REMARKS CONCERNING THE ENCROACHMENTS ON THE RIVER THAMES NEAR DURHAM-YARD.
ADDRESSED To the Right Honourable the LORD MAYOR, the Worshipful the ALDERMEN, and the COMMON-COUNCIL of the City of London.
IN TWO PARTS.
LONDON: PRINTED BY G. BIGG, IN THE YEAR MDCCLXXI.
TO THE Right Honourable the LORD MAYOR, THE Worshipful the ALDERMEN, AND THE COMMON-COUNCIL of the City of London.
MY LORD, AND GENTLEMEN,
BEFORE the Legislature had entirely assented to the late Bill in favour of the Encroachments near Durham-Yard, the two following little Tracts, were drawn up with a view to prevent the Confirmation of that Injustice; but as they were not finished time enough to be Communicated, with any hope of Success, to those Persons for whose perusal they were at first intended, I think it my Duty, in the next Place, to address them to you, as they particularly relate to the Rights and Property of the City of London.—When
Property
is taken away from the Ancient and Legal
Proprietors
WITHOUT THEIR CONSENT, and vested in other Persons,
even private individuals,
as their
own Property,
for their
own private
advantage, by Parliamentary Authority, such a Precedent will render the
Property
of all Men as precarious as their
Party interest,
and will enlarge the dangerous System of Public Corruption, by increasing the means of its baneful influence.—But this is not merely, a Political evil; it is also
immoral and irreligious,
in every point of view. To remove the Ancient Land Mark, or Boundary, is an
accursed Crime
according to the Laws of God; (compare Deut. xix. 14. xxvii. 17. Job xxiv. 2. Proverbs xxii. 28.) so that
every kind of wilful Encroachment
upon
the Property
of others, is, in some degree, tainted with this heinous Guilt.
Times are bad enough, when such invasions on Public or Private Property
remain unpunished;
but the
moral State
of any Nation is even deplorable, and their measure of iniquity may be said to be almost filled up, when such notorious Acts of Injustice meet with
Public Encouragement,
instead of
reprehension;
and when Trespassers are
rewarded
and
gratified
(to the Exclusion of the injured Proprietor) with a
Parliamentary Right
even in the very Object, which tempted them to break the Laws and
wrong
their Neighbours.
Many well meaning People do not seem to be aware of the bad tendency of this example; and there is, therefore, the more necessity that it should be pointed out and exposed.
The injustice appeared to me so notorious, after I had carefully considered the case, that I should have been
inclined,
as
a Citizen of the World,
to represent the monstrous
immorality
of
rewarding,
instead
of Punishing, Trespassers,
(lest the evil example should become epidemical and contagious in
the World,
which is already too corrupt) but
as a Citizen of London
it is even
my Duty
to do so in the present case: for when I took the Oath of Allegiance to the King, I was Sworn at the same time to
maintain the Franchises and Customs,
of the City of London to the utmost of my power (see the Oath of every Freeman
You shall swear, that ye shall be good and true to our Sovereign Lord King George, obeysant and obedient ye shall be to the Mayor and Ministers of this City.
The Franchises and Customs thereof ye shall maintain, and this City keep harmless in that that in you is, &c.
) and therefore, as I hope I shall ever be faithful to the City of London, as well as true to our most gracious Sovereign, I esteem it my indispensible Duty
to both,
for the sake of
public Justice,
to point out the
illegality
(as it appears to me) and dangerous tendency of
Publicly rewarding the Trespassers on the Rights of this Great City
with an
exclusive
Title to the very object of their temptation to Trespass.
The
manner
of making these Encroachments (viz. by throwing Rubbish into the Water without any Fence to retain it) has been as hurtful to the River as the Encroachments themselves, without affording the least probability of any one good effect, saving, or convenience whatsoever, to recommend it:
a method
unfavourable to every purpose, except the clandestine Designs of Trespassers, that the intended Projection of their Encroachments may not surprize and alarm the Public before the Mischief is carried into Execution: as for instance;—if the space, which has lately been, thus gradually, stolen from the River near Durham Yard, had been previously marked off with Piles for the Boundaries of a Wharf, or with a Bank of large Chalk-Stones, or other hard Materials, not liable to be washed away, (as all Embankments on Navigable Rivers ought to be made) the Trespass would have appeared much more enormous at first than by this method, which rendered the Progress of the growing Encroachments less notorious and alarming.
Since these late Trespasses began, the Bed of the River (as I have been informed by several Watermen and others, who have been well acquainted with the River for many Years) is considerably increased in Height, which is certainly occasioned, in great measure, by the
manner of Embanking
above described.
But, I am sorry, my Lord and Gentlemen, to observe, that the City is as much to blame on this Account as the Encroachers; for my fellow Citizens, or some of them, have suffered themselves to be persuaded, that this is the most eligible way of Embanking; and they have, therefore,
adopted,
or, at least,
do allow
the practice of this pernicious and
slovenly
Method, in those Parts, where the Embankment is authorized; so that the City seems to betray her own Cause, as if she really intended, by setting this
bad Example,
to justify the like notorious Abuse near Durham-Yard; and, thereby, render the Progress and Iniquity of that growing Encroachment less conspicuous and remarkable. It behoves the City to enquire how such an inconsistency began: for this
rude, slovenly
and
unmechanical Measure
could not have been adopted for the sake of saving
either Time or Expence
in the Work; because it, certainly, requires a much greater Quantity of Rubbish than would have been really necessary to fill up the Space intended to be embanked! And this to the manifest Detriment of the River! for the lighter Particles of the Rubbish are constantly washed away from the Banks, every Tide, both up and down the Stream; and must inevitably lodge at the Bottom of the River; because the Current runs, alternately, both Ways. And, for the same Reason, the boasted Scheme of
contracting the Avenue of the River
will not (it is manifest) prevent the gradual filling up of the Bed, because the Rubbish and Filth, that is washed away from the Banks at one Time of Tide, is liable to be brought back again at another; and so to be shifted, backwards and forwards, till the whole is gradually incorporated in a thick heavy Loam at the Bottom of the River; which, at length, becomes too firm to be affected or removed by the Current; and by this means the Bed will, probably, be so raised, in process of time, as to render the River totally unfit for Navigation.
It is therefore, absolutely necessary (my Lord and Gentlemen) to put a Stop, as soon as possible, to this scandalous Practice (viz. of throwing Rubbish into the River without a Fence to retain it) whether the Embankments are allowed to Proceed or not: but it is, certainly, more for the Interest of the City to
cut new Docks
and
Recesses
from the River, and
to clear
and
deepen
the old ones, than to
Embank.
There are likewise some other Abuses to which the alarming Increase of the River's Bed is, likewise, in some Degree, to be attributed: for besides many other lesser Encroachments that are continually making on both Sides the River, by enlarging the Banks with Rubbish, driving Piles, &c. I am informed, that Rubbish from Buildings, Refuse from the Dye-houses, &c. have sometimes been thrown out of Lighters into the River in the Night, in order to save the trouble and expence of carrying the load farther away.—I have been told this by several persons who have accidentally seen the like Trespasses.—It is therefore become necessary, for the future Preservation of this Noble River, that the City should offer a proper Reward to all Watermen and others, that shall give the first Information at Guildhall, or the Mansion-House, of any such Encroachments or Misdemeanors in future. The Reward should be paid when the Offender is convicted; and might, perhaps, be defrayed out of the Fine for the Offence. And the Water-Bailiffs should, likewise, be rewarded in the same manner, whenever they shall have been vigilant enough to give the first Notice of any Misdemeanor. A proper Inquest of Citizens should be appointed out of each Ward by Rotation, or, else, be impanneled by the Sheriffs as a Jury (from time to time as there should be occasion) to examine the Complaints, as soon as any Informations are received. And the Assent or Leave of such an Inquest to any Encroachment, driving of Piles, &c. should not be allowed to authorize the same, or put a stop to further Enquiry, lest they should be in any Degree influenced by private Solicitation, or be otherwise tampered with; (which has sometimes been the Case on public Inquiries when Nuisances have been presented) but the final Determination should rest, as at present, with the Court of Common Council; and no Water-Bailiff, or other City Officer whatever, should have Power to excuse, or tolerate, the driving any Piles, or the least Encroachment. For when such a Power is vested in any
Officer,
whose charge is of this nature, it is apt to destroy the intended utility of his
Office;
because the more Offences and Encroachments are committed, the more Fees and Christmas Compliments he will, probably, receive, and annually demand, as the Price of Toleration and Forbearance. The Office of Water Bailiff (though it affords an ample Proof of the ancient Jurisdiction and Right of the City of London to the River Thames, yet) has been hitherto, in general, (I fear,) rather a means of authorizing Encroachments, than of preventing them.
I do not mean to blame the Conduct of your Water Bailiff, or of any other Officer in particular; for Custom has so reconciled the giving of pecuniary Acknowledgments to the Water Bailiff for tolerating Encroachments (as I have been informed), that the same are looked upon as the
lawful
and
just Dues
of his Office: and he does not clandestinely demand them, but openly, and, as it were, by the authority of the City; which receives of every such Officer, at his appointment, a very large sum of Money, for the Purchase of his Office,
in Consideration of these Emoluments.
—I say —
in Consideration of these Emoluments,
because the same must necessarily
be supposed
to be known and understood by
the Sellers
as well as
the Buyers,
at the Time of the Purchase, if the
proper
Income and Value of the Office be compared
with the enormous Price that has, of late, been given for it. The
Profits
or
Salary
ought, therefore, to be made adequate in some other way, otherwise
the City
and not
the Water-Bailiff
must be blamed.
I ought not, however, to blame
the City
without endeavouring, at the same time, to obviate the Objection which some Persons have lately urged against her on the same Account, viz.
that by neglecting to prevent Abuses and Encroachments, she has forfeited her
Right
of Conservancy:
but as I have already shewn, in the two little Tracts, sent herewith, that the City has
a natural,
as well as
Legal Right
to her Jurisdiction on the River, I need only add, further, that
the like Plea
of Forfeiture, if it were once admitted, would be equally effectual to deprive any Lord or Gentleman of his
Family Estate and Patrimony;
for there are but few Men, I fear who make so good a Use of their Possessions as they might, and ought; though there are very many, that would PRETEND
to improve and dispose of the same more advantageously for the
PUBLIC GOOD, if
such a Plea
was sufficient to justify an Attempt
to dispossess the right Owner.
But to return—I do not mean to blame the City
for selling
the Office of Water Bailiff; but, rather, for not publishing (before it is offered to sale) proper Conditions, Instructions, and Injunctions, to point out the Duties of the Office; and for not giving notice that the same is liable to the Penalty of Forfeiture for Mal-administration; in order that the Purchaser may, thereby, be enabled to regulate his Conduct agreeable to the
real Duty
of his Office; and may know, that he forfeits his Place, if he, wilfully, tolerates
the least Encroachment.
Were this Method observed,
the selling
of Places (I mean Places
merely of Trust,
that don't require great Learning and Science) would be, by far, the most eligible way of disposal; because Recommendations and great Interest are far from being
certain Proofs
of the most deserving Candidate; whereas the Purchase Money would be a
certain
and
real Gain,
as well as an excellent
Security
for good Behaviour. But without such Instructions and Conditions the
private Emolument
of the
Officer
is too liable to interfere with the
public Utility
of the
Office:
whereas, by the Method which I have already submitted to your Consideration
(viz. of offering Rewards for the first Discovery of Offences,)
every Waterman would find it his Interest to take upon himself the Office of a
diligent
and
inexorable Water-Bailiff,
because the proposed Reward arises from the
public Proof,
instead of the
Concealment
and
Toleration
of Offences; and there would be too many of these
voluntary Officers
to be bribed to secrecy.
I am, with great Respect, My Lord and Gentlemen, Your most obedient, And most humble Servant, GRANVILLE SHARP.
Old Jewry,
10 Aug. 1771.
REMARKS CONCERNING THE ENCROACHMENTS ON THE RIVER THAMES NEAR DURHAM-YARD. PART I.
PART I.
Some Remarks on the Case of the City of London with respect to the Encroachments on the River Thames near Durham-Yard, and the Bill now depending in Parliament
to establish the said Trespasses.
IT cannot be denied, notwithstanding all the delusive Sophistry that hath been used upon this occasion, that the City of London hath ever enjoyed and exercised on the River Thames a Right of
Conservancy,
as well of the
Width
or
Avenue,
(by occasionally inspecting and regulating the Boundaries)
as of the Fishery,
with power and authority to remove all nuisances; so that this Franchise, or Liberty, is absolutely vested in the City by
Prescription and Ancient Usage,
besides many positive
Grants and Confirmations;
—And what Freeholder will be able to produce a more authentic Title to his Estate and Property! For a long process of time, and a long Use, Possession, or Custom, which exceeds the Memory of Man,
is sufficient to constitute a Right,
or just Title.
Longum Tempus et longus Usus, qui excedit memoriam hominum,
sufficit pro jure.
Principia Legis et AEquitatis, p. 55. See also Co. Lit. 115. There is, besides, an express Article in Magna Charta to secure to the City of London
all her Ancient Liberties and Customs
(
Civitas Londini habeat omnes libertates suas antiquas et consuetudines suas.
(Cap. 9.) amongst which, undoubtedly, this Right and Custom of
Conservancy
is to be reckoned as one of the
most material Franchises,
because the
very existence
of this great Trading City depends upon it; so that the City's Title to the Conservancy is founded on
a natural
as well as
legal Right.
The pretended consent of the Collegiate Church of Westminster cannot palliate the Trespass, or lessen the injury to the City of London. The Grant of King James, on which the Claim of that Church is said to be founded, could not convey
a power to embank and fill up the River,
nor a Right
to confirm such a Trespass
when committed, because the King himself had
no such power,
and consequently had
no right to Grant it;
so that the Jurisdiction said to extend
infra finem aquoe to the middle of the Stream,
must be construed in some other sense, or it will, otherwise, render the
whole Grant null and void;
because the River Thames is
a Public Avenue or Passage
to the City; so that, in this respect, it is to be considered as the
King's highway, and it
is esteemed the King's highway no otherwise than in Trust for the Public: so that the King has no power to dispense with an
Encroachment on the highway;
for though
he may pardon Nusances that are transient and not continuing,
—Yet
a Nusance in the highway, which still continues, and is not ended, until removed; cannot be pardoned;
(Judge Vaughan's Reports, 333.) because
the same is to be esteemed evil and iniquitous, in its very nature, a "Malum in se, Bad in itself,"
which is further proved by the same Learned Author in P. 337.
I may conclude (says he) those things to be
mala in se, which can never be made lawful.
He then cites the Year-Book of 11 Henry 7. viz.
But
Malum in se,
the King nor any other can dispense.
And instanceth,
Si come, Si le Roy, voyloit pardon de occider un homme,
ou de faire nusance in le haut chemin, ceo est void,
To wit, if the King, should be willing to pardon the Killing of a Man, (or rather, as the next sentence explains it)
will
GIVE POWER to
kill a Man,
or to make
a Nuisance in the High-Road, the same is void.
—and upon the same reason (says he) a license to imprison a Man,
to take his Land,
his Horse, or any
thing that is his from him, is void.
For in
Life, Liberty, and Estate,
every Man,
who hath not forfeited them,
hath a Property and Right which the Law allows him to defend; and if it is violated, it gives an Action to redress the Wrong, and to Punish the
Wrong-doer
—Therefore a
Dispensation,
that is, to make lawful the taking from a Man any thing which he may lawfully defend from being taken, or lawfully punish if it be,
must be void.
For it is a contradiction to make it
lawful,
to take what may be
lawfully
hindered from being taken,
or lawfully Punished
if it be. And that were to make
two Men
have several
Plenary Rights in the same thing at the same time, which
NO LAW CAN EFFECT:
Therefore
TO DO
a thing which
NO LAW
can make
LAWFUL,
must be
—MALUM IN SE.
This Argument clearly proves the Impropriety of pretending a Right or Power in the Crown, or in the Church of Westminster, to give their consent for the establishment of the Trespass in the River at Durham-Yard.
The Right of Conservancy has been invested in the City of London from the most ancient Times, so that the King cannot resume that Power if
he would;
for it is a maxim in Law, that a
quiet and uninterrupted
Possession for 60 Years creates a just Title.
Possessio pacifica pour Anns
60
facit Jus:
(See Judge Jenkins to the same effect Cent. 26.) and, the Kings Order, Command, or Letters Patent have no legal Weight, or Effect against such a Right, for
rescriptum principis contra jus non valet.
On the other hand, the Right of the Church of Westminster to the River (even supposing that it had been lawful for King James the first to grant such
a Right
) is nevertheless forfeited for want of being claimed and put in use since that time; whereas the Right of the Citizens of London is sufficiently established (according to the Maxims before cited) by the exercise and enjoyment of a continual and undisputed Jurisdiction upon the River, as being their undoubted Right and Property,
surely
for more than 60 Years last past. —
And a Right or Property, thus acquired,
is as valid, even against the
Pretensions of the Crown,
as against those of the Church of Westminster, or, even,
as against those of a Private Man,
—for the
Nullum Tempus
Doctrine cannot justify the King's Claim to the
Soil
of the Thames, because the Right of the Crown in Manors, Lands, Tenements, &c. is exactly upon the same footing
with respect
TO TIME
as Private Freeholds;
For Bracton informs us that in all such things—
currit tempus contra Regem, sicut contra quam libet privatam personam.
(Bracton de legibus et consuetudinibus Angliae, 2d B. c. 5. P. 14.) I have thoroughly examined the Doctrine of
Nullum Tempus occurrit regi,
in a little Tract expressly upon that Subject, and therefore need not enlarge upon it here.
Now as the City of London has acquired so firm a Title to her Jurisdiction by a quiet Possession for 60 Years, according to the Maxim before quoted, how unjust is it, at this time, to call her Right in Question, when it
is notorious,
that the same may as easily be traced back more than 10
See the Charter of Richard 1st, C. 2d. cited in the Royal Charter of Confirmation by Charles the 2d, to the City of London, p. 9.
We have clearly quit claimed all that which the Keepers of the Tower of London were wont Yearly to receive of the said Wares.
—Speaking of Wares in the Thames to the Detriment of the City; and this Charter is expressly said to have been given
for the Soul's Health of King Henry our Father, and all our Ancestors Souls,
probably meaning his Ancestors of the Norman Line, who had unjustly usurped those Rights. The Jurisdiction of the City of London upon the River was soon after acknowledged also by his Brother King John. See his Charter cited in the Posthumous Works of Sir H. Spelman, p. 63.
Et Civitas
Londinensis
habeat omnes
ANTIQUAS
libertates et liberas consuetudines suas tam per Terras quam
PER AQUAS.
N. B. Even at that time they were esteemed, "ANTIQUAS
Libertates,
&c.
times 60 Years! For
ex diuturnitate temporis omnia praesumuntur Solenniter esse acta.
We are taught also by the
unquestionable
Whosoever denies the force and weight of the
Maxims and Principles
of the Common Law, is unworthy of Argument, and deserves not to be treated as a reasonable Being; for
Contra Negantem principia non est disputandum.
Co. Lit. 343.
Maxims
of the Common Law that Men cannot be obliged to part with their
Right and Property
without their own free consent:
Iniquum est ingenuis hominibus non esse Liberam rerum suarum alienationem;
—And
Rerum suarum quilibet est moderator et arbiter.
—And again,
Regulariter non valet pactum de re mea non alienanda
(Co. Lit. 223.) For no Man may be compelled to sell what is his own, even for the full value of it.
Nemo cogitur rem suam vendere, etiam justo pretio.
4 Inst. 275.—And again, That which is
my own,
cannot be taken from me
without my consent;
Quod meum est, a me, sine me, auferri non potest.
Jenk. Cent. 251.
There is, indeed, an Exception to these general Maxims, and that is, when the
Public Benefit
requires such an Alienation, as for the making of Public Roads, Canals,
In all the Cases here mentioned it is necessary that the
Alienated Private Property
should be vested
in the Public,
or
in the Crown for the Public,
and not as the
private Property of any Individuals whatsoever,
notwithstanding that
the Public
may seem to be benefited by their
Private
Undertakings. Precedents of this kind have, indeed, been established by
some late Acts
for
Cutting Canals;
but I flatter myself, that the Legislature was not then aware of the impropriety of such examples. The Proposal of the City of London, for Cutting a Canal from Isleworth upwards, was a proper pattern for all other Undertakings of that nature; because the Property was to be vested
in the Public,
and it was intended finally to be made
a Free Navigation,
so that, of course, it would have been considered,
in Law,
as
the King's Highway.
&c.
or Building Fortifications for the Public safety: In all such cases,
Private Advantage
must
give way to the Public Good, "Privatum commodum Publico cedit,"
and
"Privatum incommodum Publico Bono pensatur.
(Jenk. Cent. 223 & 85.) But when the
Public Property,
vested in a Body Corporate in Trust for the
Public Advantage,
is clandestinely taken away BY ENCROACHMENT, and an attempt is made to
establish the Trespass,
and vest that
Public Property
in
Private Hands,
for
Private Advantage, without the Consent of the Ancient and Legal Trustees,
it is to reverse the very fundamental Principles of
Natural Equity,
and to turn the once firm Pyramid of the Law upon its Point, instead of
its Basis,
so as to threaten ruin and destruction to all things within the reach of its fall.—
The Pretence,
that the
Public
will be
benefited
in proportion to the advantage arising to the
Trespassers,
is frivolous, and ought not, by any means, to be admitted. It savours of
partiality,
to view
a Public Benefit,
through the medium of a
private Advantage,
because the public
Utility,
(usually alledged in such cases) proves, 9 times in 10,
a mere pretence;
and
nothing illegal ought to be admitted,
even though
the pretence
for it is Lawful;
Pretextu liciti non debet admitti illicitum.
(10. Co. 88.)—There are also some other things alledged as reasons for shewing favour to this Trespass, viz. the Taste and Skill of the Architects, and the Public Ornament of their Edifices,
&c.
But all such
Pretences
are equally frivolous with the first, when they interfere with
Public Right and Franchise,
for the Law does not favour the Elegant and Sumptuous;
Lex non favet delicatorum votis.
(9 Co. 58.)
Yet the City paid a proper Attention (it is manifest) to the merit of the Architects, and the Appearance of their Buildings, by discovering an Inclination (which I have elsewhere mentioned more at large) to allow them sufficient room to make a convenient Wharf, that the Purposes of their noble Vaults might not be injured; but, as more than this would be superfluous, the Citizens could not have been justified, had they not rejected the unconscionable request of the Trespassers, especially as it was thought, that the addition of a
large Timber-Yard
for the
private Use and Advantage
of the Builders, would not, (according to the Taste of the Citizens at least) contribute much
to public Ornament and Elegance.
The other
pretence
of
public Utility
was as little apparent to the Citizens in general as this last; for it is still
doubtful,
and remains to be proved; (as I have shewn in another Paper;) whereas there is NO DOUBT
of the illegality of the Trespass;
for the same was notorious, as well with respect to the Encroachment itself, as the manner of making it, by throwing so many Thousand Cart-loads of Rubbish into the River, without a Fence to retain it, which must, certainly, prejudice the River by lessening the Depth.—This was an apparent
injury,
and,
an Injury is contrary to Law:
Tort a le ley est
contrary.
(Co. Lit. 158.) No Man ought to be enriched to the inconvenience or disadvantage of another.—
Nemo debet locupletari ex alterius incommodo.
Jenk. Cent. 4. No Man ought to be allowed to receive benefit or take advantage from his own fraud or Trespass.
Nemo ex dolo suo proprio relevetur, aut auxilium capiat.
(Jur. Civ.) And shall the Parliament of England then endeavour to establish
a Wrong,
to the total subversion of these indisputable Precepts? The Example is dangerous! The Precedent threatens Ruin and Dissolution to all the legal ties of Security for the quiet Possession of Lands and Inheritances in this Kingdom.—For if we depart from the Law, there can be no Security to any Man in any thing, but all things will be rendered uncertain and precarious.
Si a jure discedas vagus eris, et erunt omnia omnibus incerta.
Co. Lit. 227. The Public Good requires, that bad Actions should not remain unpunished.
Interest Reipublicae ne maleficia remaneant impunita.
Jenk. Cent. p. 31. for when a Judge (and much more the whole Legislature) favours an unworthy Man, does it not encourage all Men to fall away from their integrity? and does it not promote an universal contagion (as it were) of a
Licenciousness?
Cum indulget Judex indigno, nonne ad Prolapsionis contagium provocat universos.
(Fleta. Cap. 17. S. 11,) Because the
Admission of one Absurdity, or Injustice,
makes way for Ten Thousand more,—
Uno absurdo dato infinita sequuntur,
1 Co. 102. and those Crimes and Trespasses which are often excused and defended, will, surely, be often committed.
Videbis ea saepe committi, quae saepe vindicantur.
3 Inst. Epilogue.
If all these Points are carefully considered, the Bill must, manifestly, appear
inconsistent with the Spirit and Principles of the Common Law.
Nay! it is so notoriously unjust, that it affords us some comfort, even by the excess of its Illegality!
For I have already shewn it to be a
"malum per se,"
and contrary to
natural Right,
and therefore I trust that it will be
null and void
of itself, even if it should gain the Assent of all the Three Branches of the Legislature; for no Law can establish what Nature (or natural Right) prohibits:
Quae rerum natura prohibentur nulla lege confirmata sunt:
(Finch 74.) and whatsoever
is done contrary to Law,
may be esteemed as
undone, a mere nullity:
Quod contra legem fit,
pro infecto
habetur.
4 Co. 31.—But, above all, let it be remembered, that the
Old Liberties and Customs of the City of London
(amongst which the Conservancy of the River Thames, Medway, and Lee, is perhaps the most essential to her Welfare and very Existence)
are secured to her by an Express Article of Magna Charta
(Chap. 9.) which I have already remarked in the beginning of this little Tract; and therefore it behoves the Learned in the Law to demonstrate, that this Bill is not
in any Point
derogatory to the said 9th Chapter of Magna Charta; but, if this cannot be done, the joint Authority of King, Lords, and Commons, is not sufficient to pass it into a Law, (
I mean, a Valid and Constitutional Law,
such as can be maintained
without Corruption and Arbitrary Power
) because it
is "Assented, and accorded,"
by an Act of the 42d Year of King Edward III. Chap. 1. (which is still in force, and must ever remain so,)
that
the Great Charter,
and Charter of the Forrest, be holden and kept
in all Points,
and if any Statute be made
to the contrary,
that shall
be holden for NONE.
GRANVILLE SHARP.
Old Jewry,
6th May, 1771.
REMARKS CONCERNING THE ENCROACHMENTS ON THE RIVER THAMES NEAR DURHAM-YARD. PART II.
PART II.
Some further Remarks concerning the Injury done to the City of London by the Encroachments on the River Thames near Durham-Yard.
THE extraordinary Favour shewn in Parliament to the Trespasses lately committed by several Persons, in the enormous Encroachment on the River Thames near Durham-Yard, is liable to affect the Security of Property in general; because an Encouragement to commit Trespasses, and a Precedent to establish and confirm the same, when committed, do certainly tend to the Total Subversion of Justice; for in every point of view the same are repugnant to the fundamental Principles of Law and Equity.
Actions were commenced in the Court of King's Bench against the Encroachments,
before
the Trespassers brought their Bill into Parliament; so that the Concurrence of Parliament with the Authors of the Injury,
is a gross insult upon the Laws,
by stopping the regular Course of Justice in
a matter of Right,
which came properly before the King's Courts; for, as it is esteemed unjust to punish a Man by the force of an
ex post facto
Law, it, certainly, is equally unjust by an
ex post facto
Law to confirm, and establish a
manifest Trespass,
which was previously referred to a proper Court for Redress; and the Application to Parliament is of itself a sufficient Proof, that the Right and Claim of the City of London
are just;
and such as must necessarily have found
a Remedy in Law,
according to the usual Proceedings of the King's Courts, otherwise the
ex post facto Law
had been needless.
It ought to be remembered, also, that the City of London, for the sake of Peace, and to avoid a Contest in Parliament, was
inclined
to allow some of the Trespassers, (who are eminent Builders) as much ground in the Front of their Buildings, as would be sufficient to make a Wharf, wide enough for Carts to come down, and to turn, and load, &c. as at other Quays in the City, so that the use and intention of the noble underground Passages might not be lost, or in the least injured; and a private intimation of this Lenity and Favour, to which the City seemed disposed, was given to a Friend of the Builders, that they might be advised to Petition the City for Room to make such a Wharf; and they were told, that the same would
probably
be granted in consideration of their great Expences, and the Grandeur of their Buildings.
But instead of
such a Petition,
the Builders presented a
Memorial
(they did not deign to call it
a Petition
) desiring more than 3 or 4 Times as much room as was necessary for the said purpose; because, it seems, a Wharf alone would not content them; but,
as Builders,
they must be indulged also with room enough, out of the Width of the River, to make (likewise for
a Public Ornament,
I suppose)
even a Timber Yard besides!
—They did not, indeed, mention
the Timber Yard
in their Memorial, but the design plainly appears by a Clause in the Bill to regulate
the Height of the Piles of Timber,
&c.
They did not fail, however,
to demand
of the City, as much Space as they thought necessary for
their intended Timber Yard;
and they were pleased at the same time to desire
the Concurrence of the City (as Conservators of the River) to their Petition in Parliament!
An Insult this to the Citizens of London,
as gross and enormous, as the Encroachment itself;
—for, in effect, it was to desire the Citizens to join in a Petition to Parliament
against themselves;
that is, in Favour of, and to establish and confirm a notorious Trespass committed in Defiance of their own repeated Prohibitions and Presentments.
The Memorial, however, was rejected with a proper Disdain. But this was no hindrance to the Adventurers; they were already
sufficiently aware,
that they might affront the City with Impunity.—They knew their
Party
Interest in Parliament, and
the Partiality
has, hitherto, been
proved by the Success.
Two great Law Lords strenuously endeavoured to palliate the Offence, and to set forth the Public Utility of the Embankment: One of them admitted that,
the present Scheme was intended for the private Emolument of Mess. Adams, but then, (said he) that Emolument could only increase in Proportion to the Convenience, and Public Utility of the Embankment; if it was found inconvenient; the intended use would be lost; consequently their Profit would go with it; it was, therefore, in every point, a great Public Good arising from a Private Advantage.
However plausible this Argument may seem, yet I must observe, that it ill becomes any Gentleman at the head of the Law, to view
a Public Good
through the medium
of a Private Advantage,
especially as that
private advantage
had been sought by
a manifest Public Injury and Trespass;
for when the Encroachment first began, the Right of the City of London was so far from being disputed, that the Trespassers themselves acknowledged it, by Petitioning for Leave; and though they could not obtain Leave from those who had a Right to give it, yet they continued to
enlarge
their enormous Trespass, as confidently as if the whole River was indisputably their own. But even if the imaginary
Public Good,
(supposed by the learned Chief Justice) be admitted, yet his Lordship knows, that
That which is otherwise Good and Just in itself, becomes Wicked and Unjust, if it is sought or obtained by Force or Fraud.
Quod alias bonum & justum est, si per vim vel fraudem petatur, malum et injustum efficitur.
(3 C. 78.) and his Lordship will not (I apprehend) deny, that
an enormous Trespass
has been committed; and therefore, those that are robbed and injured ought,
before all things, to be reinstated,
and have their Rights restored.
Spoliatus debet
ante omnia restitui.
2 Iust. 714. Law, Justice, and Equity, cannot shew the least favour or consideration for the Delinquents in such a Case, because
"Iniquity Bars Equity,"
—and,
no Man can take advantage from his own Trespass or Injury.
Nullus commodum capere potest de injuria sua propria.
Co. Lit. 148.
The Public Good requires that bad Actions should not remain unpunished.
Interest Reipublicae ne maleficia remaneant impunita.
Jenk. Cent. p. 31.
But if, on the contrary, the Legislature will favour and confirm an apparent Trespass, no Man's Property can be safe from such Adventurers. If I had
as much Party Interest,
and paid as little
regard to the difference between
MEUM
and
TUUM as they have done in the present Case,
or their Advocates,
I would procure an elegant Plan for raising such a Building, as should not only be a Public Ornament in its structure, but a Public Convenience in its Accommodations within and without; in short, I would build a noble Inn, open
to all Men, (for
MY OWN
and the public advantage
) upon the Inheritance of Lord A, Lord B, or of any other Noble Freeholder whatsoever, whose Property, in point of Situation, might seem to promise the most advantage to my undertaking.
Or a good Plan for raising an Elegant
and outwardly
Ornamental Edifice,
inwardly
adapted to the purposes of
Grinding Corn, Slitting Iron, making Gunpowder,
or any other Articles necessary for the sustenance, convenience, or protection of
the Public,
would equally answer my
private Advantage:
and
a good Mill
would be
a good Inheritance,
let me tell you, if I could make it
my own Freehold
wherever I pleased to Build one,
with or without
the Consent of the Lord of the Manor, or the lawful Proprietor of the Ground.
The same Doctrine may be extended even to the Building of
whole Towns upon other Mens Ground, without Leave;
because the Towns would be for the accommodation of Gentlemen, of Tradesmen, of Manufacturers, Artificers,
&c. &c. &c.
whereby
the Public
would manifestly be benefited as well as
the Builder, in proportion
to the Success of each Undertaking in the Increase of Inhabitants.
If the lawful Proprietor of the Ground, on which
I trespassed,
would be pleased to give me his Consent, it would be well; and if he refused it,
my Pretensions would still be as good as the much favoured Cause of the Trespassers at Durham-Yord;
for, even though I should be obliged to allow that my present Scheme
was intended for the Private Emolument
of,
myself—yet I could alledge the Opinion of a Chief Justice, that
this Emolument could only increase in proportion to the Convenience and Public Utility of,
my Inn, my Mill, or my Town,
If it was found inconvenient, the intended Use would be lost, consequently,
" my
Profit would go with it; it would therefore
(according to this Opinion of my Lord Chief Justice)
be in every point a great
PUBLIC GOOD,
arising from a
PRIVATE ADVANTAGE.
I might alledge, also, that this
private Advantage
of mine, ought to be much more favoured than that of the Encroachers on the River Thames, because, if I should raise my Prices for Provisions, for Grinding, for Rent,
&c.
upon the Public, there would still be Room sufficient in the Neighbourhood, (
as the Consent of Proprietors
is
at present esteemed unnecessary
) for other People, also, to
Trespass
and Build more Inns, more Mills, or more Towns
for
THEIR OWN
and the Public Advantage,
as near to my advantageous Situation as they should think proper; so that the Public, when
imposed upon by me,
might be enabled to give the preserence to cheaper and less unconscionable Trespassers.
But in the other Case, the local Advantages are more limited and confined to a particular Situation; and the
Encroachments are already so great,
that there is scarcely Room for more within any advantageous Distance; because the Advantage of Situation
for Wharfs
is confined within the extent of the Trading Part of the Town, now fully occupied;
and the Port or Bason of the River,
within these Bounds, is already too much contracted to admit of
more Encroachments,
without encumbering or stopping up
the Passage of the River
with Craft and Vessels, which even at present are greatly endangered for want of commodious and proper Mooring-Places out of the Stream and Tide-way.—During the Frosty Weather this last Winter, 3 or 4 Ships were wrecked, and many others damaged,
even in the Port of London,
for want of such proper Accommodations; and a very considerable number of Barges, Lighters, &c. were forced away from their Moorings by the Ice, and lost, both above and below London Bridge; so that it is manifest, that
Water-room
is of much more consequence to the Port of London than any Land gained from it can possibly be; and that there cannot, therefore, be any Room to spare, for making more Wharfs out of the Bed of the River, without
an apparent Injury to the Harbour;
so that if the new Wharfs should become absolutely necessary by an Increase of Trade,
the Public Utility
must submit to the Exactions of the
Private Possessor,
whose Tenure is founded in
Public Injury and Injustice;
and the Trade of this great City, on which its
very Existence depends,
must be Loaded and Clogged with
the much favoured Private Advantage
of
each Trespasser;
so that we may fairly measure, by the Enormity of the present Encroachments,
how conscientiously Trespassers in general
would deign to consider the Trade and Rights of
the Public,
when their own
Private Interest
is in View.
GRANVILLE SHARP.
Old Jewry,
7th May, 1771.
AN INDEX TO THE Maxims of the Common Law, and other Authorities quoted in this Book.
CONTRA Negantem principia non est disputandum.
(Co. Lit. 343. See also Doct. Stud. Cap. 8. p. 27.) Page 13
Longum Tempus et longus usus, qui excedit memoriam hominum, sufficit pro jure.
(Principia Legis et Aequit. p. 55. Co. Lit. 115. Bract. lib. 4. p. 230. Fleta. lib. 4. cap. 24. p. 264.) Page 4
Civitas Londini habeat omnes libertates suas antiquas et consuetudines suas.
(Magna Charta, cap. 9.) Page 4, 23
Judge Vaughan's Reports, 333, 337, Year-Book 11 Hen. 7. Page 6, 7, 8
Possessio pacifica
pour anns
60 facit Jus.
(Principia Leg. & Aequit. p. 81.)
A peaceable Possession for 60 Years makes a Right.
(Jenk. Cent. 26.) Page 9
Rescriptum Principis contra Jus non valet.
(Principia Leg. et Aequit. p. 97.) See also Bracton (Lib. 3. cap. ix. p. 107.) for the
true sense
of the Maxim,
that the King can do no wrong.
—
Nihilenimaliud potest Rex in terris, cùm sit Dei Minister et Vicarius,
nisi id solum quòd de jure potest.
&c.
Page 10
Nullum Tempus occurrit Regi." Page 11
Currit Tempus contra Regem, sicut contra quamlibet privatam personam.
Bracton de legibus. 2 B. c. 5. p. 14. Page 11
Ex Diuturnitate Temporis omnia praesumuntur solenniter esse acta
Judge Jenkins. p. 26. Page 12
Charter of King Richard I. c. 2. Charter of King Charles II. p. 9. Charter of King John. (Posthumous Works of Sir H. Spelman. p. 63.) Page 12
Iniquum est ingenuis hominibus non esse Liberam rerum suarum alienationem,
—
Rerum suarum quilibet est moderator et arbiter.
—
Regulariter non valet pactum de re mea non alienanda.
(Co. Lit. 223.) Page 13
Nemo cogitur rem suam vendere, etiam justo pretio.
(4 Inst. 275.) Page 14
Quod meum est, a me, sine me, auferri non potest.
(Jenk. Cent. 251.) Page 14
Privatum Commodum Publico cedit.
—
Privatum Incommodum Publico Bono pensatur.
(Jenk. Cent. 223 & 85.) Page 15
Pretextu liciti non debet admitti illicitum.
(Principia Leg. & Aequit. p. 82.) Page 17
Lex non favet delicatorum votis.
(9 Co. 58.) Page 17
Tort a la Ley est contrary.
(Co. Lit. 158, quoted from Britton.) Page 19
Nemo debet locupletari ex alterius incommodo.
(Jenk. Cent. 4.) Page 19
Nemo ex dolo suo proprio relevetur, aut auxilium capiat.
(Jur'. Civ.) Principia Leg. & Aequit. p. 65.) Page 19
Si a jure discedas vagus eris, et erunt omnia omnibus incerta.
(Co. Lit. 227.) Page 20
Interest Reipublicae ne maleficia remaneant impunita.
(Jenk. Cent. p. 31.) Page 20, 35
Cum indulget Judex indigno, nonne ad prolapsionis contagium provocat universos?
Fleta. lib. 1. cap. 17. p. 18. Also Bracton lib. 3. cap. 9. p. 107. b. Page 21
Uno absurdo dato infinita sequuntur.
(1 Co. 102.) Page 21
Videbis ea saepe committi, quae saepe vindicantur.
(3 Inst. Epil.) Page 21
Quae rerum natura prohibentur nulla lege confirmata sunt
(Principia Leg. & Aequit. p. 88. Page 22
Quod contra legem fit, pro infecto habetur.
(4 Co. 31.) Page 22
Act of Parliament 42 Edw. III. cap. 1. Page 23, 24
PART II.
Quod aliàs bonum & justum est, si per vim vel fraudem petatur, malum & injustum efficitur.
(3 Co. 78.) Page 34
Spoliatus debet ante omnia restitui.
(2 Inst. 714.) Page 34
Iniquity bars Equity.
(Prin. Leg. & Aequit. p. 48.) Page 35
Nullus commodum capere potest de injuria sua propria. No man shall take advantage of his own wrong.
(Co. Lit. p. 148. b.) Page 35
FINIS.