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Navigational Servitudes: Sources & Public Trust, Prerogative & Constitution

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Chapter Summary

The navigational freedom principle was carried to colonial North America by emigrant Englishmen as their public rights to fishing and navigation protected at common law, and held in constitutional public trust under the Royal Prerogative jus publicum rather than the jus privatum.Those rights, as evolved into servitudes applicable to navigable waters within the coastal belt, became implemented in colonial North America through both the Royal Prerogative and the colonial charter requirements for application of the laws of England. The jus publicum public rights to navigation and fishing eventually came to be continued in public trust for the American People under the Commerce Clause of the 1789 United States Constitution. Thus the concept of public trust under the Royal Prerogative jus publicum is critical to understanding how the federal navigation servitude exists today over the navigable waters of the United States.

Keywords: constitutional public trust; navigational freedom principle; North American colonial charter; public rights; Royal Prerogative jus publicum

10.1163/ej.9789004161559.i-412.16
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