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[and other places of strength within the realm ; for the sole prerogative as well of erecting, as of manning and governing these, belongs to the king in his capacity of general of the kingdom (š). And this prerogative has, in modern times, been aided by divers statutes (g). By the old common law, moreover, the lands of private individuals were, in general, subject to a tax, for building of castles wherever the king thought proper ; this was indeed one of the three things, from contributing to the performance of which no lands were exempted, being one of the three obligations which constituted the “ trinoda necessitas,-
scil., pontis reparatio, arcis constructio, et expeditio contra “ hostem” (h).
It is partly upon the same, and partly upon a fiscal foundation, in order to secure his marine revenue, that the king has the prerogative of appointing ports and havens, that is, such places as he in his wisdom sees proper, for persons and merchandize to pass into and out of the realm (i). By the feodal law, all navigable rivers and havens were computed among the regalia, and were subject to the sovereign of the state (k). And in England, it hath always been holden, that the king is lord of the whole shore (1), and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm (m); for, as early as the reign of King John, we find that ships [were seized by the king's officers for putting in at a place that was not a legal port (n). Legal ports were undoubtedly at first assigned by the Crown, since to each of them a court of portmote was incident, the jurisdiction of which must have flowed from the royal authority (o). The great ports of the sea are also referred to, as well known and established, in the 4 Hen. IV. (1402), c. 20, which prohibits the landing elsewhere under pain of confiscation ; and the 1 Eliz. (1559), c. 11, recites that the franchise of lading and discharging had been frequently granted by the Crown.
() 2 Inst. 30; Com. Dig. Pre. See also the National Defence, rogatire, C. 4.
and Imperial Defence, Acts, 1888, (9) See the 23 & 24 Vict. (1860), the Military Lands Acts, 1892 and c. 109 (since repealed), an Act for 1897, and the Military Works Act, defraying the expenses of con- 1897. structing fortifications for the pro- (h) Cowell, Interpr. tit. Casteltection of arsenals and dockyards, lorum Operatio; Seld. Jan. Ang and of erecting a central arsenal ;
1, 42. also the Defence Act, 1860, an (i) Hale, de Portibus Maris. Act for making better provision () 2 Feud. t. 26; Craig, 1, 15, 15. for acquiring land for the defence (1) F. N. B. 113. of the realm ; and the Naval De- (m) Dav. 9. 56. Among these, fence ct, 1889, an Act make the five ports of Hastings, Romfurther provision for naval defence ney, Hythe, Dover and Sandwich and to defray the expenses thereof. were known as the cinque ports; and extensive privileges were conferred on these ports by our early monarchs, particularly by William the Conqueror and King John. Winchelsea and Rye were subsequently added to the number of the cinque ports; and these seven ports being (by reason of their situation) more immediately exposed to attacks from the French coast, were supposed to be among the most important places in the kingdon, and were placed under the special custody of a lord warden. Before the Reform Act, 1832, they sent (together with certain boroughs attached to them) no less than sixteen members to parliament. At one time, the lord warden of the cinque ports and the constable of Dover castle had, also, a local jurisdiction in relation to civil suits and pro
But though the king had a power of granting the franchise of havens and ports, yet he had not the power of narrowing and confining the limits of such ports and havens when once established, but any person had a right to load or discharge his merchandize in any part of the haven ; whereby the revenue derived from the customs was much impaired and diminished by fraudulent landings [in obscure and private corners.
ceedings -- a jurisdiction which was, however, taken away by the Cinque Ports Act, 1835 (amended by the Cinque Ports Acts, 1857 and 1869) ; but the jurisdiction of the lord warden as admiral of the Cinque Ports is expressly saved by s. 256 of the Municipal Corporations Act, 1882. These
ports also still possess a peculiar maritiine jurisdiction exercised by their Admiralty Court, the jurisdiction of which is expressly saved by the Cinque Ports Act, 1821, the Municipal Corporations Act, 1883, s. 13, and the Merchant Shipping Act, 1894, s. 571. See as to quarter sessions within the cinque ports, Municipal Corporations Act, 1882, 8. 218.
(1) Madox, st. xch. 530.
(0) 4 Inst. 148. (This argument is exceedingly doubtful.-E. J.).
This abuse occasioned divers statutes to be passed enabling the Crown to ascertain the limits of ports, and to assign proper quays therein for the exclusive landing and loading of merchandize (P);] and this duty, as well as that of appointing ports and sub-ports, and of declaring their limits, is now confided, by the Customs Consolidation Act, 1876, s. 11, to the commissioners of his Majesty's Treasury (9). There are also, with regard to ports and harbours, several other Acts of importance. By the Harbours Act, 1745, certain nuisances in harbours are restrained ; by the Public Harbours Act, 1806 (amended by the Harbours Transfer Act, 1862, s. 15), no pier, quay, wharf, jetty, breast, or embankment is to be erected in or near to any public harbour in the United Kingdom or any river communicating therewith, so far as the tide flows up the same, without one month's notice to the Board of Trade, with a saving, however, of the privileges of the city of London ; and by the Harbours Act, 1814, the Admiralty is entrusted with the duty of regulating the mooring of vessels in all ports and harbours (r). By the Harbours, Docks, and Piers Clauses Act, 1847, the provisions ordinarily inserted in local Acts passed for the construction and improvement of particular harbours, docks, and piers, are consolidated into a single statute, so as to be embodied, by way of reference, in any special Harbour Act without needless repetition ; and, with the object of obviating the necessity of obtaining, at great expense, a special local
(p) i Eliz. (1559), c. 11, and 14 Car. 2 (1662), c. ll, both ra pealed by 6 Geo. 4 (1825), c. 105.
(9) By the Customs Consolidation Act, 1876, the commissioners may appoint“warehousing ports” (sect. 12), and “sufferance wharves” (sect. 14), for the purpose of the customs.
(r) By the Harbours Act, 1814, ss. 14, 16, the duty of regulating the manner in which ballast or shingle may be taken from the shores or banks of ports and harbours was also entrusted to the Admiralty ; but the jurisdiction was, by s. 16 of the Harbours Transfer Act, 1862, transferred to the Board of Trade.
Act for such construction, the Board of Trade is now enabled by the General Pier and Harbour Act, 1861, as amended by the General Pier and Harbour Act, 1861, Amendment Act (1862), and the Harbours Transfer Act, 1862, to make provisional orders authorizing the construction of any pier, harbour, quay, wharf, jetty, or excavation by private undertakers, upon application made to the Board (3). But such orders are of no validity or force until confirmed by Act of Parliament.
[The erection of beacons, lighthouses, and sea-marks is also incident to this branch of the royal prerogative ; whereof the first were antiently used in order to alarm the country in case of the approach of an enemy, and all are signally useful in guarding and preserving vessels at sea, by night as well as by day. And for this purpose the king hath exclusive power, by commission under his Great Seal (1), to cause beacons, lighthouses, and sea-marks to be erected in fit and convenient places (u), as well upon the lands of the subject, as upon the demesnes of the Crown (a).]
A power, however, of the same general nature is now, by statute, vested also in certain bodies subordinate to the Crown ; viz., in the Trinity-house, for England and Wales and the Channel Islands; and for Scotland, the Isle of Man, and Ireland, respectively, in other authorities (y). And since the regulation of beacons, lighthouses, and sea-marks falls chiefly under the jurisdiction of these last-mentioned bodies, the subject shall be postponed until we arrive at that division of the work in which some notice is taken of the Trinity-house and of the other Lighthouse Authorities (2).
(m) Such orders may also empower the undertakers to levy rates and borrow money for such works; and funds in aid of the works may be advanced out of the consolidated fund, and by the Public Works Loan Commissioners.
(1) 3 Inst. 204 ; 4 Inst. 148.
(u) Rot. Claus. 1 Rich. 2, m. 42; Prynne on 4 Inst. 136.
(x) Sid. 158 ; 4 Inst. 149.
(y) Merchant Shipping Act, 1894, Part II.
(= ) l'ide post, hk. IV. pt. III.
To this branch of the prerogative may also be referred the power vested in the Crown by the Customs Consolidation Act, 1876, of prohibiting, by proclamation, or order in council, the importation of arms, ammunition, gunpowder, or other goods (a), or the exportation, and the carriage coastwise, of the articles above specified, or of military and naval stores, or of any provisions capable of being used as food by man (1).
[To the same head belongs also the right which the king has, whenever he sees proper, of confining his subjects within the realm, or of recalling them when beyond the seas. For although, by the common law, every man may go out of the realm for whatsoever cause he pleaseth, without obtaining the king's leave (a liberty which was expressly declared in King John's great charter, though left out in that of Henry the Third (c)), yet, inasmuch as every man ought of right to defend the king and his realm, the king at his pleasure may by his writ command him that he go not beyond the seas or out of the realm without licence; and in such case, he shall be punished if he disobey the writ. And there were in old days some persons who, by reason of their stations, were under a perpetual prohibition of going abroad without licence obtained ; among whom were reckoned all peers, on account of their being councillors of the Crown, all knights, who were bound to defend the kingdom from invasions, all ecclesiastics, who were expressly confined by the fourth chapter of the constitutions of Clarendon, on account of their attachment, in the times of popery, to the see of Rome, and all archers and other artificers, lest they should instruct foreigners to rival us in their several trades and manufactures (d). But, at the present day, everybody has, or at least assumes, the liberty of going abroad when he pleases, and without licence ; and the writ ne ereat regno is no longer resorted
(a) Sect. 43.
(c) F. N. B. 83.