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Navigational Servitudes: Transmittal, Consolidation & Merger

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Chapter Summary

Common law's jurisdictional dependence on territory and its bumptious relationship with admiralty law's subject matter jurisdiction for instance, criminal and prize cases occurring on navigable waters outside that same territory, combined to reinforce the role of the Royal Prerogative for the protection and preservation of public navigation rights in public trust in England and North America. Colonial Settlement Charters for North America were issued in the 17th century under the Royal Prerogative, without any act of Parliament. That is important for the constitutional development of these colonies and their understanding of navigable waters jurisdiction after 1776. The American People succeeded to the Royal Prerogative jus publicum rights of Englishmen, the public rights of navigation and fishing, on July 4, 1776, and these continue today as the "navigation servitude". The 18th century saw the consolidation and merger of these governmental navigational servitudes with the navigation servitude for public fishing and navigation.

Keywords: Colonial Settlement Charters; England; governmental navigational servitudes; navigable waters jurisdiction; North America; public navigation rights; Royal Prerogative

10.1163/ej.9789004161559.i-412.12
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