India.

Malta and

Gibraltar.

Decisions,

6 Rob.

c. 36. which cleared the present age from the crime and shame of preceding generations, by the final and total abolition of the slave trade.*

And the second section, and the Statute 46 Geo. 3. chap. 72. provide, that tobacco, the growth of foreign islands in the West Indies, or of the possessions of foreign European states in America, may be exported from the ports where it had been imported, and brought into this kingdom by the like foreign vessels as before

mentioned.

But the possessions in America and the West Indies have not been the only objects of legislative attention in modern times. The Statute 37 Geo. 3. chap. 117. makes provision for regulating the trade of foreign ships with the British possessions in India. It enacts, that during the continuance of the exclusive trade of the United Company of Merchants of England trading to the East Indies, and during the term for which the possessions of the British territories in India is secured to the said United Company, it shall and may be lawful for the ships and vessels of countries and states in amity with his Majesty, to import and export from the British possessions in India such goods and commodities as they shall be permitted to import into and export from the said possessions by the directors of the said company, who are hereby directed to frame such regulations for carrying on the trade to and from the said possessions, and the countries and states in amity with his Majesty, as shall seem to them most conducive to the interest and prosperity of the said British possessions in India, and of the British empire."

With respect to Malta, it is provided by the 41 Geo. 3. c, 103." That Malta and its dependencies shall be deemed part of Europe for all purposes." And the 27th Geo. 3. c. 19. enacts with respect to Gibraltar," That it shall and may be lawful for any person or persons whatever, to import or bring into Great Britain from Gibraltar, in any ship or vessel which, before the 1st day of May, 1786, did truly, without fraud, wholly belong to his Majesty's dominions, navigated and registered according to law, the goods, wares, or merchandizes, being the growth or production of the dominions of the Emperor of Morocco, and which shall have been imported into Gibraltar directly from any part of the said dominions not lying or being to the southward of the port of Mogadore, in ships or vessels of the built of his Majesty's dominions, as before described, navigated and registered according to law, or in ships or vessels belonging to the subjects of the said Emperor of Morocco."

These are the chief enactments respecting the trade of the British possessions abroad: enactments, however, which, during time of war, have been usually suspended by specific Acts of Parliament.

The multiplicity of enactments, however, does not appear to have secured that certainty which is of so much importance in all matters of positive regulation; as may be perceived by the case of the ship Recovery, which came on before Sir William Rep. 341. Scott in the Admiralty Court. The ship in question was an American; in spite of any prohibitions that might exist against the trade of foreigners to the British colonies, she had taken in a cargo at a British settlement in the East Indies, and was proceeding with the goods from Bombay to Rotterdam. On that voyage she was captured, and the owners came into the Admiralty Court to claim her. The claim was resisted by the captors, on the ground of illegality: the voyage having, as they contended, been undertaken in contravention of the Navigation Laws. "It is well known," said Sir William Scott, in his judgment on this case," that our establishments in that quarter of the world have stood on a very peculiar footing, which it has been, perhaps, the

* An American ship engaged in slave trade, is now subject to capture. Case of the Amedie. 1 Acton's Rep. 240.

policy of this country not to define with great exactness. They may have assumed a different character at different times; and it may be very important in effect, and very proper in point of principle, that the general maxims of our navigation system should be applied to them in their present state, although there might have been a great anomaly in practically applying them at a former period. It will not, however, be necessary for me to enter into a discussion of the policy of such a measure.

"With regard to the fact, I had always entertained the notion that they had not hitherto been so applied. But a case occurred not many years since, which brought the consideration of the question in a distinct form before the Courts of common law. After repeated arguments, and much deliberation, the Court of King's Bench expressed an opinion, that the Navigation Laws did extend to those countries; and on a writ of error, the judgment of the King's Bench in that case was affirmed, with a complete adoption of the doctrine laid down. An Act of Parliament was afterwards passed to quiet the alarm which had been occasioned by this exposition of the law, and to recognize, in general terms, the policy of admitting foreign vessels to a regulated trade, on certain conditions which the East India Company were empowered to impose. But nothing appears to have been ever done under those powers of the Act; and now, for the first time, the question arises. What is the state of the law, as applicable to this peculiar situation of things, the provisional relaxation of the Act of Parliament, and the total inaction on the part of the East India Company, who have, for more than eleven years, delayed to apply the regulations under which the Act of Parliament had expressed it to be expedient that foreign ships should be admitted?

"This is a question of very considerable magnitude and importance. But there is, I think, a preliminary question, which may supersede the necessity of pronouncing a decision upon it; and that is, Whether the more general question is properly brought before the Court in its present form? If it is not, I shall not be desirous of delivering my sentiments upon it, unless I am called upon in another form of proceeding, which would bring it before me as a case of undisputed jurisdiction."

It is much to be regretted for our present purpose, that this preliminary question arose; for the learned judge concluded by determining that he had not jurisdiction to entertain that question of law, which belonged more properly to the Revenue Court; and we have lost the benefit of a decision which, from the great learning and comprehensive understanding of the judge, we have every reason to suppose would have set this important doubt at rest for ever.

Ibid, 604.

The Court of Common Pleas, in the cases of March v. Abel, and Chalmers and 3 B. and P. Bell, decided, that the traffic of foreigners with these settlements was illegal by the 15 Navigation Acts. But both these cases arose upon policies of insurance, effected upon the passing of that Act of the 37 Geo. 3. ch. 117. to which Sir William Scott alludes in his judgment in the case of the Recovery, as recognizing and legalizing a regulated 6 Rob. and conditional trade. So that we have no express decision upon the law as it stands at Rep. 341. this moment.

Every provision which we have hitherto noticed, has for its object to enforce some or all of these three requisites: that the ships employed be British owned, British built, and British navigated. Therefore it will be necessary to ascertain what the phrases British owned, British built, and British navigated, are legally understood to signify.

A ship is considered as British owned when it belongs to some of his Majesty's British subjects in Great Britain, Ireland, Jersey, Guernsey, or the Isle of Man, or some of owned, the King's colonies, plantations, islands, or territories in Asia, Africa, or America; 26 Geo. 3. but no subject whose usual residence is in any country not under the dominion of his c. 60. s. 8.

British built.

Majesty, is to be deemed a British subject, for this purpose, during such residence, unless he be a member of some British factory, or agent for, or copartner in a house or copartnership actually carrying on trade in Great Britain or Ireland.

There were formerly numerous advantages enjoyed by vessels that were British owned, though they were not built in this country, or, as it is termed, British built; and ship-building was not sufficiently advanced to justify the legislature in confining the privileges of British ships to those vessels built in this country. But in the last century, the great increase of our shipping rendered it expedient to adopt such a measure, and it was accordingly enacted by the 26th Geo. 3. c. 60. sec. 1. That no ship or vessel foreign built (except such ships or vessels as have been, or shall hereafter be taken by any of his Majesty's ships or vessels of war, or by any private or any other ship or vessel, and condemned as lawful prize in any Court of Admiralty,) nor any ship or vessel built or re-built upon any foreign made keel or bottom, in the inanner heretofore practised and allowed, although owned by British subjects and navigated according to law, shall be any longer entitled to any of the privileges or advantages of a British built ship, or of a ship owned by British subjects; and that all the said privileges and advantages shall hereafter be confined to such ships only as are wholly of the built of Great Britain or Ireland, Guernsey, Jersey, and the Isle of Man, or of some of the colonies, plantations, islands, or territories in Asia, Africa, or America, which now belong, or at the time of building of such ships or vessels did belong, or which may hereafter belong to, or be in the possession of, his Majesty, his heirs or successors.'

To this Act there were some exceptions with respect to certain vessels belonging to British subjects before the 1st May, 1786. But these exceptions could operate no longer than the vessels which were built or building before the 1st May, might continue fit for service.

By a more modern statute, however, the construction of the phrase British shipping has been a little enlarged. This statute is the 37th Geo. 3. c. 63. of which the following is an extract: Whereas in consequence of articles of capitulation, whereby certain foreign colonies or settlements, or parts thereof, have been, or may hereafter be surrendered to his Majesty during the present war, certain foreign ships and vessels may have been put, or may be put, under his Majesty's protection: Be it enacted, That all foreign ships and vessels which in consequence of any such capitulation shall have been, or may be so put under his Majesty's protection, at the time of, or in consequence of the surrender of any foreign colony or settlement, or part of any foreign colony or settlement, to his Majesty, shall and may be registered in like manner as ships taken and condemned as lawful prize, may, by the laws now in force, be registered, and shall, by virtue thereof, become entitled to the privileges and advantages of British ships or vessels, under the regulations and restrictions hereinafter mentioned."

Then follow certain provisions as to the mode of registering; and the 3d section enacts, "That it shall be lawful for any such ship or vessel being registered, and having a certificate of registry, as aforesaid, and being navigated as British ships are now, or may hereafter be required by law to be navigated, to import and export to and from any place or places whatsoever, such goods and merchandizes respectively, and none other, as may be imported and exported by any ship or vessel taken and condemned as lawful prize; such importations and exportations to be made in like manner, and under and subject to the like duties, conditions, regulations, and restrictions, and subject to the like penalties and forfeitures for the breach thereof, as if the same were made by any ship or vessel taken and condemned as lawful prize: Pro

vided always, that such ships and vessels, so put under his Majesty's protection, shall not be allowed to import or export any goods whatsoever to or from any port in Europe not in the possession of his Majesty.

In all other respects these vessels appear to be in the same condition with prize ships, which by the Statute 33 Geo. 3. c. 66. sec. 45. are to be deemed British built.

Various aets have, from time to time, been passed enjoining the registry of vessels, a form without which no vessels above a certain size can obtain the rights of British ships. But as these acts are matter of merely municipal regulation, and do not immediately affect the commerce of foreigners, I shall not particularise them.

The Stat. 27 Geo. 3. c. 19. sec. 19. enacts, That all ships not entitled to the privileges of a British ship, or of a ship owned by British subjects, before 1st May, 1786, and all ships not duly registered, shall, although such ships and vessels may be owned by his Majesty's subjects, be held and deemed, to all intents and purposes, as alien ships. But there is one exception which deserves to be noticed; it is that enacted by the 35th Geo. 3. ch. 115.; the words are as follow: "Whereas the court of Directors of the United Company of Merchants of England trading to the East Indies, with the approbation of the board of commissioners for the affairs of India, have sent instructions to their, presidencies in the East Indies to take up such proper ships as can procure for sending home investments of goods from India and China, and other parts within the limits of the said company's trade, in the place of ships usually sent from this country to India and China for that purpose, which last mentioned ships now are, or may be engaged in the public service and whereas the ships so to be taken up may not be British built, or have been registered as such, and may not be navigated as required by the laws now in force:

they

"Be it enacted, That if, during the continuance of the present war, and for 18 months after the conclusion thereof, any such ship shall arrive in the ports of this kingdom, freighted with goods in the manner, and from any of the places within the limits before mentioned, it shall and may be lawful, upon representation made by or on behalf of the said company to his Majesty in council, for his Majesty, by and with the advice of his privy council, to authorise the importation and entry of such goods, subject to the like duties, and no other, as if they were imported in British built ships, though such goods shall be brought in ships which may not be British built, nor have been registered as British built ships, nor navigated as required by the laws now in force; provided the said ships shall have been built within the territories belonging to the said United East India Company, or the ports under the immediate protection of the British flag in the East Indies: And also to permit such ships to export from this kingdom to the British settlements in the East Indies, or to any of the places within the limits before mentioned, with the licence and consent of the said company, any goods, wares, or merchandizes whatsoever, ordnance and military stores excepted, any law, usage, or custom to the contrary thereof notwithstanding.'

This act extended only to the expiration of 18 months after the conclusion of the war; but by the 42d Geo. 3. c. 20. its provisions are continued during the continuance of the exclusive trade to the East Indies granted to the company by 35. Geo. 3. ch. 52.

On the whole, as the exceptions during war, and those which have been before Summary noticed respecting ships built or building before May, 1786, are in their nature but temporary, we may consider the general law as to British ownership and British built to be this: That a vessel, in order to be entitled to any of the advantages of a British ship, must be the property of the King's subjects in Great Britain or Ireland, Guernsey, Jersey, or the Isle of Man, or in some of the colonies, plantations, islands, or territories in Asia, Africa, or America, belonging to or in the possession of his

1

British

navigated.

Majesty Further, it must have been built in some of the dominions last enumerated, unless it be a prize vessel, legally condemned, or a vessel put under his Majesty's protection by any capitulation at the time, or in consequence of the surrender of any foreign colony or settlement to his Majesty; in which case, however, such vessel cannot import or export any goods to or from any port in Europe not in his Majesty's possession: Finally, the forms required by the register acts must have been duly observed.

A ship thus far qualified, that is to say, a ship which, according to the statutes, is to be deemed English owned and English built, needs yet another qualification to complete her immunity; she must be not only British owned and British built, but British navigated also.

The Statute of the 12th Car. 2. c. 18. wherein it requires a trading ship to be either English owned or English built, requires also that the master and three-fourths of the mariners be subjects of the King, and the Statute of 13th and 14th Car. 2. c. 11. sec. 6. explains, that the number of mariners are to be accounted according to what they shall have been during the whole voyage. By the Stat. 34th Geo. 3. c. 68. s. 3. it is ordained, that whenever that or any other Act requires, "that the master and the whole, or any proportion of the mariners shall be British subjects, they must be so during the whole voyage, unless in case of sickness, death, desertion of the whole, or part of the crew being taken prisoners in the voyage." And in order to prevent doubts, the same statute, in the 7th section, enacts, that all foreign mariners who shall have served or who shall serve on board any of his Majesty's ships or vessels of war, in time of war, for three years, and who shall have obtained from the commanding officer certificates testifying that they have so served, and testifying also their fidelity and good behaviour during such service, and who shall have taken the oath of allegiance, and complied with certain forms particularly mentioned by the Act, shall be entitled to be employed as masters of British ships or vessels, or as British mariners on board any British ships or vessels within the intent and meaning of any of the laws in force at the time of the passing of that Act; but the Act, in the 8th section, excludes from the power of obtaining this qualification every person, however otherwise qualified, who, after he has become qualified, has taken or shall take the oath of allegiance to any foreign sovereign or state, for any purpose, except under the terms of some capitulation upon a conquest by an enemy, and for the purpose of such qualification only.

At the same time, the same section permits, that in "the navigation on the seas of America and the West Indies, from any port of America and the West Indies, to any port of America and the West Indies, any Negroes belonging to any person or persons being or having become his Majesty's subjects in manner aforesaid, and with the qualifications aforesaid, and in the seas to the eastward of the Cape of Good Hope, from any port to the eastward of the Cape of Good Hope to any other port to the eastward of the Cape of Good Hope, Lascars and other natives of any of the countries to the eastward of the Cape of Good Hope, may be employed as British sailors, seamen, or mariners, in manner heretofore practised."

There is, however, a provision, in its nature temporary, against the employment of Negroes from the colonies then lately belonging to the French King, except under

certain conditions.

The 12th section enacts, that in case any British ship shall be found at sea having on board a greater number of foreign mariners than is allowed by this Act, or any law now in force, or hereafter to be made, and the master of such ship or vessel shall produce certificate of the actual necessity of engaging such foreign mariners in some foreign port, by occasion of the sickness, death, or desertion of the like number of British