upon those spots. This was the case of the individual who was indicted for bathing in the sea at Brighton, opposite the east cliff. Till within a few years previously to the change, there had been no houses near the spot, and, indeed, regiments of soldiers had been accustomed to bathe there. Afterwards, however, a row of houses was erected on the cliff, and any one might be clearly seen from thence as he undressed and swam in the sea. The defendant, on a Sunday in July, bathed from this spot, undressing and dressing himself upon the beach. It did not appear, however, that he had been guilty of any wanton indecency, or that he exposed his person further than was necessary for the purpose of bathing. It was contended, that he had not committed an indictable offence, that he had no criminal intention, his object being to procure health, and not to outrage decency, in fact, that the inhabitants of these houses had come to the nuisance, and could have no right to complain of it. It was urged 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 would soon be debarred from bathing on the southern coast of the island. The easement in the River Thames was then mentioned, as well as the custom from time immemorial for the Westminster boys to bathe at Millbank. Lord Chief Baron Macdonald, who tried the indictment, expressed a strong opinion against the defendant, and he was accordingly found guilty; and when brought up for judgment, the Court of King's Bench declared their firm resolution that the offence was a misdemeanor, and that the conviction had been proper, Nevertheless, this being the first prosecution of the sort in modern times, they consented to his discharge, upon his entering into a recognizance to appear when called for, and receive sentence.(n)

However, this easement must not only be conducted with decency, but it must also not invade the rights of any individual; for, as we before said, the public have no common law right of bathing in the sea,

nor, as incident thereto, of crossing the sea shore on foot, or

[8] with bathing machines, for that purpose. This point was deoided in the following case :-Trespass was brought for breaking and entering the plaintiff's close. The defendant pleaded, amongst other things, that all the King's subjects had been used and accustomed to enjoy the liberty of bathing in the sea from time to time at all seasonable times, &c. The plaintiff took issue, and newly assigned, and there was an issue thereon. Upon these pleas, and upon the new assignment, the plaintiff had a verdict, subject to the opinion of the Court on a special case. The plaintiff was lord of the manor of Great Crosby, which is bounded on the West by the river Mersey, an arm of the sea. He was the owner of the shore, as lord of the manor, and he had the exclusive right of fishing thereon with stake nets. The defendant was servant at an hotel erected in 1815 in Great Crosby, fronting the shore, and bounded by the high water mark of the Mersey. The proprietor kept bathing machines, which were driven by the defendant across the shore into the sea, for the purpose of bathing. Before the establishment

(n) 2 Campb. 89, Rex v. Crunden.

of the hotel it had been customary for the public to cross the shore on foot, in order to bathe. There was a common highway for carriages along the shore, and various articles for market were occasionally carted across the shore. The defendant's claim was for a common law right for all the King's subjects to bathe on the sea shore, and to pass over it for that purpose, on foot, and with horses and carriages. There was a difference of opinion among the Court, Best, J., being in favour of the defendant's claim, and Holroyd, J., and Bayley, J., together with Abbott, C. J., holding that the plaintiff should recover. Judgment was accordingly given for the plaintiff by the resolution of three Judges against one.(o) The dissenting Judge, (Best, J.) put his argument on the broad grounds of the sea being the great highway of the world, of the importance of a free access to the sea, and of the necessity of a right to bathe in the sea, as essential to the health of so many persons. It was clear that persons had bathed in the sea from the earliest times, and that they had been accustomed to walk or ride on the sands. By bathing, those who live near the sea are taught their first duty, namely, to assist mariners in distress. They acquire by bathing confidence amidst the waves, and how to seize the proper moment for giving their assistThe learned Judge observed, that attempts had been made to compel an acknowledgment from such as used machines to the lord of the manor, but that none by these attempts had succeeded. It had been at all times the policy of this country to encourage navigation. There is no statute or rule of common law, which secures the right of passage over the shore for purposes connected with navigation; and those who have passed *over the shore for these purposes, have been trespassers, if they were not justified under the general common law [*9] right of free passage. The learned Judge then quoted the words of Bracton:(p) Riparum etiam usus publicus est de jure gentium, sicut ipsius fluminis. The banks of rivers are therefore as much open to the public as the rivers themselves. The shore of the sea is admitted to have been at one time the property of the King, and from the general nature of the property it never could be used for exclusive occupation. It was holden by the King, like the seas and highways, for all his subjects.(g)

ance.

HOLROYD, J. The plaintiff was owner of the soil of the sea shore, as lord of the manor, and he must have been so from the time of passing the statute quia emptores, since which time no manor can have been created, and being stated to have the exclusive right of fishery, he could only have it appendant or appurtenant to the manor. It must, therefore, have been by prescription, and consequently from time immemorial. It was to be remarked, that the usage as stated, was not founded on usage or custom, but upon the supposed general law only. "My opinion, therefore," said the learned Judge, "will not affect any right that has been, or can be gained by prescription or custom, either by

(0) 5 B. & A. 268, Blundell v. Catterall. (P) Lib. 1, c. 12, s. 6.

(g) 5 B. & A. 274.

individuals, or by either the permanent or temporary inhabitants, of any vill, parish, or district. Bracton's opinion was copied from the civil law, which, as applicable to this matter, differs from the common law of England, and that opinion has never been adopted by the law." The learned Judge then mentioned the case of Ball v. Herbert, (r) concerning towing-paths, where it was held, that no right existed at common law to tow on the banks of navigable rivers. Certainly there is a right of passage for the purposes of navigation at common law, and also a common right of fishery, although even from the last the public may be excluded, though not now by charter, yet by immemorial custom and prescription. After quoting passages from Lord Hale and the Year Books, in corroboration of this position, the learned Judge said, that such a general public right in all the King's subjects, to use the sea shore for all such temporary purposes as they please, would be inconsistent with the nature of permanent private property. If there be anywhere a necessity, or common urgency for such a right, most probably usage and custom will support, regulate, limit, and modify it; for whereever there has been a necessity for it, then some usage must have prevailed. After citing some other passages from Lord Hale, which went to confirm exclusive privileges, or an exclusive right in the owner of the shore, the learned Judge concluded for the plain

[ *10]

tiff.(s)

BAYLEY, J., was of opinion, that no common law right existed in favour of this claim. Every embankment by which land is redeemed from the sea would obstruct the exercise of the right, and so would the erection of holding stakes for nets, and yet such embankments and stakes are frequently set up. The practice of bathing may contribute to health, but it must be confined within reasonable limits, and it is by no means necessary that the right should be co-extensive with the whole shore of the sea, or that it should extend to places where the right of fishing with nets exists.(t)

Аввотт, С. Ј. "There is no authority in favour of the affirmation of this question. But it has been said, that as the waters of the sea are of use to the public for all lawful purposes, there must be an equally universal right of access to them for all such purposes, over land like the present.' If so, the defendant must prevail, because, in general, bathing in the sea is a lawful purpose. But no port can be erected without the license or charter of the King, nor is there any general right to unload merchandize on the shore, so that the general proposition cannot be maintained. Public convenience (adverting to the particular case,) must always be considered with a regard to private property. Perhaps, property of this description may be of little value to its owner, but still, if the doctrine contended for by the defendant be admitted, that little can never be increased. For stake nets, or other implements of fishing, could not be placed there, nor could sand or stones be taken

(r) 3 T. R. 261.

(8) 5 B. & A. 288.

(t) Id. 304.

away, nor could a wharf or quay be made, nor could a proper title be made to those thousands of acres which, at different times, have been gained from the sea, and its arms by embankments, and converted to pasture or tillage. Such wharfs, quays, &c., and in-takes from the sea, are matters too of public as well as private benefit. With regard to the practice of modern times, it can be considered only as more or less cogent according to its extent and uniformity. It was said at the Bar, that in some places a compensation is made to the owner of the shore, but I do not rely on this assertion as a ground of judgment. In many places, doubtless, nothing is paid. In some parts, the King is the owner of the shore, and it is not probable that any obstruction would be interposed on his behalf to such a practice. Of private owners, some may not have thought it worth while to advance any claim or opposition; others may have had too much discretion* to put their title to the soil to the hazard of a trial, by an unpopular claim of a matter of [*11] little value; others, and probably the greater part, may have derived or expected so much benefit from the increased value given to their own land above, by the erection of houses and the resort of company, that their own interest may have induced them to acquiesce in, and even to encourage the practice, as a matter indirectly profitable to themselves." The learned Chief Justice then proceeded to instance the cases of wastes and commons, over which people walk and ride in all directions for their health and recreation, and sometimes even in carriages, deviate from the public paths into those parts which may be so traversed with safety. "In the neighbourhood of some frequented watering places, this practice prevails to a great degree; yet no one ever thought that any right existed in favour of this enjoyment, or that any justification could be pleaded to an action at the suit of the owner of the soil."

"Then, lastly, the defendant has said, that the right might be considered as confined to those instances wherein it could be exercised without actual prejudice to the owner of the shore, and subject to all matters of present use or future improvement. No instances of such a limited or qualified right can however be found. With respect to frivolous or vexatious actions by the owners of the soil, the law has imposed a suitable check to all such proceedings; but there can be no harm for an owner to maintain his own private right, and preserve the evidence of it."(u) Judgment was given for the plaintiff.(b)

We have given this case at great length, on account of its importance; but it cannot be deduced either from this, or the instance of bathing at Brighton above mentioned, that a custom or prescription would be of no avail under similar circumstances. On the contrary, and probably in the case of the Westminster boys, an easement immemorially enjoyed by a particular class of persons cannot be dispensed with. It is a good and valid custom. And so again, if there were an adverse possession of any part of the sea shore for twenty years, this would be evidence prima facie (v) Id. 316.

(u) 5 B. & A. 310.

of a grant from the lord of the manor, the owner of the soil, liable to be rebutted, however, by opposite testimony on his behalf.

Again, to trespass, the defendant pleaded that the close was the sea shore, and that all the subjects of the King had a right to enter and carry away the sea-weed left by the tide, &c. This was holden to be [*12] a bad plea, there being no common law right of that nature.(w)

A right of wreck is very intimately connected with a dominion over the sea, and it is primâ facie vested in the Crown.(x) It is said to be a royal perquisite. (y) But let us first examine what shall be said to come under the description of wreck. It is declared by Westm. 1, c. 4,(z) as follows: Concerning wrecks of the sea, it is agreed, that where a man, or dog, or cat, escape quick out of the ship, that such ship nor barge, nor any thing within them, shall be adjudged wreck; but the goods shall be saved and kept by view of the sheriff, coroner, or the King's bailiff, and delivered into the hands of such as are of the Crown, where the goods were found; so that if any sue for those goods, and after prove that they were his, or perished in his keeping, within a year and a day, they shall be restored to him without delay; and if not, they shall remain to the King, and be seized by the sheriff, coroners, and bailiffs, and shall be delivered to them of the town, which shall answer before the justices of the wreck belonging to the King. And where wreck belongeth to another than to the King, he shall have it in like manner. And he that otherwise doth, and shall thereof be attainted, shall be awarded to prison, and make fine at the King's will, and shall yield damages also. And if a bailiff do it, and it be disallowed by the lord and the lord will not pretend any title thereunto, the bailiff shall answer, if he have whereof; and if he have not whereof, the lord shall deliver his bailiff's body to the King.

This statute, however, is but declaratory of the common law, and with regard to the kind of animals, these three instances are only put for example, since all other beasts, fowls, &c., are understood, whereby the ownership or property may be known. (a) And Bracton, after stating the law above related, declares, that if sure marks have been set upon merchandizes and other things, there cannot be said to have been a wreck.(b)

Moreover, the author of the Mirror, who wrote after the passing of the act, (b) speaks of a man, beast, bird, or other living thing, and so includes more than is found in the act.(c)

*Further, in order to constitute wreck, not only must there be [*13] no life saved, or vestige remaining by which the property may be identified, but the goods must be cast or left on the land by the sea,(d) touching the ground, (e) and this is the legal signification of the

(w) 1 Alc. & N. 348, Howe v. Stowell.

(x) Hale de Jure Maris, 140. 5 B. & A. 293. Or the grantee of the Crown, or in some person by prescription. By Holroyd, J.

(y) Dav. Rep. 56, (b).

(2) 3 Ed. 1.

(b) Lib. 3, C. s. 5, fol. 120.

(a) 2 Inst. 167. (c) C. 1, 13, c. 3.

(d) 11 H. 4. 16. 5 Rep. Vaugh. 168.

(e) 3 Hagg. 270. R. v. Forty-nine Casks of Brandy. For if they have not touched