navigation.125 Navigation comprised not only passage by boat but also by raft. Still, a navigable river is nowhere defined, nor are its characteristics described. Likewise, we are nowhere told what are the public rights in a public - not non-navigable - river, except that there is a right to fish.126 What can be logically deduced is only that there must have been some such rights - otherwise there would scarcely be a distinction between a public and a private river - and that these took precedence over the rights of the riparian owners - otherwise they would not be rights.127 The Roman rules became the basis of the law of both Holland and Scotland.128 The Roman-Dutch authorities, like the Roman jurists, concentrated on navigation rights, and both Johannes Voet129 and Huber130 repeat that anyone can fish in a public river. Likewise the stress in the Scottish sources is on navigation. The two cases that we will look at are instructive in a number of ways. First, they report that in both Scotland and Holland what had been res publicae had become part of the regalia under feudal law.131 The ruler’s “right in them,” said Erskine for Scotland, “is truly no more than a trust for the behoof of his people.”132 This right was inalienable. Thus, what we are faced with is a common but curious phenomenon, the borrowing from two distinct and very different systems 125 D. 43.13;43.15. 126J. 2.1.2. 127 Yet we never find out what these rights are. 128 For other systems which will not be discussed here but where Roman law was relevant see, e.g., Hans Baade, “The Historical Background of Texas Water Law - a Tribute to Jack Pope,” 18 St. Mary’s Law Journal 2ff., 65ff. (1986); “Springs, Creeks, and Groundwater in Nineteenth-Century German Roman-Law Jurisprudence with a Twentieth-Century Postscript,” in Comparative and Private International Law: Essays in Honor of John Henry Merryman 61ff. (David S. Clark ed., 1990). 129Commentarius in Pandectas 1.8.8 130Heedendaegshe Rechtsgeleertheyt 2.1.19. 131 Libri feudorum2.56. 132 John Erskine, Institute of the Law of Scotland2.6.17.
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