THE COLONIST. Published Every Morning. Monday, February 22, 1909. AN ENGLISHMAN'S LIBERTY.

Colonist, Volume LI, Issue 12470, 22 February 1909, Page 2

THE COLONIST. Published Every Morning. Monday, February 22, 1909. AN ENGLISHMAN'S LIBERTY.

The crowds of bathers' who disport ■ themselves • daily during - the hot ; weather in the sea at Tahuua, possess f a liberty in doing so lthat countless. ; of sea side excursionists ' in England exercise :at the risk of ; p'ro^ \ ;secutiort for a breach of ah old sta^ \ iite". It is seldom invoked, it is true,' ':■ to'cuvtail the pleasure of those that ■ go down': to the sea in bathing cos- .; tiime, but a case.under.it occurred iiot ijongrago -in regard to the legal posi- : tion of the tidal and navigable parts ; !of tho Severn. The decision of Mr ; Justice Parker, which was against the j bathers, 'excited- a storm of : protest," ; iia.rid demrjids that' it should be appeal- ■ i'«d against; but; (as ''The Times" re- j i^narked) all that he laid' down as to ■ j-the» point was ho newidoctrine to' law- \ |;i'ers..: rAs long ago "as 1821 the mat- ; ,i;er.came before the King's Bench, find j ■three out "of. four Judges then decided j •that the public had no right to bathe ! da the sea from the shore or to gain : access to it for that: purpose. There i l.yere, passages in- old books of : repute ) 1 nvhfeli .ieeriie'd-ftb give colour to; the j •*]aim.;:;--But the Judges ,; explained \ i'ithoni away, or. declared them to be in ! ; ■cpntraveutipii of. well settled rights., I It was ihen admitted that the prac- I |;"tice-waS'Very common. ■ But, as • ,-Chief Justice Abbot' said, it "differs !• •in degree only, arid not iu kind or ; .^luality, from that' which; prevails as ; to soniewastes or commons; and even feh.e..ditt'erence in degree is in' some crises not very great." . Many of; those "persons who. reside in the vicinity, of wastes arid commons; walk : or ride 911 horseback,, in all directions,, over them for their health and recrea-■.tions-j.and.sometimes-even.in carriages deviate -from the public' paths intc those" parts -which may be traversed with safety. In. the neighbourhood of some frequented watering place ihh practice prevails y yet no one thought thsvt any right existed in favour, oi •this enjoyment, or that any justification could be pleaded to an action- Vat the suit of the dwiier of the soil:" The three iudgmehts denying the existence of such a right as is claimed, for bathers, are excellent: specimens of the- best 'legal -literature of the early part of last century ; terse, clear,- with not- a word.: too much, free from vague '-talk or doubts and perplexing phrases such as "I_ am inclined to think." The reasoning, however, did hot command the universal assent of lawyers; and the"' point- Was .again raised: in 1904, with tho same'" 'result as in .1821; a Judge, of first instauce and the Court of Appeal both . deciding that the law as stated by ■ Holroyd/ Bayley, and Abbot in 1821 s'till held 1 good. In saying that "tHe r public -have no ■ rights ; on the sea itself except rights of ; fishing and navigation" and. rights ancillary thereto" ; Mr Justice Parker ; was ' merely " repeating the ; : words of a judgment- which only -the; House of Lords could reverse, .and.'whicli, having regard :to .\ the fact that the law has for little less than a century been understood- to be what. Mr Justice -Parker declared, is not likely to be disturbed. Only legislation at this" time of day coiild give bathers, the- rights •which they claim. Public sympathy .is. naturally with the 1 unsuecessful liti- [ gants. They were fighting a relic of oppressive legislation that has -no place in present day conceptions of popular rights in relation to common ; property and the. domain of manhood in general. •' The decisions of 1821 < were come to at a time when very different notions' existed as to public recreation) and when there was no , great demand for open spaces or the right to wander. . Nowadays few :, want to : know who may take whales, sturgeons, and other Royal fish, or ( piit down stake nets— points, upon J which the old; authorities copiously expatiate. . What the law permits the public to do is what they no riot now imuch'.want' to dp. .What they really wish-to do may - be. illegal. It is odd ; that there may be a right of shrimping as "a necessary use," and thac; ; 'theiie is no right to cross the f(«:eshpre: to bathe. Everyone may swim. rin ( the sea. It' seems, strange that ;i-e . may not have access to it. ?or one , person who wants to walk .along the j shore "when the tide is out to- pick -tp, ■ shellfish— which he.maydo^there are: | hundreds who wish to, bathe,; \vti,t'h , thoy may not -as 'a right. - The fL'p- ] wrecked mariner, it is "admitted, '..as - right to land; 'but/for/one castaway < there are hundreds of thousands 0+ " bathers. The old authorities were , thinking "only of commercial and culinary purposes as for the good f.iho commonwealth. There was no <o;e---cast or anticipation of a population to which access to the beach was f infinitely more consequence than shrimps or shellfish generally. At most of the more popular English watering places the difficulty has not arisen the foreshore being vested in the local authorities, which frame suitable bathing regulations for the public. Wheie this is not the case, legislation is the only solution of the difficulty, and this is not a very simple task, in view of the frequent alterations of foreshore boundaries, through reclamation and harbour improvement woi-k, while the rights of landowners whose estates abut on the coast have al&o to be protected. But it should be possible to invest local authorities with jurisdiction "which would enable sea .bathing to bo placed on a more satisfactory basis. I '' -- ;