LIII. 1827. CHAP. to the supposed authority of this Court to direct such a prohibition. It will be time enough to decide the question when it A.D. 1818- arises-if ever it shall arise, which is not very probable, as no such question has arisen since the institution of proceedings in bankruptcy-a period little short of three hundred years. If ever the question shall arise, the Court, whose assistance may be invoked to correct an excess of jurisdiction in another, will without doubt take care not to exceed its own." His decisions.-The no common law right to the use of the seashore for bathing. I know not that I can offer a fairer specimen of his judgments public have than that given by him in Blundell v. Catterall, where the question arose, whether there be a common law right for all the King's subjects to bathe in the sea; and, as incident thereto, of everywhere crossing the sea-shore on foot or in bathing-machines for that purpose. Best, J., strenuously supported the right, and thus was he answered:-Abbott, C. J.: "I have considered this case with very great attention, from the respect I entertain for the opinion of my brother Best, though I had no doubt upon the question when it was first presented to me; nor did the defendant's counsel raise any doubt in my mind by his learned and ingenious argument. This is an action of trespass brought against the defendant for passing with carriages from some place above highwater-mark across that part of the shore which lies between the high and lowwater-mark, for the conveyance of persons to and from the water for the purpose of bathing. The plaintiff is the undoubted owner of the soil of this part of the shore, and has the exclusive right of fishing thereon with stake-nets. The defendant does not rely on any special custom or prescription for his justification, but insists on a common-law right for all the King's subjects to bathe on the sea-shore, and to pass and repass over it for that purpose on foot, and with horses and carriages. Now, if such a common-law right existed, there would probably be some mention of it in our books; but none is found in any book, ancient or modern. If the right exist now, it must have existed at all times; but we know that sea-bathing was, until a time comparatively modern, a matter of no frequent occurrence, and *Ex parte Cowan, 3 B. and A. 123. LIII. that the carriages, by which the practice has been facilitated CHAP. and extended, are of very modern invention. 1827. "There being no authority in favour of the affirmative of the A.D. 1818question in the terms in which it is proposed, it has been placed in argument at the bar on a broader ground; and as the waters of the sea are open to the use of all persons for all lawful purposes, it has been contended, as a general proposition, that there must be an equally universal right of access to them for all such purposes overland, such as the plaintiff's, on which the alleged trespasses have been committed. If this could be established, the defendant must undoubtedly prevail, because bathing in the waters of the sea is, generally speaking, a lawful purpose. But in my opinion there is no sufficient ground, either in authority or in reason, to support this general proposition. Bracton, in the passage referred to, speaks not of the waters of the sea generally, but of ports and navigable rivers; and as to ports, Lord Hale distinguishes between the interest of property and the interest of franchise; and says, that if A. hath the ripa or bank of the port, the King cannot grant liberty to unlade on the bank or ripa without his consent, unless custom hath made the liberty thereof free to all, as in many places it is. Now, such consent, as applied to the natural state of the ripa or bank, would be wholly unnecessary if any man had a right to land his goods on every part of the shore at his pleasure. If there be no general right to unlade merchandise on the shore, there can be no right to traverse the shore with carriages or otherwise for the purpose of unlading; and consequently, the general proposition to which I have alluded cannot be maintained as a legitimate conclusion from the general right to navigate the water. One of the topics urged at the bar in favour of this supposed right was that of public convenience. Public convenience, however, is in all cases to be viewed with a due regard to private property, the protection whereof is one of the distinguishing characteristics of the law of England. It is true, that property of the description of the present is in general of little value to its owner; but I do not know how that little is to LIII. 1827. CHAP. be respected, and still less how it is ever to be increased, if such a general right be established. How are stake-nets to be lawA.D. 1818- fully fixed on the beach? By what law can any wharf or quay be made? These, in order to be useful, must be below the high-water mark. In some parts of the coast where the ground is nearly level the tide ebbs to a great distance, and leaves dry very considerable tracts of land. In such situations thousands of acres have, at different times, been gained from the sea by embankments, and converted to pasture or tillage. But how could such improvements have been made, or how can they be made hereafter, without the destruction or infringement of this supposed right? And it is to be observed, that wharfs, quays, and embankments, and in-takes from the sea, are matters of public as well as private benefit. I am not aware of any usage in this matter sufficiently extensive or uniform to be the foundation of a judicial decision. In many places, doubtless, nothing is paid to the owner of the shore for leave to traverse it. In many places the King retains his ownership, and it is not probable that he should offer any obstruction to those who, for recreation, wish to walk, or ride, or drive along the sands left by the receding tide. 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 to a matter of little value; others, and probably the greater number, may have derived or expected so much benefit from the increased value given to their enclosed land 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. themselves. Many of those who reside in the vicinity of inland wastes and commons walk and ride on horseback in all directions over them for health and amusement, 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 wateringplaces this practice prevails to a very great degree; yet no one LIII. 1827. ever thought that any right existed in favour of this enjoyment, CHAP. or that any justification could be pleaded to an action at the suit of the owner of the soil. The defendant finally says, that the A.D. 1818right may be considered as confined to those localities where it can be exercised without actual prejudice to the owner of the shore, and subject to all modes of present use or future improvement on his part. No instance of any public right so limited and qualified is to be found. Every public right to be exercised over the land of an individual is pro tanto a diminution of his private rights and enjoyments, both present and future, so far as they may at any time interfere with or obstruct the public right. But shall the owner of the soil be allowed to bring an action against any person who may drive a carriage or walk along any part of the sea-shore, although not the minutest injury is done to the owner? The law has provided suitable checks to frivolous and vexatious suits, and experience shows that the owners of the shore do not trouble themselves or others about such trifles. But where one man endeavours to make his own special profit by conveying persons over the soil of another, and claims a public right to do so, as in the present case, it does seem to me that he has not any just reason to complain, if the owner of the soil shall insist on participating in the profit, and endeavour to preserve the evidence of the private right which has belonged to him and his ancestors. For these reasons I am of opinion that there is not any such common-law right as the defendant has claimed; and my brothers Bayley and Holroyd agreeing with me, there must be judgment for the Plaintiff.” In the following judgment Chief Justice Abbott held that the author or publisher of an immoral book cannot maintain an action for pirating it. "This was an action brought for the purpose of recovering a compensation in damages for the loss alleged to have been sustained from the publication of a copy of a book which had been first published by the plaintiff. At the trial it appeared that the work professed to be a history of the amours of a courtezan, that it contained in some parts matter * Blundell v. Catterall, 5 Barn, and Ald., 268-316. No action pirating an lies for obscene book. LIII. A.D. 1818 1827. CHAP. highly indecent, and in others matter of a slanderous nature upon persons whose supposed adventures it narrated. The -question, then, is whether the first publisher can claim a compensation in damages for a loss sustained by an injury done to the sale of such a work. In order to establish such a claim he must in the first place show a right to sell, for if he has not that right, he cannot sustain any loss which the law will recognise by an injury to the sale. Now, I am certain no lawyer can say that the sale of each copy of this work is not an offence against the law. How, then, can we hold that by the first publication of such a work a right of action can be given against any person who afterwards publishes it? It is said that there is no decision of a court of law against the plaintiff's claim. But upon the plainest principles of the common law, founded as it is, where there are no authorities, upon common sense and justice, this action cannot be maintained. It would be a disgrace to the common law if a doubt could be entertained upon the subject; but I think no doubt can be entertained, and I want no authority for pronouncing such a judicial opinion.” * His defence Thus he pointedly defended our peculiar doctrine of high of the English doctrine treason, which constitutes the offence in the intention, but reof highquires this intention to be manifested by an act. "The law has wisely provided (because the public safety requires it) that in cases of this kind which manifestly lead to the most extensive public evil, the intention shall constitute the crime; but the law has at the same time with equal wisdom provided (because the safety of individuals requires it) that the intention shall be manifested by some act tending towards the accomplishment of the criminal object."† treason. * Stockdale v. Onwhyn, 5 Barn. and Cr. 175. This principle is perfectly sound, but there must be great difficulty in acting upon it. Judges and juries may be much divided as to whether the authors of such novels as "Tom Jones' and 'Peregrine Pickle' ought to be allowed to maintain an action for pirating their works. Lord Eldon refused an injunction against the piracy of a poem dedicated by Lord Byron to Walter Scott, on the ground of its being atheistical, although it is generally considered to be no more liable to that charge than 'Paradise Lost.' † State Tr. vol. xxxiv.-Thistlewood's Case. |