37 



to, cannot be said to have been inclosed, sepa- 

 rated, or appropriated, to the use of any indi- 

 vidual ; but still are, and remain public, and 

 common to all the King's subjects. This is 

 confirmed by Sir M. Hale, Bracton, and by 

 Magna Charta before noticed. 



All such rivers as now are, and time out of 

 mind have been navigable, as run by the 

 King's highway, or by a common, and to 

 which the subjects now have, and constantly 

 have had, or might have had, free access, 

 it is conceived are public rivers, and common 

 to all. 



With this doctrine agrees the observation 

 of Walton, that "if the angler offends not 

 with his feet, there is no great danger with 

 his hands ;" that is, the trespass must be 

 committed by going on private property to 

 make the party responsible. 



This distinction is strong, and marked, and 

 perhaps enough has been stated to prove, 

 that the River Thames is, and for time out of 

 mind has been, a public river, which would 

 be sufficient to establish the public right of 

 fishing in it. 



