Slike strani
PDF
ePub

cafe, lofe the price of the freight; a feverity which the English courts of admiralty never practife, where fome particular circumftance doth not require it.

I thall add to these the opinion of Albericus Gentilis*, esteemed the ableft writer on national jurifprudence till Grotius bore the palm from him; and his fame in this refpect was fo great, that Philip III. of Spain appointed him perpetual advocate for his fubjects in all caufes which they might have depending in the courts of England. The author ftates a cafe, where the Tufcans had taken the effects of the Turks, at that time their enemies, which they found on board fome English fhips; and he determines, that the Turkish goods are legal prize, but that the captor must pay the freight to the English. "Tranfeunt res," fays he, "cum fuâ caufa, victor fuccedit in locum victi, tenetur Etrufcus pro Toro naulo." The property of the enemy paffeth to the captor, but all its confequences attend it; the goods juftly belong to him, but he must pay to the freighter all which the enemy would have paid, to whose right he hath in every refpect fucceeded.

To enter particularly into the fentiments of any more writers. on this fubject would be equally tedious and unneceffary; it will be fufficient to mention the names alone of fuch others as are in favour of the question-Among thefe I find Heinecciust, no lefs famed for his knowledge of laws, than for his learning in what are the beft expofitors of laws, the antiquities of governments-Zouch ‡, who for many years prefided in the courts of admiralty of this kingdom-Voet §, Zuarius, and Loccenius, all of them writers of reputation, and whofe opinions are univerfally relied on by all who treat on public jurifprudence.

I might indeed have wholly omitted the fentiments of these learned individuals, fince we fhall find, that great communities themselves have confirmed our opinion both by their laws and by their practice. It will not be proper on this occafion to look far back into the early annals of the European ftates; when the governments of these were yet in their infancy, the advantages of commerce were but little understood, and of course the rights of it were not sufficiently regarded; war was then too much the season of rapine, and they who entered into it meant lefs to conquer than to plunder. As foon, however, as fome better order began to be introduced into these affairs, it then became ufual for each party at the commencement of the war to publish a declara

Albericus Gentilis de Advocatione Hifpanica, lib. i. cap. 28. Heineccius de Navibus ob Vecturam de vetitarum Mercium commiffis, cap. 2.

Zouch de Judicio inter Gentes, pars 2.

Voet de Jure Militari, cap. 5.

Zuarius de Ufu Maris, Confil. ii.

Loccenius de Jure Maritimo, lib. ii. cap. 4.

M m 2

tion,

tion, wherein he fpecified what kind of trade he would permit neutral nations to carry on with his enemy; and the regulations of these were fometimes attended to, and fometimes not, either as the intereft of the party neutral inclined him to fubmit to the reftraint, or as the power of the party belligerent enabled him to enforce the execution of it. True it is, that the prohibitions which thefe declarations contain are various, according to the fentiments of the different governments which inade them; and on that account they are, perhaps, too unfteady a foundation on which to establish a right: there plainly, however, follows from hence one powerful inference in our favour, that not one can be found amid all this variety, which ever permitted neutral nations to protect the property of the enemy: this branch of freightage they all agree unanimously to prohibit.

The free ftates of Italy cultivated firft the interefts of commerce before any veffel had as yet paffed the Cape of Good Hope, and a fhorter paffage had been difcovered to the Eaft Indies, Venice and Genoa drove the principal trade of the world, and difperfed the manufactures of Afia to the different parts of Europe: it naturally followed, that these two commercial republics fooneft understood and defined the juft. rights of navigation; their maritime conftitutions ftill remain collected in the Confolato del Mare; and the reputation of these was fo great, that as the laws of Rhodes were once to the Romans, and the laws of Oleron to the western parts of Europe, fo these Italian laws became of force univérfally to all nations which border on the Mediterranean fea: these have determined the point exprefsly in our favour. In one of them it is afferted, " Se la nave o navilio, che pigliato fará, fusse di amici e le mercantie, che lui porterá faranno d'inimici, lo armiraglio della nave o del navilio armato, pou forzare & confiringere quel patrone di quella nave o d'quel navilio, che lui pigliato haverá, che lui conquella fua nave gli debba portare, quello, che di fuoi inimici fara;"-" If the hip or veffel which shall be taken belong to an ally, and the merchandise which the has on board belong to an enemy, the captain of the armed ship may force or constrain the mafter of the ship or veffel which he has taken, to carry into fome port for his account, the effects of his enemy which are on board;" and it is afterwards added, that the master of the veffel must be paid for the freightage of the goods of the enemy*.-And fuch was not only the conftant purport of their laws, but the practice of their governments was always conformable to it. Their hiftorian t tells us, that in the war between the Venetians and the Genoefe, the fhips of Gre

* Il Confolato del Mare, c. 273.
Nicep. Grogoras, lib. ix.

cians, who were neuter, were always fearched, and the enemies who lay hid in them were taken out and made prifoners.

It is unnecellary to dwell longer in giving a further detail of the conduct of every nation in this refpect; I will, therefore, confine myself to those who are moft concerned in the prefent difpute; and will fhow, that as England claims no more at prefent than what the always enjoyed, fo France and Holland have conftantly fupported the fame opinion whenever their intereft required it.

It was in the reign of the firft Edward, a prince who thoroughly understood the rights of his crown, and had a spirit equal to the fupport of them, that Philip the Fair of France being engaged in a war with the Duke of Burgundy, the French admiral took the fhips of feveral neutral nations, which were paffing through the British Channel into the ports of Flanders: great complaints were made on this head, and commiffioners were ap-. pointed to examine into the conduct of the admiral; a libel was there prefented against him by almost every trading nation of Europe: the record of this is ftill remaining; and if neutral nations had at that time pretended to enjoy the right of protecting the property of the enemy, and that the effects which they carried on board their fhips, could in no cafe, except in that of contraband, be made lawful prize, we might well expect, that this right would here have been claimed and afferted; fear could not, in this cafe, have prevented it; for all the world, except France, was on one fide of the question; but the record contains no fuch claim the injured demand their right on a different principle, because their fhips were taken on thofe feas," where the kings of England (faith the record) have time out of mind been in peaceable poffeffion of the fovereign lordthip, with power of appointing laws, of prohibiting the use of armis, of giving protection as occafion fhould require, and appointing all things neceffary for the maintaining peace, juftice, and equity among all, as well foreigners as natives, who navigate thofe feast." Here then the right of protection is placed on that bafis, on which alone it can properly be founded, the right of dominion; no other pretence is offered; and if I may be allowed to fum up the evidence, as their names are written in the record, "Genue, Cateloigne, Efpaigne, Alemaine, Seland, Hoyland, Frife, Denmarch, Norway, & plufours aultres lieux del Empier," all join here in afferting the principles on which I firft eftablished my argument.

The annals of Edward III. afford ftill other facts in favour of my opinion this prince added to his military accomplishments, great fagacity in the fcience of laws, and uncommon attention to

• Sir Ed. Coke's Fourth Inft. chap. 22.
↑ See all this more fully ftated in the record.

the

the commercial interefts of his kingdom: in the fecond year of his reign he confirmed the Charter of Privileges, which fome of his predeceffors had before granted to foreign merchants, and particularly to thofe of the Hanfe Towns*, who were at that time the greatest freighters of the weftern parts of Europe. This inftrument may well be confidered as a fort of maritinte regulation, by which England meant to direct her conduct at that time in affairs of this nature in this, liberty of navigation is fully confirmed; foreign merchants are allowed to carry their goods, whether purchafed within the kingdom or without, "quocunque voluerint;" but with this exception, " præterquam ad terras notoriorum & manifeftorum hoftium regni noftrit;" and fome offences being afterwards committed against this charter in the fucceeding wars, it was again renewed in the fame manner in the fixth year of this reign. In both thefe inftances the exception is express, that no trade whatfoever fhould be permitted with the enemy; but this good king, perhaps through a principle of juftice, and his ardent love to commerce, feems to have practifed this right with more moderation, that is, in much the fame manner in which the government of England claims it at prefent; for in his wars with Scotland, fome thips of Great Yarmouth having taken feveral veffels belonging to the burgeffes of the town of Bruges, " prætendentes bona in iifdem exiftentia fuifle hominum de Scotia," he directed his precepts to the fheriff of Norfolk, commanding him to fet at liberty, and to caufe full reftitution to be made of the fhips, and of fuch of the goods as belonged to the merchants of Bruges, and that he fhould detain only that part of the cargo which was the property of the Scotch, his enemies. We find alfo, that when Elizabeth was engaged in war with Spain, the feized feveral veffels of the Hanfe Towns, which were entering into the port of Lifbon; and the urged, among other arguments, the charter above mentioned in defence of her conduct: the was in this refpect fo fatisfied of the juftice of her caufe, that the threats of the German Empire, and other neutral powers, could not oblige her to relinquith her right; and though the might perhaps on this occafion give too great extent to this right, yet it is remarkable that Monfieur de Thou, who was himself a great lawyer, and had long fat in the first court of judicature in France, even when he blames the conduct of the queen in this affair, paffeth his cenfure upon it, not as defective in juftice, but only in policy: "In tam alieno tempore," fays he f," rerum pru dentiores exiftimabant, imprudenter factum effe a Regina ab Anglis."

Rymer's Fœdera, tom. iv. p. 361.
Ib. p. 328.

+ Ib. p. 516. § Thuanus lib. 96.

We

We have as yet mentioned the conduct alone of thofe English princes who knew how to affert their rights, and who ruled their people with glory; but we fhall find that even under a weaker government, and in a latter period, this right of feizing the property of the enemy found on board neutral fhips hath been fully claimed and practifed. When Villiers, Duke of Buckingham, prefided over the naval affairs of England, and, to gratify his own private refentments, had engaged his country in a war againft Spain, the British fleet under Pennington took feveral French veffels, to the number of between thirty and forty, which had Spanish effects on board; they were brought into the ports of England, and our courts of admiralty condemned the goods of the Spaniards as legal prize, but ordered the veffels of the French to be releafed, and the freightage to be paid to them. This conduct was avowed by the court of England, and a full reprefentation of it tranfmitted by the lord high admiral to the adminif tration of France. About fifteen years after this, when the French themselves were at war with Spain, the navy of France took a great many Englifh fhips which were laden with the property of Spaniards; and their courts of admiralty condemned not only the enemy's effects, but the English fhips which conveyed them. The Earl of Leicester, then ambaffador in France, made great complaints on this head; he was anfwered, that the English always acted in this manner; and this anfwer being tranfmitted to the Earl of Northumberland, at that time lord high admiral, he confulted upon it Sir Henry Martin, the beft English civilian of that age, and the moft verfed in maritime jurifdiction; and by his advice he returned to Lord Leicester the following anfwer, which at the fame time proves the conftant opinion, and fhows the moderation of the British admiralty on this point: "That," fays he, which is alleged by the French to be practifed in our courts of admiralty is abfolutely denied; and that neither the law nor practice hath ever been here to confifcate the goods of friends for having enemies' goods among them: we are so far from doing any fuch act of injuftice, as when in time of war we have met with any fuch prizes, the freight hath always been paid by the taker of thofe enemies' goods that he took, and thofe that belonged unto friends were duly reftored to them."

Thus much may fuffice to thow the conduct of the people of England: hiftory will alfo prove to us, that Holland hath always exerted the fame right. At the beginning almoft of that war which the United Provinces fultained in fupport of their liberties, and even before, their fovereignty was as yet fully eftabtifhed, the people of Zea

The Sidney Papers; Algernon Earl of Northumberland, to Robert, Earl of Leicester, November 5, 1640.

land

« PrejšnjaNaprej »