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decision of the Scotch Court was reversed by Lord Brougham, to the astonishment (when it became known) of the profession in Scotland; and the anomalous character of the House of Lords as a court of appeal from Scotland is considered to be more apparent than ever.
But now comes the interesting and curious sequel. An industrious Scotch lawyer,' who has been usefully employing his leisure in filling up a gap of reports of Scotch appeal cases, extending from 1753 to 1813, issued shortly after Lord Brougham delivered the above judgment, in contemporaneous illustration of Scoto-English law, a periodical number of cases, among wbich is one where a Mr. James Arthur is appellant, and a Janet Gourlay respondent. The case appears to have been heard in the House of Lords on the 9th of March, 1769, before Lord Camden, Lord Mansfield, and the then judicial staff of the House, and to have been argued by “ A. Wedderburn” and “ A. Forester” for the appellant, and by “ C. Yorke” and “ H. Dalrymple” for the respondent. The respondent had been originally the servant of the appellant, and on their connexion coming to the knowledge of the public by her pregnancy, they were privately married by mutual acknowledgment and marriage lines. Arthur left the country immediately thereafter, joined the
navy, and having acquired a fortune in India, he returned to Scotland after ten years absence. On his return he did not wish to renew the connexion, whereupon a suit of declarator of marriage, legitimacy (of the child the fruit of the connexion) and adherence was raised by the woman, and defended by Arthur; but the declarator prevailed, and the respondent had decree accordingly. She now brought an action for aliment since the date of the connexion, amounting to 3601., and 40l. per annum for future aliment. In defence of this action it was pleaded, that the respondent refused to adhere to the appellant, as was evidenced by a decree of adherence he had obtained in an action of adherence against her. To this it was replied, that the action of adherence was a mere cloak for other designs; that both before and while it was going on she had repeatedly offered to come and live with him, on condition of his taking up house in a regular way for her and her family; that instead of doing this, the appellant had taken a room for her and daughter, a considerable distance from his own lodging, where, instead of living in her society, he lived by himself; that the reception on this occasion was cold ; that when she offered to salute him he would not allow it. The identity of this evidence with th
· Mr. Thomas S. Paton, Advocate, whose research we cannot too strongly commend.
of the Patersons is remarkable. It will be recollected, that on Paterson's return home after several months absence, he refused, on alighting at the door, to recognize his wife who had held out her hand to him. And there were other circumstances of maltreatment very similar to the case decided by Lord Brougham.) The Scotch judges of the day decided as the Scotch judges in Patersons' case did, and found that the wife was entitled to aliment. The case then came by appeal before the House of Lords, where it appears to have been very anxiously and ably argued. The grounds and principles founded on by the counsel for respondents being almost identical with the facts of Paterson's case, similar in kind, although infinitely less offensive in degree. The husband's aversion to the wife's society, his refusal to salute her, and his refusal to perform his matrimonial duties, being the facts mainly relied on.
This argument was allowed by Lords Camden and Mansfield in the House of Lords, and the judgment of the court below was affirmed with costs. When we recall to Lord Brougham the testimony he himself has borne to these two eminent lawyers (see his Historical Sketches of Emiment Statesmen in the Reign of George III.), he could not in his candour find fault with the notice by which we have contrasted his lordship's administration of Scotch law with that of such great jurists.
We now leave this curious legal story in the hands of our readers. We began with “ Lord Brougham v. The Scotch Judges and Bar," and we now conclude with Lord Brougham v. Lord Chancellor Camden and Lord Mansfield.
ART. VII.- THE RIGHT TO THE FEE-SIMPLE IN THE
SOIL OF THE SEA SHORE.
The Speech of Mr. Serjeant Merewether, &c. upon the Claim of the Commis
sioners of Woods and Forests to the Sea Shore, &c. &c. 8vo. pp. 48.
Butterworths, London. A Dissertation on the Rights to the Sea Shores, &c. &c. with especial Reference
to Mr. Serjeant Merewether's published Speech upon the same Subjects. By James Jerwood, Esq., of St. John's College, Cambridge, M. A., and of the Middle Temple, Barrister-at-Law. 8vo. pp. 140. Butterworths, London.
MHE claim on the part of the crown to the ownership in fee
700,000 acres-involves questions of such magnitude, variety and'importance, is attracting so much public attention, and exhibits so many points of interest, when examined from a legal point of view, that we shall need no apology with our readers for devoting some pages to the discussion of it.
The manner in which the question has been raised is briefly this :
In February, 1844, an information in equity was filed by Sir F. Pollock, Attorney-General, against the corporation of London, some of their officers and others, containing among other matters the following allegation :—"That by the royal prerogative the ground and soil of the coast and shores of the sea round this kingdom, and the ground and soil of every port, haven and arm of the sea, creek, pool and navigable river thereof, into which the sea ebbs and flows, and also the shore lying between high water mark and low water mark, belong to her majesty.” The cause having been heard in the first instance before the Master of the Rolls, who pronounced judgment in it, was subsequently brought by way of appeal by the corporation before the late Lord Chancellor, to whom Mr. Serjeant Merewether, as town clerk of the city, addressed an argunent on December 8, 1849, contesting the above doctrine. His speech on that occasion has been printed and published, and the publication of it has given rise to a counter publication, containing a very lengthy and laboured attack on the learned Serjeant's positions by Mr. Jerwood, of Exeter. Taking these texts as a convenient ground work, on the assumption that they respectively comprise the kernel of the case (which does not lie in a nutshell) on the one
The Right to the Fee Simple in the Soil of the Sea Shore. 71 side and on the other, we propose to treat of the more prominent parts of it; so as to present, as far as in us lies, a just view of the general question, without, however, entering into various minutiæ, and, as it seems to us, somewhat irrelevant matters, which have been forced into the discussion by the latter learned gentleman. But, first, we beg leave to submit one consideration
. as indispensable to be carefully borne in mind, in order to enable any one taking up this subject to arrive at just views upon it, namely, that the argument on behalf of the city is an argument in support of the negative, and therefore to be treated and met with a high degree of wakeful candour, and every branch of it submitted to lengthened and earnest research, before an opponent can be in a position to assert that he has refuted it. The whole scope of that argument may be thus represented. Admitting that the proposition now advanced by the crown (as set out above) has been repeatedly asserted as well by text writers as by learned judges on the bench, it is contended there is still no sufficient authority for it, inasmuch as it has never been judicially decided after argument in a case expressly raising the question as between the crown and the subject, and statute law being silent on the point. Now this bare statement of the case will be found, we think effectual, to enable us to cast aside at once a load of matter with which the discussion has been encumbered. “Selden,” says Mr. Jerwood—that is, he says so in effect, but takes in fact seven or eight pages to say it in,-—" in the Mare Clausum, states the right to the shore to be in the crown, why is be not alluded to by the serjeant?” The answer, assuming for the moment that the Mare Člausum contains the statement, is obvious, because the admission has been made once for all that various text writers assert the proposition. But the truth is, that Selden, as cited, says no more (if so much) than that the dominion over the sea, and right to the soil at the bottom of the sea—the fundus maris-has ever been in the crown (which is not disputed at present),' and the only mode after all by which Selden is pressed into the service is to be found in Mr. Jerwood's whimsical' remark upon this,-“it is not easy to see how the sovereign can possess the sea without the shore.". So that Selden, and the omission to mention him, seem not to have much, if any, bearing upon the real question; and as to the imputed
l difficulty, there appears to us, we confess, a much greater one, closely connected with this title to the soil of the sea. If the right to land suddenly left dry by retirement of the sea is in the
· See In re Hull and Selby Railway Company, 5 M. & W. 327.
Dissertation, p. 15.
crown by reason of the right to the fundus maris, is it very easy to see why the equally well settled right of the proprietor of the adjoining lands to increments formed by alluvion or gradual retirement of the sea should not be in like manner attributable to his right to the sea shore ? Various other text writers are besides referred to by Mr. Jerwood, and various dicta of judges are set out at great length, just as if all the strength that can be derived from all of them collectively to the opposite argument had not been at the outset most fully and frankly admitted in the argument for the city. With one exception, therefore, we shall not invite our reader's attention to any of these authorities, considering that to do so would be mere waste of their time and our space. The exception is Lord Chief Justice Hale, on whose credit, it may suffice to say, without going into the discussion of the genuineness of the Treatise De Jure Maris, &c. printed in his name, the whole of the doctrine of the royal title to the sea shore, or the land lying between the ordinary high and low water marks, ultimately rests. In that treatise the right is asserted in unqualified terms to reside in the crown where not granted out; but whether it proceed from Lord Hale's pen or not is a question which appears to us to have but a faint bearing on the decision of this; for the treatise has never been taken in our courts as being an ultimate, undeniable, unassailable authority. So far from that, we find in two particulars with respect to this and a similar question, to mention no more, the law it lays down has been, as we submit, overruled; for Blundell v. Catterall
, 5 B. &
5 Ald. 268, seems to have upset the position of the treatise, that the sea shore is a highway; and Ball v. Herbert, 3 T. R. 261, seems to have upset, not to say scouted, the position of the treatise, that there is a common law right of towing on the banks of public navigable rivers, paying compensation for injuries done to the banks. Then is Lord Hale a safe or sound authority in a question between the crown and the subject? Is not his royal and monarchical bias notorious ? Nay more, were not certain doctrines he delivered from the bench such as, if acted on and carried out to their fair consequences subsequently, would have left the people of England at this day not merely unable to call their sea shores their own, but in the condition that their lands and purses, and liberties, all would have been by law held at the will of the crown? Two only of these doctrines held by Chief
? Justice Hale, and promulgated deliberately by him from the bench in solemn judgments, would, taken together, have gone pretty far towards this consummation. He laid down that the customs on wool, woolfels and leather were at common law due