Statute law with regard to the creeks, quays, wharfs, &c. distance from the new one, because neither the inhabitants nor any other subject had a vested right to arrive with their vessels at the former harbour, the privilege of arrival being only permissive and during the pleasure of the king, who is at liberty to derogate from the right vested in himself in the former port (1). It is laid down by Lord Hale that in the king's own demesnes, ports may be erected merely by grant and proclamation, which method is usually adopted when the king establishes a fair or market in his own manor or town (2). If the liberty or erection of it be transferred or granted to another, it is done by patent or charter, and also usually proclaimed in the county (3). In later times the charters granting new ports are drawn with greater fulness than formerly, and express the boundaries of the ports. But the title under which a port is most usually claimed, is by prescription. In confirmation of the king's prerogative power with regard to the appointment of ports, it is further observable, that to each of them a court of portmote is incident; the jurisdiction of which must flow from the royal authority, for the adjudication of matters arising within it. In this court the presiding officer was anciently called a portreeve; but, in more modern times, a mayor and bailiffs have been generally substituted (4). In order to secure the payment of the customs, provision establishment of was made by acts of parliament in the reigns of Eliz. and Charles ports, members, the second for issuing commissions to appoint and settle the limits of the ports, members, and creeks, and the lawful places for shipping and discharging goods (5). The statute 1 Eliz. c. 11. provided that all merchandize should be discharged and laden in and upon such open places, quays, and wharfs, as the queen should appoint by virtue of her commission or commissions, within the ports of London, Southampton, Bristol, Westchester, Newcastle, and the suburbs, and in some open places, quays, or wharfs, in all other ports, creeks, havens, or roads, except Hull, where a customer, controller, and searcher, or the deputies of those officers, had during ten years past been reident, or should thereafter be resident, under a penalty of forfeiting the goods or their value. Any owner or master of a vessel who should receive on board, or discharge goods contrary to this statute, was also made liable to a penalty of # 100. The king was further empowered by the statute 13 & 14 Car. 2. c. 11. to issue commissions out of the Court of Exchequer for appointing all such further places, ports, members, and creeks, (except the town of Hull) as could be lawfully made for landing and discharging, lading or shipping goods, within England, Wales, or Berwick, and to set out the proper ancient and head ports to which such places, members, or creeks should belong; and where any such member, creek, or place was appointed by virtue of such commission, the customer, collector, comptroller, and searcher of the head port were to reside, either in person or by deputy, for clearing and passing shipping, and for discharging goods. The commissions so issued were to designate the extent, bounds, and limits of every port, haven, and creek, so that the extent and privileges of each might be ascertained and known. And every person was forbidden to lade from any quay, wharf, or place on the land, on board a ship for exportation, any merchandize, except fish British-taken, sea-coal, stone, and bestials, or to discharge from any vessel not wrecked or leaky, any merchandize, except fish British-taken, bestials, and salt, otherwise than upon such open places, quays, or wharfs, as his majesty's commissioners should appoint in the port of London, and the members and liberties thereof, or in any other port, place, member, or creek within England, Wales, or Berwick, without the special sufferance and leave of the commissioners of customs, under a penalty of the forfeiture of the goods (1). This statute only authorizes the assignation of wharfs in open places; and a commission, exceeding the powers of the statute in this respect, is invalid in law (2). The statute 22 Car.2. c.11. after providing for the establishment of wharfs and quays, rendered it lawful for any person to lade or unlade goods, on paying wharfage and cranage, at the rates appointed by the king in council (3). In the construction of this statute it was determined, that the wharfingers in London were not entitled to (1) Ante, p. 726. 13 & 14 Car. 2. c. 11. § 14. (2) Case of the London wharfs, 1 Bla. Rep. 581. Cinque ports. wharfage for goods unladen into lighters out of barges fastened to their wharfs. A duty for wharfage and cranage is understood to mean a duty for laying goods upon the wharf; it differs specifically from a duty for anchorage or mooring; in common speech, loading or unloading at a wharf, signifies from or upon the wharf. 1. The cinque ports are ancient trading towns lying on the coast of Kent and Sussex, which were selected, from their proximity to France, to assist in protecting the realm against invasion, and invested with certain privileges by the royal charter. The ports so privileged, as we at present account them, are Dover, Sandwich, Romney, Hastings, Hythe, and the two ancient towns of Winchelsea and Rye; although the two latter places appear to have been originally only members (2). The services which they were appointed to perform were either honorary, viz. assisting at the coronation and sending members to parliament, or auxiliary to the defence of the realm, as furnishing a certain supply of vessels and seamen on being summoned to that service by the king's writ (3). In process of time, the cinque ports grew so powerful, and by the possession of a warlike fleet so audacious, that they made piratical excursions in defiance of all public faith; on some occasions they made war and formed confederacies as separate independent states (4). It seems, however, that these irregularities were soon suppressed when the government was strong and sufficiently confident to exert its powers. So long as the mode of raising a navy by contributions from different towns continued, the cinque ports afforded an ample supply, but since that time, their privileges have been preserved, but their separate or peculiar services dispensed with. Their charters are traced to the time of Edward the Confessor; they were confirmed by the Conqueror, and by subsequent monarchs (5). William the (1) Stephen v. Coster, 1 Sir W. Bla. Rep. 423. (2) Jac. Dict. tit. Cinque Ports, 1 Hale de Port. Mar. p. 2. c. 9. p. 107. 1 Macph. Ann. 430. A. D. 1277. See their limits, 48 Geo. 3. c. 130. § 20.; and see 26 Geo. 2. c. 19. s. 10. (3) Hargr. de Port. Mar. p. 2. c. 12. Jac. Dict. tit. Cinque Ports. (4) 1 Macph. 484. a. D. 1317. · 394. A. D. 1242. (5) Hale de Port. Mar. p. 2. c. 12. Macpherson, Ann. Com. 394. Jac. Dict. tit. Cinque Ports. 2 Adolph. Conqueror, considering Dover castle the key of England, gave the charge of the adjacent coast, with the shipping belonging to it, to the constable of Dover castle, with the title of Warden of the Cinque Ports, an office resembling that of the Count of the Saxon coast (Comes littoris Saxonici) on the decline of the Roman power in this island. The lord warden has the authority of admiral in the cinque ports and their dependencies, with power to hold a court of admiralty; he has authority to hold courts both of law and equity; is the general returning officer of all the ports, parliamentary writs being directed to him, on which he issues his precepts, and in many respects he was vested with powers similar to those possessed by the heads of counties palatine. At present, the efficient authority, charge, or patronage of the lord warden is not very great; the situation is however considered very honourable, and the salary is £3000. He has under him a lieutenant and some subordinate officers, and there are captains at Deal, Walmer, and Sandgate castles, Archcliff fort, and Moats Bulwark (1). There is an exclusive jurisdiction in the cinque ports (before the mayor and jurats of the ports) (2), into which exclusive jurisdiction, the king's ordinary writ does not run, that is, the court cannot direct their process immediately to the sheriff as in other cases (3). In the cinque ports the process is directed to the constable of Dover Castle, his deputy or lieutenant. (4) A writ of error lies from the mayor and jurats of each port to the lord warden of the cinque ports in his court of Shepway, and from the court of Shepway to the King's Bench; a memorial of superiority reserved to the crown at the original creation of the franchise (5). And prerogative writs, as those of habeas corpus, prohibition, certiorari and mandamus, may issue for the same reason to all these exempt jurisdictions; because the privilege that the king's writ runs not, must be intended between party and party, and there can be no such privilege against the king. (6) (1) Id. ibid.; and as to the officers in the cinque ports see 48 Geo. 3. c. 130. (2) 4 Inst. 224. Jenk. 190. Keilw. 880. But if privilege be not pleaded, the judgment is binding, id. ibid. Wood's Inst. 519. Jac. Dict. tit. Cinque Ports. (3) Williams v. Gregg, 7 Taunt. 233. (4) Tidd. Appx. ch. 7. s. 16. (5) 4 Inst. 224. Jenk. 71. 1 Sidd. 356. Jac. Dict. tit. Cinque Ports. 3 Bla. Com. 79. (6) Cro. Jac. 543. 1 Nels. Abr. 447. 3 Bla. Com. 79. Jac. Dict. The jura portatica, or rights incident to a legal port, are of three kinds, viz. the jus privatum, the jus publicum, and the jus regium; the right of individuals, the right of the public, and the right of the sovereign in a port. The property in the soil, and the property in the franchise of a port, the former of which may be vested in the crown, and the latter must be either actually or presumptively derived from him, will be considered together with the incidental rights and obligations under the first division, as forming part of the jus privatum, because both species of property are capable of being transferred to a subject. This division includes also the consideration of port duties; the second branch of the subject comprehends the right of the public, as it regards, first, the right of access to a port; and, secondly, the reformation of nuisances and abuses in it. In the course of our enquiries into these two descriptions of right, we shall have occasion to consider the prerogative right of the crown in a legal port, both as it regards the safety and defence of the realm, as it relates to commerce, and as it regards the payment of the customs (1). The last branch of the subject has been already alluded to in a former part of this treatise. (2) The jus privatum in a port is of two kinds, the interest in the soil, and the interest in the franchise. This franchise is termed by Lord Hale the formale constituens of a port, being in truth that from which it derives its legal existence. Of common right, the king is prima facie lord and owner of every sea-port; although both the property in the soil, and the property in the franchise may be vested by prescription, either in a subject or in the crown; and they are usually and most properly in conjunction, but they may be divided and exist in the hands of different owners. If A. have the property in a creek, or harbour, or navigable river, the king may nevertheless grant the liberty of a port thereto, and so the interest in the soil and in the franchise may be divided. For although the property in the soil of a creek or harbour belongs to a subject or private person, yet if no port be established, the king has still his jus regium in it, and any person is at liberty to resort to it with his boats and vessels as against all but the king. The grant (1) Vide Hale de Port. Mar. passim, same division, and by Hale, C. J. Prideaux v. Warne, Freem. Rep. 355. |