Tuesday, July 31, 2012

Laws about Fishgarths show Right of Navigation

Do Medieval Laws introduced to control the nuisance of Weirs, Fishgarths (a type of fish trap staked into a river) and other impediments record the existence of an ancient public right of Navigation on rivers (PRON)?

For example consider a 1531 Fish Act enacted on behalf of the people of York and the surrounding areas. Part of their reason for asking the King to enact the law was the interference
"upon the common Passage for Ships, Keyls, Cogs, Boats, and other Vessels, ... in the said River of Ouse , and Water of Humber"

There are earlier legal references to this nuisance - A 1472 Act, and revisions to the Magna Carta.

By contrast the first Navigation act concerning the river Ouse is in 1793.

It is argued that there is no ancient public right of Navigation on Inland Waters in England and Wales, and that this right is only created where a Navigation Act is passed. If this were true,
  • There would be no right of passage for vessels to be impeded by the Weirs, Fishgarths and other structures placed in the river (presumably by those who own the land adjacent). 
  • There would be no need to legislate to remove these impediements or to provide the right to obstruct the river by building weirs and locks to make them navigable for larger vessels (the purpose of the early Navigation Acts)
Recently a paddler took a case to prevent an Angling Club intefering with his right to navigate a river based on the 1472 Act for Wears and Fishgarths, stating that it  confirms a Public Right of Navigation on Inland waters.  (See Song of the Paddle)
The outcome would appear to support the case for the existence of an Ancient Public Right of Navigation

There are accounts from the time of Henry VIII of the actions to remove illegal weirs. The Lisle letters (1480-1592)refer to the weirs on the estate of Honor Lisle (at Umberleigh, on the River Tawe, North Devon) and also the fact the King had ridden throughout Hampshire to see himself the statutes were being obeyed. on Laws about Fishgarths show Right of Navigation
The Henry Percy, The 4th Earl of Northumberland was on a commission to deal with them on the rivers around York in 1484. Another reference specifically refers to the Bishop of York taking up the issue of one (Golden Garth) on the river Aire, which was removed (A history of the City of York, Gareth Brunton Knight, 1944)

1 comment:

  1. "Henry Percy, The 4th Earl of Northumberland was on a commission to deal with them on the rivers around York in 1484". Ironic, as Ralph Percy, the 12th Duke of Northumberland, is a director of the Houghton Club.