A

Treatise

ON

COMMERCIAL LAW.

CHAP. I.

Of Ports, Harbours, Port Duties, &c.

IN considering the commercial law, we proposed to enquire, first, how the commerce of any country, and of our own in particular, may be affected by the acts of foreign states; secondly, how the commerce of our own country, in particular, is affected by her own municipal regulations of a public nature; and lastly, how such commerce is affected by those municipal regulations, which relate principally to the private interests of trade. The first division of the subject, which constituted the commercial law of nations, has already been fully considered. Under the second division of the subject, and more particularly respecting foreign trade, we have already considered the commercial rights of aliens, denizens, and persons naturalized; the navigation and the fishery laws; the importation and exportation regulations; the colonial trade and foreign companies; and the law and practice relating to the duties of customs and excise. In pursuing this branch of our enquiry to its conclusion, some subjects yet remain to be considered, less general indeed in their nature than those to which our attention has been already directed; but yet sufficiently important in themselves, and sufficiently extensive in their consequences, to demand a full and accurate investigation. We will first consider those which respect foreign trade, as relating

Of the ports, havens, harbours, roads, &c. of Great Bri

tain.

Definition of

creeks, roads, and havens.

to ports, havens, roads, harbours, port duties and tolls; lighthouses, beacons and sea-marks, pilots and quarantine; and then those which relate to inland trade and manufactures.

The superiority of Great Britain over other countries, in a commercial point of view, is in no respect more remarkable than in the number and commodiousness of her ports. The extensive line of her sea coast, comprehending upwards of 800 marine leagues, abounds with deep bays and capacious harbours. Her ports are convenient and good for anchorage. Those on the western side of the island are nearly as well situated for the south trade as the French ports, and are far superior to the French in number, safety, and depth of water; and with respect to the northern and the Baltic trades, the situation of France admits of no comparison. Rivers and canals also afford the convenience of water carriage to the inland counties of England, and not only connect them with each other by the internal circulation of trade, but afford an easy and a cheap conveyance to the ocean (1). In considering the subject which we are now investigating, we shall have occasion to enquire, 1st, Into the definition and nature of ports, members, creeks, roads, and havens. 2dly, The establishment and constitution of ports by the king's authority, and the extent of the regal power in this respect, with the provisions introduced by the statute law. 3dly, We propose to treat of the property in the soil or franchise of a port, and herein of the extent of the king's prerogative, in relation to the jus privatum in a port-of port duties and the remedy for them, if withheld. 4thly, The public rights incident to a port; the right of access, and how far controlled by the king's prerogative; the right of enacting new tolls; of nuisances and injuries to ports and the methods of redress, either by common law or by act of parliament.

Lord Hale, in his tract de Portibus Maris, after defining a ports, members, haven to be a place calculated for the reception of ships, and so situated, in regard to the surrounding land, that the vessels may ride and anchor in it in safety, observes, that a port is a haven, and somewhat more. For, first, it is a place at which vessels may arrive and discharge or take in their cargoes. 2dly,

(1) Tucker on Trade, 32. 1 Elem. tit. Commerce, 2 vol. 332. Campbell's Poi. Surv. 274. Kett's

It is impressed with its legal character by the civil authority, and has franchises and privileges belonging to it by prescription or the king's grant, and has usually a port-reeve and portmote. 3dly, It comprehends a vill, city, or borough called in Latin the caput portus, for the reception of the mariners and merchants, for securing the goods, and bringing them to market, and for victualling the ships (1). The name of the port is derived from the caput portus, though the town itself is sometimes accessible only to small vessels or lighters, as Exeter is the caput portus of the port of that name, though it is observed by Lord Hale, that no vessels of burthen can come within four miles of it: and the same observation, he says, is true of the port of Dublin in Ireland, of Bristol, and several other ports (2). In its extent a port includes more than the mere place where the ships unlade, and sometimes extends many miles (3). On this account, if a fact be alleged to have happened in portu de Bla keney, a venire facias may be awarded de vicineto portus; and because the court will take notice ex officio that the port extends beyond the vill, a venire facías de Blakeney has been ruled good. (4) The port of London (of the extent of which it is said the courts take judicial notice (5)) according to its limits, as settled by the court of Exchequer, has been declared to extend from the promontory or point called North Foreland in the Isle of Thanet, and from thence northward in a supposed line to the opposite promontory or point called the Nore, beyond the Gun-fleet, upon the coast of Essex, and continued westward through the river Thames, and the several channels, streams, and rivers falling into it, to London Bridge; save the usual and known rights, liberty and privilege to the ports of Sandwich and Ipswich, and the known members thereof, and of the customers, comptroller, searchers, and other deputies within the ports of Sandwich and Ipswich,

(1) Hale de Port. Mar. c. 2. c. 6. 1 Harg. 46. 73. Bac. Abr. Prerogative, D. 5. Jac. Dict. tit. Port. Com. Dig. Navigation, E. 4 Inst. 148. Callis on Sewers, 56. Ante, I vol. 726.

(2) Hale de Port. Mar. c. 2. Hearne v. Edmunds, 1 Brod. & Bing. 388. Dalgleish v. Brooke, 15 East, 295. and Cases infra.

(3) Hale de Port. Mar. c. 2.

(4) Hale de Port. Mar. c. 2. and see Year Book, 7 Hen. 6. 22-35. sed quære. In general, whether port or not is a question of fact for a jury. 5 Taunt. 713.

(5) Fazakerley v. Wiltshire, 1 Stra. 462. As to port of London extending to Gravesend, see Williams v. Marshall, 2 Marsh. 92. 6 Taunt. 390. Dalgleish v. Brooke. 15 East, 304,

and the creeks, harbours, and havens belonging to them, within the counties of Kent or Essex (1). Each port has various members and creeks belonging to it. Members are places where a custom-house has been antiently kept, with officers or deputies in attendance; they are also lawful places of exportation and importation (2). The general term creek, says Lord Hale, means only an inlet of the sea, or a narrow passage with the shore on each side of it, whether within the precinct or extent of a port or without, and which gives no harbour to ships, nor is endowed with any privileges (3). But the creeks to which we are now alluding, are those which are appointed by the civil authority, as belonging to a port. The origin of these, he observes, was that the king could not conveniently have a customer or comptroller in every port or haven; the custom-officers were therefore fixed at some eminent port, and the smaller adjacent ports became by that means creeks or appendants to the ports at which the officers were placed (4). Creeks then are defined to be places where officers commonly are or have been placed by way of prevention only, and are not lawful places of exportation or importation, without particular license or sufferance from the port or member under which they are placed (5). At these places officers competent to transact the coast business are stationed by order of the board of customs (6). To make these definitions clearer by examples, Gravesend is a creek belonging to the port of London. Plymouth is a port, of which Falmouth is a member, and St. Maures a creek (7). A road is defined

(1) 1 Beawes's Lex Merc. 6th ed. 249. and see Fazakerley v. Wiltshire, 1 Stra. 468, 9. As to the corporation of London's jurisdiction of the river Thames as conservators of the navigation, see Schultes on Aquatic Rights, 56 to 60. The corporation has no right to make grants of liberties to make embankments on the shore at Milbank, &c. thereby narrowing the river. The King v. Earl Grosvenor and others, coram Abbott, Ch. J. sittings after Trin. 1819.Gurney, Nolan, and Chitty for prosecution; Scarlett and Moore for defendants; and also in Chancery, Henson Att. for prosecution.

(2) 1 Beawes's Lex Mer. 246,