of Commissioners of Sewers: Provided that nothing shall authorize any Commissioners of Sewers to exercise authority any dams, floodgates or other works, for the purpose of ornament, previous to passing of this act, in, upon or over, any rivers, streams, ditches, gutters, sewers or watercourses, near or contiguous to any house, building or in any garden, yard, paddock, park, planted walk or avenue to a house, without the consent in writing of the owner, proprietor, thereof respectively first had and obtained
    .
    Keith

  8. #8
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    In 1651 parliament debated an act to 'Make navigable' the river Wey and had this to say what 'Make Navigable' meant
    Whereas the making and effecting of a Passage for Barges, Boats and Liters by the River of Wye, running through the Town of Guildford in the County of Surrey into the River of Thames, at a Town called Weybridge, will be very advantagious for the Commonwealth, Be it therefore Ordained and Enacted by the Authority of this present Parliament, That it shall and may be lawful to and for the Major for the time being, and approved Men of Guildford; or James Pitson, John Howe of Guildford Esqs; John Waltham of Shallowford, and Richard Scotcher of Guildford aforesaid Gent. or any other person or persons at their own Costs and Charges, to cleanse, scour, and make Navigable the said River of Wye, and to cut and dig a new River or Trench for the better effecting of the said Navigation,
    It is stated that for a right of Navigation to exist on an inland (Non tidal or non-navigable) waterway, parliament has to authorise that change of status by means of an act to 'Make Navigable' that waterway. If we look at the wording used here parliament states it shall be lawful for a number of people (at their own cost) to 'Make navigable' the river of Wye.
    It is not consistent with how law is passed that Parliament would pass the authority to make a change to the legal status of a waterway to a group of private indviduals.

    The act goes on to specify by what means they may make the river navigable, all of which are related to changing the physical charateristics of the waterway (Cleansing, Scouring, Making Locks and weirs, Remove impediments etc, creating new cuts) and to give compensation to those affected by the works.

    This is consistent with there being an existing right to navigate inland waters - and authorisation is given to make physical improvements affecting adjoining lands owned by others, and compensation for the impact of these works.
    This is repeated in other Navigation acts
    Brevan,
    1664 - a great year for river access
    Romsey, Hampshire
    Twitter: BrevanM
    Follow my blog at http://riveraccessrights.blogspot.com/

  9. #9
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    Default Navigable defined in 1604

    ROBERT CAWDREY'S A TABLE ALPHABETICAL (1604) - An early dictionary

    navigable, where ships may safely passe, or
    that may be sailed vpon.
    navigation, sayling, or passing by water

    So in 1604 by this definition un-navigable waters would be where ships could not safely sail or pass (because of obstructions?). Authorising people to make rivers Navigable or otherwise passable would remove this issue. Tidal waters (and large ["Great"] rivers) were generally navigable because that is where it was usually possible to have enough water and space so that ships could be sailed.


    Brevan,
    1664 - a great year for river access
    Romsey, Hampshire
    Twitter: BrevanM
    Follow my blog at http://riveraccessrights.blogspot.com/

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