Windy,
Thank you for your post, I do not want to quote you out of context or pick minor faults in your arguments.
Really ? You could have fooled me.
You seem to be a particularly Trollish exponent of the
"Have you stopped beating your wife" sort of question, which proceeds by making an underlying assumption. ie. that you beat your wife, from which all else proceeds. So that whatever you answer, yes or no, appears to admit beatings have occurred.
You start from the similar underlying assumption that some nebulous
"Public Right of Navigation" ("PRN") existed in the past before any other subsequent rights came into being, or that those subsequent rights either could not have come into being or are predicated on the prior existence of a PRN. Simply balderdash.
The first thing you have to define and understand is what you mean by the word "right". A right can only exist within the context of a social matrix of rules, whether we call it custom, law or whatever.
In the interregnum and dark ages following the Roman desertion of England there was at first simply no "system" or concept of "rights". You could travel across the land and water as far as your strong right arm, sword and skill with the bow might take you.
Various tribes and family groupings held certain areas against all comers, as they had done before the Romans ever arrived, and reverted to as soon as they left.
Paddle up an Anglo Saxon's local river, graze your cattle on his land or try to grab a snog with his daughter and he'd either ignore you, kill you or trade with you. His choice.
If you were lucky enough that he ignored you it didn't mean that you were in any way exercising some "right" to paddle through or at all. The concept of "rights" in that context was and is meaningless and simply non-existent.
If instead our unfriendly Anglo Saxon raised his axe to dash your brains in for your cheek, you started blurting out your claim to a subsisting and enforceable Roman law right to navigate in his river then then you might actually survive.
Because it's really
really difficult to club someone to death when you are laughing so hard at their stupidity that it hurts.
That is the simple answer to the Reverend Caffyn's fanciful argument that surviving Roman law established a general Public Right of Navigation over all possible navigable waters in the first place. a) Roman law did not survive and b) there was no social system, social matrix or system of laws within which a concept of "rights" might exist at all.
[more to come]
---------- Post added at 00:33 ---------- Previous post was Yesterday at 23:11 ----------
1) I am aware that the GRN is set out in various places, including publications from the BCU/CE etc, but these documents are not legally binding or enforceable...
The publications produced by BCU etc. accurately summarise (so far as I am aware and take on trust, I obviously haven't researched each individual water etc personally) those waters over which a General Right of Navigation exists.
What part of the original common law do you think existed in any documents, required or requires any document to be enforceable ? And were there is a statute or Navigation Act establishing and defining Navigation rights in any particular water what is unclear about that ?
What's not enforceable about a known and recognised GRN established at common law or by statute in a particular river ? Which no fishing lobby of which I am aware attempts to argue against. You have those rights in those waters, we respect them. Please respect ours...
The GRN does not seem to be defined in any legal document(s).
Let's start where any and every Judge or Magistrate is going to start, Halsburys Laws of England,
[FONT="] “There is no general common law right of public navigation in non-tidal rivers”.[/FONT]
So that's it for the canoeists suggested PRN according to the authors and editing staff of Halsburys.
Halsburys Laws are a set of volumes which set out the generally accepted Laws of England. They are drafted, maintained and edited by Lawyers of the highest calibre, prima facie authoritative and not to be lightly disregarded. That does not mean that Halsburys cannot ever be wrong, but it does require
very good grounds to say so.
So what is a GRN ?
It is a right of free and unobstructed navigation from the tidal estuary waters of certain particular large and important rivers up that river as far as particular important towns and cities. eg. The Thames from river mouth up to the City of London. The Medway, half a dozen others. That right was (and is) granted and maintained by the Crown and the creature of Common Law. The King's prerogative, nothing in writing way back then, just the King's promise to his people.
A prerogative common law power the same as the Queen's prerogative to call or dismiss Parliament, or to declare War. No piece of paper says and establishes that she has those rights. But we all accept that she does. That's why it is called an
"Unwritten Constitution". Follow ?
You want to argue with the Queen that she doesn't have those constitutional powers because she doesn't have
"any legal documents" proving that she does ? Good luck with that. I believe that the Tower of London can be very cold at night in winter.
The earliest reference to the General Right of Navigation is by one Roger de Hoovenden, a Commentator, in 1180. Caffyn himself cites him as his first and primary authority, but does not seem to understand his meaning.
Quote:
“The waters of certain rivers possess, by the navigation of which provisions are carried from different places to cities or boroughs ….. in like manner a breach of the protection on the four public roads and the principal rivers is to be deemed equal to an assault”.
First of all the use of the significant word
“certain” would appear to be fatal to the Reverend’s contention for a PRN everywhere and anywhere. If the author meant “all” he would have said all. He did not.
Secondly it is plain that the protection referred to is for commercial traffic (and arguably commercial traffic only) to pass and repass along those waterways with the same protection that commercial traffic had on the four public roads.
The
"four public roads" referred to are the historic Great roads, Watling Street, The Fosse Way, The Iknield Way and Ermine Street (to use the modern spelling of their names).
Why the reference to them ?
Those great roads constituted the King’s Highway back then. The people of England had (and to this day still have) the right to pass and repass (but not to linger or to stop) along the King’s Highway unhindered and under the protection of the King. Any interference with this freedom was an "assault" upon the King's prerogative. The King did not take such things lightly. Retribution would follow.
So Local authorities and owners of land crossed by the great roads were not entitled to interfere with passage, levy tolls, bar the way, tax or hinder any persons using them - although stuck with the costs of maintaining them.
What was in it for the King and why was it so important ? To facilitate commerce between the great cities across the land and to be able to move armies and men about the land to protect the nation.
In the same way the King's prerogative granted and protected free and General rights of navigation from the tidal estuary waters of those "certain" major rivers vital for the commerce and defence of the nation. The GRN, particular to those waters and requiring no "pre-existing" PRN or other nonsense.
Other minor rivers and minor roads were a different matter, as Hooveden goes on to make clear:
“The lesser roads, however, leading from one city to another, and from borough to borough, and along which merchandise is carried and other business done, are to be subject to the laws of the county; ….. As to the lesser rivers which carry vessels with the things that are necessary to boroughs and cities, wood at least, and things of that nature, reparation of them is likewise to be made as prescribed by the law relative to the lesser roads”.
The laws of the county = local authorities in modern parlance.
So lesser roads were a local affair, could be taxed and tolled, passage blocked and interfered with and all the rest to defray the local cost of maintenance by the County.
As with "the lesser rivers".
No free passage.
Repeat, no free passage.
So no such thing as a PRN existed where there was no GRN. Despite the fact that you could obviously physically float a boat of some substance on these minor rivers, capable of carrying
“wood at least, and things of that nature…”.
You didn't want to pay the local authority tolls, the landowners landing fees and other charges on the minor rivers ? Then you were going nowhere matey, except apprehension and forfeiture of your cargo and vessel.
You only ever had free passage on those great rivers protected by the King's prerogative grant of General Rights of Navigation, the GRN. No PRN.
Which is the law today in essence, albeit with another thousand years of local statutes, additional grants, modifications etc etc etc larded on top to sort through. But still there.
[More to come, but it's too late, I'm up early for work and I've spent too long on this already tonight preaching to the never to be converted. Frankly an exercise in pointlessness I suspect, but still, one tries.
There we are for now. Trust that's enough for the Trolls to chew on and to be going on with ?]
) frankly I can see value to both sides but I fear the rule of law will eventually fall on the side of the landowners if a decision is ever actually made so I suspect the paddlers are in no massive hurry to get a definitive legal statement. 
