Remember Clause 33 ...... or Forget Magna Carta
This years celebration of the 800th anniversary of the first sealing of Magna Carta will attract a great deal of attention.
Specialist academic comment is starting to appear everywhere. Two authoritative comments are
Magna Carta ......... , clause 33 was to be of enormous significance in the history of navigation in this country, because it established the principle of free passage along England's rivers, so laying the foundations for transport development in the Industrial Revolution.
a lecture to the All Party Parliamentary Group on the Constitution, 26 February 2013
(see page 2), by Professor Nigel Saul, Professor of Medieval History, Royal Holloway University of London.
Londoners came to believe that this could only be achieved if they had the control of the whole of the Thames. The Charter did not make this sweeping concession, but repeated John's prohibition, without a penalty clause, and extended it to all English rivers.
the Magna Carta Project academic commentary on Clause 33
(at the end of section (b)).
We have also become aware of the case of
The King v Clark
(1702) (12 Mod 615; 88 ER 1558) confirms
And per Holt, Chief Justice, to hinder the course of a navigable river is against Magna Charta, c. 23, and anything that aggravates the fact, though not directly to the issue, may be given in evidence upon it; as here the taking of money to let people pass. And it is no exception to a witness here, that he contributes to carry on the suit, or that this public nusance (sic) was to his private nusance (sic)
These are authoritative confirmation of public navigation rights which existed in all rivers. Further analysis of statutes and Royal Commissions also shows no restrictions on the basis of the tidal/non tidal status of rivers or their status as "Great Rivers" which some suggest limited navigation rights. It's all in our publication
The Protection of Navigation on Rivers
with links to the source documents we refer to.
There is so much authoritative evidence that it's hard to understand how anyone, especially those responsible to the public, can continue to ignore it, .. but they do! Defra, Welsh Government, the National Trust (who will host the Magna Carta celebrations at Runnymede) and councils such as Three Rivers District Council (whose principal legal advisor is a Director of the Angling Trust) continue to deny public navigation rights on rivers
Clause 33 was repealed in 1969. But Clause 33 didn't create navigation rights. They were there before Magna Carta. So the repeal of Clause 33 just removes the prohibition on kiddells and fishgarthes which are no longer an important consideration in today's world. The spirit and intent of Clause 33 lives on.
In Scotland, which never benefited from Magna Carta itself, public navigation rights are enshrined in modern legislation (Land Reform (Scotland) Act, 2003). It's time that the same certainty is restored to England and Wales as originally intended by Magna Carta, Clause 33 (Clause 23 in subsequent versions).
In 1215, Magna Carta was a sham. King John had no intention of observing the agreement and within weeks he had petitioned the Pope to have it annulled. When we celebrate the 800th anniversary in June, will we be honouring the spirit of what Magna Carta (including Clause 33) became over the centuries that followed 1215 or paying lip service in the style of King John?
Remember Clause 33 ...... or forget Magna Carta!