The Sun.
London, England, 1824-08-14 00:00:00

point of fact, be would tell them that, with all the respect he
felt for Lord Chief Justice Abbott, he had never been satisfied
with the Nisi Prim decision of his Lordship upon that occa-
sion. In that Very case he had been Counsel to Lord Grosvenor,
and as the facts Were rather curious, he would state thee) to
the Jury. Here the Learned Counsel stated the circumstances
ogfueist,tiownhiwcliil whatititteofittilnryie
froth
whether a wharf, which had been built on his Lordship's land,
hPradevtoentds eittentis itneik4thattincage.e 'laic,
and also in the channel of the Thames, between lilillbank and
Vauxhall.ltridge, by some of his tenants, with his consent, was
of public advantage or not. It wits proved, that at that time
there were no houses, no warehouses, no trade in the neighbour-
hood of the wharf erected. The Lord Chief Justice held that
it was erected upon mere speculation, and that, as there were no
advantages proved to be conferred upon the public by its erection,
and as some disadvantages were proved to have accrued from
it, it must be considered as a nuisance. The consequence was,
that laird Grosvenor was acquitted, though some of his tenants
were found guilty. The matter was of no importance to his
Lordship, and therefore no attempt was made to have any of
the positions laid down by the Learnd Judge reviwed by the
Court of King's Bench, especially ass
t! e indictmenet itself was
I afterwards abandoned. On that case his Learned friend relied
more than any other I but he was sure that the Jury would see
that its authority went as much with the defendants as it did
with the prosecution. lie would, however, state to them a case
in which he had himself been engaged, and which was more
analogous to the present than any which his Learned Friend
had cited. A good many, years ago, when Sir Vicary Gibbs was
Chief Baron of the Exchequer, an information was filed by the
Attorney-General in the Exchequer, under the direction of the
Admiralty, against several persons, for the purpose of putting
down all projections, wharfs, and obstructions in the harbour
of Gosisort and Portsmouth. • The Bishop of Winchester wax
entitled to all the mud lands left by the sea in the county of
Southampton, between high water-merit and low water-mark.
A great many of his tenants had constructed walk, and wharfs,
and other buildings projecting into this harbour,which was spe-
cifically the King's
,port, being intended for the security and
preservation of his vessels of war. The information was filed
against the Bishop of Winchester, against some of his tenants,
and also against some gentlemen who did not hold under him.
The defendants were ten in all. The matter was deemed so
serious and important, that it was tried at the bar in time Court
of Exchequer. On that occasion this proof was made out by
the engineers, that every projection into a harbour was an ob-
struction, pro taut°, to the navigation. The late Mr. Bennie,
with whom he was acquainted, and for whom he felt
great respect, deposed, that in every harbour it was neces-
sary to have as great a reflux of water as possible, in or-
der to cleanse it of sand, which it would otherwise accu-
mulate ; that all projections diminished the reflux ; and
that in that particular case, though they had then clone nu
injury, he was convinced that eventually they would do
mischief. He had cross-examined Mr. Rennie upon that
occasion, and had extracted from him this extraordinary,
confession—that the most perfect harbour would be one which
had neither wharf, projection, or ship in it. He admitted,
however, that perfect as such a harbour would be for the purpose
of navigation, it would be of no earthly use whatever. After
the case bad occupied the attention of the Court for two whole
days, the Court, which consisted of Sir Vicary Gibbs, the Learn-
ed iaron Thompson, and air. Barad Wood, now just deceased,
after a full and solemn deliberation, directed the Jury to acquit
the defendants. They told the Jury, that if they found the
projections in queetion to be advantageous to the port, not-
withstanding the light in which the Attorney-General had put
the case, the defendants must be acquitted, and they were
acquitted accordingly. A passage in Lord Hale was parti-
cularly noticed in their judgment by those Learned Judges. it
was in that part of his Lordship's works "de Portlbut Maris"
in which he enumerates such nuisances as are common to all
men that have occasion to come, go, or stay at ports. His
Lordships words were as follow—" The straitening of the port
by building too far into the water where ships or vessels might
have formerly ridden—for it is to be observed that nuisance
atoir,nei:iicoisit:rtti,euceisance in such a case Is a question of fact. It is not,
vfebrry
tbhuaithwi ion:ildbeldeuswti:hyi
ew
quays
tuenryi‘mtmhrka ,t
roe!.
in every
all
ttl7eilpo4i7rtsibelinoEwntheglanlodw,. us es
t4llllrihe;:ract
ewailliclb)tlisiltipb3eoltlswiwttl°meinhligawh
water mark, for otherwise vessels could not come to them to
unlade, and some arc built below the low water mark. And it
would be impossible for the King to license the building of a
new wharf' or quay, whereof there are a thousand instances, if
ipso facto it were a common nuisance; 'for the King cannot
license a common nuisance. Nay, in many cases it is an ad-
vantage to a port to keep in the sea-water from diffusing at
large ; and the water may flow in shallows, where it is itnpos.
Bible for vessels to ride. Indeed, where the soil is the King's,
the building below the high water mark is a purpresture, and
an encroachment anti intrusion upon the King's soil, which
he may either demolish, or seize, or arrest, at his pleasure;
but it is not ipso "het° a common nuisance, unless, indeed, it
be a damage to the port and navigation. In the case, therefore,
of building' within the extent of a port, whether it be a nuisance
or not, is guestio facti, and to be determined by a Jury upon
evidenee, anti not questiojuris." Such were the expressions of
the law, as delivered by the Lord Chief Justice ; and in this
Case, as in most others, the language of the law was time lan.
guage of reason and common sense. He would now ask, whe.
ther the question of fact, which they had to try, was simply '
whether these buildings were or were not an encroachment with
the channel of the river ? His Lordship would inform them it
was not. The question of fact which they had to try was this:
does the encroachment in question aftbrd such advantages to
commerce in general as to counterbalance time injuries which
accrue from it to individuals in certain particular instances.—
Now, upon that point he would ask, whether these gears had
or had not contributed to facilitate the conveniences of trade,
and consequently to increase trade in the port of Newcastle.—
Let them look at the evidence which has been given in the
course of the case. It was sworn that within the last 20
years the trade of that port had been doubled, and that the
number of shilis clearing out of it had been increased in the same
proportion. It was a strange thing fur a man to submit to a
-Jury a proposition like the following :—" I complain of the
injury done to the navigation of time river Tyne by theta ob-
structions, and yet, notwithstanding their operations, I submit
that the trade of the town within time last year is fully, doubled."
But what were these obstructions ? Si~ by, of such a nature
that one witness who had sailed up and down the river five
dines every week for the last twenty years, had admitted that
he had been only obstructed in' his passage during that period
twelve times. Souse of the Jury had most probably been in the
Temple-gardens. If they had, they would have seen a number
of barges collected at Whitefriars wharf, obstructing the navi-
gation of wherries upon the Thames, much more than the evil
deuce thawed that the vessels about these gears obstructed the
nuvigation of the Tyne. Did any person ever think of indict-
ing the proprietor of ‘Vhitefriars wharf? No.—And why not?
Because the necessity of' commerce rendered the obstruction
cacosable. Others of them had, perhaps, gone clown to the
pool to eat white-bait at Greenwich or tilackwall. Did they
not meet with many obstructions on their way down the Thames
arising from time prodigious magnitude of the commerce of Lon.:
don ? And did they not submit with pleasure to the disadvan-
tage of it, when they recollected the great public advantage it
bestowed on the country? He agreed with his Learned Friend
that the private advantage of .any man who had an interest in,
the railways from the contiguity of his collieries to the Tyne,
was not to be taken into the consideration of time Jury ; but
then it was with this limitation—that his private advantage was
inconsistent with the public benefit. If his private advantage
advanced the public interests, then it must be considered as
part of them, and as such was entitled to receive the protec-
tion of the public. Ile likewise agreed With his Learned Friend,
that they need not attend to the motives which had led to this
prosecution. Butt here again he must put in a limitation ; and
that was, unless the motives ofthe prosecutiongave *colouring us
the testimony of witnesses. He was sure that, in sifting thud
testimony, they would not look so much to private motives as
to public consideration ; and here he would ask how it happen.
ed, that out of seventeen witnesses which his LearnedYrtend
bad called to prove the obstruction to the navigation
of the
Tyne, had only called 'a single ship-owner. In a prosecution in
which an appeal was made to the Jury to protect the navigation
of the Tyne anti time trade of the port of Newcastle, how wasit that not more than one ship-owner bud been called out of the
many ship-owners of the place, to support that side of the Ws*
tion in which they most of all risen must be interested ? The
absence of these :ship-owners was a strong negative proof that the
commerce of the port was not injured
and a strong affirmative
proof to the same point, was the declaration of several wit-
nesses, that more than 600 vessels had cleared from these two
gears in the course of one year. Another proof that the naviga-
tion of the river had not been injured, was to be found in this
curious fact—that thong's many of the witnesses haddeposed
to differtnt injuries betitiling vessels off these gears, not more •