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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.

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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 [iv]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.

[v]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 [vi]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*) 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.

[vii]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 [viii]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 [ix]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 [x]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 [xi]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 [xii]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 [xiii]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 [xii] [...] [xiii] [...] [xiv]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 [xv]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 [xvi]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.

REMARKS CONCERNING THE ENCROACHMENTS ON THE RIVER THAMES NEAR DURHAM-YARD. PART I.

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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.

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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 [4]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 [5]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 [6]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 [7]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, * —and upon the ſame reaſon (ſays he) a licenſe to impriſon a Man, to take his Land, his Horſe, or any thing [8]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 [9]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 [10]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 [11]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 [12]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* times 60 Years! For ex diuturnitate temporis omnia praeſumuntur Solenniter eſſe acta.

[13]We are taught alſo by the unqueſtionable * 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 [14](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,* &c. or Building [15]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 [16]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 [17]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 [18]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 [19]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 [20]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? [21] 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!

[22]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) [23] 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 [24] in all Points, and if any Statute be made to the contrary, that ſhall be holden for NONE.

GRANVILLE SHARP.

REMARKS CONCERNING THE ENCROACHMENTS ON THE RIVER THAMES NEAR DURHAM-YARD. PART II.
[27] PART II. Some further Remarks concerning the Injury done to the City of London by the Encroachments on the River Thames near Durham-Yard.

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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 [28]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 [29]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 [30]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 [31]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 [32]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 [33]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 [34]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, [35]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 [36]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, [37]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.

[38]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 [39]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.

[40]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, [41] 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 [42]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.

Appendix A AN INDEX TO THE Maxims of the Common Law, and other Authorities quoted in this Book.

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  • ‘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.
Notes
*
‘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.
*
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.’
*
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.

*
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.
*
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.
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TextGrid Repository (2020). TEI. 4155 Remarks concerning the encroachments on the river Thames near Durham yard In two parts. University of Oxford Text Archive. . https://hdl.handle.net/21.T11991/0000-001A-5F62-C