« PrejšnjaNaprej »
cafe, lose the price of the freight; a severity which the English courts of admiralty never practise, where some particular circumstance doth not require it.
I shall add to these the opinion of Albericus Gentilis*, esteemed the ableft writer on national jurisprudence till Grotius bore the palm from him ; and his fame in this respect was so great, that Philip III. of Spain appointed hiin perpetual advocate for his subjects in all causes which they might have depending in the courts of England. The author states a case, where the Tuscans 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 Fnglish. “ Transeunt res,” says he, “ cum fua causa, victor fuccedit in locum victi, tenetur Etruscus pro Toro naulo.” The property of the enemy palleth to the captor, but all its consequences attend it; the goods justly belong to him, but he must pay to the freighter all which the enemy would have paid, to whose right he hath in every respect succeeded.
To enter particularly into the sentiments of any more writers. on this subject would be equally tedious and unnece!lary ; it will be sufficient to mention the names alone of such others as are in favour of the question. Among these I find Heinecciust, no less famed for his knowledge of laws, than for his learning in what are the best expositors of laws, the antiquities of governments--Zouch I, who for many years presided in the courts of admiralty of this kingdom--Voet g, Zuarius ||, and Loccenius, all of them writers of reputation, and whose opinions are universaliy relied on by all who treat on public jurisprudence.
I might indeed have wholly omitted the sentiments of these learned individuals, since we shall find, that great communities themselves have confirmed our opinion both by their laws and by their practice. It will not be proper on this occasion to look far back into the early annals of the European states; 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 less to conquer than to plunder. As soon, however, as some better order began to be introduced into these affairs, it then became usual for each party at the commencement of the war to publish a declara
Albericus Gentilis de Advocatione Hispanica, lib. i. cap. 28. + Heineccius de Navibus ob Veituram de vetitarum Mercium commissis, cap. 2. | Zouch de Judicio inter Gentes, pars 2.
Voet de Jure Militari, cap. .
tion, * Il Consolato del Mare, c. 273. † Nicep. Grogoras, lib. ix.
tion, wherein he specified what kind of trade he would permis neutral nations to carry on with his enemy; and the regulations of these were sometimes attended to, and sometimes not, either as the interest of the party neutral inclined him to submit to the restraint, or as the power of the party belligerent enabled him to enforce the execution of it. True it is, that the prohibitions which these declarations contain are various, according to the sentiments of the different governments which inade them; and on that account they are, perhaps, too unsteady 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 agrec unanimously to prohibit.
The free states of Italy cultivated first the interests of commerce : before any vessel had as yet passed the Cape of Good Hope, and a shorter pallage had been discovered to the East Indies, Venice and Genoa drove the principal trade of the world, and difpersed the inanufactures of Asia to the different parts of Europe: it naturally followed, that these two commercial republics foonest understood and defined the just rights of navigation ; their maritime conftitutions still remain collected in the Confolato del Mare; and the reputation of these was so great, that as the laws of Rhodes were once to the Romans, and the laws of Oleron to the western parts of Europe, so these Italian laws became of force universally to all nations which border on the Mediterranean sea: these have determined the point expressly in our favour. In one of them it is allerted, “Se la nave o navilio, che pigliato fara, fusse di amici e le mercantie, che lui porterà saranno 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 sua nave gli debba portare, quello, che di suoi inimici fara ;"_" If the ship or vessel which Thall be taken belong to an ally, and the merchandise which the has on board belong to an enemy, the captain of the armed fhip may force or constrain the master of the ihip or vessel which he has taken, to carry into some port for his account, the effe&s of his enemy which are on board ;” and it is afterwards added, that the master of the vessel must be paid for the freightage of the goods of the enemy*.--And such was not only the constant purport of their laws, but the practice of their governments was always conformable to it. Their historian t tells us, that in the war between the Venetians and the Genoese, the ships of Grecians, who were neuter, were always searched, and the enemies who lay hid in them were taken out and made prisoners.
It is unneceffary 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 most concerned in the present dispute ; and will show, that as England claims no more at present than what the always enjoyed, so France and Holland have constantly supported the same opinion whenever their interest required it.
It was in the reign of the first Edward, a prince who thoroughly understood the rights of his crown, and had a spirit equal to the support of thein, that Philip ihe Fair of France being engaged in a war with the Duke of Burgundy, the French admiral took the thips of several neutral nations, which were pasting through the British Channel into the ports of Flanders: great complaints were made on this head, and commissioners were ap-. pointed to examine into the conduct of the admiral; a libel was there presented against him by alınost every trading nation of Europe : the record of this is itill 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 04 on board their ships, could in no case, except in that of contra
band, be made lawful prize, we might well expect, that this
right would here have been claimed and asserted; fear could not, ¡ in this case, have prevented it; for all the world, except France,
was on one side of the question ; but the record contains no such claim: the injured demand their right on a different principle, because their ships were taken on those feas, “ where the kings of England (faith the record) have time out of mind been in peace. able poffeffion of the fovereign lordthip, with power of appointing laws, of prohibiting the use of arnis, of giving protection as occasion Tould require, and appointing all things necessary for the maintaining peace, justice, and equity among all, as well foreigners as natives, who navigate those feast.” Here then the right of protection is placed on that basis, on which alone it can properly be founded, the right of dominion ; no other pretence is offered, and if I may be allowed to sum up the evidence, as their names are written in the record, “ Genue, Cateloigne, Espaigne, Alemaine, Seland, Hoyland, Frise, Denmarch, Norway, & plufours aultres lieux del Einpier,” all join here in asserting the principles on which I first established my argument.
The annals of Edward III. afford fill other facts in favour of my opinion: this prince added to his military accomplishments, great sagacity in the science of laws, and uncommon attention to
• Sir Ed. Coke's Fourth Inf. chap. 22.
the commercial interests of his kingdom : in the second year of his reign he confirmed the Charter of Privileges, which some of his predecessors had before granted to foreign merchants, and particularly to those of the Hanse Towns *, who were ai that time the greatest freighters of the western parts of Europe. This inftrument may well be considered as a sort of maritinie regulation, by which England meant to direći 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 purchased within the kingdom or without, “ quocunque voluerint;" but with this exception, “ præterquam ad terras notoriorum & manifeftorum hoftium regni noftrit ;” and some offences being afterwards committed against this charter in the succeeding wars, it was again renewed in the same manner in the sixth
of this reign. In both these instances the exception is express, that no trade whatsoever thould be permitted with the enemy; but this good king, perhaps through a principle of justice, and his ardent love to cominerce, seems to have pra&tised this sight with more moderation, that is, in much the same manner in wbich the government of England claims it at present; for in his wars with Scotland, some thips of Great Yarmouth having :aken several vessels belonging to the burgesses of the town of Bruges,“ prætendentes bona in iisdem existentia fuisse hominum de Scotia," he directed his precepts to the theriff of Norfolk I, commanding him to set at liberty, and to cause full restitution to be made of the ships, and of such of the goods as belonged to the inerchants of Bruges, and that he should detain only that part of the cargo which was the property of the Scotch, his enemies. We find also, that when Elizabeth was engaged in war with Spain, the feized several vessels of the Hanfe Towns, which were entering into the port of Lisbon ; and the urged, among other arguments, the charter above mentioned in defence of her conduct : fhe was in this respect so satisfied of the justice of her caufe, that the threats of the German Empire, and other neutral powers, could not oblige her to relinquish her right ; and though the might per: haps on this occafion give too great extent to this right, yet it is remarkable that Monsieur 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, pafTeth his censure upon it, not as defective in justice, but only in policy: “ In tam alieno tempore," says he $, “ rerum prudentiores exiftimabant, imprudenter factum elle a Regina ab Anglis.”
* Rymer's Federa, tom. iv. p. 361.
# Ib. p. 516. Thuanus, lib. 96.
We have as yet mentioned the conduct alone of those English princes who knew how to assert their rights, and who ruled their people with glory; but we shall find that even under a weaker government, and in a latter period, this right of seizing the property of the enemy found on board neutral ships hath been fully claimed and practised. When Villiers, Duke of Buckingham, presided over the naval affairs of England, and, to gratify his own private resentments, had engaged his country in a war against Spain, the British fleet under Pennington took several French vessels, to the number of between thirty and forty, which had Spanish effects on board ; they were brought into the parts of England, and oịr courts of admiralty condemned the goods of the Spaniards as legal prize, but ordered the veilelp of the French to be released, and the freightage to be paid to them. This con. duct was avowed by the court of England, and a full representation of it transmitted by the lord high admiral to the adminis 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 English thips 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 ambaslador in France, made great complaints on this head ; he was answered, that the English always acted in this manner; and this answer being tranfmitted to the Earl of Northumberland, at that time lord high admiral, he consulted upon it Sir Henry Martin, the best English civilian of that age, and the most versed in maritime jurisdiction, and by his advice he returned to Lord Leicester the following answer, which at the same time proves the conltant opinion, and shows the moderation of the British admiralty on this point : « That," says he “, “ which is alleged by the French to be practised in our courts of admiralty is absolutely denied ; and that neither the law nor practice hath ever been here to confiscate the goods of friends for having enemies' goods among them: we are so far from doing any such act of injustice, as when in time of war we have met with any fuch prizes, the freight hath always been paid by the taker of those enemies' goods that he took, and those that belonged unto friends were duly restored to them.”
Thus much may suffice to thow the conduct of the people of England: history will alfo prove to us, that Holland hath always exerted the same right. At the beginning almost of that war which the United Provinces suitained in support of their liberties, and even before their sovereignty was as yet fully established, the people of Zeag
The Sidney Papers; Algernon Earl of Northumberland, to Robert Lail of Leicester, November 5, 1640.