it is certain that such part would still continue yours.”1 Thus also, if a part of the territory of one State should suddenly be transferred by the sudden change of a river to another State, it would still belong to the State from which it had thus been suddenly severed by the Law of Nations.2 1 Coop. Just. lib. 2, tit. 1.

2 See Vattel, Law of Nations, § 270.

CHAPTER X.

PORTS AND HARBORS.

§ 271. A PORT may be defined to be a harbor where customs officers are established, and goods are either imported from, or exported to, foreign countries. Usually, however, the words port and harbor are regarded as synonymous' terms. According to Dalloz, a port is a place within land, protected against waves and winds, and affording to vessels a place of safety.1 Webster defines the word thus: "A place where ships may ride secure from storms; an inlet, recess, or cove of water, where vessels may float in safety; a harbor; a haven."2 By the Roman Law, a port is defined to be locus conclusus quo importantur merces, et unde exportantur,3 a correct definition. A port, while it may be a harbor, yet includes something more. 1. It is a place at which vessels may arrive from foreign countries to discharge and receive cargoes. 2. It comprehends a city or borough, called, in Latin, caput corpus, for the reception of mariners and merchants, and with the facilities for securing goods and merchandise, and bringing them to market, and for victualling the ships. 3. It is impressed with a legal character by civil authority. From this it is obvious, that every port is a harbor, but not every harbor a port.

§ 272. We will now consider how ports may be established. Bracton says, Publica vero sunt omnia flumina et portus; and, in De Jure Maris, it is said, "As touching ports, and

1 Dic. Supp. h. t.

3 Dig. 50, 16, 59.

2 Webster's Dict., "Port."

Bouvier's Law Dictionary, "Port." Bacon's Abr. Prerogative, D. 5; Com. Dig. Navigation, E.; 2 Chitty's Com. Law, 2.

the public right of them, Bracton saith true; with this alloy, that hath been before observed, that the law of England doth thus far abridge that common liberty of ports, that no port can be erected without the license or charter of the king, or that which presumes and supplies it, viz., custom or prescription." And the interest of property, and the interest of franchise in ports, is thus distinguished, "Before any port is legally settled, although the propriety of the soil of a creek or harbor may belong to a subject, or private person, yet the king hath his jus regium in that creek or harbor; and there is, also, a common liberty for any to come thither with boats and vessels, as against all but the king. And upon this account, though A. may have the propriety of a creek or harbor or a navigable river, yet the king may grant there the liberty of a port to B., and so the interest of propriety and the interest of the franchise several and divided. And in this no injury is at all done to A.; for he hath what he had before, viz., the interest of the soil, and, consequently, the improvement of the shore and the liberty of fishing; and as the creek was free for any to pass in it, against all but the king (for it was publici juris, as to that matter, before), so now the king takes off that restraint, and, by his license and charter, makes it free for all to come and unload."

§ 273. Sir William Blackstone, concerning this subject, says, "that the king has the prerogative of appointing ports and havens, or such places only for persons and merchandise to pass into and out of the realm, as he, in his wisdom, sees proper. By the feudal law, all navigable rivers and havens were computed among the regalia,1 and were subject to the sovereign of the State. And, in England, it hath always been holden, that the king is lord of the whole shore, and, particularly, is the guardian of the ports and havens, which are the inlets and gates of the realm; 2 and therefore, so early as the reign of King John, we find ships seized 1 2 Feud. 1, 56.

2 F. N. B. 113.

by the king's officers, for putting in at a place that was not a legal port.1 These legal ports were, undoubtedly, at first assigned by the Crown, since to each of them a court of portmote is incident, the jurisdiction of which must flow from the royal authority; the great ports of the sea are also referred to, as well known and established by statute 4 Hen. IV. c. 20, which prohibits the landing elsewhere, under pain of confiscation; and the statute 1 Eliz. c. 11, recites, that the franchise of landing and discharging had been frequently granted by the Crown."2

§ 274. In the United States, the Constitution gives to Congress the power "to regulate commerce with foreign nations, and among the several States ;" and accordingly we find, that Congress has, since the organization of the Government, exercised the power of establishing ports of entry. This power, originally residing in the States, was delegated by them to Congress. The Constitution also expressly further provides, that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another."

§ 275. In this country as well as in England, the public ports are considered as the great gates of the republic, through which all its foreign intercourse by water is conducted; and consequently they can only be established, and must in some respects be regulated, by that department of the government to which has been delegated the care of foreign commerce.

§ 276. In all public ports there are three kinds of rights, the distinct nature of which, owing to the peculiar form of our government, it becomes more necessary to attend to here than in England. There are (1) public rights, affecting commerce in general, or those in relation to war and foreign intercourse; (2) private rights, such as the

ownership of the soil, or any peculiar franchise, may confer; and (3) State rights, or rather such public rights as involve the powers of internal government of the republic.

§ 277. We will discuss these various subjects in their order. We have seen that the Federal Constitution declares, that no preference shall be given by any regulation of commerce to the ports of one State over another; but the Constitution further provides, that "no State shall, without the consent of Congress, lay any impost or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," and "that no State shall, without the consent of Congress, lay any duty of tonnage." "These rules," says Chancellor Bland,1 "being fundamental, cannot be evaded in any manner whatever; no preference can be given by requiring the payment of tolls or wharfage of any ships or goods coming from other States of the Union, not demandable on those of this State; nor can duties or tonnage of any kind be exacted of ships or goods coming into our ports from any foreign country, without the consent of Congress, which was given to that act of the Assembly by Congress.2 And although it has been found expedient to collect in the port of Baltimore, and in many others of this Union, as in England, a small duty of tonnage, or port duty, to be appropriated to the sole purpose of cleansing the port itself of all obstructions, and keeping it in good navigable order, and for repairing the public wharves; yet even this small duty, which might have been considered as a toll paid only for the use of the port itself, was held to fall within the scope of those constitutional provisions, and not allowable without this consent, which has been from time to time renewed since, as it has been found expedient or necessary to raise a fund in that way for cleaning the port, and repairing the public

1 The Wharf Case, 3 Bland, 383.

2 Acts of Congress, 11 Aug. 1790, chap. 43.