- Category: Court of the Ekklesia
OF THE CARE OF THE PUBLIC WAYS OF COMMUNICATION, AND THE RIGHT OF TOLL
§ 100. Utility of highways, canals, &c.
The utility of highways, bridges, canals, and, in a word, of all safe and commodious ways of communication, cannot be doubted. They facilitate the trade between one place and another, and render the conveyance of merchandise less expensive, as well as more certain and easy. The merchants are enabled to sell at a better price, and to obtain the preference; an attraction is held out to foreigners, whose merchandises are carried through the country, and diffuse wealth in all the places through which they pass. France and Holland feel the happy consequences of this from daily experience. (44)
§ 101. Duty of government in this respect.
One of the principal things that ought to employ the attention of the government with respect to the welfare of the public in general, and of trade in particular, must then relate to the highways, canals, &c., in which nothing ought to be neglected to render them safe and commodious. France is one of those states where this duty to the public is discharged with the greatest attention and magnificence. Numerous patroles everywhere watch over the safety of travellers: magnificent roads, bridges, and canals, facilitate the communication between one province and another: — Lewis XIV. joined the two seas by a work worthy of the Romans.
§ 102. Its rights in this respect.
The whole nation ought, doubtless, to contribute to such useful undertakings. When therefore the laying out and repairing of highways, bridges, and canals, would be too great a burden on the ordinary revenues of the state, the government may oblige the people to labour at them, or to contribute to the expense.(45) The peasants, in some of the provinces of France, have been heard to murmur at the labours imposed upon them for the construction of roads: but experience had no sooner made them sensible of their true interest, than they blessed the authors of the undertaking.
§ 103. Foundation of the right of toll (46)
The construction and preservation of all these works being attended with great expense, the nation may very justly oblige all those to contribute to them, who receive advantage from their use: this is the legitimate origin of the right of toll. It is just that a traveller, and especially a merchant, who receives advantage from a bridge, a canal, or a road, in his own passage, and in the more commodious conveyance of his merchandise, should help to defray the expense of these useful establishments, by a moderate contribution: and if the state thinks proper to exempt the citizens from paying it, she is under no obligation to gratify strangers in this particular.
§ 104. Abuse of this right.
But a law so just in its origin frequently degenerates into great abuses. There are countries where no care is taken of the highways, and where nevertheless considerable tolls are exacted. A lord of a manor, who happens to possess a strip of land terminating on a river, there establishes a toll, though he is not at a farthing's expense in keeping up the navigation of the river, and rendering it convenient. This is a manifest extortion, and an infringement of the natural rights of mankind. For the division of lands, and their becoming private property, could never deprive any man of the right of passage, when not the least injury is done to the person through whose territory he passes. Every man inherits this right from nature, and cannot justly be forced to purchase it.(47)
But the arbitrary or customary law of nations at present tolerates this abuse, while it is not carried to such an excess as to destroy commerce, People do not, however, submit without difficulty, except in the case of those tolls which are established by ancient usage: and the imposition of new ones is often a source of disputes. The Swiss formerly made war on the Dukes of Milan, on account of some oppressions of this nature. This right of tolls is also further abused, when the passenger is obliged to contribute too much, and what bears no proportion to the expense of preserving these public passages.(48)
At present, to avoid all difficulty and oppression, nations settle these points by treaties.
(43) This is a very slight allusion to the very important regulation of import and export duties, bounties and drawbacks, which since Vattel wrote, have become extensive branches of law, highly important to be studied. See an attempt of the editor to arrange them, in 1 Chitty's Commercial Law, Index, titles Import and Export. — C,
(44) But although, since Vattel wrote, France greatly advanced in the improvement of her roads, yet England has surpassed all other nations in the facilities of internal intercourse by new canals, railways, and other improvements sanctioned by the legislature. With respect to which, see the enactments and decisions. 2 Chitty's Commercial Law, 127 to 141. — C.
(45) This position of a government's right to oblige the people to labour on the roads as thus stated, would startle an Englishman. In England there is no such direct power. The 34 Geo. 3, c. 74, s. 4, it is true, requires each occupier to send his carts and horses, and labourers, to work on the roads; but then, if he neglect to do so. he is subject only to a moderate penalty, just sufficient to enable the surveyor to hire the like assistance elsewhere: and as to men, even a pauper is subject to no penalty for refusing to work, excepting that, if he does so, he will not then be entitled to parochial relief. If he work, he is entitled to pay in money, or supply of proper food in return for his labour. — C.
(46) As to the right to toll, &c., see Grotius, b. ii. chap. 2, § 14, p. 154; Puffendorf, book iii. chap. 3 § 6, p. 29,30; 1 Bla. Com. 287; 1 Chitty's Commercial Law, 103 to 106; 2 ld. 139,140. It has been observed, that of all the taxes with which the inhabitants of this country are burdened, there is perhaps none so odious as the turnpike duty. On the continent no such interruption in travelling is experienced, and tolls have been abolished on the northern side of the metropolis, London. Lord Byron, in his eulogy upon English roads, humorously observes —
"What a delightful thing's a turnpike road,
So smooth, so level, such a mode of shaving
The earth, as scarce the eagle in the broad
Air can accomplish with his wide wings waving
Had such been cut in Phaeton's time, the god
Had told his son to satisfy his craving
With the York mail — but onward as we roll —
Surgit amari aliquid the toll.
Cant. x 78. — C.
(47) This position requires explanation and qualification. As respects a public navigable river, every part of the navigable stream must ever remain free and open from its communication with the sea to its extreme navigable point; but the absolute right to approach it on each side, can only be by public and general ways. Consequently, if an individual have land adjoining a river, ho may reasonably refuse permission to any person to go over it to approach the river, and demand any sum he thinks fit for the permission, unless there be a public way over it. Nor have the public any right at common law to tow on the banks of an ancient navigable river; Ball v. Herbert, 3 Term Rep. 253; though it may exist by custom or prescription. Pierce v. Pauconberge, 1 Burr. 292. In the absence of such custom or prescription, no right to approach a river over private grounds exists. Parthericke v. Mason, 2 Chitty's Rep. 658; Wyatt v. Thompson, 1 Esp. Rep. 252. (Chess v. Manoven, 3 Watts, Rep. 219; Cooper v. Smith, 9 Serg. & Rawle, 26.) So, if a private individual make and repair a bridge over a river, he may insist upon any person using it paying him a toll, as in the instance of Putney and Fulham bridge. In these cases the demand of an exorbitant toll may be illiberal, but is no more illegal than a nation's refusing to sell its superfluous produce, or to admit free passage through its country. The right to pass at a moderate toll is a moral but imperfect right, ante, § 91. — C.
(48) See n. 47, ante.