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A Legal Geography of the River Severn

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A Legal Geography of the River Severn CHANGING LANDSCAPES: A LEGAL GEOGRAPHY OF THE RIVER SEVERN by CAROLINE ADELAIDE BUFFERY A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY School of Geography, Earth and Environmental Sciences, The University of Birmingham August 2015 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. Abstract Debates in legal geography have highlighted that there is a need to develop a more creative approach in order to understand the intersections between law and geography. This paper proposes that this imbrication can be investigated by using a Sequent Legal Occupance (SLO) method of analysis in legal geography research. By modifying Whittlesey’s notion of sequent occupance, the study historically and chronologically investigates River Severn in relation to two activities, navigation and fishing, to understand the correlation between law and geography as a process of mutual constitution. It identifies the ways in which law has been present within the landscape in terms of ‘occupance’ and ‘impress’ to indicate the complex, multi layered and multi-dimensional ways in which law and geography are woven together in a particular setting. This sequence of events is presented as the ‘Severnscape’, a fusion of landscape and lawscape which illustrates the ways in which the relationships between space, place and law are constantly being negotiated, changing, reforming, and performing. I argue that such an approach can be used to better understand the correlation and co-constitution of law and geography. TABLE OF CONTENTS Chapter 1: The boundaries of legal geography 1.1 Introduction 1 1.2 Legal geography 2 1.3 The geography of the study area 4 1.4 What is law? 7 1.4.1 Substantive and procedural law 8 1.2.2 Jurisprudence 10 1.5 What is geography? 12 1.6 Theoretical links between law and geography 14 1.7 Why use legal geography? 16 1.8 The aims and objectives of the research 18 Chapter 2: Literature Review 2.1 Introduction 20 2.2 The origins of ‘Legal Geography’ 20 2.3 Jurisprudence and the theoretical roots of Legal Geography 23 2.4 The emergence of a ‘legal geography’ 27 2.5 The ‘spatial turn’ and legal geography 30 2.6 Place and Space: cultural landscapes and ‘new’ lawscapes 42 2.6.1 Landscape geography 42 2.6.2 Lawscapes 51 2.7 Conclusion 54 Chapter 3: Methodology 3.1 Introduction 60 3.2 Theoretical approaches 60 3.3 Locating a study area 63 3.4 Identifying the boundaries 70 3.5 Identifying a timeframe 74 3.6 Sourcing the data for the study area 81 3.6.1 The legal method for sourcing the statutory law 82 3.6.2 Sourcing historical legislation 83 3.6.3 Archive research 84 3.6.4 Locating legislation and case law 87 3.6.5 Sourcing related social history and historic geography literature 92 3.7 Conclusion 94 Chapter 4: An introduction to the legal history of the River Severn 4.1 Introduction 96 4.2 A legal history of navigation on the Severn 97 4.2.1 Barges and Bowhaulers 97 4.2.2 Horses and canals 103 4.2.3 Bridges, tunnels and railways 110 4.2.4 Summary 114 4.3 A Chronology of the Fisheries on the Severn 115 4.3.1 Fish on the Severn 116 4.3.2 A chronology of the law relating to fisheries on the Severn 119 4.3.3 The Salmon Acts 125 4.3.4 Summary 133 4.4 Conclusion 134 Chapter 5: The spaces and places of law 5.1 Introduction 135 5.2 The concepts of ‘space’ and ‘place’ 136 5.3 Legal Geography, space and place 140 5.4 Changing landscapes 142 5.5 Early law and the fisheries 144 5.6 Law and the management of Salmon and migratory fish 148 5.7 Post medieval fisheries and the law 151 5.8 Salmon Campaigns in the Nineteenth Century 152 5.9 The Salmon Acts (1861-1886) 156 5.10 The effects of the Salmon Acts on the Severn; a case study 159 5.11 Conclusion 163 Chapter 6: Legal Landscapes 6:1 Introduction 167 6.2 The legal making of place 168 6.3 The River Severn as a legal ‘place’ 172 6.4 The Severn as ‘legal’ property 175 6.5 Law, custom and landscape 177 6.6 Conflict on the Severn - Fishing and Navigation 183 6.7 Conflict on the Severn - Trows, tolls and trade 187 6.8 The Industrial revolution and the Severn 191 6.9 Conclusion 195 Chapter 7: The Severnscape as a sequent ‘legal’ occupance 7.1 Introduction 198 7.2 The Severn as a legal space 199 7.3 The Severn as a place 206 7.4 Legal occupance 210 7.5 Presenting the ‘Severnscape’ 216 7.6 Conclusion 222 Chapter 8: Concluding Remarks 8.1 Introduction 225 8.2 Using SLO as a framework for legal geography 226 8.2.1 Chronological sequences 227 8.2.2 Spaces, places and law 228 8.2.3 Engaging with regions and landscapes 232 8.2.4 Non-human subjects 234 8.3 The potentials for legal geography 236 8.4 Conclusion 238 LIST OF FIGURES AND TABLES Chapter 1: The boundaries of legal geography Fig 1.1 Berkeley Estate Notice 1 Fig 1.2 Map of the Severn Estuary 6 Chapter 2: Literature Review Fig 2.1 Number of legal geography type publications per year 21 Fig 2.2 Number of internet searches using ‘legal geography’ per year 22 Chapter 3: Methodology Fig 3.1 Location and route of the River Severn, UK. 65 Fig: 3.2 The Severn Estuary 66 Fig. 3.3 South Pier at Sharpness on the Severn Estuary at low tide 67 Fig 3.4 Remains of ships on the Severn shore at Purton, Gloucestershire 69 Fig 3.5 SEP ‘integrated approach’ diagram 71 Fig 3.6 Map of the jurisdictions on the Severn Estuary 72 Fig 3.7 Boundary Map of the Severn Estuary with administrative areas 74 Table 3.1 Table of relevant authorities considered during initial research 76 Fig 3.8 An example of sourcing and substantiating legal records 89 Table 3.2 Timeline of selected legislation relating to the River Severn 90 Chapter 4: An introduction to the legal history of the River Severn Fig 4.1 ‘Bowhaulers’ 98 Fig 4.2 ‘All Men shall have free Passage in Severn with Goods, Chattels &c’ (1431) 101 Fig 4.3 ‘View of the Iron Bridge over the River Severn, near Coalbrookdale’ showing Bowhaulers circa 1782 104 Fig 4.4 Toll charges Worcester Bridge to Lower Parting 106 Table 4.1 Customs receipts for the port of Gloucester 1825-1835 107 Fig 4.5 A Map of the Severn Estuary from Avonmouth to Sharpness with the navigation channel indicated 108 Fig 4.6 The route of the Severn Railway Tunnel 110 Fig 4.7 Map of the location of the Severn Railway Bridge 111 Fig. 4.8 Building the Severn Railway Bridge (Swing bridge pier) 1847 112 Fig.4.9 A police officer surveys the damage the morning after on the Severn Railway Bridge, 1960 113 Fig 4.10 A 19th Century eel spear from Minsterworth, Glos 117 Fig. 4.11 Poachers spearing salmon and ‘Burning the waters’ 118 Fig 4.12 Putts on the Severn in the 1970’s’ 119 Fig 4.13: Salmon Preservation Act 1285 120 Fig 4.14 ‘An Act for the Better Preservation of Sea Fish, 1605’ 122 Fig 4.15 Recommendations for the Severn 127 Fig 4.16 Putchers (approx. 700) on the Severn 128 Table 4.2 Salmon and Freshwater Fisheries Acts 1861-92 130 Fig 4.17 The Severn Fisheries District 132 Chapter 5: The spaces and places of law Table 5.1: The space-place distinction 139 Fig 5.1: ‘Report from the Select Committee on the Salmon Fisheries of the United Kingdom’ 152 Fig 5.2 Report of the Royal Commission 156 Fig 5.3 Excerpt from the report by the inspectors relating to elver fishing on the Severn 161 Table 5.2 The Salmon and Freshwater Fisheries Acts as of 1903 162 Chapter 6: Legal Landscapes Fig 6.1 Map of prehistoric and Roman Gloucestershire. 169 Fig 6.2 Map of Saxon Gloucestershire 171 Fig 6.3 Domesday fisheries in Gloucestershire 176 Fig 6.4 Sea Lamprey 185 Fig 6.5 ‘Countless Fish’ 186 Fig 6.6 Taylors last journey 190 Fig 6.7 Reward poster for tow path obstructions, 1832 192 Fig 6.8 The new channel at Upper Lode 194 Fig 6.9 Tanker Barges lying in the mud at Shepperdine awaiting the next high tide 195 Chapter 7: The Severnscape as a sequent ‘legal’ occupance Table 7.1 Concepts of ‘space’ within the disciplines of geography and law 205 Table 7.2 Concepts of ‘place’ within geography and law 208 Table 7.3 Diagrammatic representation of SLO in relation to navigation 218 Table 7.4 Diagrammatic representation of SLO in relation to the fisheries 220 Chapter 8: Concluding remarks Table 8.1 The concepts of place and space using the SLO approach 231 LIST OF CASES AND LEGISLATION USED Cases mentioned (in date order) Holford v George [1868] , Queen's Bench Division, 6 June 1868 (1867-68) L.R.
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