Cambridge Chronicle 6 Apr 1839: Colonel Pemberton successful in re-trial over navigation of River Cam
NISI PRIUS COURT - SATURDAYPEMBERTON V. HAWES
[Concluded from last week]
Some time before the Judge arrived the Court was filled, principally by undergraduates of the university, it being generally known that nothing but the speeches of the Counsel and the Judge’s summing-up would occupy their attention. The learned Judge having arrived.
Mr. KELLY proceeded to address the Jury for the defendant. He began by observing that if the Jury were convicted of the truth of what his witness had proved, namely, that the river had been used for the long series of years they asserted, then he could see no alternative but their finding for the defendant. If, in opposition to this weight of evidence, they found for the plaintiff, then he should tremble for every public right now undisputedly enjoyed. Before he entered into the general merits of the case, he would trouble them with one or two preliminary observations, and first, as to the character of the evidence produced. The evidence he had produced was all positive or affirmative, and the evidence by which it was met was all negative. He should hereafter have to allude to this, and should only now remark that such was the value of positive evidence, compared with negative, that for every ten witnesses of the latter description two of the former was an abundant equivalent. His next remark would be as to the manner in which Col. Pemberton appeared in this matter. He was far from wishing to say aught against the honour of that highly respectable gentleman, but he felt bound to say that it was his opinion that if the Colonel had not feared for the preservation of his game, this action would never have been commenced. As to the subscription which had very ingeniously been hinted at by his learned friend in his cross-examination of one of the witnesses, he was bound to say that not one single penny had been subscribed for his client, but that he was there to fight this battle for the public single handed. If, however, the case should turn against him he trusted that the public would not withhold their aid from the man who stood forward in their, as well as his own, defence. But why had he been singled out by Col. Pemberton? They had it in evidence that, at the most, two days after the alleged trespass had been committed, Mr. Beales had, in opposition to the Colonel’s threat, passed over the barrier, but, from that day to this, Mr. Beales had not even been threatened with an action. Mr. Beales was a man of property, and though, perhaps, not so rich as the Colonel, was a more becoming match for him, had he chosen to grapple with him. The learned gent. then quoted from “Starkie on Evidence,” to shew the nature of prescription rights, which he conceded was wholly in favour of his client. As to the inference to be drawn from the repeated use of the river, as shewn in evidence, he had to remark that the presumption of law when acts were done without objection was that those acts were legal. He would now allude to the use of the river by millers. This was attempted to be attributed to a private right annexed to their mills, but what evidence was there to shew that this right was not exercised by them as part of the public; indeed, the fair inference to be drawn from the leases he had produced was to this effect, for not one of them recited any right of this description. If these rights were in the proprietors, the same might be applied to the proof that the Cam, below the mills, was not a navigable river, and it might easily be shewn that those who navigated it then did it by virtue of having premises on its banks. But the navigation of this part of the river was shewn to have been navigated not only by the millers, but also by many other persons, independent of this who transferred their boats from one side of the mills to the other. Was there a private right in Dr. Hardman, Mr. Hawkes, Mr. Wheeler, of Mr. Locke King? No such thing was contended. How, then, could his learned friend get over this fact? He would now come to the general nature of the plaintiff’s evidence. He had already alluded to its negative character. To make this more clear he would suppose a case. He would suppose a case where a question arose as to whether a particular cart, perhaps painted in a remarkable manner, had passed from the Huntingdon road to St. Andrew’s street on a particular day. Well, two hundred persons might have been passing at the particular time, would they not believe it did pass if one gentleman of undoubted veracity, like Mr. Romilly, had come forward, together with the actual driver, and swore positively to the fact. Let this case be extended as to whether this cart often passes, and take several witnesses who often saw it, together with different drivers, and, even supposing that some of the passers by had not observed it, would they then doubt that such was the fact? Let them put boat for cart, and they then had the very case which was now before them. But the witnesses for the plaintiff actually proved his case. Even the Rev. Mr. Cotton, admitted that 30 years since, he saw Mr. Bennett, then tutor of Emmanuel, and afterwards bishop of Cloyne, reading in a boat, with his gyp rowing him; while the Rev. Mr. Payne admitted that, about 1798, he had been three or four times on the back part of the river, and had besides seen some one in a skiff. They had heard that, at this time, there were only about ten pleasure-boats on the river, let them take these two on at the same time, in proportion to the ten, and there wanted no stronger fact to prove that the user of the river then, taking into consideration the means and the fashion of boating, was proportionate to the present user. Let them take also the evidence of Richard Rowe, once a formidable name in the law, and though he swore to never having seen a boat on the river, they must not forget that he never saw Mr. Howard’s barge, of which there was abundant evidence that it was continually passing and reposing at the time he spoke of. This witness had fixed upon the years 1809 to 1814 as the time he was near the river and never saw a boat. He would not dispute his veracity, but it showed how little value was to be put upon negative evidence, for he must have been intent on his avocations, as both Mr. Romilly and Mr. Jeffery had sworn to having used the river during this very time. He might treat all the evidence in the same way, but he was anxious not to trespass too long on their time. Mr. Pemberton the highly respectable attorney and agent of the Colonel, had deposed that he could not tax his recollection with having seen a boat on the river while he was fishing, in the years 1790, 1791, & 1792, but he would oppose to him an equally respectable witness, Mr. Gunning, who at this very period constantly saw boats passing and re-passing. Let them look at Cross’s evidence, who said that 15 years ago was the origin of boating behind the mills, but admitted that before that time they did go, but nine times out of ten they were damaged. This shewed that they did go. Moreover, on the part of the plaintiff, there had been exhibited no private grant of the river, while what was most material to his case, to prove that no such grant existed, all the plaintiff’s witnesses admitted that, no matter how few, all who pleased navigated the river. On the part of the plaintiff an Act of Parliament had been tendered as evidence, entitled, “an Act to make the Cam more navigable between Clayhithe and the Queen’s Mill,” as if that shewed that the river was not navigable further than Queen’s Mill. Why, if that were the case, it would be equal evidence that the river was not navigablh from Clayhithe to Lynn. Another question which seemed to arise out of the plaintiff’s evidence was whether, when the boats crossed the land from one river to the other, they were committing a trespass? In answer to this his witnesses had proved as clear a right, by prescription, to this as they had to the navigation, for Stearn alone had shewn that he took from three to five boats over at a time, 45 years ago. He then said his client did not claim the right beyond the Grantchester mills, nor the right of towing, nor a right of landing till he came to the termini, and then he went at length into this part of the case to shew that his client’s demand did not involve also demands to this effect. He did not dispute that Col. Pemberton might have the right of fishery, but the case of the “Mayor of Orford v. Richardson” shewed that this might exist without a right to a private navigation. It was true that the evidence diminished as they went back, but in opposition to what had been asserted by his learned friend, he had no doubt that if this case had been tried in 1820, there were many now in their graves who would have remembered the user 20 years earlier than any witness he had produced. And so they might retrograde, he believed, till they came below the time of Chaucer, who speaks of grist being brought from Cambridge to the miller of Trumpington. He then endeavoured to deduce a probable supposition of the right from the fact of Grantchester being in early times a large city, and concluded by a general review of the defendant’s evidence.
Mr. ANDREWS then addressed the jury for the plaintiff. He said he could not pass over the covert fire of his learned friend against Col. Pemberton, for while he called him an honourable man, he would wish to insinuate that he brought this action, in which the ruin of an individual was concerned, merely to protect his game; and that he had chosen that individual in preference to another because he was the weakest. Now, as to the first, he would only remind the jury that the estate of the Colonel wold be greatly diminished in value if the right in question were established, and as to his choice of the present defendant, he would only say that the trespass had been committed by him two days before Mr. Beales passed the chain, and he was the one, moreover, who had produced his client the greatest annoyance in bringing his fleet of boats to the other side of the mill. His learned friend had turned aside from the really important points in this case, and had exerted his eloquence to direct their attention from the proper channel. They had heard abundance about Prescription but the only ground upon which this right could possibly be claimed, namely, by Dedication, had been totally omitted. They had been told too that the defendant claimed for no right beyond Granchester mills. True, he did not in his plea to this action, but did any one of them believe that if this action were decided for the defendant the privacy of all who lived beyond Grantchester would not be invaded; aye, and without remedy too, for all the witnesses for the defendant had made out as good a case for going behind the Grantchester mills as behind the Newnham mills. He then called their attention to the nature and state of the river, contending that this must convince any one that it was nonsense to say as the defendant did in his plea, that this was “a navigable river, for all the Queen’s subjects to navigate at all times and all seasons in boats, barges, and other vessels as a common highway.” To prove prescription, it must be proved that the public had a right from time immemorial. Now take the case of the Newnham mill, it was evident that it stood upon an artificial cut, and it appeared that the mill had not existed 200 years. How could it be contended that there was a prescriptive right to navigate this part of the stream, which had not existed to all appearance 200 years? Again, if it were a navigable river for time immemorial who had authority to build a mill across it? If, again, it were a navigable river what right had the millers to draw off the water and to leave the channel dry for days together without giving public notice? Such a thing was against all custom and all reason. Again it had been shewn that without any notice to the public a stank had been erected across the river. This could not have been done if the river were a navigable stream. Let them too, look at the evidence of Mr. Howard on this point, and they would find that in order to enable him to land the commodities he brought from Granchester he had asked permission to place a stone for a kind of quay from the occupier of the King’s mill. Could there be any prescriptive right then to take boats over this point when a miller, who navigated the river, could not land his commodities on the same spot except permissively. He would now call their attention to the Act of Parliament of 1702. This not only stated that it was to render more navigable the river between Clayhithe sluice and the Queen’s mill, but in the preamble it stated the termini of the navigable river Cam are Lynn and the Queen’s mill, Cambridge. He had never denied that the river had been used by pleasure boats, his only object had been to shew the limited extent of that usage. He felt assured he had done so, and when it was admitted that they came up seldom, what other evidence was there for the defendant? Why, there was Mr. Wheeler’s barge and Mr. Howard’s barge. Was there anything wonderful that Col. Pemberton should allow Mr. Wheeler who hired two osier holts from him to keep a boat? And as to Mr. Howard’s barge, there was no evidence to shew that he used it as one of the public, on the contrary there was the evidence of Mr. Lichfield to shew that he had been unwilling to lend it to another person to navigate the stream except at night. His learned friend had contended that the Grantchester river was as navigable as the river below it. How was it then, that he had not been able to shew that one single sack of coals, nor an article of merchandise of any kind had been brought by it to Granchester, with the exception of the miller’s flour and Mr. Hawkes’ beer barrel. His friend too had quoted Chaucer, but it was singularly unfortunate that when the old bard mentioned the transit of grist from Cambridge to Grantchester, as cited by his learned friend, a little farther on he stated how it went. It went, not by water as his friend would have them suppose but on the back of a horse! With respect to the witnesses called by his learned friend, they were all interested to a certain extent, and would, therefore, wish to say as much as they could for the defendant. He would not attribute anything like perjury, but he thought when they were opposed by his respectable witnesses it would only be fair to attribute a little to their enthusiasm, and to suppose that much they thought they saw many years ago they had seen within a few years, and that they had confused the impressions they had of the numbers of pleasure boats which navigated the river years ago, with the numbers which navigated it lately. He would now call their attention to that part of Mr. T. Howard’s evidence which spoke of the origin of the barge navigation of the river. Here he proved that so far from this being a navigable river, he had been compelled to deepen it to admit this barge which was only constructed for carrying fifty sacks of flour. The jury too, could not say that this was a navigable river without saying that the public had a right to drive their boats over the banks of the river which had been proved to be the private property of the millers, as the lessees of The Corporation, and also the common, the soil of which belonged to the freemen. With respect to the leases calling it “the common stream,” that was easily accounted for in there being land on each side, the soil of the river must be common, and, therefore, the navigation upon it. As to the law bearing upon the point he was quite sure it would be told them by his lordship that if the property of the soil and the right of fishery were in a private individual the presumption of law was that the navigation was in the individual. Indeed all presumption was in favour of this being a private river. Moreover, it was not for him to prove that this was not a navigable river, but for his learned friend to shew that it was. He came now to the question of dedication. His learned friend had laid little stress upon this, but if his case could have been proved at all, it must have been proved in this way. Now the law in this case supposed that the person who had the right saw and tacitly assented to his infringement. How could that be in this case? Would they contend that the society of Merton college, Oxford, saw or knew anything about it; Would they say that King’s college and Corpus, and all the individual freemen who had rights of common on Sheep’s Green had consented? No such thing could be contended, and hence his learned friend had dropped that part of his case. He would now conclude by stating his belief that if the plaintiff failed in establishing his right it would be a much greater injury to the public, than the opening the river would be a good, for it would have the effect of making people look too narrowly, and little acts which kindness now allowed would be withheld lest ultimately they should be claimed as public rights. And he would not trespass longer upon their patience than to ask them if they thought this right had existed a fleet of boats would not have been sooner behind the mills and thank them for the very great attention with which they had listened to him.
The learned JUDGE then charged the jury. He said that there were only three ways by which the defendant’s plea “that this was a navigable river at all times and all seasons for any of the Queen’s subjects to navigate with boats, barges &c., as a common highway,” could be substantiated. There were (1) By Act of Parliament; (2) By Prescription; (3) by Dedication. As to the first, there was no pretence that this was a navigable river by virtue of an Act of Parliament. The only Act of Parliament produced related to the river being navigable between the Queen’s Mill and Lynn. Much had been said about this Act of Parliament as telling in favour of the plaintiff’s case, but his opinion was that it bore very little upon the point at issue. That, however, was a point for their consideration. As to the second way in which the defendant’s plea could be supported, namely, by Prescription, this was, when a right had been used so long that it was fair to infer that it had existed from the time of legal memory. With respect to his there were two or three points to which he should direct their attention. They must consider whether the right so far as it had been exercised, had been exercised by the public as a right, or whether it had its origin by permission; whether those who exercised it did so legally, or whether each one so doing was a trespasser. They must also take into their consideration the nature of the river with respect to its approaches, - whether or no the public when they lifted their boats from the lower river were doing what they had a right to do, or whether in so doing they were committing a trespass. If the latter, it was a solecism to say that the public had a right which they could not exercise without doing an illegal act. It would be also for them to take into consideration anything which appeared like natural difficulties, for the plea of the defendant implied that the public had a right to do it by night as well as by day, and with any kind of vessels. The bulk of the evidence went to shew that pleasure boats had exercised this right, but the plea of the defendant claimed it for barges as well. With respect to the boats which had been proved to have been kept by private persons, it would be for them to consider whether or no they might not possess private rights, but with respect to the pleasure boats that could not be so. The great body of the defendant’s evidence went to shew that the right had been exercised by this kind of boats for a long series of years and very frequently; and in juxta-position with this was put the evidence of Cross and the other boat letter, to show the origin of the going behind the mills in pleasure boats. It would be for them to consider how far, if at all, the memories of the former might be warped by length of time or other causes, and duly to consider the weight which was to be put upon Cross’s testimony. He came now to the third way in which this right could be claimed, namely, by Dedication. This did not seem to be much relied upon by the defendant, but it was right to explain it to them. A dedication supposed a full knowledge on the part of the proprietor that the public were enjoying what they had no right to, and his making no objection to it. This would be a point for their consideration, though it did not seem to be much relied upon by the defendant. He was now prepared to read the evidence to them if they wished it.
The foreman of the jury (the Hon. Algernon Herbert,) intimated that they considered it unnecessary.
The learned JUDGE said he would conclude his remarks with what was hardly necessary to men of education and station like themselves, to deduce their verdict from the evidence without reference to any other consideration whatever.
The jury then retired, and after waiting about an hour, the Court was adjourned to the Judge’s lodgings.
The jury having retired for about four hours, went to his Lordship’s, and after putting a few questions to him, returned a verdict for the plaintiff.
Counsel for plaintiff, Mr. Andrews and Mr. Byles; attorney, Mr. Pemberton; Counsel for defendant, Mr. Kelly, Mr. Gunning, and Mr. Barker; attorney, Mr. Cannon.