1

been given him either by a local custom or by statute. Where there is such a custom, the fee must be of a fixed and reasonable amount. In no case, it seems, can the incumbent insist upon receiving the fee before he performs the ceremony. And now, by virtue of the Old Age Pensions Acts, 1908 and 1911, every British subject, male or female, who has attained the age of seventy years, if he or she has been a British subject, natural born or naturalised, for at least twenty years, and has resided in the United Kingdom for at least twelve of those years, and is not in receipt of an income amounting to 317. 10s. a year, is entitled while in the United Kingdom to receive for the rest of his or her life from the State a pension varying according to the amount of the recipient's income, so as to bring that income just over 13s. a week. Thus, a person whose income does not exceed 217. a year will be entitled to a pension of 5s. a week, which may bring his total income up to 341. a year; while a person whose income exceeds 281. 17s. 6d. but is under 317. 10s. is entitled to receive a pension of 1s. a week only, which will make his total income over 317. 9s. 6d. a year, but not more than 341. 2s. a year. The scale of pension between the above two extremes varies in the manner set out in the schedule to the Act of 1908.3

The applicant will be disqualified from receiving any such pension if he or she has been convicted of certain offences, and in some cases also by the receipt of parochial relief.* The right to a pension is inalienable by any act of the recipient. Any assignment of it or charge on it or any agreement to assign or charge it is declared void; and on the bankruptcy of a pensioner the pension will not pass to the trustee or any other person acting on behalf of the creditors." Lastly, every person dying in England is entitled to Christian burial, unless he died by his own hand," or was 1 Bryant v. Foot (1868), L. R. 3 Q. B. 497. In this case the fee which was claimed (138.) was held to be exorbitant.

3

28 Edw. VII., c. 40 ; 1 & 2 Geo. V., c. 16.

Owing to the present high cost of living, half a crown a week has been added to each pension, and indeed the whole scale is now under review.

Other disqualifications are mentioned in s. 3 of the Act of 1908, and in s. 4 of the Act of 1911.

8 Edw. VII., c. 40, s. 6.

See the Interments (felo de se) Act, 1882 (45 & 46 Vict. c. 19).

unbaptised or excommunicate. He is entitled to be buried in consecrated ground, whether he was a member of the Church of England, a Roman Catholic, or a Dissenter. And whether he is a parishioner or not, he is entitled to be buried in the churchyard of the parish in which he died, if there be room there. If a parishioner of one parish die in another, he may be brought back to his own parish, if his relatives wish it, and buried there in the churchyard of his own parish church.

There are, however, some rights which the public are popularly supposed to possess, but which are unknown to the law. The public have no right to walk anywhere they please over a common.1 There may be a public right of way across a common along a defined track; but if so, the public have no right to stray out of the way over the common. The common is the property of the lord of the manor subject to the rights of the commoners, and may by consent of all these persons be enclosed, except the track along which runs the public right of way.

The foreshore of the sea or of a tidal river is that portion of the sea-beach or bed of the river which lies between high and low water mark. It is prima facie the property of the Crown, but it may be the property of a private individual, if he can prove either a grant from the Crown or an ancient or modern user from which a grant can be inferred. In either case the foreshore is not a highway and the public have no right to walk over it, except in order to get to the sea for the purpose of navigation or of fishing. No member of the public has a right to walk over the foreshore for amusement or in order to get to the sea for the purpose of bathing. If he does so, he is technically a trespasser. "The sands on the seashore are not to be regarded as, in the full sense of the word, a highway. The plaintiffs have, therefore, prima facie a right to treat every bather, every nursemaid with a perambulator, every boy riding a donkey and every

2

1 See the remarks of Farwell, J., in Att.-Gen. v. Antrobus, [1905] 2 Ch. at p. 198. 2 Blundell v. Catterall (1821), 5 B. & Ald. 268; Brinkman v. Matley, [1904] 2 Ch. 313.

preacher on the shore at Llandudno as a trespasser." Again, the public have no right to gather seaweed or gravel or stones from the foreshore.

3

When the foreshore is covered with water, the public have a right of navigation over it and as incident to that right may anchor in the ordinary mode of navigation. They may not fix moorings in the soil for the purpose of anchoring; but fishermen and others, who frequent a particular place, may fix such moorings and anchor thereto, if they can show an immemorial custom so to do. The public may also fish over a foreshore when it is covered by the sea, unless the Crown by grant prior to Magna Carta has granted, or by reason of immemorial custom is presumed to have granted, a universal right of fishing (called a "several fishery") to some particular individual.

Again, the public often consider that there exists a right of public meeting. But no such right is recognised either by the statute or the common law of England in the wide sense in which the right is sometimes claimed, namely, that the public may meet wherever and whenever they choose. The public have no right to hold public meetings on private property. Thus in strict law there is no right in the public to hold public meetings on the seashore, which is private property. Even in Hyde Park there is no absolute right to hold a public meeting, except with the permission of the Crown as defined by the Rules of the Park under the Parks Regulation Act, 1872. And this Act applies to most of the public parks in or adjacent to London. The so-called right of public meeting is simply the logical result of the view taken by the Courts that as one man may go to a public place to speak with another, so a hundred men can do the same. thing. But in so doing they must not commit any trespass,

8

1 Per Cozens-Hardy, J., in Llandudno U. D. C. v. Woods, [1899] 2 Ch. at p. 709. Healy v. Thorne (1870), Ir. R. 4 C. L. 395.

3 Scratton v. Brown (1824), 4 B. & C. 485.

Att.-Gen. v. Wright, [1897] 2 Q. B. 318.

5 Mayor of Orford v. Richardson (1791), 4 T. R. 437; Chad v. Tilsed (1821), 2 B. & B. 403.

6

Brighton Corporation v. Packham (1908), 72 J. P. 318.

735 & 36 Vict. c. 15; and see Bailey v. Williamson (1873), L. R. 8 Q. B. 118.

With regard to Trafalgar Square, see Ex parte Lewis (1888), 21 Q. B. D. 191.

cause any obstruction to a highway or so conduct themselves as to become an unlawful assembly.

"There is no doubt that the people of this country have a perfect right to meet for the purpose of stating what are, or even what they consider to be, their grievances. That right they always have had, and I trust always will have; but in order to transmit that right unimpaired to posterity, it is necessary that it should be regulated by law and restrained by reason." "The people of this country are undoubtedly entitled to assemble in a peaceable manner for the real and bonâ fide purpose of discussing any subject of interest, not having itself any criminal tendency, or for the purpose of preparing proper and respectful petitions to Her Majesty or to either House of Parliament, and such meetings, having really such objects, being peaceably and quietly conducted, cannot be said to be unlawful and riotous. Whether any particular meeting be of a lawful or unlawful description must depend on the circumstances under which it is held, the manner in which it is brought together and the conduct of those who attend it." 3

From these absolute rights flow corresponding duties, equally absolute, for it is the duty of every one to pay full regard to the rights of others, and to give to every one else what is legally his due.

It is the duty of every citizen to assist in the administration of justice, to interfere personally to prevent any breach of the peace, to aid in the detection of crime and in the capture of criminals, to attend as a witness to give evidence, to serve on all juries to which he is properly summoned, and to find true verdicts in any proceedings, civil or criminal, or on a coroner's inquisition.

Again, every householder in whose house a dead body is lying is bound at common law to have it decently interred, if no one else comes forward to undertake the duty. Dead bodies cast up by the sea or any navigable river, or floating or sunken in any such waters, if unclaimed by their relatives, must be buried by the churchwardens and overseers of the parish in which they are found in the churchyard and at the expense of that parish.4

P. 91.

1 Per Alderson, B., in his charge to the grand jury in R. v. Vincent (1839), 9 C. & 2 Order at such a meeting is protected by the Public Meeting Act, 1908 (8 Edw. VII., c. 66).

3 Per Patteson, J., in his charge to a Middlesex grand jury in 1848. See Unlawful Assembly, post, p. 160.

• Burial of Drowned Persons Acts, 1808 and 1886 (48 Geo. III., c. 75; 49 Vict. c. 20).

CHAPTER III.

PRIVATE RIGHTS: RIGHTS OF OWNERSHIP.

We now proceed to describe private rights, and in the first place rights of property. Property consists of land or things, or rights in, to, or over land or things; rights against persons are also, in a sense, property. Land and things are tangible property. Rights in, to or over them are intangible property, and so are rights against persons. Trees and growing crops, and all buildings erected on land, are part of the land and pass with it on any transfer of ownership. But timber, hay and corn that is cut, are things.

Ownership is the right to hold, use and enjoy land or things to the exclusion of every one else.

Ownership of things is older than ownership of land. No one owns the open sea so it was formerly with the open country. But the primitive man recognised ownership in weapons and tools, in game killed or captured by the weapons, and in things fashioned by the tools.1 Then when men gathered into towns, each family came to own its house; each family, too, had its burial ground; but the land around the towns or burial places was the common property of the tribe. This was still largely the case in England even in Saxon times. Then the tribe became a nation, and the land of the tribe became the land of the King, and later of his grantee, the lord of the manor. And now all land in England is the private property of somebody-of the King, if no one else can show a better title to it.

The King has, indeed, certain rights over all the land in the kingdom. These rights are rarely of any importance; they are but the shadowy survivals of the fact that all the land in the country once belonged to the State. The existence of these royal rights, however, renders it technically inaccurate to say that any subject owns land. The King is the only absolute owner of land in this country. Even a tenant in fee simple has only an estate" in his freehold land; but this practically amounts to ownership.

66

Gradually ownership came to involve further rights: the right to alienate or dispose of the property while the owner

1 He may also be said to have regarded his wife and children as his property. 2 The right of escheat is sometimes of considerable value.

B.C.L.

2