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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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.

[Page 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’ [Page 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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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? [Page 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!

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

REMARKS CONCERNING THE ENCROACHMENTS ON THE RIVER THAMES NEAR DURHAM-YARD. PART II.
[Page 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.

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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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 [Page 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, [Page 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 [Page 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, [Page 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.

[Page 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 [Page 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.

[Page 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, [Page 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 [Page 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.