they still remained private streams, subject to the public user, and, above this improved navigation, they still remained private property, unaffected by any public right whatever. § 44. Best, J., discussing this subject, says: "Many rivers have been rendered navigable since Bracton wrote, which in his time were private streams. The public have no greater right on the banks of such rivers, than the owners of the adjoining lands, granted when such rivers were made from private streams public rivers, and the extent of the grant must be ascertained from usage. This is the case with a new-made road. If one dedicates to the public the right of way over his lands, the public must take the road with gates on such parts of it as the owner thinks proper to erect at the time he makes the dedication. But Bracton speaks not of newly made rivers, but of such as were always navigable, and the banks of which have been as open to the public as their waters. This I take to be the law with all inland navigation in the reign of Henry III. These, like the sea and its shores, were then the property of the public, and the right of the public in them was not acquired by any compromise with the interest of any individual. In some rivers, that have been navigable from time immemorial, the public using but one of the banks for a towing path, the other has been usefully occupied by the owner of the adjoining land and so an exclusive right has been established to the parts so occupied.”1 § 45. And in another case, Lord Advocate v. Hamilton,2 Lord Chancellor St. Leonards held, that, "with respect to the question which has been mooted as to the right of the crown to the alveus, or bed of a river, it really admits of no dispute. Beyond all doubt, the soil and bed of a river belongs to the crown." § 46. On the whole, the reader, from the foregoing, will 1 Blundell v. Catterall, 5 Barn. & Ald. R. 268. 21 Macq. (H. L.) 46. see that the remark of Mr. Phear, that "it is, too, perhaps, not free from doubt, whether the land covered by non-tidal rivers, which are navigable, and by large fresh-water lakes, does not by Common Law belong to the crown," is well founded. 1 Phear on Rights of Water, p. 13. CHAPTER III. NAVIGABLE RIVERS IN THE UNITED STATES. § 45. THERE has been much discussion in this country on the subject of navigable rivers. All agree that the test of navigability applied to the small rivers of England, which in our country would be called streams, creeks, &c., ought not to apply to the great rivers of America; but, while all are thus agreed, many eminent jurists, from a misapprehension of the true Common Law, have argued, that although our rivers are, in every sense of the word, practically navigable, nevertheless, all the consequences the supposed Common Law attaches to non-navigable rivers apply to them, because the tide does not ebb and flow therein; and thus it has happened, that otherwise learned men heretofore have absurdly decided rivers not navigable in law, while they were in fact navigable, and bearing fleets and the wealth of republics on their waters. case. § 46. It is rather remarkable that such should be the The test of a navigable stream by tide-water in England was reasonable there; because no navigable river can be found in that country beyond the ebb and flow of the tide, nor any place where a port of entry could be established with distant nations, and vessels could enter, and receive and discharge cargoes. In England, tide-water and navigable water are synonymous terms. They took the ebb and flow of the tide as prima facie evidence of navigability, because it was convenient, and more easily determined the character of the river. Yet, in most of the American courts, the doctrine that only the ebb and flow of the tide constituted a navigable stream seems to have been accepted; and 1 The Propeller Genesee Chief v. Fitzhugh, 12 How. 455. all of them, with the exception only of the courts of Iowa, and more recently the Court of Appeals of New York, have mistaken the Common Law rule. But, while this is so, some have had the sound judgment to apply the common-sense rule. § 47. There is no principle better settled in the United States than this, that only such parts of the Common Law as are applicable to our condition are binding on our courts. Even then, assuming as a fact, that at Common Law only those streams are navigable wherein the tide ebbs and flows, yet it seems to us that such a principle ought to have been unanimously repudiated in this country, where we have rivers which are vast inland seas, and ordinarily several miles in width, upon which an almost oceanic commerce is carried, and on whose banks more than a thousand miles inland ports of entry exist, and which bound numerous States, in their course from the north to the tropics. § 48. The Common Law of England, upon which the Common Law of the United States has been grafted, is a trunk of venerable age, and of sturdy and enduring growth. It was planted originally in a varied soil. The people of England were a people of mixed races. In the main, it may be described as a system built upon the foundation of Feudalism, with large materials drawn from the Roman Code, occasionally modified by ancient Celtic, Saxon, Danish, and Norman laws and customs. The influence of the Roman law is, however, strikingly apparent in every part of the pile. How, indeed, could it have been otherwise, when we reflect, that for three centuries the Romans were masters of Britain, and that wherever they settled themselves, they carried with them their refined, and, even to this day, admired jurisprudence? When the empire of the West fell before the terrific onslaught of the barbaric hordes which arose from the northern hives, in the confused intermixture of the conquerors, the conquered, and the original inhabitants which followed, it often happened that five men, each under a different law, might be found walking and sitting together. Such a system was soon abandoned. But the system that followed was compounded of many and diversified elements. Much of that succeeding system doubtless never received the seal of express legislative enactment; though, no doubt, statutes before the legal time of memory, now absolutely gone out of use, the early records of which have been lost, had no small share in the entire work. This system was transplanted to the soil of this country by the first English settlers; but they brought with them only such principles as were adapted to the situation in which they were about to place themselves. It required time and experience to ascertain how much of the English Common Law would be suitable to this country. By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants and this expanded continent; and this work progresses even to-day.1 § 49. One of the main pillars of strength of the Common Law is the principle of applying known remedies to the exigencies of new cases and new circumstances, as they arise. Without this liberal principle, it would have fallen and broken into pieces, centuries ago, by its own rigidity. He who studies the principles of the Common Law, only by looking at the decisions which have been made under it, without studying its philosophy, and understanding the reasons which prompted those decisions, can never become fully imbued with its true doctrines. The decisions of the Common Law are most surely its expounders; but in order to understand such expositions, we must understand why such decisions were made; and such decisions do not become precedents for the government of any other case, where these reasons do not exist; and it may safely be said, as a general rule, that decisions which are only supported by fallacies are not its true exponents.2 1 See a Lecture by George Sharswood, before the "Law Academy of Philadelphia," in 1857, p. 8. 2 St. Louis, Alton, and Chicago R. R. Co. v. Dalby, 19 Ill. 368. |