Sunday, 13 February 2011

"River Transport 1189-1600" - a right of navigation on the River Kennet

A new doctoral thesis titled "River Transport 1189-1600" has been published by the Rev'd Douglas Caffyn, which clearly demonstrates that a historical right of river navigation exists on the River Kennet, and that this was the case even prior to the canalisation in creation of the Kennet Navigation.

Rev'd Caffyn's 2004 Master of Laws thesis was titled "The Right of Navigation on Non-tidal Rivers and the Common Law", and in examination of this subject he concluded that, despite misinterpretation of law since 1830, "In common law there is a public right of navigation on all non-tidal rivers which are naturally physically navigable by small boats and on those rivers which have been made physically navigable at public expense." [1].

To date, this position has not been successfully contested, and was reiterated in 2010, when Rev'd Caffyn contributed evidence to the Sustainability Committee of the National Assembly for Wales during their inquiry into access to inland waters in Wales.

The new thesis provides details of historical evidence and indications that provide strong argument that the River Kennet was an acknowledged navigable river even prior to the Navigation Act of 1715.  The fact that the Act states that the creation of the Navigation should not be a reason to increase charges for the use of the existing riverine infrastructure clearly "implies that the river was used prior to modification". [2] 

In mind of his overarching thesis "that all the river which was usable would have been public whether used or not" [3], it is noted that Category A evidence of use has been found for the Kennet for a distance (from the confluence with The Thames) of 30 miles i.e. as far as Hungerford.  Category B evidence of use extends the navigable use of the Kennet upstream by a further 10 miles upstream to Marlborough.[4]

Of particular note with regard to the Kennet is the attention drawn to an article by Professor T.S. Willan in 1936, titled "The Navigation of the Thames & Kennet, 1600-1750".[5]  Willan refers to page 39 of Blome's 1673 work "Britannia", in which the Kennet was described as already being "large and navigable for Barges", some 50 years before the Kennet Navigation was completed.

Rev'd Caffyn's works are now collected at the new Caffyn on Rivers website, where, in addition to his academic theses, you can also find a document on Public Rights of Navigation (PRoN) and the easily digested "Boats On Our Rivers - Again".  All highly recommended reading for anyone who has ever been met with the phrase 'you can't paddle here'!

[1] Caffyn, D. J. M., "The Right of Navigation on Non-tidal Rivers and the Common Law", 2004, p. 151.  Note that this work is only applicable to waterways in England and Wales.

[2] and [3] From Douglas Caffyn by e-mail, 11 February 2011.

[4] Caffyn, D. J. M., "River Transport 1189 - 1600", 2010, p. 374.

[5] Willan, T. S., "The Navigation of the Thames and Kennet 1600 - 1750", The Berkshire Archaeological Journal, Journal 40: 1936, p.146-156.  This article can be retrieved online from here.