arch. Was the space left between the spandrils filled up with rubblestone?-A. I cannot say, it is not opened yet; it is all over mud and dirt.

Q. The space of each side of the bridge, is that filled up with rubble-stone?—A. It appears to be block-chalk in here. (Pointing to the Model).

Q. That would be put in when the bridge was built?—A. Yes, no

doubt about it.

Q. For what number of feet is there block-chalk above the level of the walls?—A. It appears to me about two or three feet; I cannot say correctly about it.

Mr. GURNEY. We now propose to put in the Order of the Court of Conservancy.

[A copy of the Order of the Court of Conservancy for removing obstruction to the water-way at Grain Bridge, in Yantlet Creek, was delivered in and read as follows] :

"Kent.

"HEYGATE, Mayor.

"A Session holden by adjournment for the Conservation of the River Thames and Waters of Medway, in the county of Kent, at the Crown and Sceptre Tavern, Greenwich, in the same County, on Tuesday the 29th day of July, 1823, before the Right Honourable William Heygate, Lord Mayor of the City of London, and Conservator of the River Thames and Waters of Medway.

"IT is ordered that Mr. Water-Bailiff or, in his absence occasioned by ill health, Mr. John Nelson, his Deputy and Assistant, do forthwith remove he mound or embankment made placed and raised in Yantlet Creek, within the jurisdiction of the Lord Mayor of the City of London, as Conservator of the River Thames and Waters of Medway, in the County of Kent, whereby the communication between the said river and waters in by and through the said creek, and the regular flow of the tide and passage of His Majesty's subjects through the same has been for some time past and still is obstructed and hindered; and that Mr. Water-Bailiff, or the said Mr. John Nelson, his Deputy and Assistant, take with him to his assistance Mr. William Mountague, the Clerk of the City's Works, and such other persons in doing thereof as he shall think fit and deem necessary.

Mr. GURNEY. That, my Lord, is my Case.

Mr. Baron GRAHAM. I suppose you will not go into the ingenious observations respecting the structure of the bridge.

Mr. MARRYAT. We are glad to hear your Lordship make the observation, I certainly, for my own part, see no necessity for it.

Mr. Baron GRAHAM. Then you will proceed with your Reply.

Mr. MARRYAT.

REPLY.

MAY IT PLEASE YOUR LORDSHIP,

GENTLEMEN OF THE JURY,

I SHALL do all which lies in my power to shorten this cause, which, in my mind, has already lasted too long; for were I to attempt to call new witnesses to make out any small differences or little discrepancies in the course of the evidence, the necessary consequence would be, that you would have another speech from my learned friend and myself in addition to my general reply. I am therefore ready to forgo the advantage of calling any fresh witnesses, being perfectly convinced of what will be the result. It appears, indeed, that the Court of Conservancy is held, and I am glad to learn that it is so, at the Crown and Sceptre, which is a most excellent tavern, and where beyond all doubt good dinners are plentifully provided; and when from that place the Lord Mayor thought proper to direct this embankment to be removed, I say that he took upon himself a jurisdiction which he had no right to exercise; and those who executed his order are just as liable as himself, though armed by his authority: though for what they may have done they may be indemnified from the City purse, to which I have not the smallest objection. We are told that the Court of Conservancy is of vast extent, and that an oath of office is taken by which the Mayor is bound to carry into effect, upon complaint made to him, his power to remove any annoyances which the public feel and complain of. I do not find from that order which has been read that any body has complained. I have not learned from the reading of it that there was the slightest suggestion that any person was ever inconvenienced by the existence of the road, or that there was the least occasion for abating it as a nuisance; but I do find that some five or six years ago, according to an observation of my learned friend, which I dare say is correct, during the Mayoralty of Mr. Alderman Atkins (and I think I remember dining at the Mansion-house sometime about that period), a complaint was made of another embankment which went across the gutway, some way lower down, and which in consequence of that complaint was removed. I wonder when they removed this trifling inconvenience, which prevented the fish ascending or a boat going after them, it being exactly across the gutway, I wonder they did not at the same time take the opportunity of exerting their authority, and remove at the same time this more important obstruction.

It is said the Lord Mayor is under an oath of office to abate any annoyances which occur in any places under his authority. Was the oath of office less binding a century or two back upon his predecessors than it is now? Did not Mr. Alderman Wood some few years ago, I am not exactly certain as to the period of time, he having filled the office of Mayor two successive years, but when he paid a visit up the Medway, and the City boat was drawn over by horses, was it unknown

then that there was no way across, but that it was necessary to haul them over by artificial assistance? Then there was no complaint, though the Lord Mayor did not like to have his boat drawn over; but at length he gets dissatisfied, and after some negociation and some treaty, in which the City are cautioned against presuming to remove this road;—at length, after four or five years inquiry, they muster courage enough to pull it down, and my clients have had the hardihood, as it is termed, to appeal to the laws of the country against the authority of the Lord Mayor. We shall see presently whose authority is the strongest, for we will inquire a little into his right of conservancy, and its extent.

My learned friend has put in the Charters which have been granted to the City of London from the time of legal memory, from the time of Richard the First let us see what authority they give to the Lord Mayor. They give him an authority for the preservation of the brood and fry of fish in the River Thames, and nothing beyond it. You will recollect that it gives him the Conservancy of the River Thames, and it gives him an authority to do what? To preserve the brood of fish, and to remove all the kiddles, which are a sort of unlawful wear to catch the fish before they are fit to come to the hook, and to take the fees which the Keeper of the Tower had been in the habit of taking. Is there anything said there about authority to remove a bank, or to deprive a private individual of his property, or the public of their general rights?

We will go on, Gentlemen, to the next grant by John, surnamed Lackland. Let me be correct about this king. John's Charter gives to the Lord Mayor the conservancy of all kiddles, and the punishment thereof of unlawful nets; therefore the Lord Mayor has no other power granted but the power to destroy unlawful nets and engines, by which the poachers, if I may call them so, took the fish away before they were in a fit state to be used; and the Water-Bailiff is to seize them if used by any body for the purpose of destroying the fish or injuring the brood.

Then, Gentlemen, we go a little further, and we have a Statute which I wish I could spell out to you, it is written in such extremely obsolete language; but I have now conned over my lesson, and I will read it to you as well as I am able. It will show that the Conservancy of the Thames extended only to the fish, and which, I believe, is now extended to the swans and cygnets. You will find by this Act, passed in the 4th of Henry the Seventh, 1488, that nothing further was contemplated by the Legislature than to give them the same authority in creeks which they before had in the river, with regard to the brood and fry of fish, and nothing more you will recollect. I will read it from a copy lent me by my learned friend: "An Act that the Mayor of London shall have the rule of the River of Thames, from Staines to Yenlade. Item: Where the Mayor of the City of London, for the time being, is Conservator, having the conservation of the water and river of Thames, from the bridge of Staines unto the waters of Yendall and Medway, it is so that within few years, by tempest of weather and great abundance of waters in the said River of Thames, divers

breaches, issues, and creeks have been and grown out of the same River of Thames, and by the same divers pastures, meadows, and grounds of divers persons been drowned and overflown, in which breaches, issues, and creeks, and ground drowned, the fry and brood of fish for the most part resteth: and in the same place the said fry and brood in great multitude daily is taken by the said fishers there with unlawful engines and nets, for bait of eels and cods, and also for the feeding of their hogs, to the utter destruction of the said fry and brood" (I told you, Gentlemen, what it was about; we have had "fry and brood" four times repeated already,) "without a remedy the rather be provided: the King our said Sovereign Lord, by the advice of the Lords Spiritual and Temporal, and at the prayer of the Commons in the same Parliament assembled, and by authority of the same, hath ordained, established, and enacted, that the Mayor of London and his successors Mayors for the time being, have the conservation and rule and like authority in every of the said breaches, issues, and creeks, and ground so drowned and overflown, as far as the water ebbeth and floweth, as touching the punition for using of unlawful nets and other unlawful engines in fishing, like as he and his predecessors have or hath in the same water and river of Thames within the bounds afore rehearsed, and to do all other like correction and punishment there concerning the reformation and redress of unlawful nets and engines as he and his predecessors have used and ought to use in the said River of Thames.' So that having originally the general conservancy of the River Thames for the purpose of preventing kiddles and unlawful nets and engines, and for the punishment of those who used them, under the Charters of Richard the First and King John, in the reign of Henry the Seventh they have a like conservancy and jurisdiction given them for the preservation of the brood and the fry of fish in breaches, issues, and creeks newly made, which is the burden of the song throughout the Act of Parliament: "That the Mayor of London, and his successors Mayors for the time being, have the conservation and rule and like authority in every the said breaches, issues, and creeks, and ground so drowned and overflown, as far as the water ebbeth and floweth, as touching the punition for using of unlawful nets and other unlawful engines in fishing, like as he and his predecessors have or hath in the same water and river of Thames within the bounds afore rehearsed, and to do all other like correction and punishment there concerning the reformation and redress of unlawful nets and engines." I ask whether there is a word in that Act of Parliament which proceeds a syllable further, or gives any such authority as is now asked in this contest to the Lord Mayor, for the purpose of controlling private property, or interfering with public rights.

of

I take it for granted that the Charter which is next tendered, that is the Charter of King James, could give no authority to any body to execute that which the King himself could not execute; and I beg leave to state, and I see I am addressing some persons who will recollect the circumstance I am alluding to, that the King cannot stop up a public highway even through his own individual park. I am

U

more particular in mentioning that circumstance, because some of you live in the neighbourhood of Hampton Court, where a cobler dared to try the right, which he did, with the ranger of the park, who stopped up a road which went through the park, and he succeeded in it, though, most undoubtedly, the indictment did not proeeed against the king, but against the ranger, who was the instrument by whom the order of the king had been carried into execution. We will see what that charter affects to give upon the subject; it gives to the Lord Mayor "the conservation of the water of the Thames," not a word about land jurisdiction to be exercised by the Lord Mayor, "during the time of his mayoralty, or by his sufficient deputies, in upon and about the water of Thames." We see how they describe it with respect to the Thames, "in upon and about the water of Thames," that is to say from the bridge of the town of Staines, in the county of Middlesex, towards the west, unto London Bridge, and from thencehave the goodness to attend to the word-" from thence to," not into ; "from thence to a certain place called Yendall, otherwise Yenland, otherwise Yenleet, towards the Sea, and east, and in Medway." Now as the charter had before described the boundaries in the first part of it "in through and about the water of Thames," if they had meant in through and about the water of Yantleet, and in through and about the water of Medway, I rather think they would have made use of the same expression as is used respecting the Thames, instead of using the term as they do " to Yantlet towards the Sea, and east, and in Medway," not describing it "in through and about," as they have done with reference to the Thames, or affecting to give any jurisdiction here, which my Lord Mayor takes upon himself to exercise by virtue of the charter,—if the king had given it it would have been an assumed power which he had no right to give. I want to know what protection can be afforded to these defendants for what they have done; it is true they have acted by the order of the Lord Mayor, whom I am not inclined to treat with disrespect, whoever he may be, but they had no authority to interrupt a private road, or a road which the public had a right to use.

Having made these few observations as to the City's right of conservancy, I will proceed to make a few remarks on the water-way, which seems to show the nature of the road, and, from its inutility, is an irresistible argument against the idea of any fishery or the existence of any right. I opened at the outset that the defendants would find themselves in this dilemma, and which has been fully confirmed by the evidence, that according to the arch which has been found, which had not been an arch with a moveable top, to enable boats or vessels to sail through with their masts up, but instead of being constructed with a moveable top for the purpose of giving any opportu nity to vessels to go through, you would find from the evidence that they would either be stopped for want of water before they got under the arch, or when they got under the archway they would not have space enough to float under. We will try that, and that is the reason why I wanted those particular dimensions about which I enquired of Mr. Walker, though I could have got them from my own witnesses;