« PreviousContinue »
And if Lord Hatherley's illustration of the distinction between the private right of access and the public right of navigation be correct, it is a very apt one to reveal the fallacy of comparing a navigable river to a highway on land. The comparison has frequently been made, with confusing results, since the year 1789, when Mr. Justice Buller impatiently exposed its fallacy. “Callis,” he said in Ball v. Herbert,* “ compares a navigable river to a highway, but no two cases can be more distinct.”
The mooring a vessel alongside a wharf so as to overlap the adjoining wharf has been compared to the stopping a waggon in the street in front of a house door. Every inch of wharf frontage must of course be treated as a doorway space. But in addition to the immense practical difference between loading and unloading a waggon, which can be moved on the shortest notice by a crack of the whip, and of which the loading can be completed in not many minutes, and the loading of, say, a large steamer, which, during the days its loading must occupy, cannot be moved without steam power, and therefore cannot practically be moved at all; between the facility of marshalling the traffic in a street, and the difficulty of doing so on a river, where horse and cart become unwieldy and valuable vessels liable to be damaged by collision, and dependent on the state of the weather for even the possibility of unfastening their mooring chains ; between the nature of the traffic, which in a street is usually of a kind that can be carried to and from a waggon with almost equal facility whether or not the waggon be in front of the warehouse door, and the traffic on a river, which can only be loaded or unloaded, unless by the use of boats or lighters, by mooring the vessels close up alongside the wharf; in addition to all these and more wide differences which make the analogy practically worthless, there is likewise an essential distinction in principle between the two cases. A
• 3 T.R. 254.
waggon in the street is like a ship moored in the pool; it does not block up the access, but merely renders the approach to a doorway less convenient. If it does more, if it actually prevents access, then the stoppage is an illegal interference with private rights, which would be restrained. But a ship moored alongside a wharf so as to overlap the adjoining wharf, absolutely prevents access for the time being to so much of the wharf as it overlaps, for any of the purposes for which wharves are used. And if there is a right to overlap for a small distance there must be a right to overlap for any distance. In each case it would be the exercise of a right to moor for the purpose of loading and unloading. A timber ship, for example, unloading from the stern, could be moored wholly across the froutage of an adjoining wharf, and the right to restrict the owner of the ship to a reasonable time in the exercise of his right would be little consolation to his injured neighbour, who would be apt to consider it unreasonable that his business should be stopped even for a reasonable time. Water frontage is the chief element of value in waterside premises, and that would be a term meaning nothing but annoyance, damage, and litigation if there were a public right to moor alongside the banks of a navigable river, without regard to the ownership of riparian property.
It seems therefore to be clear, both on authority and on principle, that the right to moor which forms part of the public right of navigation is not locally unlimited, but is confined to such places as are reasonable having regard to the circumstances of the river, and that in no case does it extend to any place where its exercise would interfere with the established private rights of riparian proprietors.
The public right of navigation, then, is threefold. It consists, firstly, of a right to pass and repass, at all times of the tide, along all and every part of a navigable river; secondly, of a right to anchor in convenient and reasonable places, or through distress, anywhere, as ancillary to, and for the convenient exercise of the right of passage ; and,
thirdly, of a right to moor for the purpose of loading or unloading in such parts of the river as can be conveniently occupied for that purpose, without undue interference with the other public rights existing upon and over a navigable river, and without any interference with the private rights of riparian proprietors.
G. STEGMANN GIBB.
VI.—THE LAND SYSTEM OF BOSNIA.
THE old saying that “History repeats itself” cannot but 1 rise to our recollection as we read the following words written by a Polish exile, Count Valerian Krasinski, in 1853:* “ There can be no doubt that the Slavonians of the Turkish Empire, who constitute the greatest part of its European population, will exercise a decisive influence on the fate of the Ottoman Porte; and the preservation of this Power, or its dissolution, will mainly, if not entirely, depend upon the political turn which those populations will assume in a crisis that seems rapidly approaching.” It is not too much to say, looking at the present condition of the Porte, and of European Politics in relation to the Ottoman Empire, that the crisis which seemed impending when Count Krasinski wrote, is now actually upon us, however it may be partially delayed by diplomacy. Under the circumstances, it will be well for us to remember that these Slavonians who again, as in 1853, “ are forcing themselves upon the attention of Europe, have exercised since the Middle Ages a decisive influence on the
• Montenegro, and the Slavonians in Turkey, by Count Valerian Krasinski. London, Chapman & Hall, 1853.
Byzantine Empire, and formed independent States which played no inconsiderable part in the struggles between West and East, between Christendom and Islamism."
This fact, and its importance as one of the keys to the solution of the Eastern Question, has been at length acknowledged by the Diplomatists and Statesmen of the West, and will probably need nothing more to keep it before the European Concert than a continued advocacy by the representatives of the great Slavonic Empire of the White Czar. There is, of course, also the Hellenic factor in the problem, as Mr. Gladstone has recently reminded us, but the Slavonic factor is the one most immediately demanding our attention, and most directly operative for a peaceful solution.
In order to understand clearly the condition in which the Slavonic inhabitants of South Eastern Europe, at present under the more or less direct sway of the Sublime Porte, come before the Western Powers as suffering under grievances which those Powers must insist upon having redressed, if they wish to stave off a conflict of Races and Religions perhaps more bitter and fatal than any which has yet been known, it may be of use to consider the laws under which land was held, and the relations existing between lords and tenants, at the time of the outbreak of hostilities. For the present we propose confining our attention to Bosnia, and we are fortunately able, on this branch of the subject, to compare the statements of a Northern Slavonian exile (Count Krasinski) made more than twenty years ago, with those of a modern Western Diplomatist (M. Frédéric Debains), whose country has on previous occasions rendered good service in the adjustment of earlier phases of the Eastern Question. M. Debains, as a Secretary of Embassy in the French Diplomatic Service, has enjoyed special opportunities for studying the past and present of the Southern Slavs, and the account given by him in a paper read before the Society of Comparative Legislation, in Paris,* has therefore a peculiar value. Medieval Bosnia, as M. Debains points out, was governed by the Feudal System, like all the Christian States of the Middle Ages. This is a feature in Bosnian history which should be carefully borne in mind, as it has been the cause of some curious internal changes among the land-owners, in order to acquire or preserve Feudal privileges. Originally belonging to the Eastern Church, the nobles of Bosnia became Latin, under the influence of Hungary, a conversion of which Count Krasinski observes * that it is said to have been chiefly promoted by the Feudal privileges which they received from the Kings of Hungary. Yet again did these facile Bosnian nobles change their creed, and, seemingly, valuing their privileges more than their religion, on the conquest of their country by the Ottoman Turks in the sixteenth century, they embraced Islam. This is the cause of a complication, namely, the existence in Bosnia of a body of native Moham. medan landowners, very tenacious of their rights and privileges, which must add considerably to the difficulty of Diplomatists in solving this portion of the Eastern Question. It must be borne in mind that history shows the problem to be not the conciliation of a nobility alien in blood as well as in religion from the tillers of the soil, but the reconciliation of members of the same race, estranged from the people, whom they have ground down, by the change of religion which enabled them to preserve and even increase the despotism of their sway. Of such a nobility it was to be expected that their Islamism should be, as Count Krasinski tells us it is, “ of a peculiar description. Many families have preserved the patron saints who have been chosen by their Christian ancestors; and thus the feasts of St. Peter, St. Elias, St. George, &c., are celebrated by them ; a Mahommedan father not unfrequently orders Mass to be said for his sick child; and there are instances of young Begs, or Nobles, having secretly caused a Christian priest to say prayers over the grave of their parents.”
* Bulletin de la Société de Législation Comparée, Mai, 1876. Paris, Cotillon,