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the beginning of the 16th century, exactly in the same position. The latter, unless similarly explained, conflicts with that of Erskine of Dun, in so far as it holds gathering bait to be one of the public uses, but does not touch the present question. A leap has to be made to the end of the 18th century before another case can be found on this side of the argument, and that one which, as it did not obtain a place in the Scotch contemporary Reports, (now reported, 3 Paton, 626,) cannot have had much effect upon our law. We refer to Smart v. Magistrates of Dundee, 1797, 8 Brown's Cases in Parliament, 119, cited for the first time by Lord Brougham in Todd v. Dunlop in 1841. So far, however, is this case from lending any assistance to the Crown claims, that the only point it determined was the same as that in Berry v. Holden, a case from the same coast, viz, that the "sea flood" is a boundary excluding the shore. Just as little does Todd v. Dunlop, 2 Robinson's Appeal Cases 333 affect the present question. In that case it became necessary for the Clyde Navigation Trustees in carrying out their statutory operations to resume possession of a piece of ground ex adverso of Todd's feu, which they had previously recovered from the bed of the river. Todd's boundary was the river Clyde, a boundary analogous to the sea, which, as we have seen, has again and again been held to include the shore; yet his claim to this piece of ground was repelled both in the Court of Session and House of Lords. The reason is evident: the ground in dispute was not the shore but a portion of the bed of a navigable river, recovered not by alluvion, but suddenly by an artificial operation conducted for a public purpose. There was nothing, therefore, to change its former character of Crown property. Apart from this it is doubtful whether, even had this been a case of alluvion, Todd could have acquired the ground, as his feu was of specified measurement. The only remaining case is that of The Officers of State v. Smith,* 21st March
Cf. a curious case in 1715, between the Duke of Roxburgh and the Magistrates of Dunbar, M. 10,883, the conclusion of which, as it seems to have been overlooked in recent discussions, we give in the words of the Report. "Found that the Duke could not run his dyke within the littus maris, and remitted to the Lords Ormistoun, Forglen, and Pencaitland to visit the ground and take probation how far the sea flows, and fix march stones, upon whose report the Lords found that the littus maris comes to the foot of the green line, and that there is no passage either for horse or cart betwixt the foot of that green line and the rock in the sea; and therefore that the Duke had right to build the wall of the enclosure upon the said rock, but with such steps over the wall within the littus maris as will allow a passage for
1846, 8 D. 711; but this decided merely that the Crown had a title to sue for protection of the public uses, and that running a wall across the shore which prevented passage along it was an interference with those uses. The dicta of the Lord Justi Clerk (Hope) and Lord Cockburn no doubt go further, but wer unnecessary to the decision. So far as the opinion of the forme. judge could be interpreted as recognizing the Crown's right of property in the sea shore, it was expressly disclaimed by him in the subsequent case of Gammel v. Commissioners of the Woods and Forests, 6 March 1851, 13 D. 854, and although we feel great respect for the varied ability of the latter judge, his opinion on a point of pure law cannot receive much weight in opposition to those of President Campbell, Lord Gillies, and Lord Moncrieff. It received however some support from the language of Lord Campbell, when Smith's case came to be heard on appeal, “that, notwithstanding some loose dicta to the contrary, there can be no doubt that by the law of Scotland as by the law of England the soil of the sea-shore is presumed to belong to the Crown by virtue of the prerogative, although it may have been alienated, subject to any easements which the public may have." Too much importance appear to us to have been attached to this opinion which, like Lord Cockburn's, is merely obiter. It does not necessarily mean more than that the sea-shore originally belonged to the Crown as feudal lord of all the land of Scotland. Nothing is said as to what is sufficient to constitute an alienation of the shore,—nothing inconsistent with its being alienated in the several ways we have explained. If the passage mean that the shore belonged to the Crown in any different manner from other land, or required for its alienation any peculiar kind of grant, it is refuted, not by loose dicta, but by repeated decisions. It cannot, however, be doubted that its interpretation in the latter sense has contributed to the impression which has even found occasional expression on the Scotch Bench in recent times that this is an open question in the law of Scotland. If it be an open question, the foregoing survey of decisions in which, without pretending to be exhaustive, no case of importance has been omitted, has shown how when raised it must be concluded. walking on foot upon the littus maris for the public use allenarly, and decerned and declared the Duke's right to property in these terms." Frequenters of Portobello sands may congratulate themselves that this case escaped the notice of Mr Smith's advisers.
* See Lord Curriehill in Scrabster Harbour Trustees, 19th March 1864, 2 M. 884; and Lord Justice-Clerk Inglis in Baillie v. Hay, 20th March 1866, 4 M. 625.
The result may be briefly stated. The Foreshore is not inter regalia. Even had it been so, it would not have remained Crown property in any case in which the adjacent land was erected into a barony. Stair, (ii. 3, 60,) and Mackenzie, (vol. ii., p. 300,) place the privileges of a barony somewhat higher than Erskine; but even Erskine admits (1) that possession of any part of a barony is reputed possession of the whole, and preserves to the baron his possession as entire as if it had been total; and (2) that the general conveyance of a barony is sufficient to carry all the different tenements which truly belong to it, or have been possessed as part and pertinent of it, though they be not specially enumerated (Inst. ii. 6, 18). Where the adjacent land is held by a bounding title, the Foreshore either goes along with it or not, according as the boundaries include or exclude it Where they exclude it, the property remains with the superior who granted the bounding charter, unless he himself holds under a similar exclusive bounding title. Where the adjacent land, whether or not a barony, is held with a clause of parts and pertinents, and is de facto bounded by the sea, the Foreshore belongs to the proprietor of such land provided he has possessed it. The nature of the possession necessary will vary according to the nature of the title and possession of the person disputing it with him. Exclusive possession for forty years will give an indefeasible title against all the world, even against a claimant with a specific grant of the shore. No possession will be requisite in competition with mere members of the public claiming anything beyond the recognised public uses.
On the other hand, this right of property in the Foreshore is held always under burden of the public uses of which the Crown is guardian. What these uses are it is beyond our present scope particularly to investigate, but the chief are the uses of navigation and sea-fishing. Whether the right of passage along the shore, and as a corollary of this the rights of bathing, fowling, and gathering bait or shell-fish on it are so, is more doubtful,
See Hall v. Whillis, 15th Jan. 1852, 14 D. 324; Ramsay v. Kellies, 4 B. S. 44, Tait's report, and 5 B. S. 556, cases under "Property" and "Alveus maris." In the case of the Duchess of Sutherland v. Watson (at present depending before the Second Division), in which the question is raised whether a Barony Title cum piscationibus is a title that will carry, or in which there can be prescribed, an exclusive right to mussels in the bed of the sea, the Lord Justice Clerk expressed in the course of the argument a doubt whether there was any right of passage along the shore except so far as necessary for navigation. On the other hand, Lord Deas, in Darrie v. Drum
since these have been disputed in recent times, and as yet there has been no authoritative exposition of the law, and considerable conflict in the dicta and decisions. We intended to show that these results deduced from the cases are fully confirmed by the language of our institutional writers, but having already exceeded our limits, must content ourselves with referring to the leading passages. Æ. M.
THE SCOTCH BAR AND THE COLONIES.
(To the Editor of the Journal of Jurisprudence.)
SIR, I remember having been very much struck with an article which appeared in one of your earlier numbers on the subject of Colonial appointments. The writer showed the reasonableness of sending English barristers to those colonies in which English law is administered, and Scotch advocates to those which are Dutch or French in their origin, and where accordingly a system of jurisprudence prevails, which, like the law of Scotland, is affiliated to the civil law. The Colonial Office at one time acted on this principle in the distribution of its judicial patronage, and after being in abeyance for many years it has been revived by Mr Patton.
I think I express the sentiments of every one of my brethren, when I say that the Lord Advocate deserves the thanks of the profession for using his influence with the Queen's present advisers to obtain a return to the old and undoubtedly the right system. True, Mr Patton has not yet had time to do much. The appointments placed within his gift are but small crumbs from the Colonial Office table; but Mr Patton has only been as many weeks in power as Mr Moncrieff was years, and I mond, 10 Feb. 1865, 87 Jurist 245, 3 Macph. 496, said, “I think the sea shore, and every part of it, is undoubtedly a public place in this sense-that every man getting lawfully there is entitled to use it when he gets there;" and in Duke of Argyle v. Robertson, 17 Dec. 1859, 22 D. 241, the same judge observed, "Wherever there is food for human beings on the shore any man may go and take it, provided that he does not interfere with anything granted to another."
"Craig i. 16, 7; Stair ii. 3, 59, 60; Ersk. Pr. ii. 6, 5, Inst. ii. iii. 6, ii. 6, 17; Bell's Pr. § 639-47; Comm. Shaw's Ed., p. 722.
have no doubt, from his uprightness of character, kindness of heart, and utter unselfishness of disposition, he will ere long, it allowed to remain in office, do much more for his poorer brethren in the same direction.
The question occurs, if Mr Patton has been already able to do so much, why was Mr Moncrieff able to do so little? It has been said, "At least he did not send any fellow to Africa." But that is not an answer to the question, it is not even a palliation of the fault if there be a fault; it is simply a sneer at the results of the honourable zeal of the Lord Advocate. What, then, is the explanation? Was Mr Moncrieff indifferent in a matter which so closely affected the interests of the Scotch Bar? Impossible; he was Dean. Was he careless about giving places to any but his own immediate set, such as the Chief-Justice of the Mauritius? No! for on one occasion he signalised his return to power by making every liberal Advocate without exception, down to and inclusive of Mr John M'Laren, an Advocate-depute. Was the government of which he was a member unfavourable to our claims? This cannot be, for it has always been the boast of a Liberal administration that it uniformly eschews all jobbery, and finds the right man for the right place. Is it the fact that he had less influence with his chief than Mr Patton has with Lord Derby? I cannot believe it.
If, then, Mr Moncrieff had the power, the disposition, and the opportunity to do what Mr Patton has done, and nevertheless failed to do it, I repeat, How is the circumstance to be explained? After much cogitation on the subject I believe I have hit on the correct solution of this difficulty, and hasten to submit it for the consideration of your readers. If Mr Moncrieff had never been anything but Lord-Advocate, he would have attended to our interests in the colonies without fail. No doubt about that. But having been also appointed Dean of Faculty, he was so distracted by the cares of that office, that the matter always escaped his notice.
The moral, therefore, seems to be, that henceforth there should be a distinct understanding in the Faculty that our Dean should never be permitted to wear silk.-I am, Sir,
EDINBURGH, 20th January 1867.