Sivut kuvina

another. Thus the rivers of Wey or Severn, of Thames, and divers others, as well above the bridges and ports as below, as well above the flowings of the sea as below, as well where they are become to be of private propriety, as in what parts they are of the king's propriety, are public rivers juris publici. And therefore all -nuisances and impediments of passages of boats and vessels, though in the private soil of any person, may be punished by indictments and removed, and this was the reason of the statute of Magna Carta, cap. 23."

He goes on to say that even a river made navigable is juris publici if it was made navigable “at a common charge or by publick authority." That Hale is right in not limiting public rights in rivers to the tidal portions, admits of easy proof. In the first place he is confirmed by c. 23 of Magna Carta, which he himself quotes; and that this refers to non-tidal rivers is clear, not only from the very wide words of the statute, but more particularly from the last four words. In the next place Hale is confirmed by the very important evidence of the Hundred Rolls. One of the articles of

inquiry was, "de omnibus purpresturis quibuscunque factis super Regem vel regalem dignitatem, per quos factæ fuerunt, qualiter, et a quo tempore;" and the following extracts under this head show clearly that any obstruction in rivers was treated by the common law as a common nuisance and a purpresture. The importance of this is evident when we remember what a purpresture was. And, as Coke adds in another place (2 Inst. p. 38, ed. 1642), "every publique river or streame is alta via regia, the king's highway." It is clear from this that the rivers in the following extracts from the Hundred Rolls are public rivers, and therefore, as Coke puts it, "the king's highways." It is hardly necessary to point out that these rivers include many which are not tidal in any part.

Cases reported in the year books also bear out the

view that navigable rivers are highways, even above the flow of the tide; as, for example: And note, that it was found by the inquest that the water of Lea is the king's highway, where the question was a nuisance in the Lea between Ware and Waltham. It was, moreover, held that if the river changed its course, the highway changed with it to the new channel. And note, that Thorpe says that if there be a water that is a highway, which water by increase of the water or by force of the same changes its course onto other soil, still is there as before a highway where this water is, as there was before in the old channel; so that the lord of the soil cannot disturb this newly made course. (Adjudged in the Nottingham Eyre.)

In some parts of the country rivers are not only highways, but they are the only highways (just as the Irrawady is the only highway in Burmah at the present day); e. g., in 1372 we are told that the Avon between Bath and Bristol was the only highway by which victuals could be brought, there being no land passage, par obstacle de marreys. (2 Rot. Parl. 312.)

(13) A several fishery may exist distinct from the property of the soil, page 40 and note o.

As Hargrave's note cited in note m may not be acces→ sible to all readers, the following references may be useful in support of that view and contrary to Blackstone's: Bracton, 208 b; Lib. Introd. 162, 163; Rast. Entries, 597 b; Co. Litt. 4 b, 122; Brooke's Abt. Tenures, 75; Viner, xx. 201, pl. 4; Seymour v. Courtenay, 5 Burr. 2817.

In this country Lord Coke's view seems to be generally adopted against Blackstone's. "Though a several fishery was originally based upon the ownership of land, it may be separated therefrom by grant or reservation, and forever after be held, and pass independent of the ownership of the land. So a free fishery, though

2 BLACKST. — 8.

derived from property in the land, may be enjoyed independent of such ownership." (Washburn on Easements, p. 418, citing many cases.)

(14) An annuity is a thing very distinct from a rentcharge, page 40.

The position of corodies and annuities among the hereditaments is not so difficult to explain as their exclusion from the tenements, and consequently from the Stat. de Donis. They correspond with the feuda cavenæ et camera, and, therefore, were capable of tenure, at least under the feudal law of the continent.

Both were, no doubt, included under the civiles annonas, which were expressly termed res immobiles by Justinian, Nov. vii. pr. In the time of Henry II., or soon after, they seem to have been confounded with rents, at least they are called so in the gloss to Vacarius, p. 188. It may fairly be inferred that they were at first regarded as of the same nature with rents proper, and that the distinction between them grew up in English law as the conception of real rights became more closely identified with land. In the civil law reditus and pensiones and panes civiles (rents, corodies, and annuities) had all been reckoned among res immobiles. (C. 31, 2, de jure dotium, v. 12, and the gloss to it in Wenck's Vacarius, referring to Du Cange v. Panis curiates, where an example is given from the accounts of Henry II.)

(15) A rent-charge is where the owner of the rent hath no future interest, or reversion, page 42.

Judge Sharswood has pointed out in a note here that in states which do not recognize the statute of quia emptores as a part of their common law, there may be rent-service without a reversion.

"The description of a rent-charge is correct as applied to England, where the statute of quia emptores forbade

subinfeudation; for there is, therefore, no connection of tenure between the grantor and grantee. In Pennsylvania, however, this statute was never in force; and although the connection of tenure is merely nominalalthough the whole possibility of reverter upon failure of heirs is now vested in the commonwealth-yet that mere transfer has not altered the character of the estate or the legal incidents thereto annexed. In Pennsylvania, therefore, a rent-service is not only where there is a reversion in the owner of the rent, as where a man grants an estate for life or years, reserving a rent, but also where he parts with the whole fee-simple, reserving a rent. Distress is incident thereto of common right. A rent-charge is confined to the cases where the owner of land grants a rent thereout to a stranger, and by a special clause grants him also a right to distrain for the rent if it should be in arrear; without such a clause it would be a rent-seck. (Ingersoll v. Sergeant, 1 Whart. 337; Franciscus v. Reigart, 4 Watts, 98; Kenege v. Elliott, 9 Watts, 262.)"

But in the general disappearance of distress for rent as a common-law right, and the substitution of statutory landlord's liens, it is doubtful whether the distinction of the three kinds of rent will be hereafter of any practical consequence.

The student must bear in mind that all rents due on leases for years, or for use and occupation, etc., are not incorporeal hereditaments, and that this distinction has no meaning with reference to them. Only rents payable by the freehold tenant to others are such. When the owner of the land collects rent from the occupant for its use and enjoyment, as in the vast majority of cases known to modern practice, it would be absurd to treat such a rent as an incorporeal hereditament. The owner of the land, which is the corporeal hereditament, can no more have an incorporeal one issuing out of the same land, than he can have an easement over his own land.


OF THE FEODAL SYSTEM. [See note 16, page 105.] It is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate it's landed property, without some general acquaintance with the nature and doctrine of feuds, or the feodal law: a system so universally received throughout Europe, upwards of twelve centuries ago, that sir Henry Spelman does not scruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine his time misemployed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation, upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientifical manner, without having recourse to the antient. Nor will these researches be ́altogether void of rational entertainment as well as use as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the draughts of the same edifices, in their pristine proportion and splendor.

[45] The constitution of feuds had its original from the military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina

a Of Parliaments, 57.

b See Spelman of feuds, and Wright of tenures, per tot.

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