Will Russell of Chester, an angler and "lapsed" canoeist queried whether Magna Carta really implied a public right of navigation.
I have read the section on PRNs with great interest and note your invitation to comment. I have only read the section on Magna Carta in any detail and feel a quite different and contrary interpretation of Magna Carta can reasonably be made. The following are my perhaps longwinded repost. Will Magna Carta and its relevance to PRN Clause (33) All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast. This is quoted as being relevant to navigation. However, it is more likely, ??, to protecting fishing rights rather than referring to navigation. See for example;- https://content.historicengland.org.uk/images-books/publications/iha-river-fisheries-coastal-fish-weirs/riverfisheriescoastalfishweirs.pdf/. This web site describes the construction and operation of fish weirs as follow;- INTRODUCTION The catching of fish in rivers, lakes and tidal waters using weirs and other forms of stationary trap is an ancient activity still practised in a few parts of Britain today. Etc. etc. DESCRIPTION The word 'weir' comes from the Anglo-Saxon wer, one meaning of which is a device to trap fish. More specifically, a fish weir may be defined as 'a barrier erected ... in the sea or in a river to deflect fish into an opening where they can be caught in a net or wicker basket'. River weirs principally trap migratory fish and point up or downstream depending on the species targeted (upstream for salmon; downstream for eels), but seldom stretch across the entire width of the channel: this is partly to allow some fish to escape and thus preserve stocks, but is chiefly because otherwise they would completely obstruct river navigation. Despite the note attached to the British Libraries' translation, it could be strongly argued that Clause 33 has no relevance to navigation on rivers and cannot be used as proof or even in support of a PRN Clause 47 and 48 refer to riverbanks with no reference to navigation and are thus apparently irrelevant to discussions of navigation or a PRN Of much more relevance in Magna Carta is clause 13 which is frequently quoted as proof of a public right of navigation. (For example, Caffynhttp://www.caffynonrivers.co.uk/_resources/cms/pdf/once_a_pron.pdf). Where he writes;- Where it has been established by one party that there was in the past a particular public right it is the responsibility of the other party to establish that the right has been extinguished. This must be so as no one can establish that an Act of Parliament has not been passed. Caffyn is implying that it has been established that a PRN has been established for all UK rivers without proving the establishment. In the next paragraph he again implies rather than states that Clause 13 of Magna Carta establishes a PRN. The general law (PRN) was included in Magna Carta c 13 'The city of London shall have all its liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.' This clause has never been repealed. Rather than "proving" a right of navigation, (Caffyn's 'general law' to all rivers,) clause 13 shows that at this time navigation on most rivers was restricted. The phrase - shall have all its liberties and free customs - means that the city of London and others mentioned, should continue have the commercial advantage of not having to pay tolls to use roads and rivers. Others would not have this advantage and would have to pay to use roads and rivers, i.e. at this time navigation on rivers was restricted and not free. This interpretation is supported in;- http://www.scotcourts.gov.uk/opinions/ROB.html. http://www.btinternet.com/~m.royden/mrlhp/students/westderby/westderby.htm. Thus Clause 13 of the Magna Carta shows, or can be sensibly interpreted to show, that at the time of Magna Carta that there was NO PRN, but rather that some privileged high status groups, commonly referred to as burgesses, burghers or Guild members, were granted freedom from paying tolls to use rivers. Clause 13 therefore implies that the vast majority of the population, i.e. non-Guild members, did have to pay tolls to navigate rivers.
Our response was
Thanks for clarifying your interest in the question of the public right of navigation on our rivers. We note your contention that Magna Carta can reasonably be interpreted as not relating to navigation at all or alternatively only in clause 13 which you feel can reasonably be interpreted as implying that, other than the places mentioned (The city of London .......... all other cities, boroughs, towns, and ports), all others were required to pay tolls. Fortunately we have no lesser authority that Parliament to confirm that it's clauses relate to the protection of rights of navigation on all rivers which would seem to conclusively address your concern. "Whereas, by the laudable Statute of Magna Carta, among other Things, it is contained That all Kedels by Thamise and Medway, and throughout the Realm of England, should be taken away, saving by the Sea-banks, which Statute was made for the great Wealth of all this Land, in avoiding the straitness of all Rivers, so that Ships and Boats might have in them their large and free Passage..." (1472 Act for Wears and Fishgarthes) "Throughout the Realm", "all this Land" and "all Rivers" seem to us to be totally unambiguous and should resolve your concern that Magna Carta dealt only with the navigation rights of the places referred to in clause 13. Further support for our interpretation that the public right of navigation extended to all rivers comes from the fact that there is no historic evidence of any tolls ever being paid for river usage other than where private investment to canalise or improve rivers was recognised by Charter or later Navigation Acts. The right to collect tolls was specifically created in these Charters and Acts because statutory authority was required in order to interfere with the existing common law right of navigation - indeed many of these Acts specifically recognised the pre-existing rights of navigation and expressly provided that they should continue without hindrance. (For example see "The River Itchen - A Lawyers View"). I trust this fully resolves your concerns and reservations. Regards Keith At River Access For All.