River Access for All

Following Roman law, a permanently flowing non-tidal river was regarded as public property (res publicae). Thus, any member of the public who could navigate the river had the right to do so.

(See The Institutes of Justinian - page 19, 1-4)

"Undoubtedly, in these times, it was a natural and unquestioned practice to use the rivers of all parts of the country as a means of transport so far as their physical state rendered them capable of such use..."

Arthur Telling (Barrister) & Rosemary Smith (Solicitor) - The Public Right of Navigation, A Report to The Sports Council and The Water Space Amenity Commission - 1983

Magna Carta (sealed by King John in 1215 and confirmed at least 44 times in the next 200 years) witnessed the public rights of navigation on "the Thames*, the Medway*, and throughout the whole of England" and ordered the removal of all obstructions. (* the Thames and the Medway had been subject to earlier charters).

(See text of Magna Carta section 33, 47 & 48 refer to rivers)

In Magna Carta ......... , clause 33 was to be of enormous significance in the history of navigation in this country, because it established the principle of free passage along England"s rivers, so laying the foundations for transport development in the Industrial Revolution".

Professor Nigel Saul - Professor of Medieval History, Royal Holloway University of London (from a lecture to the All Party Parliamentary Group on the Constitution, 26 February 2013)

Act for Wears and Fishgarths reconfirms (and clarifies) intent of Magna Carta;

"Whereas, by the laudable Statute of Magna Carta, among other Things, it is contained That all Kedels by Thamise and Medway, and throughout the Realm of England, should be taken away, saving by the Sea-banks, which Statute was made for the great Wealth of all this Land, in avoiding the straitness of all Rivers, so that Ships and Boats might have in them their large and free Passage..."

(See text of the Act)

"By the time of Henry VI riparian owners had come to own the bed of the river but, it is submitted, those owners took their new property subject to the public right of navigation over it that had existed from time immemorial."

J.H. Bates, Water and Drainage Law (London: Sweet & Maxwell, 1990), para 13.18

Between 1423 and 1827, 83 rivers were improved under Acts of Parliament. All but 2 of these have evidence of prior use (no evidence does not mean no prior use). Often the wording of the Act includes wording such as "an Act to improve navigation".

All of these rivers would need a right of navigation to allow ships/barges/boats to use them but most of the Acts do not confer such a right.

The inference is very clear - public rights of navigation already existed under common law. It was not the right of navigation that was being changed by the Acts but the capacity of the river to accommodate vessels of a particular size.

Whilst it was normal for riparian landowners to be compensated for any losses arising from these Acts of Parliament (such as land for structures and disruption to other activities) none of them was awarded compensation for the loss of the right to control navigation. Again the inference is clear - riparian owners did not have the right to control navigation and therefore couldn't be compensated for the loss of it!