Chambers's Journal of Popular Literature, Science, and Art, Fifth Series, No. 34, Vol. I, August 23, 1884

by Various

Of course, when the shore remains undisputedly in the possession of the Crown, no interference with the subject’s privilege of bathing, under fitting conditions, is to be apprehended. The decision in Blundell v. Caterall, however, shows that where a portion of the shore has been made the subject of a grant, there is nothing to hinder the person in whose favour the grant has been made from entirely preventing it from being used for the purpose of bathing, or from allowing it to be so used only on payment of any tax he may choose to demand. It is scarcely necessary to say that no such claim on the part of a private subject to such property in the shore, carrying with it, as it does, the right to tax, or even prevent altogether, sea-bathing, should be allowed without the strictest possible examination of it. Whether a man is possessed of the shore will entirely depend upon the exact words used to describe the boundaries of the land granted to him. If the deed of grant describes the land to be granted ‘down to the sea,’ or if any similar words be used, such grant would not include the shore; for it, as we have said, is what lies between high-water and low-water marks; and ‘down to the sea’ would be taken to mean down to the ordinary high-water mark, and so would just fall short of the ‘shore.’ If, on the other hand, it should be distinctly stated that the land is granted down to low-water mark, or to any definite distance out to sea, which would include the low-water mark, then undoubtedly the shore, with its attached rights, has been granted. Because it has been held judicially that the subject has no right to use the shore as a means of access to the sea for the purpose of bathing, it must not, however, be inferred that he has no right to be there at all. From time immemorial it has been recognised that the ownership by the Crown of the sea-shore is limited by a common-law right on the part of the subject to pass over it to reach the sea, for the purposes of fishing and navigation; and as the Crown cannot transfer to other persons more than it possesses itself, these rights of the general public still exist when the shore has passed into private hands.

The right of bathing is not the only right which most people are apt to take for granted which has been disputed, and disputed successfully, in the courts. How many people know that when they pick up a shell or a piece of seaweed and take it home with them, they are rendering themselves liable to an action? Yet it is so, as what follows will show. In the year 1801, one Bagott was the owner of a certain manor in the parish of Keysham, and this manor included—or at anyrate, Bagott claimed that it did, and his claim was not disputed—a portion of the seashore. In cases such as those here cited, there seems to have been far too great readiness to admit claims to the shore. It appears that on this part of the coast shellfish were found in great numbers, and it was the custom of the people in the neighbourhood to take them for the purpose of selling them, or using them as food. Amongst those who did so was a man called Orr. He employed other men to help him, and took away great quantities of the shellfish in carts, and seems, by the magnitude of his operations, to have exhausted Bagott’s patience. At anyrate, Bagott commenced an action against him, alleging that he (Orr) had entered certain closes of his (Bagott’s) ‘lying between the flux and reflux of the tides of the sea, in the plaintiff’s manor of Keysham, and the said shellfish and fish-shells there found, caught, took, and carried away, and converted, and disposed thereof, when the said closes were left dry and were not covered with water.’ To this Orr urged in defence, that what the plaintiff called his closes were, as a matter of fact, rocks and sand of the sea, lying within the flux and reflux of the tides of the sea, and that the shellfish and fish-shells which he had taken away were ‘certain shellfish and fish-shells which were in and upon the said rocks and sands of the sea, and which were, by the ebbing of the tides of the sea, left there in and upon the said closes; and that every subject of this realm of right had the liberty and privilege of getting, taking, and carrying away the shellfish and fish-shells left by the said ebbing of the sea.’ The judgment of the court, as it appears in the Report of the trial, gives none of the reasons upon which it was founded, but merely declares in the baldest manner possible that the defendant had a right to take the shellfish; but that, as no authority had been brought forward to support his claim to take shells, the court would pause before establishing a general right of that kind!

Of course, this judgment cannot be taken quite literally, for the shellfish cannot be taken unless their shells are taken also. What it must be understood to lay down is this, that we may take the shells so long as they are attached to, and form, as it were, part of the living fish; but that we must not take a shell when it has become detached from its inmate, and is nothing more than a shell. This prohibition to take empty shells is really equivalent to a prohibition to take not shells only, but also sand or pebbles, or indeed any other part of the soil of the shore. It may be added here, by way of parenthesis, that, by an Act of Parliament passed in 1620, a special privilege is granted to all persons living in the counties of Devon and Cornwall ‘to fetch and take sea-sand at all places under the full sea-mark.’ Why this privilege was specially granted to the inhabitants of these two counties is not at all clear. At anyrate, the passing of the Act shows that the right did not previously exist.

The last case to which we shall refer is that of Howe against Stowell. It was tried in the year 1833. Here, as in the case of Bagott against Orr, the plaintiff was the owner of a portion of the shore, upon which, at different times, the sea cast up great quantities of seaweed. The farmers in the neighbourhood were in the habit of carting this seaweed away, using it for the purpose of manuring their land. Stowell had taken some, and Howe brought an action against him. Stowell urged that, as a subject of the king, he had full and perfect liberty to go upon the shore and take the seaweed, which had been left there by the reflux of the tide. The court, however, found that no such right as Stowell claimed existed. Their judgment to some extent supplements and explains the one delivered in the case of Bagott v. Orr. The court referred to that case, and said that the taking of fish was for the immediate sustentation of man—a reason which did not apply to the taking of seaweed. Whatever the reasons may have been which caused the court to make a distinction between the fish and their shells, the distinction certainly now exists; and while it is unlawful to take away from the shore any shells, sand, pebbles, or seaweed, it is perfectly lawful to carry away any shellfish that may be found there.

Here we may leave the subject. Sufficient has been said to show the reader how much of the liberty of doing what he likes on the seashore is entirely due to the goodwill of such as have the power, if they choose to use it, of very seriously curtailing that liberty. Happily, by far the greater portion of our shore is still the property of the Crown, which is never likely to enforce its strict rights to the curtailing of the reasonable liberty of the subject. These rights might, however, with general advantage, be much more strictly enforced than they are on some parts of our coasts, where sand, pebbles, and stones are being constantly carted away in large quantities, to the detriment of the beach and adjacent land.

A NAMELESS ROMANCE.

I have a leisure hour to spend now and then, and I spend it in rambling round the city where I dwell. Perhaps some of you may think this is poor enjoyment, but it does not seem so to me. True, were I young and rich, I might seek my pleasures farther afield—on the sunny shores of the Mediterranean, or in the gay gardens of France. I might bask more in the smile of gentle dames, forgetting my loneliness, as one forgets in the sunshine that only a moment before the sky hung black with clouds. But I am neither young nor rich; and even if I were, it seems to me that no place in the world could ever be so dear as those lanes and meadows I love so well.

Yes; I am old now, and chilly sometimes at night when the fire gets low, wearing a greatcoat even on the summer days, and shivering often when the zephyrs fan my face. But I am kept young by my love for nature; I woo her as amorously as ever maid was wooed by swain, and she is not afraid to press her rosy lips to mine, yellow and withered as they are, and to twine her lovely arms round my neck. I love her for her hopefulness, for her inexhaustible store of youth. Everywhere with love she rebukes poor mortals for sitting down sad with folded hands, and with a glad voice bids them be up and doing. She is irrepressible. You may crush her down with stony hand and plaster over every vestige of her beauty, and then say to yourself, in pride of heart, ‘I have made a city, a place for commerce and traffic, and pleasure and sorrow;’ and yet, turn your back for an instant, lo! a little blade of grass comes up between the stones of the causeway and laughs in your very face. We may build our houses up story upon story, with the dingy attic at the top, for women’s hearts to break in, and the squalid court beneath in which little children may get their first taint of sin; but a gleam of sunshine will day after day work its way down to the very centre of the filth and squalidness, and a rose will bud and bloom in some poor man’s window, blushing back with pleasure into the face of its kindly keeper.

Then think how charitable she is, how slow to return an insult, how cheerfully she bears an affront. I often think—though, of course, it is but the vagary of an old dreamer—that those who build up masses of brick and mortar would be well repaid if nature left a sterile belt round their work, a belt gray and cold as their own walls. But no! She takes no such revenge as this. Long before the city-smoke has mingled with the clouds, or the hum of city-life died away, we come on patches of green, smiling us a welcome; on trees, too, sprouting forth in beauty, or draped with leaves and flowers, nodding to us in a grave and stately way, as if to show that they at least bear no grudge, and are prepared to be friendly in spite of all rebuffs. Ruminating thus, many a lesson have I learned on charity and forgiveness.

Nor are my rambles unromantic, though the scenes are no longer strange. Every house and farm has become familiar to me. I have seen a generation or two of cowboys develop into ploughmen, wed themselves to rosy dairymaids, and go their ways. I have beguiled idle hours in weaving webs of fancy round their married lives, listening for the merry laughter of children in their cottages, and watching for the glad light of love on many a mother’s face. And as with men and women, so with things. The old castle with its turreted walls and secret passages has furnished me much food for thought. I have recalled in fancy the noble men and fair women who used to tread its halls, their courtly, gallant ways, their feasts and tournaments; and, as I stand in the chambers, girt with gray stone and canopied by heaven, I can see the coats of mail still on the walls, and hear through the mist of years the voice of some gay warrior recounting his triumphs in the field. And many a story, too, have I heard from the rustic people about the old gray house which stands in the hollow among the trees. You see, I am old enough to pat the comely maidens on the shoulder without exciting the ire of their brawny lovers, and to chat, too, with impunity to the buxom matrons in the cottages while their husbands sit smoking by the fireside. And thus it was I heard the story of the Old House in the Hollow. I had often wondered if it did contain a secret, so silent was it, so forbidding in aspect, with its old porch black with age, and its windows stained and weather-beaten. It looked so grim, that I used to think it, too, must have witnessed deeds of blood, and taken the best way to avoid detection by standing for evermore in gloomy silence. It stood among thick foliage, so thick, that even on a summer day but a stray sunbeam or two rested on its blackened walls, wavering and timorous, as if scared at their bravery in venturing so far. The carriage-road from the gate to the door had faded out of sight, and there was nothing around but grass, heavy and dark-coloured, with the weeds that grew among it. The woman in the cottage not far off was glad enough to give me the key of the rusty iron gate which admitted to the grounds, and there I used to wander, more from curiosity than pleasure. But I always felt morbid under the old trees; and the grass, too, was so thick and rank, that it was like walking over deserted graves.