and where the city of Norwich, in consideration of repairing a quay, claimed to be entitled by custom to a certain toll for all vessels passing through the river by the quay, the custom was held void as to all vessels which did not unload at the quay, or at some other place in the city; for this reason,—that the claim made was a mere toll thorough for using a public river, without any consideration extending to the river itself (1). But to a public port, tolls and duties are incident of common right. Lord Hale observes, that these prescriptive charges cannot be increased beyond their usual rate or number, for that it is part of the jus publicum of a port to have access to it in the accustomed manner. He observes, that the presuming to take new tolls is punishable on an indictment by fine and imprisonment (2). The port duties of the third description, viz. those that are claimed by patent, are described by Lord Hale as accidental, occasional, or temporary. Where, says he, there is a necessity to build a new quay, or to repair the old, it has been usual for the kings of England to grant temporary and reasonable tolls of all ships and merchandize coming into the port, expressing in the patent the particular sums that are to be taken. The same course has been adopted for building a new wall about the port town, or for repairing an old wall; and other instances of the same nature might be given. Such duties are valid in law, on the ground that there is a consideration for the payment of them; the subject has quid pro quo, and the duty ceases when the proposed work has been completed. (3) The remedy for the subtraction of tolls or port duties is either by distress or by action. The remedy by distress is incident to a claim for toll which is due of common right (4). Such a distress is not strictly confined to the property of the person on whose account the toll is payable, for where a port toll was due on goods exported, the owner of the ship was considered, with reference to the proprietors of the toll, to be the exporter of the goods, so as to render the sails of his ship liable to be dis (1) Haspurt and Wills, 1 Ventr. 71. S. C. Heshord v. Wills, 1 Siderfin, 454. (2) Hale de Port. Mar. c. 6. Harg. c. 78. Com. Dig. Toll, E. Moore, 474. (4) Hickman's case, Noy, 37. Bradley on Distresses, 193. Vide Com. Dig. tit. Distress, A. 1. trained upon for the duty (1). If a corporation be entitled to a toll of five-pence per chaldron on all coals shipped at a certain port, the tackle of the ships on board of which the coals are laden, or the coals themselves, may be distrained, at the election of the party, for non-payment of the toll (2). But the right of a corporation to take toll cannot be supported in evidence by an entry in the corporation books, stating that the toll had been paid on a former occasion; for although entries of a public nature in the books of a corporation are admitted as evidence of the facts stated, yet it is otherwise with entries of a private nature, since to allow them to be evidence would be to enable the corporation to fabricate evidence for itself (3). An action of assumpsit or debt is maintainable for port duties as well as other tolls (4); and an action on the case is maintainable for a disturbance or subtraction of them (5). Under an agreement in a charter-party to pay certain pilotage and port charges for an entire voyage, no apportionment will be made of these duties, although a part only of the cargo is delivered, but the whole of the pilotage and port charges must be paid. (6) 4. Of the right of access to the ports of this how controlled new toils; of The jus publicum, or interest of the public in the ports of this country, may be considered as it relates, 1st, to the freedom of access to them; 2ndly, to the imposition of tolls; 3dly, the country, and removal of nuisances. Immediately upon the establishment of by the power of a legal port, it becomes affected with the jus publicum, the prin- the cipal requisite of which is, that it should be free and open for nuisances; and subjects and foreigners to resort to and depart from it with their how remedied by merchandize. This general liberty, however, was at common law liable to be controlled and modified by the exercise of the king's prerogative. Thus, in order to avert the mischiefs that might arise from the encroachments of the subjects of a foreign power, the king, whenever he sees occasion, may prohibit fo (1) Vinkersterne v. Ebden, 1 Ld. Raym. 384. 1 Salk. 248. S. C. Carth. 357. 5 Mod. 359. Mayor of London v. Hunt, 3 Lev. 37. (2) Id. ibid. (3) Marnage v. Lawrence, MSS. 3 B. & A. 142. (4) Seward v. Barker, 1T. R. 616. Company of Feitmakers", (5) Chitty on Pleading, 3d ed. (6) Christy v. Row, 1 Taunt. 300. common law and statute. 1 reigners, and in time of war even foreign merchants (1), from coming into the realm (2), or abiding in it after they have arrived (3); or he may, by a particular inhibition, or by proclamation, prohibit any one of his own subjects, or his subjects in general, from leaving this country (4), or may command the return of such as are resident abroad (5). But with regard to the king's prerogative power over ports, so far as it relates to prohibiting the exportation or importation of goods, it appears that although the king by virtue of his prerogative may in time of war issue a proclamation to prohibit the exportation of arms, ammunition, victuals and money (6), and although similar proclamations have been actually, but it seems illegally (7), issued in time of peace on occasions of scarcity, yet, since the acts of parliament that have been passed for the support and increase of trade, and for keeping the sea open to foreign and English merchants and merchandize (8), there is now no other method of restraining the importation and exportation of goods in time of peace except by act of parliament (9). So it is observed by Lord Hale, that the king could not for the security of the customs, by virtue of his prerogative alone, and without the aid of an act of parliament, restrain the importation and exportation of goods to particular ports, because all public ports were free and juris publici (10). And, therefore, a grant by Queen Mary to the bailiffs and burgesses of Southampton, that no malmseys should be imported at any place but Southampton, under a penalty of forfeiting treble custom, was held void; first, because (1) 1 Hale de Port. Mar. p. 2. c. 8. 1 Harg. 90. Not merchants, except in time of war, id. 92. (2) 1 Hale de Port. Mar. p. 2. c. 8. 20 Hen. 3. m. 13. Great men of France, or persons bringing bulls, 15 H. 3. m. 18. (3) 1 Bla. Com. 260. 56 Geo. 3. c. 86. ante, 1 vol. 143. 377, 8. (4) Harg. 1 Hale de Port. Mar. p. 2. c. 8. p. 91. Fitz. N. B. 85. As to the writ of ne exeat regno, its original purpose, &c. see id. ibid. 2 Bridgm. Index, 362. tit. Ne exeat. (5) Marryat v. Wilson, 1 Bos. & Pul. 443. Bac. Abr. Prerogative, c. 4. 3 Inst. 180. (6) 1 Bla. Com. 270. Delmada v. Motteux, Park Ins. 357. (7) 7 Geo. 3. c. 7. 1 Harg. L. Tr. Pref. p. 27, 8, 9. de Port. Mar. p. 96, 7. and see I Edw. 4. c. 5. IE. 2. P. M. c. 5. 25 Hen. 8. c. 2. 9 Edw. 3. c. 1. 19 Hen. 7. c. 15. (8) Vide Magna Charta, c. 30. 18 Edw. 3. c. 3. Com. Dig. Navigation, I. 1. Trade, A.1. (9) 1 Harg. Law Tr. 97. p. 2. c. 10. (10) Hale de Port. Mar. p. 2. c. 10. 1 vol. 99. the restraint was contrary to law; and secondly, because the assessment of treble custom by the royal authority was also illegal (1). From which case it is evident that the king cannot assign any ports in particular for the importation and exportation of par ticular goods; and it is also clear that the king cannot assign some of the ports in exclusion of the rest, for the importation and exportation of all customable goods (2). The inadequacy of the prerogative power to this end, occasioned the passing of the statutes 4 Hen. 4. c. 20. 1 Eliz. c. 11. and 13 & 14 Car. 2. c. 11. (3) The right of the public to the use of legal ports being thus established, there are certain incidental privileges which flow from and are inseparately connected with it, viz. that no new tolls or charges should be imposed, nor the old increased, without sufficient warrant; that the ports themselves should be preserved from nuisances which may obstruct the, arrival or stay or de parture of ships, or the discharge and loading of merchandize. The means by which a port may be obstructed so as to constitute a nuisance, are of course infinitely various: as, 1. By silting or choaking up the port, either by sinking vessels in it or by throwing out filth or trash so that it becomes choaked (4). 2. Decays of the wharfs, quays, and piers, which are designed for landing goods and for the safeguard of shipping. 3. Leaving anchors in the port without buoys or marks, so that ships are liable to strike against them and be damaged. 4. Building new wears or increasing the old, so that the navigation or passage of vessels is obstructed (5). 5. Straitening the port by building too far into the water where ships might formerly have ridden, and in such a case whether the erection is a nuisance or not is a question of fact (6). 6. Impeding or hindering the mooring of ships on the adjacent ground, even without paying any thing for it, if such have been the practice; or if the port be new, it seems (1) Hale de Port. Mar. p. 2. c. 10. 1 vol. 99. (2) Hale de Port. Mar. p. 2. c. 10. and see stat. 28 Edw. 3. c. 13. (3) Ante, 1 vol. 726. (4) Vide 54 Geo. 3. c. 159. sect. 11. and post, 26. Brucklesbank v. Smith, 2 Burr. 656. (5) 46 Geo. 3. c. 153. s. 1. and post, 26. 2 Inst. 30. Mag. Charta, c. 16. (6) Atty General v. Richards, 2 Anstr. 603. and post. 46 Geo. 3. c. 153. ante, 26. The King v. Earl Grosvenor and others, ante, 4. note 1. is that the mooring of ships, being for the general good of commerce, ought to be allowed in consideration of reasonable amends. 7. Impeding the towage or haling of vessels up and down a river or creek to and from the port town. With regard to this right, it is observed by Lord Hale, that where a custom has prevailed for the public to enjoy it without paying any thing, such a custom is good and ought to be allowed, for it pro bono publico; and that a right of this nature, being only an easement, may be said to belong to passengers or inhabitants, or generally to all comers. He instances the custom of Kent, for fishermen to dry their nets upon the land although it is private property. Without a custom to the contrary, he observes, that some remuneration may be demanded by the owner of the soil, but that the public ought to have the liberty of paying, and that the sum to be paid should be reasonable (1). But whatever rights of this nature may exist with regard to the banks of the sea and to ports (2), it has been determined by the court of king's bench that there is no general right vested in the public at common law to tow on the banks of a navigable river (3). 8. Lastly, with regard to common nuisances in ports, Lord Hale lays it down that a port or public passage must not be obstructed: if it be in any degree stopped, it must be scoured, and cannot be wholly filled up although another cut is made which is as beneficial as the former, without an inquisition by writ of ad quod damnum, finding that no public damage will be sustained, and the king's licence obtained thereupon. (4) The methods appointed by law for preventing and remedying these nuisances are of two kinds; namely, those which exist at common law, and those provided by particular acts of parliament. As the common law hath intrusted the king with the patronage and protection of the jura publica, as highways, public rivers, ports of the sea, &c., so the care of preventing and reforming public nuisances is delegated to him and his courts of justice; the prosecutions for them are in his name, and the fines for defects or annoyances in them are a part of his revenue. At common law, however, there are several courses to (1) 1 Hale de Port. Mar. p. 2. there collected; and see the King c. 7. p. 87. v. Tippett, 2 Barn. & Ald. 193. (4) 1 Hale de Port. Mar. p. 2. c. 7. (2) 3 T. R. 363. (3) Ball v. Herbert, 3 T. R. 253. and cases and authorities |