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 f
 
 SYSTEM 
 
 SHIPPING AND NAVIGATION LAWS, 
 
 MARITIME CONTRACTS, 
 
 SfC. c^C. 
 
 BY F. L. HOLT, ESQ.
 
 A 
 
 SYSTEM 
 
 OF THE 
 
 fjtppwg anti ^abigation Eatos 
 
 OF 
 
 GREAT BRITAIN: 
 
 AND OF THE 
 
 LAWS 
 
 RELATIVE TO MERCHANT SHIPS AND SEAMEN; 
 
 AND 
 
 MARITIME CONTRACTS. 
 IN THREE PARTS: 
 
 I. OF THE SHIPPING AND NAVIGATION LAWS. 
 11. OF MERCHANT SHIPS AND SEAMEN. 
 III. OF MARITIME CONTRACTS. 
 
 TO WHICH IS ADDED, 
 
 AN APPENDIX OF ACTS OF PARLIAMENT, FORMS, &c. 
 
 BY FRANCIS LUDLOW HOLT, 
 
 OF THE MIDDLE TEMPLE, ESQ. BARRISTER AT LAW. 
 
 IN TWO VOLUMES. 
 VOL. I. 
 
 LONDON: 
 PRINTED FOR JOSEPH BUTTER WORTH AND SON, 
 
 LAW BOOKSELLERS, 43, FLEET-STREET; 
 AND JOHN COOKE, ORMOND QUAY, DUBLIN. 
 
 1820.
 
 T 
 
 H 74-^455 
 
 .1 
 
 !-^ ^ ^-^5 
 
 rRlMTEO BY J. AND X. CLAllKE, 38, ST. JOHN-SQUARE, LOMDON.
 
 tv 
 
 TO 
 
 THE RIGHT HON. SIR WILLIAM SCOTT, KNT., 
 
 Judge of the High Court of Admiralty of England, 
 
 AND 
 A LORD OF TRADE AND PLANTATIONS, 
 fife. Sfc. Sfc. 
 
 SIR, 
 
 An soliciting your protection to a Work on the Ship- 
 ping and Navigation Laws of Great Britain, I consider 
 myself as applying to one, whose administration of the 
 more important of these laws, in the most critical pe- 
 riod of our national existence, has so connected his 
 name with these elements of our safety and greatness, 
 as to have rendered the subject of the present Treatise 
 almost peculiarly his own. 
 
 It is only a few years since this country concluded 
 a war fertile beyond all others in the variety of its 
 events ; and which, whilst it continued, required a 
 system of maritime jurisprudence peculiarly adapted 
 to its new forms. The frequent resort to the Admi- 
 ralty Court in cases connected with belligerent and
 
 VI DEDICATION. 
 
 neutral rights carried almost every British merchant 
 before that tribunal ; and as its jurisdiction compre- 
 hends the principal subjects relating to the Navigation 
 and Shipping Laws, the experience of the wisdom and 
 equity of this Court under your administration gradu- 
 ally attracted the most important cases within its com- 
 pass. In the determination of all these cases, your de- 
 cisions, Sir, and the principles upon which they pro- 
 ceeded, so united the equity of the Civil Courts with 
 the necessary exactness and precision of the Common 
 Law, that when any of your decrees, as sometimes 
 happened, were afterwards incidentally brought before 
 the Courts at Westminster, I know not a single in- 
 stance in which they were disputed by the Judges ; 
 whilst I remember many, in which the late Lord Chief 
 Justice of the King's Bench (a man whom we must all 
 lament, and never more tlian in the present times,) 
 expressed in his strongest language, and most charac- 
 teristic manner, his warmest and entire concurrence in 
 your decisions, and the principles which guided them. 
 
 To those who write in the English language, and 
 upon a subject rather local, as respects the interests of 
 their own country, it may appear au unreasonable ex- 
 pectation to indulge any liope of attention from learned 
 foreigners. Upon this part of the subject, every future 
 writer must acknowledge it as not the least portion 
 of the obligations they owe to you, that your judg-
 
 DEDICATION. Vli 
 
 ments have rendered the Reports of Sir Christo- 
 pher Robinson, a book in the library of every 
 foreign lawyer ; and have thereby given to the eon- 
 tinent a knowledge and interest in subjects, which 
 would otherwise have been confined to ourselves. 
 Under this diffusion of the principles of our maritime 
 law, it is no longer a vahi hope that an English lawyer 
 may be read abroad. In learning, in eloquence, in the 
 condensation of strong sense in language exact and ap- 
 posite, without quaintness and obscurity ; in know- 
 ledge of the practices of life and character, in divesting 
 subjects of all that is merely formal, technical, and ar- 
 tificial, and grounding them upon their proper and 
 natural principles, and their due strength in right rea- 
 son — ^}^our judgments. Sir, have done for your own 
 countiy, what the writings of Grotius, Vinnius, and 
 Montesquieu, have done for France, Holland, and 
 Germany. And it will no longer be said, that England 
 has not contributed her share both to the practical 
 illustration of the law of nations, and to that general 
 maritime law which, under the name of the Law Mer- 
 chant, is no less the law of single countries, than the 
 public mercantile code of Europe. 
 
 The above, Sir, are the public reasons for addressing 
 this Treatise to you ; and I beg leave to add, that if I 
 had known nothing more of Sir William Scott than 
 bis public reputation, and had seen nothing of him but
 
 yijl DEDICATION. 
 
 in his judgments, I should still have taken the liberty 
 to introduce this Work to the profession by the aid 
 of his distinguished name. It is no small pride to me, 
 Sir, that in this respect private feelings, concur with 
 public duty^ and that this opportunity is afforded me 
 of expressing my gratitude for a friendship and consi- 
 deration, which I need not be told that I owe more to 
 your kindness than to any merits of my ovs^n. ^ 
 
 I have the lionour to remain. 
 Sir, 
 With the highest respect, 
 
 Your most obliged, 
 
 and obedient Servant, 
 
 FRANCIS LUDLOW HOLT» 
 
 Paper Buildings, Temple^ 
 Jan. 20, 1820.
 
 PREFACE. 
 
 X HE reader will observe that the present Treatise is dividect 
 into three parts. The first part treats of the Shipping- and 
 Navigation Laws ; in other words, of that system by which 
 tlie maritime trade and commerce of the country are regulated, 
 and which has become of the first importance to the profes- 
 sional lawyer and the merchant, since the general peace has 
 restored these laws to their ordinary operation, and removed 
 the unnatural state which the necessities of the late war had 
 induced. 
 
 The First Part is divided into eight Chapters, — 1. On the 
 Origin and Policy of the Laws of Shipping and Navigation, 
 &c.— 2. Of the Plantation or Colonial Trade.— 3. Of the Trade 
 -with Asia, Africa, and America, not being; Colonial, &c. — 
 4. Of the European Trade. — 5. Of the Coasting Trade. — 
 6. The Fisheries. — 7. The Registry Acts. — 8. Of Seizures 
 and Forfeitures for the breach of the Navigation Laws, Regis- 
 try Acts, &c. 
 
 In discussing these subjects respectively, the Author has 
 first considered the several acts of Parliament by which they 
 are regulated ; he has then passed to the cases and decisions to 
 which they have given rise ; and concluded with a summary of 
 Rules and Exceptions for the guidance of the reader through
 
 X PREFACE. 
 
 the labyrinth of statutes on which the Navigation Laws de- 
 pend. In this Treatise the Author has omitted every thing 
 not strictly connected with his subject. Custom-house re- 
 gulations, duties, drawbacks, and all the general details of 
 trade, are not noticed, except incidentally, and very briefly, 
 as they are not comprehended within the plan of the pre- 
 sent Work. It became necessary, however, in the Chapter 
 on the trade with Asia, Africa, and America, to consider 
 the constitution of the several trading companies now exist- 
 ing, and more particularly that of the East India Company. 
 In this Chapter likewise a short account of the American Navi- 
 gation Laws was deemed necessary, and a compendium of 
 the Acts of Parliament and Treaties for abolishing the Slave 
 Trade. In the Chapter on the European trade the late war- 
 system of our commerce was of necessity to be examined, and 
 a brief review of our commercial relations with other coun- 
 tries was thought expedient. But the Author has dispatched 
 these subjects with as much brevity as was consistent with 
 clearness and utility ; insisting upon nothing but what is neces- 
 sary to the practical lawyer and merchant, and what may 
 operate in cases brought before our own courts of law. 
 
 The Chapter on the Registry Acts will perhaps be deemed 
 disproportionately long ; but the great importance of the 
 subject, and the variety of the cases, rendered it necessary to 
 go into detail, even to minuteness, on a subject upon which 
 the property of shipping and the security of transfers so 
 essentially depend. The Chapter on Penalties and Forfeitures 
 has been annexed on account of the importance of the subject 
 matter. 
 
 The second part of this Treatise, in which is discussed the 
 Inw of Merchant Ships and Seamen, consists of seven Chapters. 
 In this Part every subject is examined relating to ovy^ncrs, part-
 
 PREFACE. Xi 
 
 owners, and the title and interest in British shippino- ; the 
 
 qualifications and duties of masters, seamen, pilots, &c. • of 
 the power and authority of the master; of hypothecation^ 
 bottomry, and respondentia ; and the sale of ship or caro-o in 
 cases of necessity. This Part treats likewise very fully of sea- 
 men's wages ; of the manner of earning them ; of the for- 
 feiture of wages, and of suing for and recovering them. The 
 several acts for the regulations of pilots and convoys are like- 
 wise treated in their order; and the cases and decisions, 
 respecting Merchant Ships and Seamen, together with the 
 acts of Parliament, are brought down to the time of the pub- 
 lication of this Treatise. 
 
 The Third Part treats of INIaritime Contracts generally, 
 with the exception of those which relate to marine insurance. 
 It treats of charter-parties ; demurrage ; bills of lading ; of the 
 duties of freighters, ship-owners, and masters ; of exceptions 
 to the liabilities of owners under charter-parties ; of the com- 
 mon law extent of their responsibility ; and of the latitude 
 given to their specific exemptions under the clause of exceptions 
 of sea-perils, &c. It then passes to freight, general average, 
 stoppage m transitu, and salvage. Under each of these heads 
 are respectively considered those principles and distinctions, 
 in one or the other of which all the cases must fall. As far 
 as the Author's labour and industry could succeed in accom- 
 plishing his purpose, he can undertake, he hopes without pre- 
 sumption, to assert, that he has omitted no case whatever of 
 any importance in the Admiralty or common law courts. 
 
 As the subject of the present Treatise, however laboriously 
 and minutely it may be explained, is, in many parts, remote 
 from general apprehension, and perhaps not very alluring as 
 respects popular interest and curiosity, the Author has prefixed 
 an Introduction, for the purpose of exhibiting a more brief
 
 Xii PREFACE. 
 
 and intelligible synopsis both of the reason and policy of the 
 general system of our Shipping and Navigation Laws, and of 
 those main and leading principles upon which the decisions of 
 the courts have proceeded, in almost all the cases comprehended 
 under the second and third parts of this Treatise. As respects 
 this object, the proper character of the Introduction is, that it 
 is the connected exposition and arrangement of the principles 
 of the law of shipping and maritime contracts, disembarrassed 
 from the cases ; and if the Writer have in any tolerable degree 
 effected his purpose in this part of his Work, the reader will 
 possibly find a great body of law condensed into a small com- 
 pass. It is trusted that the Tables and Indexes will be found 
 useful to the profession. The Appendix consists of four parts ; 
 and contains, — 1. The Statutes relating to the Navigation 
 Laws. — 2. The Statutes relating to Merchant Ships, Pilots, 
 and Seamen's Wages, &c. — 3. The Acts of Parliament relat- 
 lating to Salvage and Maritime Contracts generally ; and, 4. 
 Forms, Commercial Precedents, &c. 
 
 On account of the changes which our colonial and foreign 
 trade is constantly undergoing, the Author was obliged to omit 
 some regulations in their proper places, which, though intro- 
 duced into Parliament, had not become established laws whilst 
 the first part of this Work was in the press. The substance of 
 these acts, passed in the fifty-ninth of his present Majesty, 
 many of which arc of great importance, will be found at the 
 conclusion of the Second Volume. The new, or rather the 
 extended treaty of commerce with America, and the enlarge- 
 menl of liie IJcrmuda import and export trade, are the princi- 
 pal sul)jcct matter of tiiese acts. 
 
 On acrnunt of tlic complexity of the subject, there is a 
 separate Index lo tlje Navigation Laws.
 
 CONTENTS. 
 
 VOL. I. 
 
 PART THE FIRST. 
 
 THE LAW OF SHIPPING AND NAVIGATION. 
 
 PAGE. 
 
 Introduction to the Lara of Shipping and Navigation. i — cvii 
 
 CHAPTER I. 
 
 Origin and Policy of the Laws of Shipping and Navigation; 
 and a Review of the several Statutes relating thereto, 
 from the 5th of Richard H. to the Act of Navigation of 
 1651. ..... 1—21 
 
 CHAPTER II. 
 
 The Plantation, or Colonial Trade. . . . 22 — 84: 
 
 CHAPTER III. 
 
 Trade with Asia, Africa, and America, not being Colonial. 85 — li^ 
 
 CHAPTER IV. 
 
 The European Trade. ... 143—189 
 
 CHAPTER V. 
 
 Of the Coasting Trade. . . . . 190—192 
 
 CHAPTER VI. 
 
 The Fisheries. . * . . . . 193—225
 
 xiv CONTENTS OF VOL. I. 
 
 CHAPTER VII. 
 
 PAGE. 
 
 The Registry Ads. . . ... 226— S29 
 
 CHAPTER VIII. 
 
 Of Seizures and Forfeitures for the Breach of the Navigation 
 Laws, Registry Acts, Sj-c. S^c. . . . 330—337 
 
 PART THE SECOND. 
 
 OF MERCHANT SHIPPING AND SEAMEN. 
 
 CHAPTER I. 
 
 Of Owners and Part Owners. . , . 337—375 
 
 CHAPTER II. 
 
 Of the Master. . . . . 37Q^3S9 
 
 CHAPTER HI. 
 
 Of the Power of the Master over the Ship and Cargo, as to 
 Pledge or Alienation in part or whole ; and of Bottomry 
 and Respondentia. , . . . ' . S90— 427 
 
 CHAPTER IV. 
 
 Of the Seamen . ... 428 — 436 
 
 CHAPTER V. 
 
 Of the fVagfs of Merchant Seamen, . » . 437-—469
 
 CONTENTS OF VOL. II. xv 
 
 CHAPTER VI. 
 
 PAGE. 
 
 Of Pilots, ..... 470—484 
 
 CHAPTER VII. 
 
 OfCon-ooy, . . . . . 485—495 
 
 VOL. II. 
 
 PART THE THIRD. 
 
 MARITIME CONTRACTS. 
 
 CHAPTER I. 
 
 Of Charier Parlies . . . . 1 — 54 
 
 CHAPTER II. 
 
 Of Bills of Lading. . . . . 55—76 
 
 CHAPTER III. 
 
 Of Ihe Covenanls in Charier- Parlies ; the Seaworlhitiess of 
 the Ship ; the loading. Voyage, and Delivery. . . 77 — 104 
 
 CHAPTER IV. 
 
 Exceptions in the Charter- Party, and Limitation of the 
 Liabilily of Masters and Owners. . . . 105—121
 
 xTi CONTENTS OF VOL. IT. 
 
 CHAPTER V. 
 
 
 
 PAGE, 
 
 Of Primage^ Privilege, Average, and Passengers, 
 
 . 122—132 
 
 CHAPTER VI. 
 
 
 Of Freight. .... 
 
 . 133—183 
 
 CHAPTER VII. 
 
 
 Of General Average, , . 
 
 . 184—201 
 
 CHAPTER VIII. 
 
 
 Of Stoppage ill Transitu. 
 
 . 202—229 
 
 CHAPTER IX. 
 
 
 Of Salvage. .... 
 
 . 230—263 
 
 APPENDIX. 
 
 PART I. 
 
 The Statutes relating to the Navigation Laws . 265—323 
 
 PART 11. 
 
 The Statutes relating to Merchant Ships and Seamen. 324 — 386 
 
 PART III. 
 
 The Statutes relating to Salvage and Maritime Contracts, 387—430 
 
 PART IV. 
 
 Forms; Commercial Precedents, SfC, . . • 431 — 440 
 
 Addenda, ..... 441—444
 
 TABLE 
 
 OF 
 
 CASES CITED. 
 
 A' 
 
 A. 
 
 Page 
 -TTORNEY General v.WiU 
 
 soil Vol. I. 78, 272 
 
 Attorney General v. Pouget 78 
 
 Adams, Tubbs ib. 
 
 Aurora 171 
 
 Atkinson v. Mailing 279 
 
 Addison V. Overend 370, 374 
 
 Alexander 398, 400 
 
 Augusta 399 
 
 Andrews v. Glover 412 
 
 Abernethy v. Laudale 445, 449 
 
 Armstrong v. Smith 448 
 
 Appleby v. Dods 449 
 
 Annett v. Carstairs 461 
 
 Allison V. March 462 
 
 Attorney General r. Case 483 
 
 Anderson v. Pitcher 488 
 
 Audley v. Duff 490 
 
 Attyr. Parish Vol. ii. 4 
 
 Astley V. Weldon 12 
 
 Alley and Others v. Hotson 68 
 
 Atkinson u. Ritchie 318 
 
 A^.igerona, Marks 157 
 
 Andrews v. Moorhouse 180 
 
 Artaza v. Smallpiece 181 
 
 Austen v. Craven 217 
 
 Anderson v. Scott 228 
 
 Aquila, Lunsden 234 
 
 Apollo, Veal 256 
 
 American Hero 258 
 
 ActaEoa 263 
 
 B. 
 
 Page 
 
 Vol. i. 172 
 
 291, 318,327 
 
 298 
 
 299, 375 
 
 313 
 
 Barlow V. M'Intosh 
 Bloxham v. Hubbard 
 Brewster v. Clarke 
 Battersby v. Smith 
 Barker v. Chapman 
 
 Betty, Cathcart 331 
 
 Bolton V. Gladstone 349 
 
 Baring v. Claggett ib. 
 
 Bernardi v. Motteux ib. 
 
 Barnardiston v. Chapman 361 
 
 Bell V. Humphries 369 
 
 Boson V. Sandford 379 
 
 Boucher v. Lawsoa ib. 
 
 Burgon v. Sharpe 580 
 
 Buxton V. Snee 393 
 
 Barbara, Chegwia 398 
 
 Betsey ib. 
 
 Beaver, Grierson 445 
 
 Brown V. Milner ib. 
 
 Buck V. Rawlinson 449 
 Beale v. Thompson ib. and Vol. il. 135 
 Bergstrom v. Mills Vol. i. 450 
 
 Baltic Merchant, Smith 45G 
 
 Binns V. Parre 462 
 
 Boatswain, King v. Rag ib. 
 
 Bridgeman's case 415 
 
 Benzen v. Jeffries ib. 
 Buggin V. Bennett 463, 465 
 
 Barber v. Wharton 463 
 
 Brown v. Benn 463 
 
 Buck V. Atwood 467 
 b
 
 XTlll 
 
 TABLE OF CASES CITED. 
 
 Page 
 Bennet t'. Moita Vol. i. 475, 481 
 
 Benjamin Franklin 477 
 
 Boucher v. Noidstrora 481 
 Beatson v. Shank Vol.ii. 7, 81 
 
 Birley v. Gladstone 7, 179 
 
 Bell V. Kymer 9, 74 
 
 Bird V. Randal 12 
 
 Barton v. Glover ib. 
 
 Barret v. Dutton 1 8^ 20 
 
 Blight V. Page 21, 40, 54 
 
 Bessey v. Evans 23 
 
 Burmester r. Hodgson 27 
 
 Bornman v. Tooke 33 
 
 Barker v. Hodgson 40 
 
 Byrne v. Pattinson 46, 158 
 
 Bell V. Puller 47 
 
 Barrow v. Coles 61 
 
 Brown V. Hodgson 103 
 
 Barton v. Wolliford 112 
 
 BuUer r. Fisher 113,116 
 
 Bondrett r. Hentigg 114 
 
 Birch V. Depeyster 123 
 
 Boyce V. Bayliffe 130 
 
 Boyce v. Douglas ib. 
 
 Blakey u. Dickson 134, ISO 
 
 Baillie v. Mondigliani 141, 148 
 
 Bright V. Cowper 144 
 
 Birch r. Depeyster IGO 
 
 Bohtlingk V. Inglis 176, 210 
 
 Bremin v. Currant 177 
 
 Brouncker f. Scott 180 
 
 Benson v. Schneider 181 
 
 Blank V. Jolly 233 
 
 Birkley t\ Presgrave 187,198 
 
 Busk V. Davis 21 5 
 
 Baring v. Day 232 
 
 Blcndenhale 233 
 
 Belle 259 
 
 Buenos Ayres 260 
 
 Bellona 261 
 
 Beaver 262 
 
 Chalmers v. Bell Vol. i. 80, 135 
 
 Camden v. Anderson 136, 298, 324 
 
 Cosmopolite 170 
 
 Cnpadosp v. Codnor 280 
 
 (>)le V. I'arkin ib. 
 
 Curtis V. Perry 300, 328, 374 
 
 Christopher, Slyboom 
 
 Comet 
 
 Calvert v. Bovil 
 
 Pagr 
 
 Vol. 1. 347 
 
 348 
 
 350 
 
 Chinery r. Blackburne 351, 
 
 and Vol. ii. 161 
 Christie v. Craig Vol. i. 36G 
 
 Camden v. Anderson 367, 374 
 
 Cary v. White 385 
 
 Campbell U.Thompson 416, Vol.ii. 94 
 
 Clement v. Gunhouse 
 Chandler v. Grieves 
 Cutter V. Powell 
 Chandler v. Meade 
 Clay V. Snelljrave 
 
 Vol. i. 437 
 445 
 
 447 
 450 
 462 
 
 Carpenter, Wheeler u. Thompson 462 
 
 Corset V. Husely 415 
 
 Courtney, English 464 
 
 Carruthers v. Sidebothain 482 
 
 Cohen V. Hinckley 488, 494 
 
 Carstairs v. Allnutt 489, 495 
 
 Cooker v. Childs Vol. ii, 6 
 Cock V. Taylor 8, 19, 74, 165, 181 
 
 Cotterel v. Hook 12 
 
 Cochran v. Rethberg 28, 30 
 
 Constable v. Cloberie 32 
 
 Gumming v. Brown GO, 76, 225 
 
 Caldwell V. Bell 73, 227 
 
 Coxe V. Harden 73, 74 
 
 Caldwell V. Ball 75, 222 
 
 Craven v. Ryder 75, 214 
 
 Coggs V. Bernard 79 
 
 Corban v. Downe 87 
 
 Catley v. Wintringham 103 
 
 Cullen V. Butler 112 
 
 Curling t'. Long 135, 139 
 
 Christy v. Row 138, 143, 145, 162 
 
 Cook u. Jennings 143,145,150 
 
 Copenhagen, Mening 148, 154, 185 
 
 Covington v. Roberts 194 
 
 Cox V. May 1 97, 236 
 
 Constantia 205, 209 
 
 Carlotta,Pasqual 256 
 
 Charlotte, Caroline 259 
 
 Ceylon 263 
 
 D. 
 
 Defll is u. Parry Vol. i. 171 
 
 Dixon V. Ewart 315, 327 
 
 Ditchburn v. Spracklin 326 
 
 Dixon V. Hammond 328
 
 TABLE OF CASES CITED. 
 
 SIS 
 
 Page 
 
 Vol. i. 34S 
 
 358 
 
 Duckworth v. Tucker 
 
 Doddington v. Ilallett 
 
 Dawell V. Moxon 
 
 Delamaiiieru. Winteriiigham 
 
 Dickman v. Benson 
 
 Day V. Serle 
 
 D' Eguino V. Bewicke 
 
 De Garay v. Clagget 
 
 D'Aguilar v. Tobin 
 
 Dobbin v. Thornton Vol. 
 
 Davidson v. Gwynne 
 
 32, 39, 75, 93, 138, 140 
 De Silvale v. Kendal 
 Dobree v. E. I. Company 
 Donaldson v. Forster 
 Davis V. Reynolds 
 Dixon V. Baldwin 
 Daubigny v. Duval 
 Daley. Hall 
 Dunnage v. Jolliffe 
 Dawes V. Peck 
 Dutton V. Soloraonson 
 Davis V. Jaraes 
 
 Da Costa V. Newnham 1! 
 
 Dobson V. Wilson 
 Dick V. Lumsden 
 Dorothy, Forster, Sowden 
 
 381 
 451 
 464 
 465 
 489 
 490 
 492 
 i. 19 
 
 40, 178 
 
 52 
 
 63 
 
 60, 70 
 
 62,211 
 
 67 
 
 97 
 
 103 
 
 ib. 
 
 ib. 
 
 104 
 
 197 
 
 198 
 
 226 
 
 236 
 
 E. 
 
 Eleanor, Hall 
 
 Europa 
 
 Ex parte Yallop 
 
 Jones 
 
 Young 
 
 Christie 
 
 304, 
 
 Ellis V. Turner 
 Evans V. Williams 
 Ex parte Shank 
 Easterby v. JVlacfarlane 
 Elsworth V. W^oolmore 
 Edwards v. Child 
 Eaken v. Thorn 
 Eden v. Parkinson 
 Everett v. Collins 
 Ellis V. Hunt 
 Edward and Mary 
 Empress 
 
 Vol. i. 77 
 173 
 
 328, 367, 374 
 
 328, 374 
 
 359 
 
 371 
 
 380 
 
 385 
 
 393 
 
 431 
 
 441 
 
 449 
 
 ib. 
 
 Vol. ii. 83 
 
 162 
 
 206, 213, 220 
 257 
 261 
 
 F. 
 
 Forster 7?. Harrison 
 Feize V. Bell 
 Flindt V. Crockatt 
 F'enton v. Pearson 
 Fenning v. Lord Grenvillc 
 Frazer v. Hopkins 
 Flower v. Young 
 PVazer v. Marsh 
 
 Page 
 
 Vol. i, 78 
 
 172 
 
 Flad Oyen 
 
 French v. Backhouse 
 
 Farmer v. Davis 
 
 Fanny and Elmira 
 
 Favourite, Nicholas de Jersey 
 
 173 
 
 ib] 
 
 217 
 
 321 
 
 323 
 
 325, 351, 356, 
 
 389, Vol.ii. 170 
 
 Vol. i. 346 
 
 368 
 
 383, 391 
 
 407 
 
 443 
 
 Friends, Bell 430 
 
 Frontine v. Frost 455 
 
 Favorite, De Jersey 462 
 
 Fletcher v. Dyche Vol. ii. 12 
 
 Forward v. Pittard 110 
 
 Forster v. Christie 116, 118 
 
 Friends, Creighton 154 
 
 Feise v- Wray 207, 209 
 
 Fenton v. Pearson 208 
 
 Fowler v. Mac Taggart 211 
 
 Fortuna, Quest 236 
 
 , Gerrits 236 
 
 Fanny, Lawton 257 
 
 Franklin 258 
 
 Financier 260 
 
 G. 
 
 Gordon v. Vaughan 
 Goede Hope 
 Govett V. Radnigge 
 Garnam v. Bennett 
 Gratitudine 
 Gienar v. Meyer 
 Gordon v. Morley 
 Gilby V. Copley 
 Gibbon v. Mendez 
 
 Giles V. Nathan 
 GofF V. Clinkard 
 Gillan V. Simpkin 
 Gladstone v. Birley 
 CJage, Mitchell 
 b 2 
 
 Vol. i. 173 
 
 174 
 
 372 
 
 385 
 
 401, Vol. ii. 94 
 
 Vol. i. 452 
 
 489 
 
 Vol. ii. 6 
 
 46, 136, 
 
 158, 182 
 
 74 
 
 89 
 
 159 
 
 183 
 
 235
 
 TABLE OF CASES CITED. 
 
 H. 
 
 Ifaggedorn v. Reid 
 
 • V. Bassett 
 
 Hubbard v, Johustone 
 
 Heath v. Hubbard 
 Houghton V. Gribble 
 Heath v. Hubbard 
 Hay V. Fairburn 
 Helena, Heslop 
 Herstelder 
 Henrick and Maria 
 Havelock v. Rockwood 
 Horn u. Gilpin 
 Haly V. Goodson 
 Hooper V. Lusby 
 
 Page 
 
 Vol. i. 172 
 
 lb. 
 
 283, 292, 
 
 315,327 
 
 289 
 
 305 
 
 327 
 
 342 
 
 345 
 
 346 
 
 348 
 
 349 
 
 361 
 
 365 
 
 368 
 
 Harder y.Brotherstone 387, Vol. ii. 92 
 
 Hoare v. Clement 
 Hussey v. Christie 
 Hunter y.Prinsep 407, 
 Hayman v. Moulton 
 Harris v. Watson 
 Hernaman v. Bawdea 
 Hull V. Heitman 
 Howe V. Napier 
 Henderson v. Hinde 
 Hibbert v. Tigou 
 Hinckley v. Walton 
 Horsley v. Rush 
 Hunter v. Prinsep 
 Harrison v. Wright 
 Homan v. Walter 
 Hardy v. Martin 
 Hall V. Cazenovo 
 Harman v. Gandolphi 
 Harman v. Clark 
 Hill V. Idle 
 Harman v. Mant 
 Havelock v. Geddes 
 
 llotham V. E. 1. Company 
 
 Hiidley V. Clarke 
 jlodgson V. Temple 
 1 1. lines V. Busk 
 Hunter v. Fry 
 Hume V. E. I. Company 
 Hunt D. Ward 
 Hil)l)crt V. Carter 
 iluutcr V. Tolts 
 
 Vol. i. 392 
 
 393 
 
 Vol.ii.l51,18l 
 
 Vol.i. 410 
 
 441 
 
 449 
 
 452 
 
 465 
 
 488 
 
 489 
 
 490 
 
 Vol. ii. 3 
 
 4 
 
 10, 12 
 
 12 
 
 ib. 
 
 12, 39 
 
 17, 24 
 
 22, 99 
 
 22 
 
 24 
 
 31, 36, 39, 
 
 139, 180 
 
 34, 39, 
 
 49,140 
 
 41 
 
 42 
 
 ib. 
 
 45, 182 
 
 51 
 
 60 
 
 1, 222 
 
 &5 
 
 Hyde v. Trent and Mo 
 
 vigation Company 
 Hodgson V. Malconi 
 Henrick 
 Hiram, Still 
 Hutton V. Bragg 
 Hogg V. Graham 
 Haille V. Smith 
 Hodson V. Loy 
 Hunt V. Ward 
 Hoist V. Pownal 
 Hanson v. Meyer 
 Hurry v. Mangles 
 Harman v. Anderson 
 Hammond v. Anderson 
 Hartford v. Jones 
 Horatio Nelson 
 Haase 
 Huntress, Stinson 
 
 Page 
 
 rsey Na- 
 
 Vol. ii. 102 
 
 114 
 
 ib. 
 
 155 
 
 171 
 
 181 
 
 205 
 
 208, 209 
 
 210 
 
 211 
 
 215,229 
 
 227 
 
 2«58 
 
 229 
 
 232 
 
 255 
 
 256 
 
 ib. 
 
 72, 
 
 I& J. 
 
 Idle V. Vanneck Vol. i. 77 
 
 Jonge, Johannes 171 
 
 , Kassina 172 
 
 Josephine ib. 
 
 Jonge, Frederick 174 
 
 Jackson v. Vernon 351 
 
 James v. Jones 355, 388, Vol. ii. 170 
 
 Justin V. Ballam Vol. i. 392 
 
 John, Jackson 397 
 
 Isabel ^ 399 
 
 Jane 400 
 
 Jacob, Baer 403 
 Johnson r. Greaves 404, Vol. ii. 31 
 
 V. Shippen Vol. i. 406 
 
 Joyce V. Williamson 423 
 
 Jack Park, Little 446 
 
 Johnson v. Broderick 451 
 
 • V. Mackielsen 464 
 
 Ingham v. Agnew 489, 494 
 Jeffrey v. Legendra 490 
 Josson V. Solly Vol. ii. 17 
 Jamieson r. Laurie ^ 28 
 Jackson V. Anderson 67 
 Idle V. Royal Exchange Assur- 
 ance Company 95 
 Isabella, Jacobiua 120, 149, 155 
 Jackson u. Cliarnock 190 
 Joseph ilaivey, Paddock 236 
 Jonge, Bastiaan, Steyling ib.
 
 TABLE OF CASES CITED. 
 
 Johu aud Jauc, Askew 
 John 
 
 K. 
 
 King V. King 
 Kerrisoii v. Cole 
 Kierlighett 
 Kimber v. Blanchard 
 Kinlock o. Craig 
 
 L. 
 
 Vol 
 
 Page 
 
 ii. 236 
 
 261 
 
 Vol. i. 307 
 
 319 
 
 346 
 
 471 
 
 Vol. ii. 206 
 
 Vol. 
 
 Leaper v. Smith 
 
 Lubbock V. Smith 
 
 Le Cheminant v. Pearson 
 
 Long V. DufF 
 
 Laroche v. Wakeman 
 
 Loweth V. Fothergill 
 
 Linland v. Stephens 
 
 Lister V. Baxter 
 
 Lady Ann, ^V'ardell 
 
 Law V. Hollingworth 470, Vol.ii 
 
 Leander, Murray 
 Lethulier's case 
 Lilly V. Ewer 
 Laing v. Glover 
 Lowe V. Peers 
 Leer v. Yates 
 Liddiard v. Lopes 
 Lannoy v. Werry 
 Lickbarrow v. Mason 
 
 77 
 
 80 
 
 268 
 
 ib. 
 
 329 
 
 451 
 
 461 
 
 415 
 
 464 
 
 85 
 
 478 
 
 489 
 
 490 
 
 494 
 
 Vol.ii. 12 
 
 15, 24, 74 
 
 28, 152 
 
 28 
 
 60, 72, 74, 
 
 Vol. 
 
 76, 204, 209, 224 
 
 Lempriere v. Pasley 
 
 Lyon V. Mills 
 
 Levy V. Casterton 
 
 Lady James v. E. L Company 
 
 Lutwidge V. Grey 
 
 Luke y. Lyde 
 
 Louisa Higgin, Cotham 
 
 Leeds v. Wright 
 
 Litt V. Cowley 
 
 Lord Nelson 
 
 L'Actif, Lorrial 
 
 Lambton 
 
 L'Esperance 
 
 Le Niemen 
 
 La Belle Coquette 
 
 140, 
 
 70 
 
 79 
 
 82 
 
 138 
 
 146 
 
 147 
 
 156,237 
 
 110 
 
 212 
 
 237, 255 
 
 255, 262 
 
 255 
 
 259 
 
 260 
 
 260 
 
 M. 
 
 Mitchell r. Torress 
 Morck V. Abel 
 Mennett v. Bonham 
 Moss V. Charnock 
 Mestaer v. Gillespie 
 Moss V. Mills 
 Mestaer v. Atkins 
 M'lver V. Humble 
 Marshall v. Cliff 
 Maria 
 
 Mair V. Glennie 
 Martin v. Paxton 
 Mackenzie v. Rowe 
 Max V. Roberts 
 Morse v. Sluce 
 Mitchell V. Glennie 
 Menetone v. Gibbons 
 Madonna D'Idra, Papa 
 Miller V- Brant 
 Mate, Bay ley v. Grant 
 Mills V. Gregory 
 Mariner's case 
 Mackie v. Landon 
 Manning v. Gist 
 Morrison v. Parsons 
 Moores V. Hopper 
 Moorson v. Bell 
 Master, &c. of Trinity 
 
 Clark 
 Mackrell v. Symond 
 Moffat V. E. I. Compan 
 M'Combie v. Davies 
 Martini v. Coles 
 Meyer v. Sharpe 
 Munro V. Vandam 
 Morse V. Slue 
 Magalhaens v. Busher 
 Mitchell V. Scaife 
 Mashiter v. Buller 
 Moorsom v. Greaves 
 Milles V. Biinbridge 
 Muloy V. Backer 
 Moorsom v. Page 
 Marsh V. Pedder 
 Moorsom v. Kyraer 
 Mackenzie v. Rowe 
 MuUer V. GernoQ 
 Mills V. Ball 
 IMaria, Kelstrom 
 
 Page 
 
 Vol. i. 77 
 
 135 
 
 173 
 
 281 
 
 283,299,315 
 
 289 
 
 319 
 
 324, 353, 373 
 
 326 
 
 336 
 
 340 
 
 35. ■^, 461 
 
 355, 389 
 
 372 
 
 379 
 
 388 
 
 398, 415, 464 
 
 ghica 443 
 
 459 
 
 462 
 
 463 
 
 465 
 
 473 
 
 490 
 
 Vol.ii. 4,161 
 
 4 
 
 29 
 
 House, V. 
 
 43, 172, 210 
 
 46, 15T 
 
 y 51 
 
 67 
 
 G7, 74 
 
 74 
 
 83 
 
 S7, 112 
 
 90 
 
 101, 182 
 
 135, 182 
 
 139 
 
 140 
 
 151, 159 
 
 160 
 
 162, 168 
 
 166 
 
 170 
 
 181 
 
 208,213 
 
 233
 
 XXli 
 
 TABLE OF CASES CITED. 
 
 N. 
 
 Vol. 
 
 New Draper 
 
 Nenham v. Graves 
 
 Nostra Sisnora de los Angeles 
 
 Neave v. Prat 
 
 Nelson, Main 
 
 Nicholson v. Mounsey 
 
 Newsom v. Thorntoa Vol. ii. 65, 
 
 Northey v. Field 
 Nix V. Olive 
 Newman v. Walters 
 
 o. 
 
 Oddy V. Bovil 
 Ouston V. Ilebden 
 
 • V. Ogle 
 
 Ossy V. Child 
 Oshey V. Hicks 
 Osgood V. Groning 
 Olive V. Smith 
 Owenson v. Morse 
 
 Ogle V. Atkinson 
 Oppenheim z\ Russell 
 
 Page 
 297 
 313 
 347 
 454 
 472 
 481 
 
 207, 
 225 
 212 
 228 
 234 
 
 Vol. i. 349 
 
 360, 364 
 
 370 
 
 465 
 
 Vol. ii. 12 
 
 38, 153 
 
 69 
 
 162, 207, 209, 
 
 211 
 
 180 
 
 212 
 
 Parkin v. Dick Vo 
 
 Pearce v. Cowie 
 
 Pearce v. Glover 
 
 Palmer v. Moxon 
 
 Pirie V. Anderson 
 
 IVospcrous 
 
 Pollard V. Bell 
 
 Parish v. Crawford 
 
 Powell V. Layton 
 
 Palmer v. Gooch 
 
 Parmentor r. Todhunter 
 
 Power t'. Whitmore 
 
 Paul V. Eden 
 
 Pratt V. Cull" 
 
 Pen rl, Denton 
 
 Pliilliljs V. llodiR Vol. 
 
 Pi)nsonl)y -.). Adairis 
 
 Puller V. Stainforth 
 
 Peel V. Price 
 
 i. 173 
 
 271 
 ib. 
 315 
 323 
 346 
 349 
 388 
 372 
 387 
 401 
 423 
 447 
 451 
 453 
 
 . 7, 179 
 12 
 
 46, 138 
 57 
 
 284 
 
 355, 
 370, 
 
 445, 
 
 Page 
 Patterson v. Tash Vol. ii. 67 
 
 Parker v. Potts 84 
 
 Palmer v. Gooch 92 
 
 Proprietors of the Trent and 
 
 Mersey Navigation v. Wood 98, 1 10 
 Pickering v. Barkeley 
 Phelps V. Auldjo 
 Paradine v. Jane 
 Penrose v. Wilks 
 Plummer u. Wildman 192, 
 
 Power V. Whitmore 
 Price V. Noble 
 
 112 
 115 
 119 
 162 
 198 
 193 
 197 
 257 
 260 
 262 
 
 Pensamento Felix, Macalhaens 
 
 Providence 
 
 Progress 
 
 R. 
 
 Roberts v. Wetherall Vol. i. S3 
 
 Rawliuson v. Janson 172 
 
 Rex V. Pixley 268 
 
 Redhead v. Cater 276 
 Rolleston V. Hibbert 278, To7 
 
 Rolleston V. Smith 279 
 
 Robertson v. French 320 
 
 Reusse v. Meyers 323 
 
 Ratchford v. Meadows 327 
 
 Robinson v. Macdonell 341 
 
 Robinson o. Thomson 370 
 
 Reed v. White 373 
 
 Rocher V. Busher 386 
 
 Rich V. Coe 391 
 
 Raitt V. Mitchell 395 
 
 Rhadamanlhe 398 
 
 Reid V. Darby 407 
 
 Rodgers v. Lacey 440 
 
 Robinet v. The Ship Exeter 445, 459 
 
 Ragg y. King 
 
 Read V. Chapman 
 
 Rex V. Lambe 
 
 Rex V. Neale 
 
 Ritchie V. Bousfield 
 
 Rolfe V. Peterson 
 
 Randall v. Lynch 
 
 Rodgers v. Forrester 
 
 Ritchie v. Atkinson 33, 36, 40 
 
 Rocher y. Busher 
 
 Robinson v. Turpin 
 
 Rohl V. Parr 
 
 Race Horse, White 
 
 Richardson v. Gosi 
 
 Robert, Hale 
 
 475, 
 
 Vol. ii 
 
 14, 20, 
 
 135, 
 210, 
 
 462 
 462 
 471 
 
 ib. 
 484 
 . 12 
 145 
 
 25 
 136 
 
 92 
 103 
 114 
 155 
 227 
 259
 
 TABLE OF CASES CITED. 
 
 XXIII 
 
 s. 
 
 Sarah, Gill 
 
 Scott V. D'Achez 
 
 Scott V. Schwartz 
 
 Shiffner v. Vaughan 
 
 St. Ivan, Wacklin 
 
 Sewell V. Royal Exchange Com 
 
 Page 
 Vol. i. 80 
 150 
 157 
 173 
 174 
 
 317, 
 
 321, Vol. ii. 
 
 Vol. i. 
 
 32G, 
 
 pany 
 Speidt V. Lechmere 
 Sisters 
 
 Stringer v. Murray 
 Sutton V. Buck 
 Sheriffs. Cadell 
 Stokes V. Came 
 Strelly v. Winson 
 Smith V. De Siiva 
 Sedgworth v. Overend 
 Speering v. Degrave 
 Samson v. Bragington 
 Stilk V. Meyrick 
 Sigard v. Roberts 
 Smith V. Plummer 
 Surgeon, Sayer 
 Scarborough v. Lyrus 
 Smith V. Readshaw 
 Spildt V. Bowles Vol 
 
 Scudamore v. Vande.istone 
 Smith V. Dickenson 
 Sone r. Ball 
 Shadforth v. Higgen 
 Shubrick v. Salmond 
 Storer V. Gordon 
 Smith V. Wilson 
 Sgoerds v. Luscomb 
 Shepherd v. De Bernales 
 Saville V. Campion 
 Shack V. Anthony 
 Shields v. Davis 79 
 Sanderson v. Busher 
 Snell V. Marryatt 
 Soldergreen v. Flight 
 Syeds v. Hay 
 Smith V. Sheppard 
 Smith V. Scott 
 Sharp V. Gladstone 
 Siffkin V. Wray 
 Sweet V. Pym 
 Scott V. Pettit 
 Smith V. Goss 
 Shipley v. Davis 
 Snee t\ Prescot 
 Solomons v. Nissen 
 
 274, Vol. ii 
 Vol. i. 
 
 42 
 278 
 297 
 367 
 232 
 325 
 388 
 363 
 369 
 371 
 384 
 401 
 441 
 460 
 462 
 ib. 
 415 
 490 
 161 
 5 
 12 
 ib. 
 35 
 40 
 38 
 158 
 42 
 42, 162 
 44, 175, 210 
 44, 161, 180 
 88, 138, 182 
 91 
 ib. 
 98 
 103 
 111, 116 
 113 
 198 
 , 207, 209 
 207, 209 
 210 
 212 
 214 
 221 
 226 
 
 ii. 4, 
 
 37, 
 
 39, 46, 145, 
 
 
 
 Page 
 
 Stoveld ;;. Hughes 
 
 Vol. ii. 
 
 228 
 
 Slubey v. Hay ward 
 
 
 '.,29 
 
 Sarah 
 
 
 236 
 
 San Bernardo, Loretta 
 
 
 255 
 
 Sansom, Stevens 
 
 
 256 
 
 Sparkler 
 
 
 261 
 
 T. 
 
 
 
 Tortola 
 
 Vol. i 
 
 . 78 
 
 Thompson v. Smith 306, 308, 
 
 316 
 327 
 327 
 
 Thompson t'. Leake 
 
 314, 
 
 Tinkler v. Walpole 
 
 322, 
 
 353 
 
 Twontyman v. Hart 
 
 
 352 
 
 Trewhella v. Rowe 
 
 
 352 
 
 Teed v. Baring 
 
 
 373 
 
 Tremenhere v. Tresilian 
 
 
 406 
 
 Thompson v. Royal Exchange 
 
 
 Assurance Company 
 
 
 423 
 
 Thompson v. Havolork 
 
 
 441 
 
 Thompson v. Rowcroft 
 
 
 451 
 
 Thomson v. Collins 
 
 
 461 
 
 Thornton v. Lance 
 
 
 495 
 
 Thompson v. Wagner 
 
 Vol. ii 
 
 21 
 
 Thomson v. Inglis 
 
 
 34 
 
 Touteng V. Hubbard 
 
 41, 
 
 120 
 
 Toulmin v. Anderson 
 
 
 41 
 
 Thomas v. Clarke 
 
 45, 
 
 182 
 
 Thomson v. Brown 
 
 
 46 
 
 Tait V. Levy 
 
 
 85 
 
 Thompson v. W^hitmore 
 
 
 114 
 
 Tapley v. Martins 
 
 162 
 
 , 168 
 
 Tate V. Meek 
 
 
 174 
 
 Theresa, Bonita 
 
 
 181 
 
 Taylor v. Curtis 
 
 
 194 
 
 Three Friends 
 
 
 259 
 
 Two Friends 
 
 
 262 
 
 203, 
 
 u. 
 
 Underwood r. Miller Vol. i. 277, 
 278, 310, 327 
 Underwood r. Robertson 413 
 
 Usher V. Lyon 473 
 
 Union Vol. ii. 261 
 
 Vandycke v. Whitmore 
 Vanguard 
 Victorin r. Cleeve 
 Veedon v. Wilmot 
 Vertue v. Jewell 
 
 Vol. i. 175 
 
 442 
 
 490 
 
 ib. 
 
 Vol. ii. 63
 
 TABLE OF CASES CITED. 
 
 Page 
 Vrow Anna Catherina, Mahts 
 
 Vol. ii. 156 
 V»ll<ejo V. Wheeler 170 
 
 Vrow Margareeha, Jacobs 232, 236 
 
 w. 
 
 Wilkins v. D?spard Vol. i. 84 
 Wilson V. Marryat 136 
 Westerdell r. Dale 280, 351, 391 
 Wilson V. Heather 306, 307 
 V/oodward v. Larking 325 
 Wright V. Hunter 367 
 Weal V. King 372 
 Watkiuson v. Bernardiston 392 
 Wilkins V, Carmichael 394 
 Wood V. Hamilton ib. 
 Walpole V. Ewer 423 
 Watson V. Christie 430 
 White V. Wilson 441 
 Wiggins «. IngletOD 445 
 Wells V. Osman 449 
 White V. Matteson 452 
 Wills V. Osman 463 
 Wilson V. Foderingham 488 
 Webb V. Thompson zb. 
 Wainhouse v. Cowie 489, 494 
 Wake V. Atty 489, 495 
 Williams v. The East India Com- 
 pany 495 
 Wilson V. Kymer Vol. ii. 8, 19, 100, 
 
 168, 179 
 
 Winter v. Trimmer 12 
 
 Page 
 Wilbeam D. Ashtoii Vol. ii. 12 
 
 White u. Parkin 31,161 
 
 Wilkinson v. Londonsack 41 
 
 Walley v. Montgomery 72, 179, 205 
 Wright V. Campbell 75, 222 
 
 Watson V. Clark 83 
 
 Watt V. Morris 84 
 
 Wilkie V. Geddes 85 
 
 Wedderburn v. Bell ib. 
 
 Warden v. Mourellyan 102 
 
 Wilson V. Dickson 110 
 
 Werldsborgaren, Lagerholm 155 
 
 Ward u. Felton 164 
 
 Williams v. London Assurance 
 
 Company 197 
 
 Wallace v. Breeds 215 
 
 AVallace and Others v. Breeds 
 
 and Another ib. 
 
 Withers u.Lys 216 
 
 White t). Wilks 218 
 
 Whitehouse v. Frost ib. 
 
 Wright V. James 227 
 
 William, Beckford 234 
 
 Wight, Ford 255 
 
 Wanstead 259 
 
 Young, Jacob and Johanna Vol. i. 225 
 Young V. Brander 325, 352 
 
 Yates V. Hall 384, 449 
 
 Youl V. Harbottle Vol. ii. 103 
 
 Yates V. Railton 175
 
 INTRODlCTfON 
 
 LAW OF SHIPPING AND NAVIGATION. 
 
 It will, perhaps, be readilv admitted that, with the i»tro(luction 
 
 ^ , ^ . -^ to the Law of 
 
 single exception of the soil, ships are the noblest pro- vShippin»; and 
 
 1 • 1 J 1 • 1 • Navigation. 
 
 perty wliicli any country can possess, being' machines 
 of national defence as well as instruments of wealth 
 to individuals. It is from these considerations that 
 this species of property has always been taken under 
 the special protection of the law; and adopted, not 
 less as a material of naval power, than of commercial 
 prosperity. 
 
 The comparative greatness of the British Empire 
 is not indeed imputable to one cause only. A very 
 considerable portion of it belongs to a system of re- 
 ligion which, on the one hand, is reformed from the 
 superstitions of the Romish church ; whilst, on the 
 other, it maintains all those essentials of doctrine which 
 are adapted beyond all others to the happiness of in- 
 dividuals and nations. Another portion belongs to 
 our laws and constitution, in the liberty and protec- 
 tion ofwhich overv man finds equal cnrourageiiient in 
 
 A
 
 ii INTRODUCTION 
 
 Introduction acquiring as security in possessing*. Another portion 
 Shipping and belongs likewise to our national habits and charac- 
 Navigation. ^^^ ^^ ^^^ perhaps, in no inconsiderable degree, to 
 that hereditary opinion of superiority with which 
 the meanest amongst us regards himself as a subject 
 of the British empire. But the combined effect of all 
 these causes is completed and crowned by our system 
 of commerce ; and more especially by those laws 
 which regulate our trade and industry, with a view 
 of rendering them concurrent instruments of our 
 national power. 
 
 It is totally unnecessary to remind the living ad- 
 vocates of this system, as it would have been equally 
 presumptuous to have reminded the illustrious found- 
 ers of it, that the first principle of commerce is a 
 l)erfect freedom of trade ; that in almost all cases it 
 should be left to make and find its own way; and that 
 the best boon which legislators can bestow upon it, 
 is to leave it unrestrained. The framers of the Re- 
 gulation System, and those who have so ably main- 
 tained their doctrines in the present day, have as 
 large, and certainly as just, a comprehension of the 
 nature of commerce, as those who have risen up in 
 opposition to their principles. But they thought, 
 and if we may judge from the effect, they thought 
 justly, that nations as well as individuals had other 
 and greater interests than mere present wealth ; that 
 the first concerns of a great empire were its safety, 
 its glory, and its national character; and that, in com- 
 parison with these pursuits, commercial wealth was a 
 subordinate object ; or at least that it derived its best 
 value as means to those more important ends.
 
 TO THE LAW OF SHIPPING, &C. ill 
 
 Under this consideration, they deemed it an en- I'lUoduciion 
 
 ■^ t(» tlic Law of 
 
 larg-ed prudence to tax our commerce for the sake of shipping and 
 our p*iblic defence. They were aware that we might 
 l)ecome richer under an unrestrained trade than 
 through a commerce however wisely regulated ; but, 
 as these regulations gave us a greater value in na- 
 tional defence than what they subtracted from our im- 
 mediate wealth, they conceived that they only sacrificed 
 a less interest in pursuit of a greater. Hence our 
 commerce has not been ignorantly yielded up to our 
 navigation. Our Regulation System has not been 
 adopted, as some have fiilsely asserted, as the means 
 of advancing our commerce, but of maintaining and 
 supplying the growth of our navy. And the effect 
 has been what, according to the experience of all na- 
 tions, has always been the result of a large and ge- 
 nerous prudence. Our navy, which was at first sup- 
 ported at the expence of our trade, and, in fact, rose 
 altogether out of its restrictions, has now liberally 
 paid back the aid which it borrowed ; and by con- 
 quering so large a portion of the most fertile part of 
 the globe into the sphere of our commerce, and by 
 holdino- to£:ether the numerous members and remote 
 dependencies of the British empire, has given us a 
 market which mere commerce of itself could never 
 have acquired. In this manner have our commercial 
 greatness, and our naval power, become intermixed 
 as reciprocal means and ends. Without our navy, 
 in the present state of the world, and amidst the 
 jealousy of so many rival nations, it would be absurd 
 to indulge a momentary expectation that our com- 
 merce could either attain the eminence it possesses, 
 or could long support itself in that superiority. 
 
 A 2
 
 iv INTRODUCTION 
 
 Introduction And, witliout the SOU FCC s of our commercial wealtli, 
 
 to the Law of /> i • -i i i i 
 
 Shipping and it would bc manifestly impossible that the country 
 aT.ga on. ^^^jj suppoi't the concurrent burthen of a great 
 military and naval establishment. So impolitic must 
 be every attempt to sever those interests^ and so un- 
 wise every view which regards them as independent 
 and adverse ; because each is in a degree supported 
 by a contribution from the other. 
 
 Whatever limits a large expatiating principle is 
 necessarily a subtraction from its immediate bene- 
 ficial operation. But such principle is only adverse 
 where it takes more than it gives ; where it imposes 
 restrictions without any return of a greater, or at least 
 equal good. But this is not the relation of our com- 
 merce and Regulation System. What it takes in re- 
 striction, it gives back in protection. What it takes 
 in increased freight, (if, indeed, the effect of our 
 Navigation Law does increase our freight,) it repays 
 by enlarging the sphere of the supply of raw ma- 
 terials, and that of the market for manufactured 
 goods ; by opening India and China to our shipping 
 and industry, and by maintaining and superintending 
 the liberty of the intercourse of nations throughout 
 the world. AVithout our navy, would our West 
 India islands supply the colonial consumption of 
 America, as British colonies, or as American ap- 
 pendages? Without our commerce, could we have 
 supported such a contest, as that but recently de- 
 termined, for the common liberty of the continent 
 and ourselves ? 
 
 But, in the following Treatise on tiie Laws of
 
 TO THE LAW OF SHIPPING, &C. V 
 
 Shlppins: and Naviijration, it has occasionally become iiitroduotion 
 
 ii o o ' J to the Law of 
 
 part of our duty to consider these questions as they shipping and 
 arise ; and, therefore, we shall here pass onwards to 
 the more immediate subject matter of the present 
 observations. ' 
 
 The object of our Navigation System is to promote 
 the increase of British shipping by securing the de- 
 mand and employment of it. — Its means, to this end. Division of 
 
 ,,..,,,, -11 *^^"^ Naviu'a- 
 
 may be distributed under the respective heads; — the tion System. 
 Colonial Trade ; the trade beyond Europe not being. 
 Colonial; the European Trade ; the Coasting Trade ; 
 the Fisheries; and the Regulations for ascertaining 
 the ownership and built of English ships ; or, in other 
 words, the Registry Acts, (a) 
 
 So long as the interests of our Naval strength re- 
 quired a rigid adherence to this system, and so long 
 as our commerce, from its actual character, did not 
 suffer a greater loss from these regulations than the 
 enforcement of them imparted good to our navy, our 
 Navigation System was inflexibly enforced; and the 
 objections of our merchants were answered with the 
 just observation, that as our agriculture itself paid to 
 our revenue, so our commerce and manufactures must 
 contribute to our national defence ; and that it was 
 better to possess a less extensive commerce, and a 
 perfect national defence, than a greater trade, and a 
 less effective navy. But when the gradual conse- 
 quences of this restrictive system had raised our navy 
 to a degree of strength adequate to our relation with 
 
 (a) See Chapter I. on the gation laws, and Chapter II. , in 
 origin and policy of the Navi- jn?7 io, p. 22.
 
 VI INTRODUCTION 
 
 Introduction other iiatioiis. aiid the Navigation Laws had thus in a 
 
 to the Law of •' o 
 
 Shipping and jrood deoTcc accomphshcd their object, the eovern- 
 
 Navigalioa. ^ i,., , -, ...^, 
 
 ment and legislature then avaded themselves of the 
 opportunity of making some concessions in favour of 
 commerce. It is under this change of circumstances^ 
 tliat our Navigation System has been from time to 
 time relaxed and opened in favour of general trade. 
 In the first partof the following Treatise, in which 
 the Navigation Laws are stated and discussed, we 
 have pointed out the several changes and modifi- 
 cations which the system has undergone in all its 
 branches, and have endeavoured to assign the reasons 
 on which such alterations have proceeded. (6) But, 
 as the character of the body of our Work is too 
 strictly legal to admit of any enlarged discussion of 
 the political principles of the modifications of our 
 Navigation System, our present purpose is to take a 
 review of these gradual changes, and of that state of 
 commercial and political relations under which they 
 have originated. — In executing this enquiry, it will 
 be indeed necessary to take a view of our Navigation 
 System as a whole, as the reason of the exceptions 
 cannot be adequately understood without a deliberate 
 attention to the nature and effects of the rule. But 
 the Navigation system, as respects the popular know- 
 ledge of it, appears to be still so imperfectly compre- 
 hended by many of the writers of the day, that it 
 
 (b) See the first seven Chap- Africa, and America, not being 
 
 tcrs, composing Part I. — 1. On Colonial; 4. Of the European 
 
 the Origin and Policy of the Trade; 5. On the Coasting 
 
 Navigation Laws; 2. On the Trade; 6. On the Fisheries ; 7. 
 
 Plantation or Colonial Trade ; On the Registry Acts, 
 3. Of tliB Trade ^T^lh Asia,
 
 TO THE LAW OF SHIPPING, &C. "Vi 
 
 will certainly not be without utility to explain the introduction 
 
 ■^ -^ ^ to the Law of 
 
 heads and substance of the system as separated from Shippinj^and 
 
 ., . (^ T .• 1-i-i- Navigation. 
 
 the numerous acts or parliament hi which it is con- 
 tained. It may be allowed, perhaps, to express a 
 wish, that the multiplicity of acts of parliament which 
 now compose our Navigation system, and many of 
 which repeal only parts of preceding acts, and thus 
 leave the old act and the new statute in existence at 
 the same time, were all consolidated into a few leading 
 acts, and thus rendered more simple and intelligible 
 to practical men. But this observation must not be 
 extended to the Registry acts, the simplicity, efficacy, 
 and the legal precision of which, still remain an 
 eminent example of the talents of the nobleman to 
 whom the country is chiefly indebted for this great 
 buttress of our naval strength. 
 
 The Jirst branch of our Navigation System re- Colonial 
 spects the Colonial Trade ; and this trade was an- ^'^^'^'^' 
 ciently regulated by the following rules : — I. That 
 no goods or commodities should be imported into, or 
 exported from, any colony in Asia, Africa, or Ame- 
 rica, belonging to Great Britain, but in British built 
 ships, owned by British subjects, and navigated by a 
 master, and three-fourths at least of the mariners, 
 British subjects.— 7 5f 8 Will. III. c. 22. 
 
 The Navigation Act originally confined this trade 
 to ships helonging to the people of England, &c. or, al- 
 lowing an alternative, to ships of the huilt of the plant- 
 ations. But the stat. of 7 & 8 Will, requires all 
 ships employed in the plantation trade to be of the 
 built of England and Ireland, or of the colonies and
 
 viii INTRODUCTION 
 
 Colonial plautatioiiSj with the like conditions as to the pro- 
 
 trade. ' . -I I 1 I ir» 
 
 pcrty and navigation as are prescribed by the 12 
 Car. 2. c. 18. 
 
 The second rule was framed with the design of 
 securing to the mother country the principal articles 
 of colonial growth ; and enacts, II. — That no sugar, 
 tobacco, &c, (c) of the growth or production of any 
 British plantation, in Asia, Africa, or America, shall 
 be exported to any place whatsoever, other than to 
 some British plantation, or to Great Britain, or Ire- 
 land. 
 
 By these regulations, the Navigation act accom- 
 plished the two important objects : — the first was, the 
 exclusive monopoly of our colonial trade by British 
 shipping; and, secondly, the exclusive transmission, 
 either to a British plantation, or British port, of all 
 the staple articles which were of the growth and pro- 
 duction of the colonies. 
 
 The third rule was established by a subsequent 
 act, 15 Car, II. c. 17. and is no less comprehensive in 
 its object of securing the monopoly of the colonial 
 market, by limiting the importation of all supplies to 
 Great Britain exclusively. This rule enacts. 111. — That 
 no goods or commodities of the growth, produce, or ma- 
 nufacture of Europe, shall be imported into any land, 
 island, plantation, colony, &c. belonging to, or in the 
 possession of Great Britain, in Asia, Africa, or Ame- 
 rica, but such as shall be shipped in Great Britain, or 
 
 (r) The articles contalnetl in goods. Scey)05/, page 62, wher« 
 this rule ar« called cnumerulcd they ure euuiuciated.
 
 TO THE LAW OF SllIPPINCJ, &C. '^ 
 
 Ireland, in English built shipping, &c. ; and no ves- fj-ade""'' 
 sel shall clear out from Great Britain, except the whole 
 cargo be there laden and shipped bondjide, and with- 
 out fraud, (d) 
 
 The above three rules are to be regarded as the 
 fundamental principles of our colonial trade under 
 the Navigation System. It belongs to another part 
 of this Work to shew the various qualifications to which 
 they have been subjected, and by which the system of 
 monopoly has been accommodated, as well to the equi- 
 table circumstances of the colonists themselves, as to 
 the great political changes which have occurred since 
 the origin of these laws. We shall here dwell only 
 upon those important features in the new system, in 
 which the relaxation has arisen from circumstances 
 that could not have been within the foresight of the 
 framers of the Navigation act. 
 
 The relaxation of the first and principal rule of the 
 Navigation act, as respects our colonial monopoly, was 
 by the opening of free ports in the principal islands 
 of the West Indies, and the permission to colonies, 
 under the dominion of foreign European states, to im- . 
 port certain enumerated articles in ships of their own 
 built, and to export plantation commodities in return. 
 
 It had always been the policy of this country, since Of Free ports, 
 the passing of the Navigation act, to conniveat the trade 
 between the continent of South America and the West 
 India islands ; the value and produce of that trade 
 
 (b) 22 & 23 Car. 2. c. 26. ad- with the colonies, 
 milted Ireland into this trade
 
 X INTRODUCTION 
 
 Colonial being very considerable, and tending greatly to ad- 
 
 vance the growth of our colonies. With this pur- 
 pose orders in council were issued soon after the 
 passing of the Navigation act, which expressly di- 
 rected that Spanish ships should be allowed to import 
 into our colonies particular articles of commerce, not- 
 withstanding the prohibitions of the statute 12 Car. 2. 
 This system of connivance was continued till the 
 reign of his present majesty; (e) at which time it was 
 justly considered, that this dispensing power of orders 
 of Council was in itself irregular and objectionable, and 
 that it would be a better principle to alter the law ac- 
 
 OfFrecporis. cording to the necessity of the case. Under this con- 
 sideration, it was resolved to open certain ports in the 
 West Indies for the more free importation and ex- 
 portation of goods ; but subject to such restrictions and 
 limitations, as might restrain the indulgence granted 
 within its object. The establishment o^ free ports ori- 
 ginated in this policy ; the statutes by which they were 
 instituted enacting, that a variety of articles therein 
 enumerated might be imported into certain ports in 
 the West Indies from colonies under the dominion of 
 foreign European sovereigns or states, and in ships 
 owned and navigated by the inhabitants of such co- 
 
 (e) The 6 Geo. III. c. 49. was important alteration in the free- 
 
 the first free port act. This act ))ort acts has been, the taking 
 
 •was enlarged in some of its provi- off the restriction v^hich con- 
 
 sions, and altered in others, by fined this trade to vessels of only 
 
 14 Geo. III. c. 41, and by 21 one deck, and permitting it to 
 
 (ieo. III. c. 29. But these acts be carried on by ships of any 
 
 were repealed by 27 Geo. III., tonnage. See post. Part I. c. 
 
 which contains nearly the whole 2. p. 51. and rules and excep- 
 
 of the present law and regula- tions, p. 61. 
 tioBS of free-ports. The most
 
 TO THE LAW OF SHIPPING, &C. xi 
 
 Jonies : and that certain particular commodities mij>ht Colonial 
 be also exported in such vessels. 
 
 The existinjj exception, therefore, to the first rule 
 under this head is, that wool, cotton, indigo, cochi- 
 neal, drugs, and dyeing- woods, (and almost all arti- 
 cles of colonial produce, except sugar and coffee,) 
 being the growth of any colony or plantation in Ame- 
 rica, belonging to any foreign European state, may 
 be imported from any such colony into any of the 
 free ports, and in vessels huilt and owned by such 
 foreign colonists. And into certain ports named in the 
 act (/) the sugar and coffee of such foreign colonies 
 may likewise be imported. And, in return, all such Of Free ports, 
 vessels of foreign colonies may export from such free 
 ports mm, the produce of any British island, and all 
 manner of goods, which shall have been previously 
 legally imported into the same islands, certain naval 
 stores only excepted. 
 
 The second exception to the colonial monopoly un- 
 der the Navigation act attaches to the rule under that 
 statute^ by which it is provided, that no sugar, &c. 
 shall be exported, except to England or Ireland, and 
 in British ships. The latter acts for the establish- 
 ment of free ports, and for the enlargement of the 
 system, have selected certain ports in some central 
 colony, the principal of which are St. Georges and 
 Hamilton in Bermuda, to which the surroundins; co- 
 lonies may export their growth and produce as a 
 general depot : and whence they may sell it to all 
 
 (/) 27 Ceo. III.
 
 xri 
 
 INTRODUCTION 
 
 Colonial foreigners, who may convey it away in ships of their 
 own built, ownership, and manning, (g) 
 
 In the early state of our colonies, the monopoly 
 of the mother country was very little felt. The de- 
 mand of the home-market was infinitely greater than 
 the imperfect cultivation of infant colonies could sup- 
 ply. — Hence colonial produce procured as high a 
 price as the colonists could desire ; a larger market 
 was not required for their exports. — As little was it 
 necessary to supply the limited wants of new colonies. 
 Under these circumstances, the double monopoly of 
 the mother country, that of exports and imports, was 
 in fact of little consequence to the colonies them- 
 selves. As far as respected every colonial interest, 
 the effect of the colonial part of the Navigation Sys- 
 tem was almost a matter of indiiference, whilst the 
 monopoly in a degree at least advanced and main- 
 tained the great public concern of our naval 
 strength. Under this state of things the govern- 
 ment and legislature wisely adhered to a system, 
 which contributed to the growth of our marine, whilst 
 it impaired no visible good of our plantations. 
 
 But when the progress of our own colonies, and, 
 still more particularly, the growth of all foreign 
 colonies in the same seas, augmented the quantity of 
 colonial produce beyond what was merely sufficient 
 for the home supply ; and when a competition arose 
 between our own islands and those of foreigners to 
 
 (g) 5'1 Geo. III. c. 79.; 53 c. 28.— See likewise Rules and 
 Geo. 111. c. 60. 3 57Geo. JII. llrgulatious, Fart I. c. 2. p. 62.
 
 TO THE LAW OF SHIPPING, &C. XlH 
 
 punplv the markets of Europe and the United States: Colonial 
 another pohcy became manitestly necessary. Our 
 colonial planters could not enter into competition on 
 equal grounds with foreigners^ so long as their pro- 
 duce was to be sent first to England, and thereby 
 burthened with the double freight of a voyage to 
 Europe, and thence perhaps to the United States. 
 Such a restriction necessarily pressed heavy upon 
 our planters. The more perfect cultivation of the 
 islands, and their larger produce in consequence, 
 gave, indeed, to these planters something of the cha- 
 racter and consideration of British agriculturists ; 
 and their condition under this increase was, that 
 their produce was greater than they could sell within 
 the home market. It w^s, therefore, necessary for 
 them to have an access to a foreign market, but from 
 which they were restrained by the existing monopoly. 
 In order to meet and remove this evil, the system of 
 special free ports was adopted, (h) By the effect of 
 this system, our colonies are now enabled to supply 
 the large demand of the American markets, and to 
 maintain on more equal terms a competition with the 
 colonists of France and Spain. On the other hand, 
 in order to guard the fundamental principles of the 
 Navigation System, and strictly to retain the licence 
 within the degree which the wisdom of the state has 
 fixed, this relaxation of the colonial system, both as 
 to the general free ports^ as well as to the special 
 
 (h) The 27 Geo. III. first islandof Bermuda, Special Free- 
 constituted the port of Nassau ports for the importation of 
 in the island of Providence, cer- foreign sugar and coffee. See 
 tain ports in the Bahama islands. Part I. c. 2. p. 52. 
 
 and the principal port of the
 
 Xiv INTRODUCTION 
 
 Colonial free ports, in favour of the present state of the 
 
 trade. ^ 
 
 colonies, is confined to certain ports only, to the end 
 that government and its officers may always have its 
 attention upon them. By the operation of the in- 
 dulgence granted, the just claims of the colonists, and 
 the interests of our general commerce, are maintained 
 and encouraged. By the effect of the restriction, so 
 much of the ancient preference is retained, as is 
 consistent with new circumstances. This introduction 
 of free ports in our colonies is the firstand main excep- 
 tion to the exclusive system of the Navigation act. 
 
 Under this exception, sugar, coffee, rum, and 
 molasses, the produce of any British colony in the 
 West Indies, imported into Bermuda in any British 
 ship, may be exported from certain ports in that 
 ' island, to the territories of the United States, in any 
 
 foreign ship belonging to any country in amity with 
 his majesty, above the burthen of sixty tons.(z) And 
 tobacco, lumber, &c, of the growth and production 
 of the United States, legally imported into Bermuda, 
 may be exported thence to the West Indies, in British 
 built ships, (Jk) 
 
 It is another relaxation of this rule, in favour of 
 
 (0 52 Geo. III. c. 79. 53 imported into^the Bahamas and 
 
 Geo. III. c. 50. 57 Geo. III. Bermuda ; but by the 52 Geo. 
 
 c. 28. III. c. 79. the sugar and coffee of 
 
 (it) See Part I. c. 2. p. G2. our own colonies, imported into 
 
 By 27 Geo. III. the General Bermudain British ships, may be 
 
 Free Port Act, as before stated, exported to the United States in 
 
 sugar and coftee, the produce of auy foreign vessels, &c. 
 foreign colonies, only could be
 
 TO THE LAW OF SHIPPING, &C. XV 
 
 the ceded colonies, that the Dutch proprietors in Colonial 
 Demerara, Bcrbice, and Esscquibo, are permitted to 
 export the produce of their estates direct to the 
 Netherlands, in ships the property of the subjects of 
 the king- of the Netherlands, wherever built, and 
 without any restriction as to the mariners navigating; 
 the same, for the space of five years, commencing the 
 1st of January, 1816. But, after tiie expiration of 
 five years, no such trade is to be carried on, except 
 in ships Dutch-built, and navigated by Dutch subjects. 
 
 Another relaxation from the second rule of our 
 Navigation Laws was produced by the circumstances 
 of the American colonies becoming independent 
 states ; whereupon it seemed necessary to allow a 
 limited intercourse between those States and the 
 West Indies. The produce, therefore, of the sugar 
 islands, with some few exceptions, is permitted to be 
 exported direct to the United States : but this trade 
 must be carried on in British-built ships, owned and 
 navigated according to law. (/) 
 
 Another important exception to this rule of the 
 colonial exports being confined to the mother country 
 is, that sugar, coffee, rum, and other articles of 
 colonial produce, may be exported direct from the 
 British West India islands to Malta and Gibraltar ; 
 but still with the same restriction of the trade to 
 ships British-built, and owned, (m) 
 
 (0 Seepo*^ p. 39. and Rule (m) 55 Geo. III. c. 29. 57 
 
 2nd; Exception 2nd, Part I. c. Geo. III. c. 4. 
 2. p. 63.
 
 XVI INTRODUCTION 
 
 Coionja] Th^ next exccption is in favour of the general in- 
 
 trade. , . . , 
 
 lercourse of tli€ colonies with each other ; and so far 
 
 opens the ancient rigid exclusion of the colonial 
 
 system, as to permit British ships to export any 
 
 goods, of the manufacture of Europe, from one 
 
 British colony to another ; as also any goods which 
 
 shall have been legally imported by virtue of the free 
 
 port 4icts. (n) 
 
 The third rule, of our colonial trade under the 
 Navigation act is, that no European article shall be 
 imported into any British colony, unless shipped 
 in Great Britain or Ireland, and in British-built 
 vessels. 
 
 The fii-st principal exception to this rule is in 
 favour of what is termed the lumber trade. The act 
 of the 28 Geo, III. in order to assist the cultivation 
 of the colonies, permits British-built ships to import 
 from the United States articles of the first necessity 
 into the West India islands, such as pitch, tar, hemp, 
 staves, timber, sheep, hogs, live stock of any sort, 
 bread grain, flour, (o) 
 
 Another exception is, in favour of our fisheries in 
 Newfoundland, Nova Scotia, and Quebec. Salt may 
 be laden in any port of Europe for the fisheries in 
 these plantations. And the wines and fruits of the 
 Madeiras and Azores may be shipped from thence 
 for any of the British states in North America. 
 
 (n) See colonial trade, Rule (o) See colonial trade, Rule 
 
 3, p. 64. 5, p. GO.
 
 TO THE LAW OF SHIPPING, &C. XVii 
 
 Fruit and wines from Malta and Gibraltar rnay like- Colonial 
 wise be imported direct to the sugar colonies, or 
 plantations in America, Newfoundland, or Ber- 
 muda, (p) 
 
 Another exception provides for the wants of the 
 colonies upon any occasional interruption of the good 
 understanding between Great Britain and America. 
 In an ordinary state of things, the planters can always 
 receive their supply of lumber, live stock, bread, &c. 
 from the United States. But, in case of hostility be- 
 tween England and America, the colonies might 
 suffer much distress fron» the interruption of this 
 supply. In order to meet this difficulty, a power is 
 given to British governors to issue their licence from 
 time to time, by which they may permit the British 
 colonies to fetch this supply from the foreign West 
 India islands in their vicinity, or from the continent 
 of South America, (q) 
 
 Such is the state of the colonial trade as it at pre- 
 sent exists ; and such are the leading exceptions (r) 
 which, in favour of a new state of things, the growth 
 of our colonies, and the competition of foreign 
 islands, have been introduced to qualify the* rigour 
 of the ancient system, and to conciliate as much as 
 is possible the interests of our commerce and navy. 
 But though the changed circumstances of the times 
 
 (p) See Rule 4. p. 65. reader is referred to the Chapter 
 
 (</) See Rule 6. ib. on Colonial TRAOEpaw/w, and 
 
 (r) We have passed over the to the Rules and Exceptions, 
 
 more minute exceptions and pro- p. 61. 
 
 visions of detail, for which the 
 
 B
 
 xviii ^ IXTUODUCT16N 
 
 Colonial ijavc Compelled the leiiislature to make these conces- 
 
 trade. . 
 
 sions, it is still to be observed that, in the very 
 deviation from the rule, they have never forgotten 
 for a moment the rule itself. They have always so 
 qualified the exception as to restrain the indulgence 
 granted within the necessity of the case. They have 
 deviated only as slowly and as gradually as was pos- 
 sible. They have in no instance made a total sacri- 
 fice of the fundamental principle of the subordinate 
 importance of our commerce, when in immediate 
 competition with our navy. The greatest inroad 
 upon this system has undoubtedly been by the esta- 
 blishment of the Special Free Ports and Gene- 
 ral Free Ports : but the growth of our colonies 
 rendered this concession necessary ; and the conse- 
 quence of refusing this relaxation would have been 
 the entire surrender of the American market to the 
 foreign West India islands. The lucrative trade of 
 our colonies with the South American continent was 
 equally wise and necessary ; and the permission of this 
 trade by law only placed upon a legal basis what 
 before was an illicit traffic. The exportation of our 
 rum by vessels engaged in this trade at once en- 
 couraged the West Indian planter, and in no degree 
 interfered with any interest of the merchant in the 
 mother country. The lumber trade was soon found 
 to be an indispensable traffic; and it is certainly 
 cheaply purchased by allowing British vessels to ex- 
 port sugars, &c. directly to the United States. Upon 
 the same reasons of policy are the relaxations of the 
 Navigation Law in the direct trade which is per- 
 mitted between the sugar colonies, and Malta and 
 Gibraltar ; and the permission to lade articles in ports
 
 TO THE LAW OF SIllPPlNGj &C. xix 
 
 of Europe, south of Cape Finisterre, for the benefit Colonial 
 of our fisheries, and to extend the trade of the co- 
 lonies in British America. 
 
 The g-eneral inference from these provisions, at 
 once necessary, and confined to such necessity, is, 
 that the government and legislature have only de- 
 parted from the Navigation System within the de- 
 gree of the urgency of new circumstances, and have 
 always remembered the reason of the rule in the ne- 
 cessity of the exception. 
 
 The second division of our Navigation System Trade with 
 
 1 1 •!»• t. c ■ i» • ^^^^^ Africa, 
 
 respects the trade with Asia, Africa, and America, and America, 
 
 , , . 1 • 1 »ot being co- 
 
 not being colonial. loaial. 
 
 In this trade, the principal object of the legislature 
 was to encourage British shipping; and to abridge, 
 if not altogether to extinguish, the Dutch carrying 
 trade. The object of the third and fourth sections of 
 the navigation act were twofold ; first, to deprive the 
 Dutch of being the carriers of Europe ; to prevent 
 all importation from the opulent countries of the 
 East, except in British ships ; and next, to prohibit 
 the rich commodities of these countries from being 
 imported from any other place than those of their 
 original growth and manufacture ; or, at least, from 
 such ports only where they could be, or usuaally 
 had been, first shipped for transportation. 
 
 In this trade, as it originally stood under the na- or the nature 
 vigation act, the ships might be owned by any sub- ''•„^^tobe'e'rn 
 ject of this country, or the plantations; and nothing ployed in this 
 
 ^ ° trade. 
 
 B2
 
 XX INTRODUCTION 
 
 Trade v/ith was Said of the buUt. It is to the modern rco:i8ter acts 
 
 Asia, Africa, ^ _ _ " ^ 
 
 and America, that we owe this most eminent improvement in our 
 
 not bciiT^ • 
 
 colonial* Navigation System, that all the vessels employed m 
 this trade must now not only be British owned, but 
 British-built. Before the 26 Geo. III. c. 60., foreign 
 ships were frequently employed in the trade with 
 Asia, Africa, and America ; but this latter act ef- 
 fectually put an end to such foreign ships, British 
 owned, by taking from them the privileges of a 
 British ship; so that this trade, after the passing of 
 the registry acts, was in effect as much restricted to 
 British-built ships, as the colonial trade, by the sta- 
 tute of the 7&8Will. The 34 Geo. III. c. 68., 
 which was an enlargement and amendment of the 
 first of Lord Liverpool's acts(s) further restricted this 
 trade, and accomplished an equally important object 
 in our Navigation System. Hitherto, the restriction 
 upon shipping, whether British or foreign, had been 
 confined to the importing of goods only, except, in- 
 deed, in the British plantations, where both imports 
 and exports were confined to ships British-built: but 
 this act extends further; and enacts, that no ship 
 registered, or required to be registered as a British 
 ship, shall be permitted to export any articles what- 
 ever, unless navigated by a British master, and by a 
 crew, three-fourths at least of which are required to be 
 British mariners. The exports and imports by these 
 latter acts to Asia, Africa, and America, must now, 
 therefore, be made by shipping of the same built and 
 character as the importations hitherto had been. (/) 
 
 (9) Charles, late Enrl of LiTcr- (0 See post. p. 134. As to the 
 
 po6l. employment of foreign ships by
 
 TO THE LAW OF SHIPPING, &C. Xxi 
 
 It was necessary to take this short review cf the Trade with 
 
 Asia, Africa, 
 
 character of the shipping, before we proceeded to the and America, 
 
 Trqrle Jfsplf not being co- 
 
 11 due llacll. iouial. 
 
 The first rule of our Navigation System as re- 
 spects this Trade is, that no goods or commodities 
 of the growth, production, or manufacture of Asia, 
 Africa, and America, shall be imported into Great 
 Britain in any other than in British-built, and owned, 
 ships. 
 
 The first exception to this rule is in favour of the 
 peculiar relations of commerce between Portugal, the 
 United States of America, and Great Britain, (m) 
 
 But, even in this exception from the first rule, the 
 legislature has carefully avoided any deviation from 
 the second, or any indirect permission of the carrying 
 trade. Therefore, although by a modern treaty, 
 confirmed by parliamentary sanction, goods of the 
 United States may be imported by their own ships 
 into England, it is still made an indispensable condi- 
 tion of this traffic, that the vessels engaged in their 
 importation should be built in the countries be- 
 longing to the United States ; mere property in the 
 ships not being sufficient ; that they should likewise 
 be owned by their own subjects, and the master and 
 three-fourths of the mariners must be American. In 
 
 British subjects, see Chapter on ColonialTrade, p.45- Chap. III. 
 
 the Registry acts, p. 273, et p. 103 ; aud Rules and Excep- 
 
 sequenter. tlons, p. 139, 
 («) See American Treaty ;
 
 XXll INTRODUCTION 
 
 Trade with addition to this, the goods, the subjects of this trade, 
 
 Asia, Africa, , n ■ ^i i i n 
 
 and America, must be 01 native gi'owth, produce, and manufacture. 
 
 not being co- 
 lonial. 
 
 In the same manner with Portugal; though in re- 
 spect to the mixed character of her dominions the 
 terms of the dispensation are larger. The 51 Geo. 
 111. c. 47., permits goods of the growth, produce, and 
 manufacture, of any of the territories and dominions 
 of the crown of Portugal, to be lawfully imported 
 into the United Kingdom in ships built in the said 
 territories or dominions. But such ships must be 
 owned by Portuguese ; and the master, and three- 
 fourths of the mariners, at least, must be subjects of 
 the Portuguese government. 
 
 A further relaxation of the first rule in this trade, 
 confining it to British-built ships, has been made in 
 favour of the peculiar nature and constitution of the 
 East India Company ; a corporation, whose most 
 singular character of being at the same time mer- 
 chants and sovereigns in their Eastern territories, 
 gives them a claim to a more liberal confidence than 
 the legislature could safely indulge to individuals or 
 subordinate societies. The statutes regulating the 
 trade of this company have introduced numerous 
 exceptions from the first rule of this branch of our 
 Navigation System. By the 42 Geo. 111. c. 20., the 
 East India Company are permitted to import and ex- 
 port goods from and to India and China, in ships not 
 British-built, during the continuance of their charter. 
 And, during the term for which the possession of the 
 Britisii territories in India is secured to the Company, 
 it 18 made lawful for the vessels of countries and states
 
 TO THE LAW OF SHIPPING, &C. Xxiil 
 
 in amity with His Majesty to import into, and export Trade with 
 from, the British possessions in India such goods as and America, 
 shall be permitted by the directors of the Company ; lonial.^'"^ ^^ 
 who are required to frame such regulations for carry- 
 ing on this trade as may be most conducive to the 
 interest and prosperity of the British possessions in 
 India, and of the British empire. And it is not lawful 
 for the directors to frame any regulations for this 
 trade between India and the states in amity with the 
 crown of Great Britain, which shall be inconsistent 
 with any treaty made or entered into by His Majesty ; 
 or which may be inconsistent with any act of parlia- 
 ment passed for the regulation of the trade and com- 
 merce of the British territories in India. (:x:) 
 
 The next rule under this division of the navis:ation 
 act is, that no goods or commodities of the g'rowth, 
 production, o^ manufacture of Asia, Africa, or Ame- 
 rica, may be shipped or brought from any other 
 place or country, but only from those of their growth, 
 production, or manufacture ; or from those ports 
 where they can only, or are, or usually have been, 
 first shipped for transportation, 12 Car. II. c, 18. 
 
 This is the rule : and as the legislature, in the co- 
 lonial trade, proposed to itself the two main objects ; 
 the exclusive possession of the trade of the colonies, 
 and the exclusive carriage and transport of their pro- 
 duce and supply in British shipping ; so, in the trade 
 
 (x) 37 Geo. III. c. 111. And privileges, and the extent and 
 
 see Part I. c. 3. p. 89, et se- nature of their trsds are ex- 
 
 quenter; where the constitution plained, 
 of the East India Company, their
 
 kliv INTRODUCTION 
 
 Trade with with Asia, Africa, and America, not being colonial, 
 
 Asia, Africa, ,.,,. , m^ - • t 
 
 and America, the Simple object was the encouragement or British 
 l(miair"^ *^** shipping, and the abridgment or suppression of the 
 Dutch carrying trade. With this object, the rule 
 above cited requires in all cases that the trade with 
 those countries should be direct; that their produce 
 should be fetched in English ships from the place of 
 production, and not from any intermediate market 
 or stage of deposit which our maritime rivals might 
 establish, as their own emporium. 
 
 This principle has been found so beneficial to 
 the naval, if not to the mercantile interests of the 
 country, (but perhaps to both,) that it has since been 
 retained, under all circumstances, except when some 
 peculiar properties of the trade or commodity have 
 required a departure from the rule, (y) 
 
 Several minute relaxations of this rule will be 
 found in the exceptions detailed in the Chapter on 
 this Trade, (z) Thus, raw silk, bark, sarsaparilla, 
 balsam of Peru, and other drugs, the growth of Ame- 
 rica, are allowed to be imported from other places 
 than those of their immediate production : in the 
 game manner, raw silks, or other goods of Persia, 
 from any place belonging to the emperor of Russia ; 
 and cochineal and indigo, from any port in British 
 ships, or ships of a state in amity with Great Britain. 
 Gum senega, coarse printed calicoes, cowries, araii' 
 goes, and other East India goods, prohibited to be 
 
 '(]/) F^oo the policy of these Part I. c. S. p. 85. et sequenier, 
 
 Teg«;hfi3ns more fully ejiplained,' (s) Ihid.
 
 TO THE LAW OF SHIPPING^ &C. XXV 
 
 worn here, maybe imported from any port in Europe, 'J''f«'«2^.'^'* 
 in British ships ; and cotton wool, and goat skins, raw and America, 
 
 , , n I • T> •^- 1 1 -w I • ""'^ being co- 
 
 or undressed, from any place m Bntish-built ships, lonial. 
 Goods, the merchandise of the dominions of the em- 
 peror of Morocco, may be imported direct from Gib- 
 raltar, in British-built ships; elephants' teeth and 
 ivory are allowed to be imported from any of the 
 dominions of the crown of Portugal, in British or 
 Portuguese ships, respectively, though such com- 
 modities may not be of the growth, produce^ &c. of 
 any of the dominions of Portugal, (a) 
 
 Some changes in the channels of trade, and the 
 scarcity and consequent high price of articles neces- 
 sary for our manufacting process, have rendered 
 the above deviations from this rule of our Navigation 
 System both politic and expedient. The materials of 
 our manufactures are naturally the subject of pecu- 
 liar favour ; and the rule of allowing nothing but a 
 direct trade, and no intervening carrier or market, 
 has been departed from, when required to procure 
 an abundant and cheap supply of the means of our 
 domestic industry. (6) 
 
 With respect to America, a practice now obtains 
 which makes it no longer necessary to enquire for 
 the usual port for shipping from that country, the 
 whole continent and islands being considered as one 
 place, (c) And, with respect to the permission of 
 importing African goods direct from Gibraltar, this 
 
 (a) See Rules and Exceptions, 20.; 15 Geo. III. c. 35, and 31 
 Part I. c. 3. p. 159. Geo. Til. c. 35. 
 
 (b) See 6 Geo. ITI. c. 61. s. (c) See Part T. c. 3. p. 131.
 
 XXVI INTRODUCTION 
 
 Trade with deviation from the policy of our Navigation Laws 
 and America, is founded upon the clrcu instance of Africa being a 
 
 not being co- , . , ^-i i 
 
 loaial. non-mantime power, and Uibraltar a convenient 
 
 British depot. 
 
 Our possessions in the East Indies had long been 
 of an indeterminate character ; and it has been often 
 doubted, whether they were to be considered as 
 strictly colonial, and therefore within the provisions 
 of the colonial laws ; or as Asiatic territories, not co- 
 lonial, and therefore only comprehended within the 
 second description of the Navigation act. The 
 12th, 13th, and 14th sections of the Navigation 
 act had indeed made an exception in favour of the 
 Levant trade, the East India Company, and the trade 
 with Spain, Portugal, the Azores, and Canaries ; in 
 all of which branches, from the necessity of the case^ 
 an importation is permitted, in British shipping, of 
 foreign produce from other ports and places than 
 those of their growth and manufacture. But certain 
 doubts still existing as to the extent of the application 
 of this exception to the East India trade, as well as 
 to the political character of the settlements them- 
 selves, the 57 Geo. III. c. 95. was passed to put an 
 end to all difficulties. By this statute it is declared 
 by the legislature, that the Navigation acts do not 
 extend to, or in any way affect, the importation or 
 exportation by the East India Company, or by any 
 other of his majesty's subjects, (in British registered 
 vessels, &c. or ships trading under the provisions 
 of 55 Geo. III. c. 116.) of any goods, at, into, or 
 from any place within the limits of the charter of the 
 said Company ; nor do thoy affect the importation or
 
 TO THE LAW OF SHIPPING, &C. XXvii 
 
 exportation at, into, or from any place whatsoever, in Trade with 
 
 Asia, Africa, 
 
 such vessels as aforesaid, of any goods of the growth, and America, 
 &c. of any place within the limits aforesaid, or re- lonial. " 
 quire that any bond for the exportation or importa- 
 tion of goods in any particular manner shall be given 
 in respect of any such vessels bound to or from any 
 place within the limits aforesaid, {d) 
 
 The third division of our Navigation System re- Europeaa 
 spects the European trade, the rules of which are 
 three; — I. No goods or commodities of the growth, 
 production, or manufacture of Europe, hereinafter 
 enumerated ; that is, no goods or commodities, the 
 growth, production, or manufacture of Muscovy, or 
 of any territories belonging to the emperor of Russia, 
 nor any sort of masts, timber, or boards ; no foreign 
 salt, pitch, tar, rosin, hemp, or flax ; raisins, figs, 
 prunes, olive-oils ; no sorts of corn or grain, sugar, 
 pot-ashes, wines, vinegar, or spirits called aqua-vita, 
 or brandy-wine, may be imported but in British-built 
 ships, or in British ships owned by His Majesty's 
 subjects, and navigated by a master and three-fourths 
 at least of the mariners British subjects ; nor any 
 currants or commodities of the growth, production, 
 or manufacture of any country belonging to the 
 Turkish empire, maybe imported but in British-built 
 ships, owned by British subjects, and navigated by a 
 master and three-fourths at least of the mariners Bri- 
 tish subjects ; or in ships of the built of any country 
 or place in Europe under the dominion of the sove- 
 reign or state in Europe, of which such goods are 
 
 (d) See Part I. c. .I. p. 133.
 
 XXVlii INTRODUCTION 
 
 European the growth, production, or manufacture ; or of the 
 built of such port where the said goods can only be, 
 or most usually are, first shipped for transportation ; 
 and navigated by a master and three-fourths at least 
 of the mariners of that country, place, or port. 
 
 This rule is founded on the eighth section of the act 
 of Navigation 12 Car. II. c. 18., amended by stat. 
 27 Geo. III. c. 19. s. 10. 
 
 II. No sort of wines, (other than Rhenish,) no sort 
 of spicery, grocery, tobacco, pot-ashes, pitch, tar, salt, 
 rosin, deal boards, fir timber, or olive oil,, may be 
 imported from the Netherlands or Germany, upon 
 any pretence, in any sort of ships or vessels what- 
 soever. («) 
 
 III. But bullion and prize goods, and all other 
 goods and commodities of the growth, &c. of Europe, 
 (not being prohibited absolutely to be imported, and 
 not specified in the two preceding rules,) may be im- 
 ported from any country or place, in any sort of ships 
 owned and navigated in any sort of manner. 
 
 The exceptions to the first rule are altogether 
 inconsiderable. 
 
 It will be seen that the policy of the legislature in 
 the restrictions on the European trade was much 
 less confined than as respected the colonial trade, 
 or the trade with the three great continents, not 
 
 (e) 13 k 14 Car. If. c. II.
 
 TO THE LAW OF SHIPPING, &C. XXix 
 
 being colonial. In the plantation trade the direct European 
 aim of the legislature was not only a monopoly of 
 shipping, but a monopoly of imports and exports. 
 In the trade with Asia, Africa, and America, not 
 being' colonial, it was of course impossible to impose 
 any restrictions upon the exports to those countries 
 from other ports than British ; but, as far as restrictions 
 could reach, and a preference to our own ships was 
 possible, the Navigation Act extended itself. For no 
 imports are allowed from those countries but in British 
 shipping, and no goods or commodities can be ship- 
 ped but from the place of their growth ; subject of 
 course to the exceptions which we have before pointed 
 out. {f) But in the European trade it was manifestly 
 impossible to impose such conditions ; for though 
 it was good policy to prohibit the importation of 
 goods from the three great continents, unless brought 
 in English shipping; yet it was wisely foreseen, that 
 if we restrained the importation or exportation of 
 European goods, unless in our own ships, manned in 
 the way directed by the act, other kingdoms and states 
 would do the like : a measure which, in its consequence, 
 would amount almost to a prohibition of European 
 trade, and defeat the very intent of the legislature. Se- 
 veral countries, as Prance, Spain, and Italy, could more 
 easily buy ships than build them. Other countries, 
 as Russia, &c. had timber and materials for building 
 ships, but wanted sailors. The framers therefore 
 of this system contented themselves with the prohibi- 
 tion to import, (except only in English ships, or in 
 ships of the country whence the articles came,) the 
 
 (/) See ante.
 
 XXX INTRODUCTION 
 
 Earopeau commodities of Russia and Turkey, and the arti- 
 
 trade. 
 
 cles enumerated in the eighth section : so that 
 any European merchandize, not there enumerated, 
 and not of the growth, production, or manufacture of 
 Russia and Turkey, may be imported in a shi)) not 
 English built, nor of the country whence the mer- 
 chandize comes. But, with respect to our own ship- 
 ping, the S4 Geo. 111. c. 6S. has added an import- 
 ant restriction : for even in the European trade no 
 ship, which requires to be registered as a British 
 ship, can import or export any article whatever, un- 
 less navigated by a master, and three-fourths of the 
 mariners British subjects, (g-) 
 
 It appears that great quantities of silk had been im- 
 ported from several places in Europe, which were not 
 the places of its growth and production ; and thereby 
 the object of the Navigation act was evaded. The 
 2 Will, & Mary (h) was therefore passed to prevent 
 this evasion. It adds to the goods enumerated in the 
 eighth section, by enacting that thrown silk of the 
 growth or production of Italy, Sicily, or the kingdom 
 of Naples, must be brought from some of the ports of 
 those countries, or places, whereof it is the growth or 
 production ; and must come directly by sea, and not 
 otherwise. 
 
 The exceptions to the second rule, that no wines, 
 grocery, nor naval stores, may be imported from the 
 Netherlands or Germany, in any ships whatever, are 
 in favour of our naval interests, our fisheries, and a 
 
 (g) S«e aiUe. (h) See Part I. c. 4. p. 162.
 
 TO THE LAW OF SHIPPING, &C. XXXI 
 
 political connection with the German and Austrian European 
 
 ^ . trade. 
 
 empire. 
 
 The rule itself is a remarkable instance of the 
 firmness of the government with regard to the Na- 
 vigation Laws ; for, though the necessary effects of 
 the act of Charles had excited a very general discon- 
 tent upon the part of foreign merchants, and several 
 efforts were made to procure its repeal, the legisla- 
 ture being only confirmed in their purpose of en- 
 couraging the navy and seamen of Great Britain, 
 not onl}^ withstood all solicitations, but even in- 
 creased tlieir restrictions by passing the 13 & 14 
 Car. II. c. 11. commonly called the Act of Frauds, 
 upon which the second rule in the European trade is 
 founded. The object of this act was to meet and 
 elude those frauds by which the Navigation Laws 
 were evaded ; and, more especially, to counteract the 
 practice of fetching plantation goods from Holland 
 and the Netherlands, under the pretence that they 
 had undergone some process by which they were 
 rendered Dutch manufactures. This rule, therefore, 
 beyond any former act or ordinance, aimed fully and 
 directly against the great object of the Dutch to 
 become the emporium of Europe. 
 
 Some inconveniences, however, of this rule were 
 occasionally felt in ship-building, and general trade ; 
 and were accordingly corrected by partial relaxations. 
 Thus the 6 Geo. L c, 15., permits British subjects, 
 notwithstanding the statute of frauds, to import fir 
 timber, planks, masts, and deal boards, of the growth 
 of Germany, into this kingdom, in British-built
 
 XXXU INTRODUCTION 
 
 Sdr^*° ships; and by the 22 Geo. 111. c. IS., wines, the 
 growth and production of Hungary, the Austrian 
 dominions, or any part of Germany, are permitted 
 to be imported from the Austrian Netherlands, or 
 any port or place belonging to the emperor of Ger- 
 many, or the House of Austria, in British ships, or 
 in ships which are of the built of the country or 
 place of which the wines imported are the growth, 
 production, or manufacture, {i) 
 
 The third rule of the European Trade, that bullion, 
 prize goods, and any commodities omitted to be 
 named in the two former rules, may be imported in 
 any ships whatever, is rather an exception to the 
 former rules, than a rule itself; and, as respects 
 British ships, is further limited, and reduced in prac- 
 tice to nothing by the 34 Geo. HI. c. 68., which ap- 
 plies to all imports whatsoever, (k) 
 
 Such, therefore, are the existing rules of the Na- 
 vigation System, and the exceptions to them, as re- 
 gards our European trade. To these exceptions, 
 indeed, may be added the relaxation of the Naviga- 
 tion act in favour of Portugal, since she has removed 
 the seat of her empire to the Brazils, and thus taken 
 away the colonial character of her American posses- 
 sions, and rendered the Brazils and Portugal itself 
 co-ordinate members of her crown and dominion. 
 When the Brazils by this change became the seat 
 of the State, and all the Portuguese American ports 
 
 (i) Amended by 17 Geo. III. where the rules and exceptions 
 c. ly. are stated, 
 
 (ft) See Part I. c. 4. p. 186.
 
 TO THE LAW OF SHIPPING^ &C. XXxiu 
 
 were opcMied to British commerce as a principal em- Europeau 
 pire, and no longer as a colonial dependence, there 
 was a manifest necessity to admit them into our 
 European system. Accordingly, an act was passed (/) 
 to repeal in favour of Portugal and the Brazils some 
 considerable provisions of the Navigation act. It 
 was enacted by this statute, that any goods of the 
 growth, production, or manufacture, of any of the 
 territories of the crown of Portugal, might be im- 
 ported direct from any such territories, in any ship 
 built in any of the territories of the crown of Por- 
 tugal, a provision including her American as well as 
 European possessions. 
 
 Many objections have recently arisen amongst Portuguese 
 popular writers, as to the policy of maintaining our 
 existing commercial relations with Portugal, and con- 
 tinuing to give a preference to her wines over those 
 of France. To these, however, it may be briefly an- 
 swered, that there may be two grounds for a com- 
 mercial preference : the first, the interests of com- 
 merce ; and the second, and certainly not the less 
 important, the political interests of the state. Our 
 relations with Portugal are founded upon the latter. „ 
 It would be manifestly bad policy to aggrandise the 
 power of France and Spain against that of Portugal. 
 The natural ally of England is Portugal ; and the na- 
 tural support of Portugal, a secondary state confining 
 upon a powerful neighbour, is England. There can 
 be no doubt that a commercial connection with France 
 
 (/) 51 Geo. III. c. 47. See with Asia, Africa, and America, 
 this act referred to, a«/e, p. 21. not being colonial. — And see 
 in the observations on the trade European trade, /)os^ p. 183. 
 
 c
 
 XXXIV 
 
 INTRODirCTION 
 
 European 
 trade. 
 
 Portuguese 
 treaty. 
 
 would be more lucrative as to a pecuniary result than 
 with Portugal ; and, if commerce were the only ques- 
 tion, it would be an erroneous policy to adopt a 
 minor state in preference to a principal. But as the 
 maintenance of the political relations of Europe and 
 Great Britain is an end of greater value and import- 
 ance, it is a good rule of prudence to consult the more 
 valuable object, though with some sacrifice of the 
 secondary one. If our trade with Portugal be less 
 profitable than would be a similar trade with France, 
 the diminution of profit is well compensated by the 
 ditference between supporting a natural ally, and 
 asfffrandising: a natural rival. Nor should it be al- 
 together forgotten, that our commercial treaty with 
 Portugal is not expressed in terms of a changing 
 and merely temporary description ; but partakes of 
 the nature of a permanent and fundamental act be- 
 tween the two governments. The words of the 
 Methuen treaty, the instrument of this strict alliance, 
 cannot well be stronger than they are. The king of 
 Portugal therein stipulates for himself and heirs, to 
 admit for ever hereafter into Portugal the woollen 
 cloths of the Britons ; and queen Anne, on like 
 terms, obliging herself /or eyer to admit the wines 
 of Portugal. It must be confessed, that these are 
 not mere ordinary terms ; and that either nation 
 might justly regard itself to be injured, if a treaty 
 of this kind should be considered as a mere conven- 
 tional arrangement pro tempore. 
 
 Coasting 
 trade. 
 
 The fourth branch of our Navigation System re- 
 spects our Coasting Trade, which it regards to 
 belong as peculiarly to British subjects, as the in-
 
 TO TFIE LAW OF SHIPPING, &C. XXXV 
 
 ternal navigation of the country itself. Upon this ^^^*J'"S 
 principle, the law confines it entirely to British ships, 
 seamen, and capital ; and, as modern times have ad- 
 mitted no relaxation of this orig-inal rule, it affords 
 no observation for further remark. 
 
 The fifth division of the Navigation Laws respects 
 our fisheries, the existing rules of which may be 
 summarily stated to be as follow : — 
 
 I, Every British vessel employed in the British TheFisheries* 
 "fishery shall be British-built, British-owned, and 
 
 shaH be manned and navigated by a master and 
 mariners all British subjects, (m) 
 
 II, No fish whatever, of foreign fishing, except- 
 ing only eels, stock fish, anchovies, turbots, lobsters, 
 sturgeon, and caviare, shall be imported into Eng- 
 land, (n) 
 
 III, All fish caught according to the first rule, i. e. 
 by British subjects, British ships, and duly manned, 
 &c. may be imported into Great Britain dutj/ free, (o) 
 
 The value of our fisheries, both as a pre-eminent 
 branch of commerce, and more particularly as tend- 
 ing to give a constant supply of seamen and mari- 
 time skill to our navy, is too obvious to require any 
 
 (m) 34 Geo. III. c. 68., and II. c. 23., and 26 Geo. III. c 
 42 Geo. III. c. 61. 81. sec. 8, 43 & 44. 
 
 (n) 18 Car. II. c. 2. 32 Car. (o) 49 Geo. III. c. 98. sec. 13. 
 
 II. c. 2. 10 & 11 Will. III. c. and see Part I. c. 6. on the 
 24. 1 Geo. I. St. 2. c. 18, 9 Geo. Fisheries, p. 193. 
 
 C2
 
 XXXVl INTRODUCTION 
 
 TheFisheries. further observation ; except that, from the very com- 
 mencement of our system of naval defence, our lej^is- 
 lature has recognized their importance, and in every 
 period has supported our exclusive possession of tliem 
 by the most active encouragement. 
 
 In earlier times the Dutch possessed an undoubted 
 superiority in this branch of general commerce. The 
 lower rate of wages ; the narrow^er sphere of the 
 competition of manufacturing establishments with 
 ship owners ; and the peculiar habits of the Dutch in 
 working, and even building small craft, were some 
 amongst the causes of this superiority. But by the 
 prudent encouragement of the British legislature, 
 these obstacles have been gradually overcome ; and 
 we now as much excel all other nations in the produce 
 and exportation of our fisheries, as in our manufac- 
 tures themselves. 
 
 ^J?^^P^^™ The chief improvement of modern times in this 
 the Fisheries, branch of our Navigation Laws has been, in the 
 gradual removal or modification of nearly all the 
 bounties by which these fisheries were originally 
 maintained. There exists no reasonable doubt, 
 that the bounty system is no longer good than it is 
 actually necessary ; and that it is no longer necessary, 
 when the trial of fixing the roots of a branch of 
 commerce has ])oen sufficiently made, and has either 
 answered its object, or has totally failed. In all or- 
 dinary circumstances the system of bounties is con- 
 trary to just commercial principles. A branch of 
 trade or commerce may be cultivated with advantage 
 or not. If it can be cultivated with any hopes of
 
 TO THE LAW OF SHIPPING, &C. XXXVll 
 
 profit, the sagacity of dealers or growers will discover ^/yyuJ",}*^!!^™ 
 il, and will make t!ie required essay without any in- the Fisheries. 
 ducenient of bounties. If it be not cultivated, it is 
 only abandoned because not worth tiie cost of labour 
 and capital. Bounty, therefore, according to these 
 ])rinciples, is either superfluous, as where it gives to 
 tiiose who would produce or manufacture the required 
 article without it; or it is a mischievous tax upon the 
 community for individual traders, inasmuch as it ori- 
 ginates and maintains a wasteful and unprofitable 
 brancli of trade, and sinks a greater value than is 
 ever repaid. On the other hand, there are certainly 
 some cases in which the system of bouaties may be 
 useful to a country ; for there is a third or middle 
 condition between a branch of trade being lucrative 
 or not. It may not, for example, be immediately 
 lucrative ; it may not make the profitable return in 
 due time for mercantile views ; it may be profit- 
 able for a State, which is a lasting being, though not 
 for the life of an individual. It may be for the inter- 
 est of the country, though not for the individnal mer- 
 chant or grower. This is the principle of the bounty 
 system ; but this principle has its limits. It would be 
 absurd to give more for a branch of trade, or growth, 
 or fishery, than, in the present state of all the interests 
 of the country, it is worth. Where the object of the 
 bounty is to clear away t!ie first impediment; to 
 make room, as it were, for the experiment of its pos- 
 sible profit, the bounty of course must end either 
 with the full success, or with the total failure, of the 
 experiment. A permanent bounty is a permanent 
 tax; a submission to a permanent loss ; and however, 
 under the earliest state of our nrarine. such an
 
 XXXVlll INTllODUCTION 
 
 TbeFrsheries. annual tax might be A sacrifice of one interest (o ad- 
 vance another ; it is certain that in the present 
 condition of the navy and country such a fruitless ex- 
 pence is no longer required. 
 
 ofthe System From the neccssary effects of our fisheries upon 
 the Fisheries, our naval growthj it might be good policy, in the 
 early state of our marine, to institute such fisheries at 
 the expence of their full value, and to force their 
 growth into our system. But now that our navy 
 does not require the same extent of aid, there is no 
 longer any good policy in such an attempt. The 
 proper inference of what we have above urged is, that 
 the bounty system was never adopted by our legis- 
 lature upon mere commercial principles; and, there- 
 fore, does not fall within the objections of popular 
 writers as to the anti-commercial nature of such a 
 system. It was adopted, like the whole of our Navi- 
 gation Laws, with a direct view to our naval growth; 
 and was admitted only under the principle of the sub- 
 ordinate nature of our trade in comparison with our 
 naval defence. The legislature knew that it was 
 originating and maintaining establishments, which in 
 a commercial point of view might possibly be worth 
 less than they would cost, but which, if they contri- 
 buted little to our commerce^ repaid amply as a nur- 
 sery of seamen. — They knew they were trading, or 
 growing, and encouraging trade, growth, or fishery, 
 in a manner which no individual merchant would un- 
 dertake, and which would not return a suitable profit 
 to any private adventurer. But they knew, at the same 
 time, that an adventure might be profitable to a state 
 which would be injurious to an individual; and that it
 
 TO THE LAVT OF SUJPPING, &C. XXXix 
 
 mieht be s-ood policy in a corporation, so durable as oftheSysteoi 
 a nation, to lound, bund, and purchase with a view to a &c. 
 more remote futurity than belonged in prudence to the 
 aims of human life. In these principles the bounty S3'8- 
 tem originated. And these circumstances having now 
 passed away, and our navy no longer requiring this 
 support at the expence of our revenue, the system 
 naturally ceases with the reasons under which it 
 grew. 
 
 The above brief view of the policy of this system, 
 and its real objects, may be an answer to those, who 
 with more levity, than either candour or knowledge, 
 have imputed the grossest ignorance to the ablest men 
 of any period ; and, upon the ground of their own 
 imagined clearer understanding of commercial prin- 
 ciples, claim a triumph over the illustrious founders 
 of our Navigation Laws. 
 
 The last division of our Navigation System, of the Regis- 
 for so it may be considered, is the Registration of ^'^^ ^^' 
 British ships ; a part of the system which gives 
 effect to the whole, and brings the existing state of 
 the British marine at all times under the view of the 
 government and legislature. The object of regis- 
 tration is in fact three-fold : — 1st, to ascertain the 
 built and property of ships; 2dly, to prevent fo- 
 reigners from being secret owners in them, by al- 
 ways having a clear constat of the property in pub- 
 lic documents; and, Sdly, to preclude any evasion 
 of the law by our own merchants, and to give the 
 due preference to British ship-builders and native 
 mechanics.
 
 Xl INTRODUCTION 
 
 Of the Regis- p^^ i\^q purpose of maintaining" and advancing our 
 naval interests the law requires that our own trade 
 should be carried on in ships of our own built. Jn 
 order to enforce this policy, and to render impossible 
 any evasion of it, the law further requires that every 
 British ship shall be registered at the time of sailing 
 from her first port, and that without such registry 
 she shall not have the privilege of a British vessel : 
 and that, upon every change of ownership, an in- 
 dorsement of such change shall be made upon the 
 certificate of registry. By the joint effect of these 
 two regulations, every ship may be effectually traced 
 back to its origin, (p) And unless by a concurrence 
 of fraudulent acts, which by the number of persons 
 necessarily concerned must be nearly impossible, no 
 ship of foreign built can be introduced into the 
 British marine. 
 
 Under the Navigation Act of Charles II. ships 
 were required to be the property only of British 
 merchants. It was only in the progress of the system 
 that the qualification of being British built was like- 
 wise added. The ancient Navigation Act thus en- 
 couraged only British seamen and merchants. The 
 existing Navigation System, as now seconded and 
 enforced by the Registry Acts, has added to these 
 two objects a third equally important object, the en- 
 couragement of British ship-building : and has therein 
 given the strongest security to our naval superiority. 
 
 (/;) The reader is referred to minute for our present purpose. 
 
 the acts for tho forms of regis- See Part I. c. 7. on the registry 
 
 tratien, and indorsements on acts, passim, page 227, et se- 
 
 the certificates, as they are too qacnlcr.
 
 TO THE LAW OF «UIPP1N(;, &C. x]i 
 
 Without these acts, the greater portion of our ships try Acts. *'*' 
 would be supplied from America, Holland, or any 
 other country, where the low rate of wages, or the 
 greater proximity of materials, might render ship- 
 building" cheapest. But by the force of these laws, a 
 due proportion of the capital of the kingdom is di- 
 rected towards the building of ships. The Registry 
 Acts have certainly the same character of monopoly 
 and commercial impediment with the other part of our 
 Navigation System. But they have the same coun- 
 terweight of producing a greater good than they take 
 away : they advance our navy in a greater proportion 
 than they impair our commerce. Indeed, the large- 
 ness of the capital employed in our ship-yards ren- 
 ders it a matter of great doubt, whether the restric- 
 tions of the Registry Acts affect in any degree the 
 price of ship-building; and whether, from the exten- 
 sive basis of this manufacture itself, ships are not 
 built cheaper in English docks, than they could be 
 fabricated by any poorer and less populous country. 
 
 In this point of viev/ our Registry Acts, like the 
 other portion of our Navigation System, will appear 
 not only to have produced the immediate good in- 
 tended for our naval interests, but to have corrected 
 the mischief at first necessarily inherent in them, as a 
 restriction upon the general freedom of commerce. 
 So false are all general principles when applied 
 without distinction through all particulars. 
 
 The principal rules of the Registry System may be 
 cursorily stated to be as follow : — 1 . That every ship 
 is to be deemed a British-built Ship, which hah.
 
 Xlii INTRODUCTION 
 
 Of the Regis- been built in Great Britain or its colonies, or has been 
 
 try Acts. 
 
 lawful prize. 2. That every such ship above the 
 burthen of fifteen tons shall be rej^istered by the 
 owner; and a certificate obtained of such registry, in 
 the port to which the ship belongs. 3. That witliout 
 such registry, and such certificate, no ship shall clear 
 out as a British ship ; bul„ if departing from port 
 without being so registered, and obtaining such a 
 certificate, shall be forfeited. 4. That without 
 such registry and certificate all sliips, although 
 they belong to British subjects, shall be regarded, 
 to all intents and purposes, as alien or foreign ships. 
 5. That, upon every alteration in the property of a ship, 
 an indorsement is to be made upon the register ac- 
 cording to a given form, and a copy of such indorse- 
 ment is to be delivered to the officer authorised to 
 grant registries. An entry thereof is to be indorsed 
 on the afilidavit on which the original register has 
 been obtained, a memorandum to be made in the 
 public book of registers, and notice to be given to 
 the commissioners of customs. 6. And upon the 
 transfer of the property in any ship, whether in whole 
 or in part, the certificate of the ship's registry is to be 
 accurately recited in the bill of sale, or other instrument 
 of conveyance, in words at length; and no transfer, 
 either of whole or part, is valid, except it be in wi^iting. 
 7. That, as often as the master of a ship is changed, 
 a memorandum thereof shall be indorsed on the certi- 
 ficate by the proper officer of the customs. 8. That 
 the owner is to cause the name by which a ship is re- 
 gistered to be painted in a conspicuous part of the 
 stern ; and such name is not to be changed. (</) 9. 
 That if a certificate of registry he lost or mialaid^
 
 TO THE LA\f OP SHIPPING, &C. xliil 
 
 or if a ship shall be altered in form or burthen, or of theRcgis- 
 
 '■ try Acts. 
 
 from any denomination of vessel to another, by 
 rigging or fitting", she must be registered de novo, 
 and a new certificate granted. 10. That masters ot 
 ships are, on demand, to produce their certificates to 
 the principal officers in any port within the king's 
 dominions, or to the British Consul or chief officer in 
 any foreign port. 11. That no ship or vessel which 
 is registered, or which is required by law to be regis- 
 tered as a British ship or vessel, shall be navigated, 
 but by a master, and three-fourths at least of the ma- 
 riners British subjects, (r) 
 
 Such are the principal rules upon which the Registry 
 acts are founded ; the more subordinate rules, quali- 
 fications, and exceptions, will be found in the body of 
 this Treatise, together with the numerous decisions 
 in the Courts of Law, Equity, and Admiralty, to which 
 these acts have given rise. The statute of 7 and 8 Will, 
 which was the origin of the modern Registry acts, was 
 only intended to prevent fraud and abuses in the planta- 
 tion trade. It was the policy of the new Registry 
 acts (26 and 34 Geo. HI.) to enlarge and improve 
 the provisions of that statute; and to extend and ap- 
 ply them to all merchant ships, whatsoever, exceeding 
 a certain tonnage. 
 
 In the body of our Work the reader will find 
 
 (q) 27 Geo. III. c. 27. s. 13. Registry Acts, see Part I. c. 7. 
 
 (r) 34 Geo. III. c. 68. s. 3. on the Registry Acts, p. 226. et 
 
 41 Geo. III. c. 95. And for a sequenter. 
 moxe detailed account of the
 
 Xliv INTRODUCTION 
 
 Of the Regis- the several rules, and their reasons^ treated with the 
 
 try Acts. 
 
 exactness, and in the detail, which their le^al charac- 
 ter and importance require. Enough is above said 
 here to explain in a preliminary manner their wisdom 
 and efficacy, as respects the accomplishment of their 
 object ; that of precluding any evasion of the Navi- 
 gation Laws, of preventing foreigners from having 
 an interest in British vessels, and tahulating, as it 
 were, the maritime strength and resources of the 
 kingdom, in aid of those who may be' charged with 
 administering the duties and powers of government. 
 Any augmentation or decrease of British shipping is 
 thus as immediately known by the government, as 
 any rise or diminution of the Revenue. But the first 
 step towards the remedy of any evil is the exact know- 
 ledge of its nature, degree, and cause. 
 
 In the examination of these acts it will likewise be 
 found, that they connect and combine the public interest 
 of the state with the private advantages of the merchant ; 
 and therein indemnify the latter for the numerous and 
 complicate forms they prescribe. They secure to the 
 British mechanic and artisan the building and equip- 
 ping of all vessels employed in every branch of our 
 trade. They extend, moreover, their beneficial 
 effects into the various departments of commerce, 
 and into those dealings and contracts which grow out 
 of and depend upon property in shipping. The 
 publicity of the Register acts, and the circumstance 
 of their having the character of National muniments, 
 gives confidence to all contracts relating to any inter- 
 est in this property. They prevent frauds upon un- 
 derwriters ; and by making the property in shipping
 
 TO THE LAW OF SIITPPINO, &C. *'^ 
 
 always a le"rtl and never an ociuita])le interest, thev of the Regis- 
 
 . . . . try Acts. 
 
 give a sccurit}^ to all transactions respectin<^ ships, 
 which cannot be acquired in any other branch of bu- 
 siness. They enable, moreover, a purchaser, the 
 assignees of bankrupts, and other representatives of 
 an owner, to trace a ship from port to port in all the 
 various transfers through which she may pass ; and as 
 every change of property in a ship, whether in or 
 out of her port, must be publicly recorded, they bring 
 under the eye of the legislature every transaction re- 
 specting shipping, and every circumstance affecting 
 its increase or diminution. And thus, as is well ob- 
 served by an able writer on this subject, to whom the 
 Author of this treatise is so much indebted, (s) a very 
 considerable utility arises from the documents which 
 are formed in the execution of the Registry acts. 
 The registry of shipping, which is made up to the 
 31st of September in every year, contains facts of im- 
 portance which become premises for conclusions 
 both political and commercial. In this registry is 
 seen how many ships and vessels belong to every 
 port in the kingdom, their tonnage and their size, 
 and the number of seamen which they employ. It 
 is now accurately known where to look for the most 
 abundant supply of seamen, when the public service 
 demands them. It is further known at what port to 
 enquire for siiips ; whether they are wanted by the 
 government for transports, or the merchant for 
 freight. 
 
 (s) Mr. Reeves, p. 488. And abridged smuggling, which pre- 
 see Part I. c. 7. p. 267. — These vailed to an alarming extent 
 acts, moreover, have very much before the Registry Acts. 
 
 2
 
 xlvi 
 
 INTRODUCTION 
 
 tr^ A<fts^^°'' Next to the Registry acts, we have considered 
 those beneficial statutes, by which the rigour of the 
 law, respecting the seizure and forfeiture of ships for 
 any breach of the acts, (relating to the shipping, 
 trade, and commerce of the country,) is so considera- 
 bly relaxed, as to adapt itself to the possible occasions 
 of some strong equity and expediency which circum- 
 stances may throw up. This has been done by two 
 recent acts, in a manner so as to maintain the policy 
 of the general rule, and still to open it to such excep- 
 tions as commercial equity may require, (t) It will not, 
 perhaps, be too much to assert, that a great portion 
 of the system of those equitable statutes arose from 
 the celebrated judgment of Sir William Scott, in the 
 case of the Betty, Cathcart. (u) 
 
 In concluding our remarks upon this part of our 
 Navigation Laws, and this Introduction to the first 
 part of our Treatise, it would be a want of patriotic 
 feeling, and of the justice due to a great name, not to 
 acknowledge that the country owes this system of 
 the Registy acts, in its present perfection, to the late 
 Earl of Liverpool ; one of those men, whose name 
 will always descend with the greatness, opulence, 
 and commercial superiority of the country ; as having 
 employed a long and laborious life in an indefatiga- 
 ble pursuit of the public good, and as having at 
 
 (0 See 27 Geo. III. c. 32. ; forfeitures, under the Naviga- 
 
 51 Geo. III. c. 96. ; 54 Geo. tioii and Shipping acts, &c. upon 
 
 III. c. 171. These acts give a certain terms, and conditions, 
 
 power to tho Commissioners of See Part I. c. 8. p. 330. 
 Customs and the Lords of the (u) 1 Rob. 220. 
 
 Treasury to remit penalties and
 
 TO THE LAW OF SHIPPING, &C. xlvil 
 
 length so successfully accomplished what, through all ^^ Ju^^^"^ 
 impediments^ he so invincibly followed. It was the 
 talent and industry of this nobleman, which first 
 reduced into light and order what before was but a 
 mass of incongruous and contending elements. By 
 bringing to this object of his study the practice of 
 business, and the knowledge of life and character. 
 Lord Liverpool foresaw, and thereby prevented, all 
 those evasions which had hitherto rendered the system 
 of Registry nugatory in practice; and by having a 
 deep and exact knowledge of the true principles of 
 trade and commerce, he was enabled, better than any 
 man before or since, exactly to limit a general prin- 
 ciple, or to restrain a necessary exception, at those 
 precise points of each, where either the principle was 
 less true in practice than in theory, or where the ex- 
 ception cost a greater sacrifice than the end for which 
 it was introduced was worth. The result of such 
 talents, knowledge, and industry, thus employed, is 
 the system of registration such as the public now 
 possess it ; and, therein, such a buttress to our Na- 
 vigation Laws, as will render this magnificent portal 
 of our National defence as lasting as the citadel itself, 
 of which it is an out-work. Without our commerce, 
 and our commerce under the Navigation System, our 
 existing naval dominion and superiority would be but 
 a tree without a root ; but whilst thus planted in the 
 inexhaustible resources of our national wealth, and fed 
 through all its height and breadth by a never-ceasing 
 spring, that Navy and Commerce, by which we have 
 become what we are, will continue for centuries to be 
 the soil and the shade under which our children's 
 children shall maintain their descending inheritance.
 
 Xlviii INTRODUCTION 
 
 II. Of Merchant Shipping and Seamen. 
 
 Of Merchant ^^ ^'^^ ^^^^ portioii of our Work treats of tlie sub- 
 Shippingand j^^t of the Navigation Laws^ our second proceeds to 
 
 Seamen. ^ ^ . ^ 
 
 the consideration of Merchant Shipping and Seamen. 
 In considering the Law of Shipping as a whole^ but 
 divisible into its subordinate parts, the mind immedi- 
 ately perceives that the subject matter distributes itself 
 into three principal members: — The first, the Navi- 
 gation Laws, under which every vessel must be built 
 and navigated ; and which, therefore, is the founda- 
 tion and commencement of the whole System. — The 
 second is the ship itself and crew, and whatever be- 
 longs to the ship, abstracted from its employment by 
 the merchant. — And the third and last part treats of 
 such employment of the ship by a merchant charterer 
 or freighter, and generally of all contracts, under which 
 merchant shipping is hired or let out. Such, there- 
 fore, is the order of our subject and the division of 
 our subject matter. In the former part of our Intro- 
 duction we have endeavoured to give a general pros- 
 pect of the leading heads of our Navigation Laws, 
 and of the principles upon which they rest. In this 
 part it is proposed to execute the same purpose as 
 regards the Law of the Ship itself, the owner, master^ 
 and crew, abstracted from its employment under a 
 contract with the merchant, and further separated 
 from tiie detail and discussion, which belong to them 
 in the body of the Work.
 
 TO THE LAW OF SHIPPING, &C. xlix 
 
 Under this relation, the first point of consideration of Merchant 
 
 . . Shi|»|)ingand 
 
 IS obviously the property of tlie ship, the manner of Seaiuen. 
 acquiring' or alienating* it ; and, as such property may 
 be possessed by several in common, the rights and 
 liabilities of owners and part-owners : the second, 
 that of the legal authority, duties, and liabilities of the 
 master: and the third, that of the duties of the sea- 
 men,, and the legal mode cf their hire and payment. 
 
 First, therefore, as respects the property of ships 
 in whole or part. 
 
 1. As respects property in ships, it is of course ac- ofacqulrino- 
 quired ordinarily either by being the builder, or by ghTT'^'^"^ 
 purchase from another. In purchase from another, 
 there is this main difference between a ship and an- 
 other personal chattel, that from consideration of its 
 great value, and from a kind of public as well as private 
 character, the law requires all transfers of ships to be 
 by bill of sale or other instrument in writing, (x) 
 The ship at the time of sale is in port, or absent at 
 sea. If in port, the sale must be by bill of sale, and 
 should be followed up by some act of possession. 
 If absent, there must be the same bill of sale ; and, 
 upon the ship's arrival, the title should be confirmed 
 by the same possession. Such possession, however, 
 is in neither case an absolute legal requisite ; but in 
 both is a most necessary prudential precaution, in 
 order to defeat any claim in case of the bankruptcy 
 of the vendor under the allegation that the property 
 remained in the order, disposition, and controul, of 
 
 (x) 34 Geo. III. c. 68. s. 1 4, 15, and 16. 
 
 D
 
 i 
 
 INTRODUCTION 
 
 OfMerchant the bankrupt seller. As respects a captured vessel, 
 Seimenf"*" the bill of sale must be accompanied with a certi- 
 ficate of condemnation, and followed up by her 
 due registry. (?/) In all transfers the due registry 
 must of course be made; if the ship be in port, im- 
 mediately ; if absent at the time of sale, within ten 
 days after her arrival. 
 
 Of the mort- 
 gagee of a 
 ship. 
 
 2. A frequent relation amongst ship-owners is that 
 of being mortgagee to the vessel of another. Such 
 a mortgagee is, as to certain circumstances, not an 
 owner ; and is, therefore, not liable for necessaries or 
 services for the ship. He is in fact, for most purposes, 
 only in the same situation with the mortgagee in 
 real property. But if he be in possession of the ship, 
 that is, if he be the registered owner, and in possession, 
 he is of course owner dejure et de facto ; and, there- 
 fore, liable accordingly. But a registry by itself is 
 no proof of ownership in a civil suit ; for it is capable 
 of being made without the act of the party himself; 
 and in almost all cases there is a possibility of its 
 being so made ; so that an insolvent owner might 
 add to his own name in the registry that of a solvent 
 man, and thus render a person liable without his 
 own act. 
 
 3. Another frequent relation amongst owners is 
 that tliey charter their vessel to a merchant to be 
 employed by him as a general ship: in which case 
 two persons are ostensibly held forth to the public as 
 owners ; the actual owner ; and the merchant char- 
 
 es) See Part 11. c. ^ p. 346, 347, &c.
 
 TO THE LAW OF SHIPPING, &C. ][ 
 
 terer exercisino; all the acts of ownership. In this OfMcrchnnt 
 
 ~ . Shippinj; and 
 
 case the distinction must be taken, whether according Seamen. 
 to the terms of the charter-party, and the manner of 
 navigation and service, the ship itself be let out, or 
 only the room and space of the ship. If the ship itself 
 be let, and the captain and crew be effectually the 
 servants of the merchant-charterer, the merchant 
 will be liable for all necessaries, accidents, &c. 
 But if the space or roovi only be let out, and the 
 owner remain in full controul and dominion of the 
 ship, the owner will himself be liable for all neces- 
 saries, accidents, &c. ; except only as respects the 
 persons with whom the merchant himself has con- 
 tracted, that is, the under or subordinate freighters. 
 
 4. But a fourth, and the most frequent of all re- of pari-owu- 
 lations of ship-owners, is that of being part-owners ^'^'*' 
 with each other : that is, possessing a ship in shares. 
 The two most common questions under this circum- 
 stance are, — first, how far one part-owner is liable for 
 the acts of another ; and, secondly, in the event of 
 disagreement with each other as to the employment 
 of the vessel, how the decision is to be made : each 
 person possessing his own part in exclusive dominion, 
 and neither having any representative character as 
 regards the other. With respect to the first of these 
 questions, and in all cases which arise under if, the 
 principle lies in the dilVercnce between partners and 
 part-owners. Partners are two or more persons, 
 who have so united, and as it were incorporated, with 
 each other in prosecution of some general concern, 
 that the act of one is the act of both ; and so far as 
 relates to the general concern, each represents him- 
 
 D 2
 
 lii INTRODUCTION 
 
 Of Merchant ge]f and the other. But part-owners have no other 
 
 shipping and ^ ^ ^ • /• 
 
 Seamen. union nor association than the common possession of 
 
 the same personal chattel. In partnerships, properly 
 so called, one man cannot become the partner of an- 
 other without his consent; but part-owners may be im- 
 posed upon each other, without consent ; such as by 
 
 Part-owners, pnrchasc, succession, &c. They have, therefore, no 
 g'eneral representative; nor can one act generally for 
 the other. But as it is a necessary presumption of 
 law, that the common possessors of a valuable chat- 
 tel must zoill and desire whatever is necessary to its 
 preservation ; and, in their absence, must equally lutll 
 and desire the profitable employment of their common 
 property; so the law further infers, as a necessary 
 consequence from the first presumption, that a part- 
 owner on the spot has an implied authority from the 
 other absent part-owners, to order for the common 
 concern whatever is necessary for the preserva- 
 tion, navigation, and proper employment, of the 
 ship. This is the principle, and the limit, of the 
 liability of part-owners. Part-owners, therefore, are 
 liable for necessarj/ repairs ordered by one of them- 
 selves. They are equally liable for necessari/ stores 
 taken up by the captain, or one of themselves, during 
 the voyage. But they are not liable for an insurance 
 ordered by one of them ; neither for enlarging a ship, 
 nor for painting it. But, as respects the necessary 
 repairs and expences of the ship, part-owners are 
 bound to the third persons wiio make those repairs, 
 not only for their own share, but for tlie whole ; and 
 therefore, if any one fail of paying his share, the 
 others must pay it rateably for him. The reason is, 
 that they arc partners as respects the necessaries and
 
 TO THE LAW OF siiiri'iNi;, &c. liji 
 
 proper employment of the ship. Upon the same OfMerchant 
 
 . . Shi|)|)ingand 
 
 principle or their being partners, so far as re- Seameu. 
 spects the contracts and concerns of the ship, they must 
 sue and be sued jointly ; for example^ they must sue 
 their freighters jointly ; and^ on the other hand, may 
 claim to be sued jointly by their shipwright, &c. 
 
 5. As respects the settlement of any differences 
 which may arise amongst themselves, such differences 
 usually arise, either as regards the employment of 
 the ship, or as regards the settlement of the accounts. 
 
 As respects the employment of the ship, if the ma- part-owuen. 
 jority of part-owners agree to employ the ship in a 
 certain manner, but cannot procure the consent of 
 the other part-owners, the Court of Admiralty (upon 
 the arrest of the ship by the dissentient minority) will 
 then take a stipulation from such majority in a sum 
 equal to the value of the shares of those who disap- 
 prove of the venture, that the stipulators will bring- 
 back the ship, or pay the latter the value of their 
 respective shares. The ship then sails at the charge, 
 risk, and profit of the stipulators. 
 
 6. If the disagreement respect the adjustment of 
 accounts, and there be no written agreement by 
 which the part-owner concerned has consented to 
 account as if in severalty, the only remedy, as be- 
 tween part-ownerSj is by a suit in a Court of Equity. 
 But if there be a written agreement to account as if 
 in severally, the Common Law will attach upon it ; 
 and an action may be maintained against the part- 
 owner so agreeing. This is, therefore, the more 
 prudent mode.
 
 Of Merchant 
 Shipping and 
 Seamen. 
 
 Part-owners. 
 
 INTRODUCTION 
 
 7. As each part-owner has a dominion in his 
 part, and as his part and those of others are insepa- 
 rably connected as respects the use ; so each part- 
 owner has a dominion in the ship^ whilst in posses- 
 sion. One part-owner, therefore, cannot recover 
 damages against another for employing a ship without 
 or against his consent, even though the ship were 
 lost. In the same manner, there is no redress for 
 one part owner, neither in the Courts of Law nor 
 Equity, if the ship be sent or taken to sea without his 
 consent. The remedy is to arrest the ship, previ- 
 ously to departure ; in which case the Court of Ad- 
 miralty will order the stipulation above-mentioned. 
 But if one part-owner have possession of the ship, 
 he has the dominion of the ship, and may use 
 it as a tenant in common ; that is, subject to 
 account for profits, and responsible for its injury or 
 destruction ; but within those limits he is perfectly 
 free to use it. 
 
 The above are the principal questions, and the 
 source of the principal cases, which arise under 
 ownership and part-ownership. The detail and 
 more accurate distinctions belong to the follow- 
 ing Treatise. The above synopsis, however, may 
 not be without its use in aid of memory and 
 reference. 
 
 Secondly, — As regards the duties, liabilities, and 
 authority of the master; or, in other words, his legal 
 qualifications; his authority to employ the ship ; and 
 his power to bind his owners for repairs, stores, and 
 necessaries.
 
 TO THE LAW OF SHIPPING, &C. Iv 
 
 8. The qualifications of the master and seamen, as Of Merchant 
 
 ' J"inppino-aiid 
 
 British subjects, under the Navi«^ation Law, have Seamen. 
 been already mentioned. By these acts, chiefly con- Of ihequalifi- 
 solidated in the 34th of the king',(s) the following master a"id 
 are the rules and qualifications as respect the master ^'^'''"*^"' 
 and seamen : — I. In the general trade by British 
 ships, the master and three-fourths of the mariners 
 at least must be British subjects, with the exceptions 
 hereafter mentioned. 2. In the coasting trade, the 
 master and all the seamen must be British sub- 
 jects, (g) 3. And this legal proportion of British 
 seanven is to be kept up during- the whole voyage, 
 unless in case of sickness, death, desertion, or cap- 
 ture of any or the whole. 4. The master of a British 
 ship shall in all cases be a natural-born subject ; or a 
 naturalized subject ; or a denizen by letters of deni- 
 zation ; or one who has become a subject by virtue 
 of conquest or cession, and has taken the oath of 
 allegiance as such. 5. But foreign seamen, who 
 shall have served in time of war three years on board 
 a king's ship, and shall have obtained a certificate of 
 faithful service and good behaviour from the com- 
 mander, shall be deemed British seamen on taking 
 the oath of allegiance. 6. But the quahfication in 
 all cases, and by all persons, is forfeited by taking 
 an oath of allegiance to a foreign power, except under 
 
 (s) 34 Geo. III. c. 68. sel fishing on the coast, for the 
 
 (a) But four or more of the purpose of iastructing British 
 
 commissioners of customs in Eng- mariners in the art of fishing, or 
 
 land, and three or more in Scot- curing fish. And, as respects 
 
 land,may license the employment the fisheries generally, the prior 
 
 of foreign mariners (not ex- Navigation Acts are savftd from 
 
 ceeding oiie-fourth,) in any ves- this act.
 
 iVl INTRODUCTION 
 
 Of Merchant ^|^g tcrms of a Capitulation, and for such capitulation 
 
 Shipping and ' / * 
 
 Seamen. Only. 7. No ship, liowcver, is to become forfeited for the 
 
 ofthequalifi- employment of an unqualified person, where such dis- 
 
 cationsofthe ,.^ . , , , 
 
 master and qualitication was unknown to the owners and master. 
 seamen, g ^^^ -^^ ^j^^ ^^^^ ^^ America or the West Indies 
 
 negroes may be employed. 9. And, in the seas to 
 the eastward of the Cape of Good Hope, Lascars, and 
 other natives of the countries to the eastward of the 
 Cape. 10. The ship and cargo are liable to forfeiture 
 for any breach of these rules, in the same manner as 
 if contraband. 11. But if a British vessel be in a 
 foreign port, and have been compelled by necessity 
 , to engage a greater number of foreign seamen than 
 allowed by law, such vessel shall not be liable to for- 
 feiture upon production of a certificate of such neces- 
 sity from the British consul resident in such port ; or, 
 if there be no such consul, of two known British 
 merchants there resident. 12. And, in the case of 
 war, the king may publish a proclamation, by which 
 he may allow British vessels to be manned with fo- 
 reign seamen in the proportion of three-fourths of the 
 whole crew. Such are the qualifications required by 
 law in masters and seamen. 
 
 Of iheautho- 9. As to the authority of the master to employ the 
 rityofthe ghip, the ffcneral rule is, that the owners are bound 
 
 master. i ' n 
 
 by every lawful contract made by the master relative 
 to the usual employment of the ship. The reason is, 
 that the master is the agent and servant of the owners 
 for the conduct, government, and controul of the ship 
 in its usual way; and, therefore, all engagements by 
 him for such usual employment are the acts and con- 
 tracts of a servant within the subject matter of his
 
 TO THE LAW OF SHIPPING, &C. Ivil 
 
 commission. Therefore, if a master receive g^oods on p/.'^^^'"'^'''*"*; 
 
 " hhippiiig and 
 
 board in the usual employment of the ship without Seamen, 
 the knowledge of the owner, the owner will be liable 
 for their loss to the frei»];htcr. But if the master 
 take goods not in the usual employment of the vessel, 
 the owner will not be liable. The distinction is, that 
 in the one case he is a servant acting- witiiin his trust 
 and commission ; in the other, he is acting beyond it. 
 
 10. Upon the same principle, if the master (being: 9^^^^^"^^*** 
 
 ' . . . rity of the 
 
 in a foreign port) enter into a charter-party in his master, 
 own name for the employment of the ship, the owners 
 are bound by it; and the merchants may have an 
 action on the case at common law for its faithful per- 
 formance. And if the master make any particular 
 engagement or warranty, such as that the ship shall 
 sail with convoy, or that he will load or deliver 
 within a certain time, the owners will be bound by 
 such special contract, although made without their 
 knowledge. In a word, the master is the confidential 
 servant of the owners in all that concerns the usual 
 and ordinary employment of the vessel, and his con- 
 tract within this service is that of an acknowledged 
 agent for a principal, and servant for a master. And 
 what is the usual and ordinary employment of the 
 ship is to be determined either by the course of its 
 actual employment, or by that of vessels in the same 
 trade or service. 
 
 11. But as the immediate act of the owner himself 
 necessarily supersedes the authority of the servant ; 
 so if the owners have themselves made a special en- 
 gagement for the employment of the ship, the master
 
 Iviii INTRODUCTION 
 
 Of Merchant cannot of coui'se annul it. In the absence of his 
 
 Shipping andj 
 
 Seamen. ovvners, the master is the servant to act for them. In 
 
 their presence^ his duty is to obey. 
 
 rity of the ^° l^- ^^ is another rule, that for the sake of the con- 
 master, venience of trade the master is himself liable upon his 
 own contracts, and must indemnify himself from his 
 owners. Those who contract with him for the ship 
 have a two-fold remedy ; one upon the master, and 
 the other upon his owners : and sailors have a third 
 security upon the ship itself, by a suit for wages in the 
 court of Admiralty. Such, therefore, are the general 
 principles of the authority of the master as respects 
 the employment of the ship. 
 
 13. The authority of the master to bind his owner 
 for repairs and necessaries is a consequence from the 
 same principle; such an authority being necessary for 
 the preservation of the ship, and being legally pre- 
 sumed to be given, because absurd to be withholden. 
 The master, therefore, is authorized to provide all 
 necessaries for the ship. And such necessaries may 
 be either repairs, stores, or money. For such neces- 
 saries the owner is liable. But the creditors generally 
 must prove that such repairs or money were neces- 
 sary ; for if the owner should negative the existence 
 of the necessity, his liability ceases. 
 
 14. The custom of merchants, and therein the law 
 which adopts the custom, has introduced two modes 
 of making such repairs, or taking up such money, 
 by masters; the one, upon the personal credit of 
 the owners; and the other, upon the hypothecation
 
 TO THE LAW OF SHIPPING, &C. Hx 
 
 of the ship. If the repairs or money be made or taken ^,[ijJJ,^[,'^''^'^|i 
 on the personal credit of the owner, the owner, as Seamen. 
 above said, is liable ; subject only to proof, under any 
 suspicious circumstances, that the repairs were rea- 
 sonably fit and proper, and that the money or stores 
 were wanting. 
 
 15. But as the hypothecation of the ship is mani- oftheautho- 
 festly a better security than the mere personal credit master. 
 of the master and owners, money and repairs in a 
 foreign port are more usually secured by an instru- 
 ment of this kind. It is unnecessary to add that the 
 master has the authority to give hypothecation bonds, 
 or bonds in the nature of bottomry, according to the 
 necessity of the case; and that the ship is thus bound 
 in specie to the repayment of the money lent. The 
 master has this power, because it is necessary to 
 the preservation of the ship, which in foreign ports, 
 where neither master nor owners were known, 
 could not procure the necessary repairs upon per- 
 sonal credit. And the law of England has thus re- 
 cognized and adopted it upon the double principle ; 
 first, of the custom by the law merchant; and, se- 
 condly, from its manifest necessity. 
 
 16. But as this power of the master amounts almost 
 to a complete dominion and disposal of the property 
 of another, the custom of all countries, and the law 
 of our own amongst them, limits this hypothecation 
 by the master to the circumstance of the vessel being 
 in a foreign country, or in the course of her voyage, 
 and not in the place of her owner's residence. But 
 the courts have given a liberal interpretation to the 
 
 2
 
 Ix 
 
 of Merrhant 
 Shipping and 
 Seamen; 
 
 INTRODUCTION 
 
 term place of residence ; and in two cases, as will be 
 seen in the body of the Work, (b) Ireland and Jersey 
 have been deemed foreign ports^ sufficiently to justify 
 the master in taking up money upon bottomry. 
 
 Of the autho- 
 rity of the 
 roaster. 
 
 17. Ifa ship, therefore, be in a state of necessity, and 
 in the course of her voyage, whether she be in aforeign 
 port, or in a port of one British island (the owners 
 living in another) or even in a remote part of the 
 same kingdom, the master may hypothecate ship, 
 freight, and cargo, for her repairs and necessaries. 
 But three circumstances must always exist in the 
 condition of the ship at the time of hypothecation : — 
 J. The state of necessity of the ship for repairs, 
 stores, or money. 2. Such a remoteness from the 
 owners as not to admit of awaiting their own advice 
 or aid. And, 3dly, the impossibility, or difficulty, of 
 obtaining supplies on the personal credit of the mas- 
 ter or owners. 
 
 18. Without such bonds of bottomry and hypothe- 
 cation, the creditors of a ship can have no remedy on 
 the ship, in specie, as the subject of a specific lien for 
 repairs made, or necessaries supplied. Thus the 
 master has no lien for his wages, nor even for money 
 advanced by him for the necessaries of the ship. 
 The reason may be briefly said to be, first, because a 
 lien always presumes the possession of the subject 
 matter of lien by the creditor ; and, secondly, from the 
 manifest mischief to commerce, and to individuals, in 
 the delay which would be occasioned by applying 
 
 (/») Vide pnge 405, Vol. I.
 
 TO THE LAW OF SHIPPING, &C. Ixi 
 
 such a practice to ships. But if a shipvvri"ht, who ?/.^^'''"*^*'»"* 
 
 ' • , . shipping and 
 
 makes tlie repairs of the ship, have such vessel in his Seamen. 
 manual possession, that is, in his dock, and without 
 the master and crew on board, he will of course have 
 a lien for his repairs, unless there be a special custom 
 of the port or place to the contrary ; or unless the 
 work be done upon a credit. For with respect to 
 lien, the general rule is, that it obtains only where a 
 ready-money payment is due upon the completion of 
 the work. 
 
 19. As the master cannot hypothecate the ship but Of theautho 
 in a case of necessity ; so there must be a still stronger [faster, 
 necessity, which can authorize him to sell it. Indeed 
 this necessity must be so supreme, as very rarely, and 
 scarcely in possibility, to occur. As the master is em- 
 ployed only to conduct and navigate the ship, the sale 
 and disposal of it are manifestly beyond his commis- 
 sion ; and are, therefore, the unauthorized acts of a ser- 
 vant disposing of that property of his master which he 
 is entrusted only to carry and convey. This is, there- 
 fore^ the principle not only in all customary cases, but 
 in cases of danger and ordinary necessity. In all 
 such circumstances^ therefore, the duty of the master 
 (if the ship be stranded, and cannot be got off, or be 
 so injured by tempests as to be beyond repair or 
 safe return,) is to await, if possible, a communication 
 with his owners. But if this be impossible in time 
 for the preservation of the ship in bulk, it is still a 
 question of law, and on good grounds, whether he 
 shall be allowed to sell, or shall himself break up the 
 materials, and retain them for the owners, or wait 
 their advice. On the one hand, it is certain that such
 
 Ixii 
 
 INTRODUCTION 
 
 Of Merchant 
 Shipping and 
 Seamen. 
 
 Of the autho- 
 rity of the 
 master. 
 
 a power in the master would be so generally dan- 
 gerouSj and the occasions of any particular loss must 
 be so rare — and the loss, being only the difference 
 between the value of the stranded ship sold to others 
 to break up, and the value of the same materials in 
 the hands of the master, must be so inconsiderable, 
 that it seems a good prudence to elect the particular 
 rather than the general evil, and to maintain the 
 general security of merchants and owners at the cost 
 of some particular sacrifice. On the other hand, the 
 law will always presume an authority in agents and 
 servants necessary to the conservation of the article, 
 or to the preservation of as much of its value as the 
 occasion may admit. The case seems yet undeter- 
 mined as between owner and master in the common 
 law-courts. But the first principle seems the most 
 sound, and would probably lead to the decision of the 
 court, (c). The master, as we have before observed, 
 is dejure the agent of the owner of the vessel ; but 
 he has no such extensive relation to the freighter, 
 unless he be specially constituted his agent. Unless, 
 therefore, in the case of an extreme necessity, no act 
 of the master can affect the owner of the cargo ; he 
 may, under certain circumstances, hypothecate the 
 cargo; or even sell a part to repair the ship : but as 
 he can only act for the presumed benefit of the 
 freighter, and as it can scarcely ever be for the be- 
 
 (c) See a late important deci- 
 sion on this subject in the Court of 
 Common Pleas, Idle c. Royal Ex- 
 change Company, 3 B. Moore, 
 1 1 5.That, liowever,was an action 
 against underwriters, in which 
 
 the owners of the ship submitted 
 to, or in other words did not 
 contest^ the right of the master 
 to sell the ship. See Part II. 
 c. 3. passim^ and Part III. c. 3. 
 p. ^G.
 
 men. 
 
 TO THE LAW OF SHIPPING, &C. Ixiii 
 
 nefit of the freighter that the entire carcro should be OfMerchant 
 
 " " ?ni|)|)iiig and 
 
 sold, and the adventure broken up, the power of Seamen. 
 sale cannot, it should seem, extend to the whole 
 cargo under any circumstances. — This point at least 
 is doubtful. 
 
 Thirdly, As to the seamen and their wages. 
 
 20. The first rule is, that the contract of the sea- of the sea- 
 men for service must be made with the ship-owner, or 
 master, by a written agreement signed by him and the 
 mariners ; such agreement to express their wages, 
 and the voyage for which they are hired. The con- 
 tract thus signed becomes the articles by which the 
 seamen are bound to the master. If a seaman, after 
 having signed the articles, refuse to proceed, or 
 desert, he may be summarily arrested and punished 
 by a justice of the peace. Absence from the ship, 
 without permission of the proper officer, is punish- 
 able by forfeiture of two days' wages for every day of 
 such absence. Leaving the ship without a written 
 discharge from the proper officer is punishable by 
 forfeiture of a month's wages, and disobedience to 
 any lawful command of the master by forfeiture of 
 the whole wages. 
 
 21. These articles of agreement have been deemed 
 to justify the reasonable correction of the seamen by 
 the master ; namely, such correction and authority as 
 a master may exercise over his apprentices ; such as 
 may be necessary for the purpose of the government 
 of the ship, and for the suppressing immorality and 
 vice of all kinds. But, on the other hand, the law
 
 Ixiv 
 
 INTRODUCTION 
 
 Of Merchant, 
 Shipping uid 
 Seamea. 
 
 having a due regard to the liberty of the subject, and 
 to the different degree of the pubhc interest con- 
 cerned in the merchant and king's services, regards 
 this exertion of authority with the greatest jealousy ; 
 and most strictly confines it within those limits which 
 are necessary for the safety of the ship and the due 
 progress of the voyage. Accordingly in all cases a 
 seaman, who has been beaten and imprisoned by the 
 master, may, upon his return to a British port, bring 
 an action against him ; to which the master must 
 plead specially upon the record that the seaman had 
 committed some particular fault, (specifying such 
 fault) and that he had corrected him only moder- 
 ately for it. 
 
 Of the wages 
 of the seamen. 
 
 22. As respects the wages of seamen, the principal 
 points of consideration are, how and when they are 
 earned; and by what means they are recoverable in 
 law. As regards the earning of wages by the sea- 
 men, the general rule is, that if the voyage be com- 
 pleted, the freight earned, and the labour of the sea- 
 men be not rendered useless by the loss of the vessel by 
 sea or capture, the sailors have earned their full wages. 
 If the vessel be lost or taken, the seamen lose their 
 wages; but not by sickness or accident during the 
 voyage. And as the seamen are bound to the master, 
 so is the master to the seamen ; and he cannot dis- 
 charge any of them during the voyage, unless for 
 misconduct amounting to mutiny or general disobedi- 
 ence of orders. And that the contract of merchant sea- 
 men may not interfere with the public service, it is 
 expressly provided by the statute, that an impressed 
 sailor shall be entitled to his wages up to the time of
 
 TO THE LAW OF SHIPPING, &C. IxV 
 
 his impressment, if the ship earn freight ; and that Of Merchant 
 
 . Shipping and 
 
 entering' into the king's service shall not be deemed a heamca. 
 breach of articles. 
 
 23. As the wages of a seaman are not diie till the of the wages 
 completion of the voyage, and a voyage frequently mea!^ 
 consists of several parts, there is sometimes a diffi- 
 culty to determine, whether a seaman be entitled to his 
 
 wages for any part, where the whole has not been safely 
 concluded. The principle is this ; the general rule 
 of law being that freight is the mother of wages, the 
 seamen are to be deemed to have earned their wages 
 in all cases in which the vessel has earned its freight: 
 If a voyagCj therefore, consist of parts, such as an 
 outward and homeward voyage, or several parts suc- 
 cessively, the freight for each part being due when 
 it is finished, the wages for that part would likewise 
 be due, unless (as is usually the case) the contract 
 stipulates for all the parts as for one voyage. 
 
 24. In the case of capture and re-capture, if the 
 seaman continue on board, and complete the voyage, 
 so that freight be earned, he is entitled to his wages 
 during the whole time. And as a precaution- 
 ary embargo is not a capture, seamen violently de- 
 tained by an embargo, and separated fr^om the ship, 
 but afterwards restored, and navigating the ship 
 home, are entitled to their wages during the whole 
 of their detention ; the ship having earned her 
 freight. 
 
 25. As the master by the articles has hired all the 
 service of a seaman, the seaman cannot claim any 
 
 E
 
 Ixvi 
 
 INTRODUCTION 
 
 Of Merchaut extra remuneration^ even though the master may Imve 
 
 Shipping and . , . , , • .1 • ^ • 1 
 
 Seamen. promiseci it^ such scaman havmg nothing to give, to 
 which the master was not before entitled. There- 
 fore, where a master in a storm promised an extra 
 reward to his crew for doing their duty, the court 
 decided that such promise could not be enforced. 
 So far as respects tlie earning of wages. 
 
 Of the wages 
 of the Sea- 
 men. 
 
 26. As respects the payment of seamen's wages, 
 the rule is, that the seamen, with the exception of the 
 master only, have a three-fold remedy for their 
 wages, against the ship, against the owners, or 
 against the master. The master's contract is per- 
 sonal with the owners; and he must, therefore, bring 
 his action in the Court of Common Law. He cannot 
 sue in the Admiralty Courts with the seamen, nor has 
 he any lien on the sliip for his wages or disburse- 
 ments ; he trusts his owners, and must look to them 
 personally. But the seamen, either singly or altoge- 
 ther, may sue in the Court of Admiralty; and may arrest 
 the ship by the process of that court, as a security for 
 their demand, or may cite the master or owners per- 
 sonally to answer them. But if the seamen be hired 
 hy deed, and with special conditions; that is, not in 
 substance the same with the articles in common use ; 
 in such case, as the fact of such deed, if denied, cannot 
 be tried in the Court of Admiralty, the action must be 
 in the Courts of Common Law. But if the deed have 
 no special conditions, tlic circumstance of its being 
 a deed, tliat is, having a seal, will not take away 
 tlie jurisdiction of the Admiralty ; and the wages 
 may be recovered, as above said, by the arrest of 
 the ship. 1
 
 TO THE LAW OF SHIPPING, &C, IxVU 
 
 21. The Court of AdmirQlty will «-ive its aid in the Of Merchant 
 
 „ Shipping and 
 
 same manner, namely, by the arrest of the ship, to Seamen, 
 foreign seamen in a British port; unless where the 
 contract is of a nature specially referring to their own 
 laws ; and such law is not so set forth in the contract 
 as to enable the court to judge upon the face of it. 
 
 28. The wages of seamen take precedence of Of the wages 
 
 II 1 1 1 1 1 1 n u of the Sea- 
 
 all other demands, and are the most sacred or all men, 
 
 liens. But actions for such wnges must be com- 
 menced within six years after the cause of such 
 action shall accrue, unless those impediments exist 
 which in other cases take a demand out of the sta- 
 tute of limitations ; — such as, minority, lunacy, cap- 
 tivity, or absence beyond seas. If the agreement be 
 by deed, the demand may of course be made within 
 twenty years. The form of action is by assumpsit^ 
 or action of debt, or (in the case of a deed) by debt or 
 covenant. The master, though a servant of the 
 owners, has a distinct interest from them ; and, 
 therefore, may be a witness either for the owners 
 or sailors. And if the articles are wanting, the sea- 
 men may apply to a Judge for an order to the 
 master or owner to produce them. And a seaman, 
 when plaintiif, cannot be nonsuited for not produc- 
 ing the articles. 
 
 29. By a very recent act, ((/) some facilities are 
 given to seamen for the recovery of their wages. 
 In all cases, where the vvages do not exceed twenty 
 pounds, they may apply to a justice of the peace, 
 
 ((/) 59 Geo. III. c. 58. and Part II. c. 5. p. 468. 
 
 E2
 
 Ixviii 
 
 INTRODUCTION 
 
 ofMerchant who, UDon a (liic hcaiin"', may thereupon issue 
 
 Shippinjr and * O' J l_ _ 
 
 Seamen. an ordcr to the master and owner for immediate 
 payment; and, in case of their disobedience, may 
 levy such money by distress. And the determination 
 of the justice or justices is to be final, unless an ap- 
 peal be interposed by either party to the High Court 
 of Admiralty within the space of seven days after 
 the order made. 
 
 Such are the principal rules of law as respect 
 the ship, the master, and seamen, absolutely consi- 
 dered ; that is to say, without reference to any con- 
 tract respecting the ship, or her employment by the 
 merchant. And this leads us to a brief review of 
 our third and last part, (e) 
 
 III. Of Maritime Contracts. 
 
 Introduction j]Vf the Third Part of this Work are discussed 
 
 to Part III. 
 
 or Maritime thosc maritime contracts, under which the ship is 
 Contracts. employed by the merchant, and the rights and du- 
 ties of owners on the one part, and merchants on 
 the other, by virtue of such agreements. ( /") Tlie 
 
 (e) Chapters 6 and 7. Part 
 II. relate to Pilots and Convoys, 
 of which it will not be neces- 
 sary to say any thing in the 
 present Introduction. For the 
 law and decisions on these sub- 
 jects, the reader is referred to 
 the body of the Work, pp. 170 
 to 4U.^. 
 
 {J) The third part of this 
 
 Treatise consists of nine chap- 
 ters, in which the following sub- 
 jects are treated upon in their 
 order : — Chap. 1 . On Charter- 
 Partics. Chap. 2. On Bills of 
 Lading. Chap. 3. On the Co- 
 venants in Charter-parties ; the 
 Seaworthiness of the Ship ; the 
 Loading, Voyage, and Delivery. 
 Cliap. 4'. Exceptions in the
 
 TO THE LAW OF SHIPPING, &C. Jxix 
 
 contracts by which ships arc employed arc Charter- ofMiiriiime 
 parties and Bills of Lading"; the duties of owners un- 
 der such contracts arc a due and careful loadin"-, 
 voyage, and delivery ; and the duties of merchants 
 are to pay such freight as may be owing under their 
 contract, and such demurrage, salvage, and general 
 average, as the occasion of the voyage may produce. 
 Under this consideration of our subject matter, it dis- 
 tinguishes itself into the five heads of, 1. Charter-par- 
 tics, and Bills of Lading, 2. Demurrage, 3. Freight, 
 4. General Average, and, 5. Salvage. To which 
 may be added, from its important use and frequent 
 occurrence, 6. The right of the unpaid consignor to 
 stop in transitu. 
 
 And, First, of Charter-parties and Bills of Lading\ 
 
 I. A charter-party is a contract for the letting to ofCharter- 
 
 , ° parties. 
 
 freight the whole or part of a ship, for one or more 
 voyages. It is so called from the ancient practice of 
 having such deed divided longitudinally into two 
 parts, along an indented line drawn through the 
 middle of the writing, one of which parts was 
 given to the owner, and the other to the mer- 
 chant. Such charter-party is universally in writing: 
 but it is immaterial whether it be by instrument un- 
 der seal, or by writing only. If by deed, it is either 
 by a deed inter partes^ or a deed-poll. A deed inter 
 
 Charter-party, and limitation of Chap. 7. Of General Average. 
 the liability of owners and mas- Chap. 8. Of Stoppage in Tran- 
 ters. Chap. 5. Of Primage, siiu. And Chap. 9. Of SaU 
 Privilege, Average, and Pass- vage. 
 engors. Chup. 0. Of Freiglit.
 
 Ixx 
 
 IxSTRODUCTION 
 
 Of Maritime partes binds only the parties to the deed, and cove- 
 
 Coiitracts. t» i . n 
 
 nants or grants only as respects them. Ijut a deed-poll 
 may make a grant to any one, though not a party to 
 it. But the owner, though not a party to a deed 
 inter partes between the master and the merchant, 
 may sue upon the covenants expressed to be made 
 for his account by the master ; the distinction being, 
 that he is a party to the covenants of the deed, though 
 not to the obligation. In home ports, the charter- 
 parties are usually made between the owner and 
 merchant ; in foreign ports, between the master 
 and merchant. In the latter case, the contract is 
 seldom under seal. 
 
 Of Charter- 
 parties. 
 
 2. The formal parts of a charter-party are the fol- 
 lowing : 1. The premises, which specify the parties to 
 the deed ; their character as master, owner, and mer- 
 chant; the name, burthen, and tonnage of the vessel; 
 and its situation at the time it is chartered. 2. The 
 letting of the ship for the voyage or voyages; and the 
 freight, whether it be a gross sum for the whole voy- 
 age, or so much for any division of time or tonnage, 
 or bale of goods. 3. The stipulations on the part of 
 the owner or master for the seaworthiness and due 
 appointment of the ship in all necessaries for the 
 voyage ; for the due lading, departure, and delivery 
 at the destined port, certain perils and accidents ex- 
 cepted. 4. The stipulations of the merchant, that he 
 will furnish a cargo, and will unload the goods within 
 a reasonable time, and pay the freight and demurrage 
 agreed upon. 5. The penal clause, by which the par- 
 tics bind themselves in a specified penalty for the 
 faithful performance of their rcepective covenants.
 
 TO THE LAW OF SIlIlTlNGj &C. Ixxi 
 
 3. The piincipal qiicstions under charter- parties. ofMantn 
 
 <* * ' ' . \ Contracts 
 
 and the main source of all the cases, arise under the ofcharter 
 heads of the duties of the master and owner by vir- P*'^^'*^*' 
 tue of such deeds ; the restrictions and exceptions to 
 their liability, and the degree in which their service is 
 atFected by an imperfect performance of the voyage 
 agreed upon, or goods carried. As respects the duties 
 of the master and owner under the charter-party, 
 they are contained either in the express terms of the 
 charter-party ; or, at least, are immediately deducible 
 as necessary consequences from them. These duties 
 distribute themselves under the four divisions, of the 
 seaworthiness and due appointment of the ship ; the 
 loading; the voyage; and the delivery. ^ 
 
 4. As regards the seaworthiness and due appoint- 
 ment of the ship in all necessaries, the stipulation is, 
 that the ship shall be tight, staunch, and strong; suf- 
 ficiently manned; and every way fitted for the voyage. 
 This covenant comprehends not only the hull, rig-, 
 ging, stores, and crew, but all the necessary papers, 
 of which the ship must be possessed to be allowed to 
 enter the port of destination ; such as bills of health, 
 &c. And as respects the crew, they must not only be 
 sufficient in number, but in skill ; the captain mu§t 
 be duly qualified ; and so must the seamen. And 
 as the seaworthiness of the ship is a common law 
 duty, the law will not allow it to be indirectly and con- 
 sequentially diminished and reduced by any of those 
 precautionary notices ^nd restrictions of liability, 
 which have become too common amongst land-car- 
 riers. In such cases, the courts will hold that the 
 common law duty is a preliminary and almost indis- 
 
 IlllC
 
 Ixxii 
 
 Of Maritime 
 Contracts. 
 
 INTRODUCTION 
 
 pensable engagement ; and that the precautionary 
 notice must be regarded as applying to some other 
 liabilities ; a principle which some recent decisions 
 have very wisely extended into cases of carriers by 
 land. 
 
 Of Charter- 
 parties. 
 
 5. As respects the loading of the vessel^ it is the 
 duty of the master to receive his lading according 
 to the custom of the particular place ; sometimes from 
 the wharf ; sometimes from the beach ; sometimes 
 from the craft at the vessel's side The master is re- 
 sponsible for theft and robbery whilst in port; the 
 sole custody being necessarily in him^ as the goods 
 are out of the dominion of the freighters. The due 
 lading likewise includes proper stowage^ packing, 
 &c. according to the custom of the port, the course 
 of business^ and the usage of the sea-trade. 
 
 6. As regards the voyage, the master is bound to 
 use proper expedition, and not to deviate or dela}-. 
 But a deviation for the repairs of the ship, or neces- 
 sary refuge from the perils of the sea or enemy, is of 
 course not only an excuse, but a duty. He must 
 likewise take proper care of the cargo during the 
 voyage, and is responsible for all injuries within his 
 means of prevention; for injury by vermin for ex- 
 ample, unless he shall have taken all due care to ex- 
 tirpate them. In the same manner, he is answer- 
 able for goods stolen and embezzled. In short, for 
 any damage or injury arising from negligence, or 
 absence of due skill, (g) 
 
 (;() For tlio restrictions and owners and masters, see Vol. 
 niodificaiionij of the liability of 11, Part iii. c. 4.1). 105.
 
 TO THE LAW OF SHIPPING, &C. Ixxiil 
 
 7. As respects the delivery, the master is bound to of Maritime 
 
 ■ Contracts. 
 
 take the same care in the denvery of the carsco, as ^, . 
 
 / ^ ' Oi Charter- 
 
 in receiving it on board. He is not bound to part parties. 
 
 with tlte goods till the payment of the freight: and 
 therefore, if he have reasonable cause to doubt the 
 solvency of the assigns of the cargo, it is his duty to 
 retain the goods till payment, if payment is to be re- 
 ceived by him from thern. But as much inconveni- 
 ence would ensue from the delay of the ship, the usage 
 is, that he may in such case land the goods in some 
 public dock or wharf; and there give them in cus- 
 tody to the wharfinger or dock-keeper, with an order 
 not to part with them till the payment of the freight. 
 The lien is then continued in the master and owners 
 through the custody and possession of the wharfinger 
 as his agent. In the same manner, if goods on 
 board of ship are taken out of the ship invito the 
 master, and by compulsion of law, or the authority of 
 an act of parliament, the lien will be preserved in the 
 place, and in the hands, where the law has deposited 
 them. This holds in the case of goods landed to se- 
 cure the duties in the public docks of the London and 
 West-India Companies. The master's responsibi- 
 lity continues till the goods are delivered to the con- 
 signee, according to the ordinary usage of the trade, 
 or the custom of the voyage ; that is, either to his 
 wharfinger or his servants, either in boats or on land. 
 Such are the general duties of masters and owners 
 under charter-parties, {h) 
 
 (Ji) But goods landed in the risk of the owners, and not at 
 publie docks, by virtue of an the risk either of the master or 
 act of parliament, are at the of the dock company.
 
 Ixxiv 
 
 INTRODUCTION 
 
 Of Maritime 
 Contracts. 
 
 Of Charter- 
 parties. 
 
 8. As regards the exceptions to charter-parties, or 
 the restriction upon these duties, such exceptions are 
 made partl}^ by an express clause in the charter-party 
 or bill of lading", and partly by certain acts of parlia- 
 ment, which have been passed to limit the common 
 law liability of masters and owners as carriers by sea. 
 The exception by clause in the charter-party usually 
 runs in these words : — That the master will make right 
 and true delivery, " the act of God, and the king's 
 enemies ; the dangers and accidents of the seas, 
 rivers, and navigation ; the restraints and detention 
 of kings, rulers, and republics ; and all and every 
 other unavoidable dangers and accidents excepted." 
 The act of God here comprehends all sudden ac- 
 cidents, such as lightning, earthquakes, hurricanes, 
 &c. perils of the seas, and all such accidents as arise 
 from the sea and winds ; such as wreck, stranding, 
 collision of vessels with each other; leakage from 
 rough seas ; in a word, all such accidents as may arise 
 from the elements, and which cannot be prevented or 
 avoided by any due care, vigilance, or skill of the mas- 
 ter and mariners ; and are in no degree occasioned by 
 ignorance, neglect, or wilfulness. But destruction 
 of a vessel by worms or vermin is no peril of the sea. 
 Robbery by pirates is a peril of the sea; and so, like- 
 wise, the robbery of goods landed in the case of wreck. 
 And it is to be further observed of this exceptive clause, 
 that it exempts the master and owners from liability in 
 damages for the non-performance only, and in no case 
 supplies the place o^ actual performance ; and, there- 
 fore, where the accidents and perils of the sea have 
 prevented the performance of the specific service.
 
 TO THE LAW OF SHIPPING, &C. * IxXV 
 
 this clause will not operate to entitle the owner to the ^f -^laritime 
 
 '■ Contracts. 
 
 freight where the service has not been rendered; but of Charicr- 
 only to excuse him from liability in damag'cs for the l'"'^'"- 
 part unperformed. But where the cargo has been 
 brought home, but much damaged by the sea, such 
 damage by sea will not be deemed any non-perform- 
 ance of the service; but a damage from one of those 
 accidents which is covered by the clause of excep- 
 tions. On the other hand, if the vessel be compelled 
 to return without reaching her destined port, it is a 
 non-performance of the voyage ; and though the ex- 
 ceptive clause may exempt the masters and owners 
 from any liability in damages, it gives them no claim 
 for any freight. 
 
 9. And this leads us to the last and principal con- 
 sideration in the nature of charter-parties, namely^ ^ 
 the degree in which the service actually rendered is 
 affected by the non-performance of the whole voyage 
 agreed upon. This accident, of such frequent oc- 
 currence, seems to distribute itself into three main 
 forms; first, the non-conclusion of the voyage 
 agreed upon; secondly, its actual conclusion, but 
 with the omission of some of the conditions stipu- 
 lated; and, thirdly, the complete performance of the 
 voyage and its conditions, but with the cargo da- 
 maged or spoiled so as to render the voyage nearly 
 or totally without benefit to the merchant. 
 
 10. As respects the first of these points, the non- 
 performance of the whole voyage, the rule of law is ; 
 that as a man may contract for what he pleases, and to 
 what extent he pleases, within lawful subject matter.
 
 Ixxvi 
 
 INTRODUCTION 
 
 Of Maritime 
 Conlracts. 
 
 Of Chartcr- 
 jiarties. 
 
 SO he shall be holdcn bound to execute his contract 
 in the stipulated extent ; and, therefore, if he have 
 rendered his contract a wager or venture ; if he have 
 made it in the proverbial but expressive terms no 
 cure no pat/ ; (that is^ if there be no conclusion of the 
 whole service agreed for, then there shall be no pay- 
 ment for the part executed,) in such case he shall be 
 bound by his covenants, and their legal import. If a 
 master or owner, therefore, make any specific cove- 
 nant, he is bound to the performance against all ex- 
 cuses. He must either perform, or satisfy the breach ; 
 or (where the defect is the conclusion of some whole 
 voyage or service,) he can claim no remuneration for 
 the part actually performed. And where the con- 
 tract undertakes for some specific thing, and contains 
 no exception, the law will always give it the con- 
 struction, — that the party, so absolutely contracting, 
 intended to bind himself against all events; and, 
 therefore, must lose the consideration, or satisfy in 
 damages according to the nature of the engagement. 
 This is the rule of specific covenants. 
 
 11. As to the second point, namely, the actual 
 conclusion of the voyage agreed upon, but with the 
 omission of some of the conditions, the question in 
 such cases is, whether the condition unperformed be 
 a condition precedent, or subsequent and independ- 
 ent. The distinction is, where the condition goes to 
 the whole consideration of the contract, or where it 
 affects it only partially. Where the condition goes 
 only to a part of the consideration, and a breach may 
 be compensated in damages jrro rata, such condition 
 is only a condition independent or subsequent, and
 
 TO THE LAW OF SHIPPING, &C. IxXVU 
 
 the party iniurcd must seek his remedy on tlic cove- ot Maritime 
 
 *■ J J -^ Contracts. 
 
 iiant. Hut where the non-performance of any con- 
 dition totally alters the nature and quality of the ser- 
 vice, and renders it a different thing- from the subject 
 a<^reed for, then such condition is precedent, and tlie 
 non-performance or breach annuls the contract. The 
 reader will find these distinctions explained at length 
 in the chapters on Charter-parties and Freight in the 
 body of the Work. The above is merely the substance 
 of the general rule as respects conditions precedent 
 and independent in charter-parties. 
 
 12. As regards the last point, tlie full completion of Charter- 
 of the voyage and its conditions, but accompanied 
 with the damage of the cargo ; the general rule here 
 is, that as the owners have performed the service, 
 they are entitled to their freight ; and if the freighter 
 have sustained an injury, he shall be compensated in 
 damages by a cross action. And upon this principle, 
 in a recent action for the freight of a cargo of fish 
 totally spoiled, the late Lord Ellenborough decided, 
 that the owner was entitled to recover for the freight, 
 and that the freighter must bring his cross action for 
 the damages, but could not withhold the payment of 
 freight. But if a master be commissioned to bring 
 one thing, and bring another ; or to go to one port, 
 and go to another ; or generally to execute a service 
 in one way, and execute it in another ; it is no per- 
 formance of the contract ; and, therefore, nothing is 
 due for it under jihe contract.
 
 IXXviii ~ INTRODUCTION 
 
 Of Maritime As rcspects bills of lading-. 
 
 Contracts. ^ 
 
 Of Bills of 12 As charter-parties are the instruments bv 
 
 Lading. * *' 
 
 which ships are let; so bills of lading are nothing but 
 the formal receipts and acknowledgments by the mas- 
 ter that he has received such goods on board on ac- 
 count of the freighters ; and will deliver them to their 
 order or assigns, with an exception only of accidents 
 by the act of God, king's enemies, &c. as by charter- 
 parties, (?) When a ship is hired by charter-party, 
 such bill of lading is given by the master to the mer- 
 chant freighter. When goods are sent by a general 
 ship, that is to say, without any charter-party, but as 
 goods are sent by a land carrier, such bill of lading is 
 likewise giveni by the master to the several freighters. 
 "^ In both cases, therefore, it is the title and document 
 of the goods sent ; and, as such, is transferable in the 
 market. There are commonly three bills of lading ; 
 one for the freighter ; another for the consignee, 
 factor, or agent abroad ; and a third is usually kept 
 by the master for his own use. 
 
 14. It will be seen in the body of the Work (J) 
 that when goods are shipped to be carried abroad by a 
 merchant resident in this country, or are sent from one 
 part of the kingdom to another, the persons to whom 
 they are sent must necessarily be in one of the 
 three relations to the merchant by whom they are 
 transmitted. They may be buyers ; they may be his 
 correspondents or consignees, with mutual dealings ; 
 
 (h) As to (ho extent of the Part iii. ch. 4. p. 111. 
 exreptivp clause, see Vol. If. (j) Vide \'ol. II. page 59.
 
 TO THE LAW OF SHIPPING, &C. Ixx'lX 
 
 or they may be merely his factors, airenls, or bro- OfMaritime 
 
 '' '' *' . Contracts. 
 
 kers; and in the latter character, havino- driven no ^p„.,, ^ 
 
 ' -> o D Of Bills of 
 
 value for the cargo, are only his agents for the sale of Lading. 
 it. But under all these cases, a bond fide holder of 
 a bill of lading-, derived from the indorsement of any of 
 them, is entitled to the cargo ; and may claim it from 
 the master, if he can prove that he has purchased it 
 for a good consideration. The transferable nature 
 of bills of lading puts them within the analogy of 
 bills of exchange ; and being within the reason of 
 them, they have this main property of bills of ex- 
 change ; that the indorsee of a bill of lading for a 
 valuable consideration has not to look to the title of 
 the indorser : And, therefore, if a factor make an 
 absolute indorsement of a bill of lading for a bond 
 fide consideration, such indorsement will be good to 
 pass the property, though the property should be at 
 sea at the time, or the factor should afterwards em- 
 bezzle the amount, and have acted dishonestly as 
 respects his principal. For factors are the servants 
 and trusted agents of their principals ; and upon all 
 mercantile principles their acts within their implied 
 commission bind their consignors ; and any sale by 
 them, being a sale by those commissioned to sell, must _ 
 
 in all ordinary circumstances be valid and absolute. 
 
 15. The equitable right of a creditor, or of a cor- 
 respondent with mutual dealings, is effectually as 
 good as that of a purchaser ; and, therefore, the law 
 regards it witli the same favour. Upon this prin- 
 ciple, the indorsement and delivery of a bill of lading 
 to a creditor conveys the property in the goods from 
 the time of the delivery. And it conveys it much more
 
 IXXX INTRODUCTION 
 
 Of Maritime Jarffclv than an original purchase upon credit. In 
 
 Contracts. ° "^ ^ '■ • , • , i -n 
 
 the case of a purchase upon credit ; that is^ by bills 
 of exchange or open credit, the property may be 
 stopped in transitu by an unpaid consignor, in case 
 the bills should turn out worthless before the ultimate 
 delivery of the goods. But, in case of an indorse- 
 ment to a creditor, the consignor, except in very par- 
 ticular circumstances, such as fraud, cannot stop in 
 transitu, as the Court will hold such a previous debt 
 to be equivalent to an actual payment. (A:) 
 
 €f Bills of 16. But though a factor may indorse a bill of 
 
 ''' lading, and such indorsement will be effectual, a 
 
 factor cannot pledge a bill of lading: the distinc- 
 tion being, that he is a servant commissioned to sell, 
 but not to pledge. For the benefit of general com- 
 merce, and in order to give a necessary efficacy to 
 the acts of a factor, the law makes an indorsement 
 and sale by him in all cases effectual; and therein 
 exempts him from the general rule, that those cannot 
 convey a property who have it not in themselves. 
 This power of a factor indeed rests upon the expe- 
 diency of it; first, as it is a consequence of the rela- 
 tion of agent and principal; and secondly, from the 
 necessity of such powers for the purposes of trade and 
 commerce. But neither of these reasons applies to 
 the case of the pledge cf goods by a factor. It is 
 neither within his understood commission, as an 
 agent; nor is it necessary for the general purposes 
 I of commerce. llut where principals permit their 
 factors to exhibit themselves as the owners of 
 
 (k) Sec Part lit. c. 2. p. C>'J.
 
 TO THE LAW OF SHIPPING, &C. IxXXl 
 
 property, the ri^ht of the factor is extended to an J^yj^^^'^J""^ 
 absolute dominion. 
 
 17. But an indorsement of a bill of lading by a of Bills of 
 factor must necessarily be for good consideration and 
 bond fide ; and, therefore, if it be known to the in- 
 dorsee that the factor is doing an unauthorised act ; 
 or if the factor himself shall acknowledge to him that 
 he is making such indorsement upon his own ac- 
 count, and intends, or expects, to indemnify his prin- 
 cipal from some other means ; in a word, if there be 
 any fraud or notice to the indorsee,-^in all such cases, 
 the fraud of the factor being known to the assignee 
 renders the indorsement a fraudulent act, and of 
 course a void contract. Upon the same principle, if 
 any condition be expressed in a bill of lading, so that 
 the bill carries a notice of its limitation upon the face 
 of itself, there the indorsee must take such bill of 
 lading subject to the qualifications expressed. 
 
 Such is the nature of charter-parties and bills of 
 lading, and such their leading principles. 
 
 Secondly, Of Demurrage. (/) 
 
 1. Demurrage is the compensation due to a ship- of Demur- 
 owner by a freighter, for delaying his vessel beyond ^'^^^' 
 the time expressed in the charter-party or bill of 
 lading. Demurrage, in fact, is nothing more than an 
 extended freight. It is unnecessary to say any thing 
 of the principle upon which it rests ; it being an 
 
 (0 Part III. c. 1. p. 13. 
 
 F
 
 Ixxxii 
 
 INTRODUCTION 
 
 Of Maritime obvious legal right, that such extra service should 
 
 Contracts. 
 
 receive a proportionate remuneration. 
 
 of Demur- 
 rage. 
 
 2. As to the occasion under which sucli demur- 
 rage may be claimed, it is one of those obligations 
 which arises as frequently from the mere casualty of 
 the merchant, as from his misconduct, negligence, or 
 wilful delay. The general rule is, that all delay from 
 the casualties of the voyage, that is, between port and 
 port, belong to the ship and owner ; and that all de- 
 lays at the port, from whatever cause, the ship being 
 there, and ready to receive or deliver her cargo, 
 belong to the merchant. Upon this principle, if the 
 vessel be delayed by the crowded state of the docks 
 or river, the merchant, though not in fault, must pay 
 demurrage for such delay. In the same manner, if 
 the vessel be frozen in a port or a river, whilst deli- 
 vering her cargo. In the same manner, if there be 
 any delay in unloading, from whatever cause, such as 
 an hindrance by custom-house officers, or the want 
 of some necessary papers which it is the duty of 
 the merchant to provide. 
 
 3. The greater number of charter-parties express 
 the time to be allowed for unloading the ship in one 
 of the three following modes : 1. Tliat the merchant 
 shall be allowed so many specified days for loading 
 and unloading ; and so many further days, for which 
 the freighter, if he detain the vessel, shall pay at the 
 rate of so much per day demurrage. 2. That the 
 ship shall be unloaded and discharged within the 
 usual and customary time of ships in the port of 
 delivery and discharge ; or, simply, within the usual 
 
 2
 
 TO THE LAW OF ^HIPPING, &c. Ixxx'ni 
 
 and customary time, &c. 3. Tn some charter-parties ofMariiimr 
 
 . . . C'oiiliacls. 
 
 no stipulated time vvliatever is mentioned, nor any 
 general terms, such as " within the usual and cus- 
 tomary time of unladin;^ at the port of discharge/' or 
 " within a reasonable time," or words of the like 
 import. 
 
 4. Under charter-parties of the first description. Of Demur- 
 
 . rage. 
 
 namely, where a certain number of days is allowed 
 in the first instance, and so many further days, for 
 which demurrage is to be paid, at a certain rate per 
 diem, there is no difficulty ; as the demurrage in 
 such cases will be due according to the delay, and at 
 the rate expressed. If the vessel be delayed beyond 
 the " further days" mentioned, the rate of demur- 
 rage will still be prima facie what is expressed in 
 the charter-party for the days mentioned. But as 
 the parties have not specifically agreed for this extra 
 time (namely, the time after the '^ further days,") it 
 will be open to the ship-owner to shew that he has 
 sustained more damage, and to the freighter to shew 
 that there has been less. 
 
 5. Under charter-parties of the second description, 
 that is to say, where it is stipulated that the ship shall 
 be unloaded and discharged within the usual and cus- 
 tomary time, or within a reasonable time; there the 
 freighter will not be liable for any delay, which may 
 arise from the ordinary course of business in the 
 port or custom-house of the place of discharge. 
 But any unusual delay will constitute demurrage un- 
 der charter-parties so constructed ; the stipulation 
 only being, that the usual customary or reasonable 
 
 F2
 
 Ixxxiv 
 
 Of Maritime 
 Coutracts, 
 
 INTRODUCTION 
 
 time should be allowed. The term reasonable will 
 be considered as only a synonymous adjunct of 
 the terms usual and customary^ and will not cover 
 any casualty which does not belong to the ordinary 
 course of business. 
 
 Of Demur- 
 rage. 
 
 6. Under charter-parties of the third description, 
 namely, where no time is stipulated for the vessels to 
 discharge, nor any general terms employed, such as 
 "^ within the usual customary and reasonable time;" 
 the implied contract on the part of the freighter will 
 be taken to be, that he will discharge the ship in the 
 usual and customary time for unloading such a cargo. 
 But the limitation abovementioned must be here like- 
 wise understood, namely, that any casualty, not in 
 the usual course of business, such as being frozen in 
 the river, being detained by the officers of the cus- 
 toms, or having to wait for papers or licences belong- 
 ing to the cargo, is not comprehended within the 
 terms, — of usual, customary, and reasonable time. 
 
 7. As the accidents of the winds and seas belong 
 to the ship and owner, no demurrage of course can 
 be claimed of tlie freighter for delay under causes of 
 this kind. Upon the same principle, he is not liable 
 for delay occasioned by waiting for convoy, by hos- 
 tile detention, or capture and re-capturc. If the act 
 of God happen upon the seas, it is the incident of 
 the ship and owner; and the freighter is not liable 
 for the delay. If it happen in the port, whilst load^ 
 in*r or unloading, for example, as abovementioned in 
 the case of being frozen in, &c. it is the casualty of 
 the freii»liter.
 
 TO THE LAW OF SHIPPING, &C. IxXXV 
 
 8. Freighters under bills of ladiiiff are subject to of Maritime 
 
 ^ . . Contracts. 
 
 the same demurrage as tVoighters under charter- 
 parlies, where the claim for demurrage arises on 
 the contract ; and, therefore, if the cargo or goods 
 be not taken out in time, the holders of bills of lading- 
 will be liable pro rata for the delay. Nor is it ne- 
 cessary that the master should give notice to such 
 freighters of the arrival of his ship ; the bill of 
 lading* being* a sufficient notice to them, and the arri- 
 val of ships being matter of public notoriety. 
 
 Thirdly, Of Freight. 
 
 1. Freight is the compensation to the owner for the Of Freight, 
 hire of his ship, in part or whole. It is sometimes 
 
 due in whole, and sometimes only in part : but in all 
 cases the owner, or master, whilst in possession of 
 the goods, and provided that he has made no contract 
 inconsistent with such right, has his lien for the 
 freight due. Under this consideration, freight is di- 
 vided into the four heads : 1. The cases in which 
 the entire freight is due ; 2. In what cases part only 
 can be claimed; 3. By whom payable; and, 4. Of 
 the lien for freight^ and the action which may be 
 maintained for it. 
 
 2. As to the cases in which the whole freight is due, 
 the doctrine of whole and part freight rests entirely 
 upon the following* principle ; which, for the sake 
 of order, is here repeated from the \33d page of the 
 third part of this work. (771) In order to explain the 
 
 (?«) Part III. c. 6. p. 133. In which all the cases on this 
 subject are considered.
 
 Ixxxvi 
 
 INTRODUCTION 
 
 Of Maritime 
 Contracts. 
 
 OfFreiffht. 
 
 principle upon which the law of these cases rests, it 
 may be useful to observe, that the labour or service 
 rendered, for hire, by one man to another, is neces- 
 sarily one of two descriptions : either it is beneficial 
 to the hirer, pro rata, in such part of it as may have 
 been done ; or it is totally fruitless, and without be- 
 nefit to him, unless the whole service be completed. If 
 a builder, for example, be employed to build a house, 
 but by some accident, or his own wilfulness, should 
 leave the work when he has only completed three parts 
 of it, such three parts of it are manifestly of propor- 
 tionate value to his employers ; he may accordingly 
 recover pro raid for the work done, although he has 
 not completed it. But if a person contract with a 
 carrier or messenger, that a package shall be deli- 
 vered to some distant correspondent, and such car- 
 rier or messenger go only part of the way, or from 
 error, or some other cause, return without the due 
 delivery of the package, it is here manifest that the 
 service is wholly useless, and without benefit to his 
 employer; and that, in not having done all, he has 
 in fact done nothing. In this latter case, therefore, as 
 no service has been rendered, there is neither a legal 
 nor equitable claim for any remuneration ; the ex- 
 press contract of the employer being, that he would 
 only pay for the performance of the service, and there 
 manifestly being no implied contract that he should 
 pay for that from which he derives no benefit. 
 
 3. The contract for the conveyance of merchan- 
 dize is, therefore, in its nature an entire contract of 
 this kind ; and, accordingly, unless it l)e completely 
 performed by the delivery of tlie goods at the place
 
 ro TjiE r,A\v oi SHIPPING^ &c. Ixxxvii 
 
 of destination, the nierclmnt is not bound to pay ^>f" Maritime 
 
 freight, because he has derived no beneiit from the 
 
 time and labour employed in a partial conveyance. 
 
 This is the general principle, and the reason of it ; 
 
 and, if there be s jme exceptions to the rule, they will 
 
 be found to rest upon the peculiar equity of the cases 
 
 in which they occur. 
 
 4. Upon the above principle, if the ship be cup- of Freight. 
 tured, the owners of course lose their freight, as well 
 as the merchants their goods. But if the vessel be 
 re-captured, and proceed afterwards with the cargo 
 to the place of destination, the right to freight re- 
 vives, and becomes due upon the completion of the 
 voyage. The same rule extends to a resumption of 
 an interrupted voyage, after the removal of an em- 
 bargo by which it has been suspended. It may, 
 therefore, be assumed as a general rule, that the 
 whole freight is due, where the whole voyage is per- 
 formed; but that, if the complete service be not ren- 
 dered, no freight is due and recoverable, unless the 
 completion of the voyage be prevented by the 
 freighter's own act, or with his consent, by himself or 
 agents : — Or unless he dispense with the completion 
 of the voyage ; or unless the part performance be 
 proportionately beneficial, and the engagement for 
 the ichole service be not so specific as to exclude all 
 merit from the part performance. 
 
 5. And these exceptions introduce us to the second 
 division of freight; that is, where freight pro rata is 
 due. Now the general rule under this head is ; that 
 the imperfect performance of the voyage or service
 
 Ixxxviii 
 
 INTRODUCTION 
 
 Of Maritime 
 Contracts. 
 Of Freight. 
 
 can only be cured by the acceptance of the merchant^ 
 and by his express or implied dispensation with the 
 defective performance, and, therein, his new implied 
 contract to pay pro rata for the goods and service 
 which he has submitted to receive, such as it is. If 
 the vessel be wrecked, and the goods saved ; or if the 
 vessel be unable to conclude her voyage ; it is the 
 duty of the owners to tranship the goods, if they 
 possibly can, and send them onward to the port of 
 destination. If they cannot do this, they must apply 
 to the merchant to receive them where they are. If 
 the merchant consent to receive them, the owners 
 will then be entitled to freight pro rata. But they 
 are not entitled to this freight under the original 
 charter-party ; for under their deed they can claim 
 nothing, because in not performing the whole ser- 
 vice they have not complied with its specific engage- 
 ment ; and because the exception as to the perils of 
 the seas in the charter-party operates only to re- 
 lieve them from satisfying any damage by sea, &c. 
 but is not such a substitution for actual performance, 
 as to entitle them to freight. The owners, therefore, 
 must be entitled to freight pro rata under the new 
 contract implied in the acceptance of the goods by 
 the merchant. But if the merchant refuse to accept, 
 or rather to dispense with the completion of the 
 voyage, then the owners must lose their freight : but 
 the merchant must still have his goods^ tliey being 
 his own wherever they may be. 
 
 6, But this rule admits exceptions according to the 
 equity of the case. The first class of exceptions 
 comprehends those cases in which the service is in
 
 TO THE LAW OF SHIPPING^ &C. Ixxxix 
 
 its nature divisible, and where even a partial perform- ^f Maritime 
 
 . Conlracls. 
 
 ance is proportionably beneficial to the freii^hter. ofi'rci"-ht. 
 Thus the partial freii^ht will be due when tlie ship 
 has performed the whole voyage, although she have 
 brought a part only of the merchant's goods in safety 
 to the place of destination ; as where, for example, 
 sixty bales are delivered out of an hundred^ under 
 which circumstance it is manifest tiiat the freighter 
 has received a proportionate beneficial service, for 
 which he must pay accordingly ; and, on the other 
 hand, have his action against the owner or master^ 
 (if the cause of loss admit it) for the bales unde- 
 livered. 
 
 7. Where the defective performance is not in the 
 part of a voyage, but in the omission or imperfect 
 execution of some condition, or in the improper per- 
 formance of the service altogether ; the courts of law, 
 as we have observed under a previous head, will take 
 the distinction, whether such condition be precedent_, 
 or subsequent and independent; that is to say, whe- 
 ther it extend to the root of the consideration, or only 
 affects and diminishes the value of the service. But 
 where the engagement is for one express and specific 
 service, and such service be not rendered, there 
 freight pro rata can never become due except by a 
 new agreement, implied by the merchant in the ac- 
 ceptance of the goods. 
 
 8. Where the whole voyage is performed, and 
 only part of the goods brought, a distinction must be 
 taken whether the ship be a general ship, or Iiired by 
 charter-party. If a general ship, the freight will
 
 XC INTKOnUCTlOX 
 
 Of Maritime be due for the part brought, and the freighter may 
 
 Contracts. ' ^ ' r i , 
 
 Of Frei-ht. h^we ail actioii against the master tor the part lost or 
 left behind. But if the ship be a chartered ship, and 
 the charter-party be in the usual terms, it may be- 
 come doubtful whether the bringing of the part of 
 the goods be more than equivalent to the perform- 
 ance of part of the voyage ; and not being a specific 
 performance, whether any freight can be claimed for 
 the part brought. So hard a case, perhaps, cannot 
 easily arise ; but if it should, the only remedy on the 
 part of the master would be either to procure the 
 acceptance of the goods brought by the merchant ; 
 or to deposit them in some public dock or ware- 
 house until he bring tiie remainder. If the en- 
 ^ gagement be specific, that such a cargo shall be 
 brought, it would seem that the owner can have no 
 claim to any freight whatever, unless the whole be 
 
 brought. 
 
 9. As to the parties entitled to freight, the cus- 
 tomary rule is, that the action must, in general, be 
 brought by and against the person with whom the 
 contract is made. If there be a contract of charter- 
 party under seal, the parties to the deed must sue 
 and be sued. But if the contract be not under seal, 
 and made with the master, the action may be brought 
 cither in the name of the master or the ship-owner. 
 But where a contract under seal was made by the 
 captain with the freighters on behalf of his owners, 
 it has been decided that the owners cannot maintain 
 assumpsit against them for freight ; for the charter- 
 party is conclusive, and the implied promise is merged 
 in the specialty.
 
 TO THE lAlW of shipping^ &c. \ci 
 
 10. As respects the lion ll)r frciij,ht, the general ^^ Maritime 
 rule is^ that the ship-owner has a hen lor his treight oi Frci'-^iit. 
 as long as he retains possession of the goods ; and 
 
 even where the goods are taken from him by act 
 of parliament, as by the London and West India 
 dock acts, the law will preserve his lien for him in 
 the place where the goods are deposited. The ex- 
 ceptions to this rule are principally two. The first 
 is, that the freighter is regarded as having inten- 
 tionally surrendered his lien, where he has made 
 some special agreement for payment; as, for example, 
 where he has received bills of exchange, or has en- 
 gaged to take certain bills at the end of the voyage. 
 
 11. The second exception is, where the ship is let 
 under a charter-party so constructed, that not merely 
 the space of the ship, but the ship itself, is demised 
 and let out to the merchant. In this case the ship- 
 owner loses his lien, because he has in fact parted 
 with the possession of his ship. And it will make 
 no difference, in this respect, although the master 
 and seamen left to navigate the ship be paid by the 
 owner. 
 
 Fourthly. Of General Average, (w) 
 
 I. General average is the apportionment of a parti- General 
 cular loss in a sea-venture amongst the several parties ' ^'^'^«'^' 
 to the venture in the proportion of their several 
 shares of the ship or cargo saved; such loss having 
 been incurred for the benefit and preservation of the 
 
 (n) Part 111. c. 7. p. 184. where all the cases are collcclcd.
 
 XCll 
 
 Of Maritime 
 Contracts. 
 
 General 
 Averasre. 
 
 INTRODUCTION 
 
 whole. lis most usual form is that of jettison, or 
 the throwing over board of a portion of the cargo, 
 for the sake of lightening the ship in sea-peril. 
 
 2. As the equitable foundation of general average 
 is, that the loss has been suffered by one and for the 
 sake of the whole, or that one has made a sacrifice 
 of more than his proportion for the common benefit ; 
 so the mere loss or damage of the ship by tempest and 
 sea-peril is not a subject of general average. Tiie 
 reason is, that the damage of the ship belongs peculi- 
 arly to the owners ; and it is apart of the understood 
 contract between the freighter and owners, that such 
 loss and damage shall be no part of the freighter's 
 venture. The ship-owner is not to make good any 
 loss or damage of the cargo by sea peril ; and, upon a 
 like principle, the freighter is not to contribute towards 
 any loss or damage of the ship from the same cause. 
 
 3. Upon a similar principle, any damage to the 
 ship by fighting otf an enemy is not a subject of 
 general average, it being the duty of the master to 
 defend the ship : And, therefore, such defence being 
 relevant to his own duty and interest, and not being 
 any thing extraordinary done for the sake of the 
 cargo, the owners are not entitled to an average 
 contribution. 
 
 4. But, though the ship itself from the above causes 
 is very seldom a subject for general average, it is 
 manifest that cases do occur, in which owners may 
 claim a general average for damage incurred by their 
 vessel for the benefit of the cargo, as well as for
 
 TO THE LAW OF SHIPPING, &C. XCiil 
 
 the ship. And onq of these cases is, where the mas- of Maritime 
 
 . Contracts. 
 
 ter, for the sake or preserving* the cargo, has used 
 
 and cut up some of his ship tackle or furniture, f^-finerai 
 
 . Average. 
 
 or voUintarily added to his number of seamen,, or 
 liired extra assistance for the preservation of the 
 cargo, in some emergency not within the scope of 
 any ordinary casualty. 
 
 5. If a ship be obhged, from whatever cause, for 
 the safety of the whole concern, to return to port, 
 whatever expences are absolutely essential to enable 
 her to prosecute her voyage may be considered as 
 general average : but if the ship, by such expendi- 
 ture, gain a lasting benefit, there must be a deduction 
 on that account of so much, wliich must be placed 
 wholly to the ship-owner's account. Repairs, with 
 the foregoing limitation, constitute a general aver- 
 age : so, likewise, the expences of unloading the 
 cargo to make such repairs ; but not the wages and 
 provisions of the crew, recruiting them, or the like. 
 Such repairs, however^, must be merely such as are 
 necessary to enable the ship to prosecute her voyage, 
 and to keep the cargo from damage. 
 
 6. Upon these principles, therefore, three things 
 are necessary to constitute any claim upon the ground 
 of general average; first, that there should be a 
 special sacrifice by one or more for the benefit of 
 the whole ; secondly, that it should be for the pur- 
 pose, and with the intent, (causa et mente) of the 
 preservation of the common concern ; thirdly, that 
 the common concern should be benefitted by the par- 
 tial sacrifice.
 
 XCIV INTRODUCTION 
 
 Of Maritime 7 jf ^ jjijjp jQgg |^gp masts bv liaviiiij^ them blown 
 
 Contracts. ^ "^ j o 
 
 General Aver- away, it is^ as abovG said, no avera«^c. But if a 
 '*^** mast be cut down, or any part of the cargo thrown 
 
 overboard in order to save the rest, there will be a 
 general average for the mast and the part so thrown 
 away. Where the cargo is to be charged with ge- 
 neral average, the cargo must have received some 
 benefit. Thus where a ship, which has been da- 
 maged at sea so as to be unable to continue her voy- 
 age, puts into port to make the repairs necessary to 
 continue her voyage, the cargo gains the prosecution of 
 the voyage, and a further and stronger security against 
 sea-damage, which would be most probable upon 
 the ship's proceeding in a shattered state. And the 
 ship, upon its own part, gains greater safety ; but 
 this is all it is entitled to gain. General average is 
 here due upon the principle, that such repairs (within 
 the limit only of what is necessary to continue the 
 voyage) are a common benefit, and the means of 
 common safety. A case of this kind would stand 
 upon the same principle as the construction of a raft, 
 or the purchase of another vessel, in the case of 
 shipwreck, for carrying home the passengers and 
 cargo, which of course would be a subject of common 
 contribution. 
 
 Fifthly. Of Stoppage in Transitu, (o) 
 
 Sto 
 Irannilit 
 
 Ppn£^c/« ] Stonpac'e in transiln is a riii'ht, under which 
 
 an unpaid vendor, and every one in the character of 
 
 (o) Part Iir. c. S. p. 200. where all the cases arc collected 
 and considered.
 
 TO THE LAW OF PHIPPINC, &C. XCV 
 
 a vendor, n;imelv, a broker buvin"; "-oods for another <^'"^Jaritime 
 
 ' -' ' J C3 o ( oiitracts. 
 
 on commission, may exercise the power of stoppinj^ 
 liis g-ooils upon tlie insolvency of tlie vendee ; pro- J^,^^\'^*J*.^'j;'^ '" 
 vided only that such stoppage be made before tiie 
 jSjoods have either actually l)een delivered, or some- 
 thing' have been done on the part of the vendee^ or 
 his agents, which amounts to a constructive posses- 
 sion in law. 
 
 2. In considering this subject, it naturally distri- 
 butes itself under (he three heads ; first, in what cases, 
 and by what parties, goods may be stopped in Iran' 
 silu ; secondly, what is a tiYmsitus, and how far it 
 extends ; and, thirdly, what defeats the right, and 
 completes the possession of the vendee, though the 
 g'oods should not have actually reached his hands. 
 As to the first head, the general rule is, as above 
 stated ; that not only every unpaid consignor, but 
 every one in the same ecpiity of character, has the 
 rig-ht to stop his j^oods in transilii ; either in the 
 event of the insolvencj^ of the buyer, or upon a rea- 
 sonable apprehension of it. The last limitation is 
 necessary in order to distinguish this right from the 
 power of rescinding the contract, which, after it has 
 once been made, does not exist by the law of England 
 without the consent of the parties. 
 
 3. Nor is this right of (he unpaid consignor taken 
 away either by a payment in bills, turning out to be 
 worthless, before the delivery of the goods, or by a 
 part payment of the price; as the law does not re- 
 gard either of these circumstances to be such a con- 
 clusion of the sale and delivery to the vendee, as to
 
 XCVl 
 
 INTRODUCTION 
 
 Of Maritime clivcst the rio^ht of the unsatisfied vendor to stop in 
 
 Contracts. " '^ 
 
 transitu. Therefore^ though the consignee may have 
 ^ranS^ '" P^^^ ^^^ ^^^^ cai'go in bills of exchange, the consignor, 
 upon the insolvency of the consignee, before the de- 
 livery, may stop it in transitu, the law regarding 
 such bills as nothing ; and, therefore, leaving the 
 consignor in possession of his original rights. 
 
 4. As to the second head under stoppage in 
 transitu, namely, how far the transitus extends and 
 where it terminates, the general rule under this 
 head is ; that goods are to be deemed in transit so 
 long as they remain in possession of the carrier, or of 
 any agent of the carrier, or of any wharfinger, inn- 
 keeper, or any other servant of the public ; or in 
 any place of deposit connected with the transmission 
 and delivery of goods ; and, finally, until every thing 
 be done (which is required or necessary to be done 
 previously to the delivery^ as weighing, sorting, &c.) 
 by the vendee or his agents ; and thenceforth, until 
 they arrive at the actual or constructive possession 
 of the vendee. 
 
 5. Upon the above principle, goods may not only 
 be stopped whilst in the hands of the master, and on 
 board the ship ; but if he have landed them on any 
 wharf, whence they are to be sent by the wharfinger 
 to the consignee, the unpaid consignor may still stop 
 them in transitu, although they may have been de- 
 livered to the wharfinger as the goods of the con- 
 siiince. 
 
 6. Nor is the transitus determined by the deli-
 
 in Transitu, 
 
 TO THE LAW OF SHIPPING^ &C. XCvii 
 
 very of goods on board a chartered ship, unless of-^iantime 
 where the ship is so completely out of the possession 
 of the ship-owners, and so entirely in possession of the 
 freighter, as to have become equivalent to his own ve- stoppage 
 hide or warehouse. But if the freighter or consignee 
 be the mere chartered party of the whole space 
 of the vessel, and not of the hull of the ship^ that 
 is, the ship not being demised and let out to the 
 freighter as an entirely, but only occupied^ as it were, 
 by an universal bill of lading of the whole capacity 
 of the ship, and the master and seamen remain ser- 
 vants in possession for the owners ; there an unpaid 
 consignor may always stop the goods in transitu on 
 board such vessel. 
 
 7. Upon the principle that the ^raws/^ws continues 
 so long as any thing remains to be done by the 
 vendor or his agents, an unpaid consignor may stop 
 goods in transitu, where, after sale from the ware- 
 house of his broker, the goods remain unweighed, 
 unmesaured, or unsorted ; if weighing, measuring, 
 and sorting, be necessary to the execution and con- 
 clusion of the contract. 
 
 8. Nor will an unpaid consignor be divested of his 
 right of stopping in transitu by any mistake of tlie 
 master in delivering the goods, after timely notice by 
 the vendor, that he intends to exercise the right 
 of stoppage; nor by any fraudulent anticipation of 
 the consignee, in taking possession of the cargo 
 before its arrival, in the first case, the courts of 
 law will hold the delivery to be no delivery, as being 
 made under the mere mistake of the carrier. And 
 
 G
 
 XCVlll INTRODUCTION 
 
 Of Maritime jn the sccond casG, the courts will consider any 
 
 Contracts. ... 
 
 anticipated possession of the car^o, at a port short 
 of the port of destination, to be a surprise upon the 
 consignor. 
 
 Stoppage /« 9 As to the third head of stoppag-e in transitu. 
 
 Transitu. ri & ' 
 
 namely, what shall defeat the right of an unpaid 
 vendor to stop in transitu ; the general rule is, that not 
 only the assignment of the bill of lading for a valuable 
 consideration, but every act which amounts to a con- 
 structive possession, and is not meant to operate 
 otherwise, such as a delivery of the goods to the 
 consignee's agent, or servant, marking the goods, 
 &c., will defeat the consignor's right of stopping in 
 transitu : although the goods shall be still in actual 
 passage, and may not have reached their port of des- 
 tination. 
 
 10. Upon the above principle, if a consignee, hav- 
 ing in possession a bill of lading, indorse it over to a 
 third person for a valuable consideration, such in- 
 dorsement will pass the goods to such third person ; 
 and though the consignor be unpaid, and the con- 
 signee become bankrupt before the arrival of the 
 goods, the right to stop in transitu is effectually gone; 
 the transaction between the consignee and indorsee 
 of the bill of lading being bond fide. 
 
 11. Upon the second qualification of the rule 
 above stated, it is not necessary for the consignee to 
 make an actual removal of the cargo in order to vest 
 his possession, and to determine the right of stopping 
 in transitu. If he take a constructive possession.
 
 TO THE LAW OF RIIIPPINCx, &C. Xcix 
 
 such as putting- his mark upon the goods, payin*^ Coifiacts"'^ 
 •warehouse rent for them, or exercising any unequi- 
 vocal act of dominion over them, it will be sufficient 
 to render the dehvery complete, and thereby to divest 
 the right of the consign'or to stop in transitu. 
 
 12. And as, from the nature of all contracts, an ac- 
 ceptance is necessary to complete and terminate the 
 contract, and as the contract between consignor and 
 consignee, so far as respects the right of stopping in 
 transitu, is presumed by law to be suspended till a 
 complete delivery ; so a vendee, who may find him- 
 self in embarrassed circumstances at the time of ar- 
 rival, may waive the acceptance of the goods, and 
 leave them for the consignor. 
 
 Lastly, Of Salvage. 
 
 1. Salvage is the compensation payable by mer- Of Salvage. 
 chants and ship-owners to those who may have saved 
 their ship and cargo from wreck or capture^ The 
 right to such compensation is founded in law upon 
 the two principles ; first, that every one has a just 
 claim to be paid for his labour in the service of ano- 
 ther; and that the rate should have a due relation, 
 not only to the quantum of the labour, but likewise to 
 its quality ; that is to say, whether labour of body or 
 labour of mind, or of both jointly ; and whether mere 
 service, or service accompanied with danger, enter- 
 prise, and skill. The second principle is, that salvors 
 of this kind ought to be encouraged by liberal rewards, 
 from a just regard to the maritime interests of the 
 country, and in order that ships and their cargoes, 
 
 G2
 
 C INTRODUCTION 
 
 Of Maritime and more particularly human lives, may be saved 
 from perishing-. 
 
 Of Salvage. 2. As the occasions for the exercise of salvage are 
 
 chiefly two, namely, wreck and capture, the subject 
 of salvage naturally divides itself, and is accordingly 
 treated by all maritime writers, under the two corre- 
 sponding heads, of salvage in case of wreck, and sal- 
 vage in case of capture. 
 
 3. As to salvage in case of wreck, it admits in 
 practice of an important subdivision into two cases : 
 the first, where the wreck or danger is on the shore, 
 or at least immediately off the coast ; and the second, 
 where the wreck or danger occurs in mid-sea, and 
 the vessel is saved by the crew of some other vessel. 
 
 4. In the first of these cases, salvage is given 
 by several acts of parliament, the enactments of 
 which will be found in the third part of the work 
 under the head Salvage, (n) It is sufficient to ob- 
 serve in this place, that by virtue of these acts all 
 sheriffs, justices of the peace, constables, custom- 
 house officers, and commanders of king's ships, are 
 directed to give ready and immediate assistance, in 
 case of wrecks or danger off the coast ; and that a 
 reasonable reward, to be adjusted by three justices, 
 shall be paid to any and all persons so rendering 
 their assistance in the event of the preservation of 
 the ship or cargo, or, proportionately, for any part 
 of either. 
 
 (n) Vol. If. Part iii. c. 9. p. 231. where all the cases are stated 
 and examined.
 
 TO THE LAW OF SHIPPING, &C. CI 
 
 5. In salvage in the case of wreck or danjror in Of Maritime 
 
 .J,V. ... v.... ^..>J^ w. ,..v,V..» V,. V.lA..y^ 
 
 the mid-sea, if the parties cannot agree amongst 
 themselves as to the compensation to be made, the 
 salvors may apply to the Court of Admiralty; who, 
 upon a due enquiry into all the particulars, will 
 make a decree according to the circumstances of the 
 case. In a case of a derelict, where the dang'er is 
 inconsiderable, and the abandonment has been inju- 
 dicious, the court will generally give about two-fifths 
 of the value of the ship and cargo saved. In a 
 case of greater danger, the same court has some- 
 time given as much as two-thirds. But it is a rule 
 with this court to be liberal in cases of this kind, as 
 the danger is usually extreme, and the relief nearly 
 hopeless. The general rule on this subject is, that 
 the rate of salvage on derelict is discretionary 
 by the modern practice in the Admiralty courts ; the 
 ancient rule of giving a moiety de jure to the salvors 
 being overruled by later practice. 
 
 6. As respects crews and passengers, they can in 
 no case be either salvors, or joint-salvors. The crew 
 cannot have any claim to salvage, because it is their 
 duty to protect tlie ship and cargo through all perils ; 
 and the whole of their service is engaged to the mas- 
 ter and owners. The same reason extends in a 
 great degree to passengers, who share the peril, and 
 must share the duty. But if a passenger exceed 
 what may fairly and reasonably be expected of him, 
 as his portion of common labour to a common peril 
 and its consequences, he may, under such circum- 
 stances, become entitled to a reward in the nature of 
 salvage ; and the court will grant it liberally. 
 
 Contracts. 
 Of Salvage.
 
 CM INTRODUCTION 
 
 ofMariiimc 7 As to the pcrsoiis who arc to contribute to sal- 
 
 Coutracts. * 
 
 Of Salva<^c. vagc, thc reward must be paid by those who receive 
 the benefit of the service. Salvage is a compensa- 
 tion to the sailors, not merely for the restitution of 
 the property which has been made by them to the 
 prior owners, (for that is properly an act of mere 
 justice on their part,) but for the risk and hazard in- 
 curred by them, and for the beneficial service they 
 have rendered the former owners in rescuing their 
 property from the danger in which it has been in- 
 volved. The persons, therefore, to contribute to 
 salvage, are the persons who would have borne the 
 loss had there been no such rescue, and who of 
 course reap the benefit of such rescue. But salvage 
 must not be confounded with mere acts of pilotage. 
 
 8. As to the second case of salvage, namely, salvage 
 in the case of capture and re-capture, the rate of salvage 
 to be paid to the captors is settled by certain acts of 
 parliament passed for that purpose ; the principal of 
 which is, the 48 Geo. 111. c. 132. In the third part 
 of our Work, and under the Chapter on Salvage, the 
 several provisions, and the cases which have arisen 
 under them, will be found duly arranged and ex- 
 plained. It will be sufficientlo observe in this sum- 
 mary, that the rate of salvage in the case of capture 
 and re-capture, as fixed by acts of parliament, is one- 
 eighth part of the value of the ship and cargo, in the 
 case of such re-capture being made by a king's ship ; 
 and one-sixth part of the value of ship and cargo, if 
 such re-capture be made by a privateer. 
 
 9. It is a principle, that in the case of one vessel
 
 TO THE LAW OF SHIPPING, &C. ciil 
 
 saved by another, the master and crew are strictly of Salvage, 
 the only salvors. The owners claim only under the 
 equitable consideration of the court, for the risk of 
 their vessel, &c. ; and the court is not disposed to 
 allow their claim to any great amount. 
 
 10. If a ship captured by the enemy be voluntarily 
 abandoned by him at sea, after taking out the crew, 
 cither because he may be unable, or may not think it 
 worth while to carry her into port: and she be found, 
 and taken possession of, by a British ship of war ; this 
 is not a re-capture within the act of Parliament; and 
 the Court of Admiralty is not restricted as to the rate 
 of salvage, but may apportion it to the nature and 
 merits of the case. 
 
 Such is the g-eneral system of our Shipping; and Conclusion of 
 
 TVT • . T 7*^ . ^ Uic Inlroduc- 
 
 JNavigation Laws, and the Maritime Contracts to tion. 
 which they give occasion. It may be justly ob- 
 served that the basis, and, as it were, the great char- 
 ter of the whole system, are the Navigation Laws ; 
 and that the Registry acts, and the regulations of 
 merchant shipping, are only to be valued, as their 
 aim is to uphold and enforce these admirable institu- 
 tions. The Navigation Act, in like manner with 
 many of our laws of constitutional liberty, arose in 
 times of popular commotion ; and, from the effect of 
 political causes, was the source of many bloody wars 
 with our maritime rivals, the Dutch. But succeeding 
 kings and parliaments, acknowledging its wisdom, 
 and respecting tiic patriotic spirit in which it origi-
 
 CIV INTRODUCTION 
 
 Conclusion of nated, have considered it no less a measure of £Ood 
 
 thelntroduc- . ^ . 
 
 lion. policy, than a proper maintenance of the popular in- 
 
 terests, to give it upon every suitable occasion a larger 
 compass and a firmer root ; and so to direct and guide 
 its growth into our system, that it might be sustained 
 by one common trunk, and supported by inter- 
 twining its branches with the spreading tree of Bri- 
 tish liberty. 
 
 Having now executed a summary, which we trust 
 may be of some use, not only to the general reader, but 
 to the profession, inasmuch as we have endeavoured 
 to make it comprehend, in a condensed form, a por- 
 tion of the whole of a very ample subject, it becomes 
 a duty of justice in the Author of this Treatise to ac- 
 knowledge his obligations to preceding writers. 
 
 The first of these in order is Mr. Reeves, who, in 
 his admirable treatise on the Navigation Laws, was 
 the first to reduce the numerous statutes and regula- 
 tions relating to our trade and commerce into order 
 and arrangement. Independently of the learning and 
 research of this writer, it is not his least merit that, 
 though his various acquirements and genius rendered 
 him capable of adorning a subject even more sterile 
 and unpromising than the Navigation Laws, he has 
 had the good taste, and grave and correct judgment, 
 to confine himself to that sober and didactic style 
 adapted for the purposes of business and utility. 
 His work is, perhaps, infinitely more valued than 
 known. It is one of those productions which might 
 have proceeded from the closet of a statesman ; and 
 must always be considered as a most valuable contri-
 
 TO THE LAW OF SHIPPING^ &C. CV 
 
 bution to the Board of Trade, and to the Eno'lish Concl.ision ot 
 laws of Navigation and Commerce. liun. 
 
 To Mv. Reeves the Author is indebted for the ge- 
 neral plan and division of the six first chapters on the 
 Navigation laws; and, more especially, for the useful 
 suggestion of a summary of Rules and Exceptions 
 in the conclusion of each Chapter on the different 
 branches of our trade ; by which the practical lawyer 
 and the merchant are conducted with so much facility 
 through that labyrinth of statutes, to wiiich almost 
 every succeeding year has made some addition. 
 These Rules and Exceptions the Author has endea- 
 voured to make as comprehensive as possible, and to 
 bring them down to the latest period, (o) In the 
 Chapter on the Colonial Trade the Author has ne- 
 vertheless been compelled to adopt somewhat of a 
 different arrangement from that of Mr. Reeves, on 
 account of the alterations made by the late treaties 
 of peace. 
 
 He has, therefore, first brought down his review of 
 this trade to a period before the late American war ; 
 and has then, in order to shew the state in which it 
 noio exists, divided his consideration of the subject 
 into the four branches: — I. Of the trade between 
 the Colonies and the United States : 2. Of the trade 
 of the British West Indies with Foreign Colonies 
 under the dominion of European princes — of the like 
 
 (o) Mr. Reeves brings down in the present Treatise to 59 
 the statutes to the 46 of Geo. Geo. III. 
 III. They are brought down 
 
 H
 
 CVl INTRODUCTION 
 
 Conclusion of trade with the Mother country, and between the colo- 
 
 li-.e Introduc- . . -^ 
 
 tion. nies themselves respectively : 3. Of the trade of the 
 
 ceded Colonies ; and, 4. Of the trade with British Ame- 
 rica. At the end of this review he has subjoined the 
 Rules and Exceptions, in the construction of which he 
 cannot disguise the fear he feels lest he should occasion- 
 ally be found inaccurate. He has then passed to a re- 
 view of the general policy of the whole trade ; and 
 "concluded with the Cases and Decisions which have 
 arisen in the Courts of Law and Admiralty. 
 
 In the Chapter on the trade witli Asia, Africa, and 
 America, the Author was likewise compelled to de- 
 viate very considerably from the plan of Mr. Reeves. 
 The opening of the trade with the East Indies to the 
 general merchant rendered it necessary to take a 
 review of the constitution of the Company as well 
 as of the general sytem of this trade. The extinction 
 of the monopoly of the South Sea Company, the 
 Slave Trade, the American Navigation I^aws^ the 
 Portuguese treaty, — all these were new circumstances 
 by which the Author was obliged to enlarge his re- 
 view of this important branch of our commerce. 
 
 In the European trade he has more closely ad- 
 hered to the arrangement of Mr. Reeves's work. 
 But even here it became necessary, in the Author's 
 opinion, to take a larger view of the subject; and to 
 include a consideration of the late war system under 
 which our Navigation Laws were administered ; to 
 explain and methodise the system of licences ; and la 
 give a short synopr,is of our present commercial rela- 
 tions with the ditVerent states of Europe.
 
 TO THE LAW OF SHIPPING, &C. Cvil 
 
 In the Fisheries it was almost impossible to follow Com Uision of 
 
 the Introchic- 
 
 any fixed plan, as the law relating to this branch of lioa. 
 our subject had been almost wholly re-cast and newly 
 modelled by recent statutes. 
 
 The Work, next in order of time, and in the use 
 which the Author has made of it, is the Treatise on 
 the law of Merchant Ships and Seamen, by Mr. 
 Abbott, now Lord Chief Justice of the King's Bench. 
 It is only to repeat the established opinion of the 
 public and profession to say of this Work that, as far 
 as it extends, it has perfectly exhausted the subject, 
 and left nothing to following writers within the same 
 compass of subject matter, but to illustrate and con- 
 firm his principles by new cases. The Author 
 would deem it to be a want of due modesty to enter 
 into a criticism upon a Work of such established 
 fame; and he shall feel that he has accomplished all 
 that he could ever intend or hope, if he shall be con- 
 sidered to have followed^ not unworthily, in the same 
 traick.
 
 LAW OF NAVIGATION, 
 
 AND 
 
 MARITIME CONTRACTS. 
 
 PART I. 
 
 THE LAW OF SHIPPING AND NAVIGATION. 
 
 CHAPTER I. 
 
 ORIGIN AND POLICY OF THE LAWS OF SHIPPING AND 
 NAVIGATION; AND A REVIEW OF THE SEVERAL STA- 
 TUTES RELATING THERETO, FROM THE 5tH OF RICH. II, 
 TO THE ACT OF NAVIGATION OF 1651. 
 
 J^ O part of the English law has been less understood by 
 the writers upon general policy, than our law of shipping 
 and navigation. Almost all the authors upon political 
 ceconomy have regarded this portion of our law in the 
 view of a commercial monopoly ; and have demanded how 
 our navy could be permanently maintained and augmented 
 by a system which, in restricting the natural growth of our 
 commerce, must diminish its demand, and therein its supply 
 of ships and mariners. Upon the one part, indeed, it can- 
 not be denied, that the effect of this system is to introduce 
 a partial monopoly in favour of British shipping, and to 
 
 B
 
 Origin and Polici/ [part i. 
 
 deprive us of advantages which might follow from a less 
 restricted liberty of commerce. 
 
 But, on the other side, the actual state of our navy and 
 commerce appears to be a conclusive proof against the 
 alleged mischief of such monopoly. With a navy equal 
 to the extent of our empire, we possess a commerce which 
 fills every channel for the possible employment of capital : 
 it is a necessary conclusion, therefore, from this compa- 
 rison, that our legislature has succeeded in accomplishing 
 both objects of our insular policy ; and has maintained and 
 augmented our naval strength, without the sacrifice of our 
 trade and commerce. A due examination of our law of 
 shipping and navigation will justify this inference. 
 
 It will appear that the main object of the navigation laws 
 was, primarily at least, not commercial, but political ; that 
 in a more remote period our commerce w as, perhaps, too 
 directly sacrificed to the growth of our navy ; but that, in 
 later times, when our navy had become more adequate to 
 our national defence, and when commercial principles were 
 better understood, the legislature has endeavoured to re- 
 concile the two objects, and to support oiu' naval estab- 
 lishment, with as little cost as possible to our commercial 
 interests. Having two proposed objects, and these in some 
 degree opposed to each other, the maintenance and aug- 
 mentation of our navy, and the liberty of commerce, the 
 legislature has deemed it wise to favour the former ; and 
 in this choice has preferred the interests of our national 
 defence ; not indeed to the interests of our whole com- 
 merce, but to that portion of them which would have re- 
 sulted from a perfect liberty in the carrying trade. In 
 almost all legislative measures they have kept the same 
 principle within their view; and, where the two objects 
 have come into competition, they have merely adhered to 
 their first preference, and have required our merchants to 
 concede something of the interests of trade, in order to ad- 
 vance and uphold the greater interest of the commou defence.
 
 CHAP. I.] Of the Navigation Laws. 
 
 Under this system, thus qualified by the prudence of the 
 legislature, both objects have been happily accomplished. 
 Our navy has been maintained and augmented in the de- 
 gree required by our national policy ; and the basis of our 
 commerce has become so extended, our mercantile capital 
 so enlarged, and our shipping and mariners so great and 
 numerous, as effectually to counteract the evil of a restric- 
 tive system; and, in despite of the navigation laws, to 
 render any monopoly in the carrying trade difficult, and 
 almost impossible. 
 
 It is not within the subject of a legal work to discuss at 
 any length the policy of the law which it professes to de- 
 velope and explain. But it may be permitted to make 
 these observations in answer to some arguments which 
 have been revived against this system. The interests of 
 mere commerce are certainly best advanced by a full and 
 perfect liberty of trade : but national defence is a still 
 greater interest than commerce itself. Something of the 
 less object may, therefore, be wisely sacrificed in favour 
 of the greater ; and the legislature performs all that can 
 be demanded of it, when, in pursuit of a greater good, it 
 takes no more from the less than is required by the prefer- 
 ence, and applies itself to correct (as they arise) the evils 
 incidental upon its choice. 
 
 The law of shipping and navigation, as at present estab- 
 lished, seems only to have commenced with the celebrated 
 navigation act in the long- parliament ; and those who have 
 written upon this subject of our law have generally pro- 
 ceeded from this period. But, upon an examination of 
 ©ur statutes, it will appear that some at least of the prin- 
 ciples of this act had an earlier origin. Our insular situ- 
 ation, indeed, must have always suggested two main ob- 
 jects of our policy, a navy and commerce. Accordingly, 
 from very early times, one or other of these interests has 
 become the favourite objects of our kings and parliament. 
 They have been pursued, perhaps, with less intelligence* 
 
 b2
 
 Origin and Poliaj [fart i. 
 
 and with less distinct views, than in more recent times ; 
 but it will appear that they have always been seen and 
 acknowledged ; and that the system of preference and ex- 
 clusion is not, therefore, so entirely, as has been imagined, 
 the creature of Cromwell and his parliament. 
 
 The acknowledged object of all our navigation laws has 
 been the maintenance and increase of the navy ; and, in 
 one form or other, all the acts employ the same means, 
 the preference of English ships or mariners, in English 
 exports or imports. In the earlier acts this preference is 
 expressed in the most full, simple, and absolute terms, 
 with little consideration of any just commercial principles; 
 and with a very loose, general, and inaccurate descrip- 
 tion of the subject matter of the statutes. As commerce 
 proceeded, and as the effects of general prohibitions be- 
 came manifest from experience, the navigation acts became 
 more qualified in their prohibitions, and more precise in 
 their description. A just distinction was taken between 
 foreign merchants importing their own goods, and acting 
 as carriers for others. The employment of their own 
 shipping by foreigners was permitted, because it was re- 
 quired by commercial interests, and was the natural and 
 proper use of their own means. But the carrying trade 
 by foreigners was strictly prohibited, because a maritime 
 people, like ourselves, were in a condition to become our 
 own carriers ; and because one of the national advantages 
 of commerce is, that it should thus administer to the ge- 
 neral defence. 
 
 Rich. IT. In reviewing the acts of navigation from the 5th of 
 Richard II. s. I.e. 3., in which the system of our naviga- 
 tion laws is commenced, down to the statute of 12 Charles 
 II., and the more recent registry acts by which it is com- 
 pleted, it will be seen, that such has been the progress of 
 the legislature in the gradual formation of this system ; 
 that it commenced with ordaining an absolute and unqua- 
 lified preference of English shipping and mariners by all
 
 CHAP. I.] Of the Navigation Laios, 
 
 merchants trading and dealing- with England ; that it after- 
 wards adopted the distinction of the carrying trade ; that 
 it described in more distinct and accurate terms what it 
 intended by English ships and English crews ; and, finally, 
 that, for the sake of ascertaining such shipping at all times, 
 and to give due effect to its oicouraging or prohibiting re- 
 gulations, it has finished and accomplished the whole by 
 the registry acts. 
 
 The first act of navigation, as has been above said, is the 
 5th of Richard II. s. 1. c. 3. followed and qualified by the 
 6th of the same king, c. 8., and the 14th Richard II. c. 6. 
 The statute of the 5th of Richard II. is expressed, to be 
 made for the increase of the navj/, — of the navy of England, 
 which was then greatly diminished. It is therein enacted, 
 that none of the king's liege people should ship any mer- 
 chandise in going out, or coming within the realm of Eng- 
 land, in any port, but only in ships of the king's leigance, 
 under the penalty of forfeiting all the merchandise shipped 
 in other vessels, or the value thereof. In the stat. 6 Rich. ^ ^'ich. II. 
 II. c. 8., the former enactment is qualified by the condi- 
 tion, so long as ships of the said leigance were to be found 
 able and sufficient in the parts zoherem the merchants hap- 
 pened to dwell. And in the 14th of Richard, c. 6. it is 
 added, as a further qualification, " so long as the owners 
 of the said ships take reasonable gains for the freight of 
 the same." 
 
 From the reign of Richard II., till the reign of Edward 3 Edw. lY. 
 IV., nothing was added to, or diminished from, these statutes. , 
 The Stat. 3 Edward IV. c. 1. adopted and repeated their 
 policy. It was enacted, by this latter statute, that no per- 
 son inhabiting within the realm of England, other than 
 merchant strangers, should freight, or charge within the 
 realm, any ship of any alien, or stranger with merchan- 
 dise, to be carried out of the realm, nor should bring any 
 into it, if he could have sufficient freight in the ships of 
 denizens, on pain of forfeiting the merchandise, half to the
 
 6 Origin and Policy [[part i. 
 
 king, and half to the person seizing. This statute, indeed, 
 was limited to three years, and concludes all that the legis- 
 lature had done, with respect to navigation, in this first 
 period of the system ; that is, from the reign of Richard 
 II. till the reign of Henry VII. Accordingly, all that was 
 sought by the legislature in this first period, was to secure 
 the preference of English shipping, by English merchants, 
 in exporting and importing, but without any distinct view 
 of the carrying trade ; or, what was more important, with- 
 out any precise and accurate description of what were to 
 be considered English ships and English crews. Some 
 effects of the carrying trade were, however, more obvious 
 to the commons than to the government itself. In the 
 18th year of Henry VI. there exists on the rolls a petition 
 of the commons to the crown, in which it is prayed, that 
 thenceforward no Italian, or other merchants of the coun- 
 tries beyond the Straits of Morocco, should sell in this 
 realm any other merchandise than that of the countries be- 
 yond the straits ; for that since such Italian merchants 
 had become carriers of the commodities of Spain, Portu- 
 gal, and other countries within the Straits, those articles 
 were not brought in such abundance, nor were they sold 
 so cheaply, as when they were brought by the merchants of 
 those countries respectively ; or were fetched by the mer- 
 chants of this country in their own ships, to the decrease 
 ©f the king's customs, to the depreciation of the merchan- 
 dize of the realm, and also a great hurt to all the navy of 
 • the realm (a). 
 
 Though this petition was not followed by any law, it 
 appears from it, that the effects of the carrying trade were 
 becoming more known, and that the commons of England 
 had already conceived the policy of confining foreign ships 
 to the carrying of the productions of their respective coun- 
 tries only (6). 
 
 («) Reeves on shipping, &c. 12. and Reeves on shipping, &c. IS. 
 (6) Rolls Pari. 1 8 Hen. VI. c. 59.,
 
 CHAP. I.] Of the Navigation Laws. 7 
 
 The second stage of our navigation system may be said i Hen. VII. 
 to commence with the first year of Henry VII., in which we 
 observe a most material advance towards our present po- 
 licy, in the condition now first required, that tlie mariners, 
 as well as the ships, should be of this country. By tlie 
 1st of Hen. VII. it was enacted, that no one should buy or 
 sell within this realm, Ireland, Wales, Calais, or the Mar- 
 ches of the same, or Berwick, any manner of wine, of the 
 growth of the duchy of Guienne, or Gascony, but such as 
 should be adventured, and brought in an English, Irish, 
 or Welshman's ship, the mariners of which were Ens;lish, 
 Irish, or Welshmen, for the most part, or men of Calais, 
 or of the Marches of the same, on forfeiture of such Avine, 
 half to the king, and the other half to the finder. In the 
 close of this statute is a clause saving the king's preroga- 
 tive. The statute was to endure only to the next parlia- 
 ment, when it was revived by stat. 4 Hen. VII. c. 10. and 
 extended to Thoulouse woad. The latter statute con- 
 tained no reservation in favour of the prerogative, but 
 substantially repeated the important clause in the statutes 
 of Richard II., that no person inhabiting within this 
 realm, other than merchant strangers, shall freight or 
 charge within this realm, or Wales, any ship or other ves- 
 sel of any alien or stranger, with merchandise, to be car- 
 ried out of, or brought into, this realm or Wales, if he 
 may have sufficient freight in ships of denizens, at the 
 port where he makes his freight, on forfeiture of the mer- 
 chandise, half to the king, and half to the person seizing 
 the same. No other act was passed upon this subject dur- 
 ing the reign of Henry VII. But these enactments were 
 repeated, and confirmed by three several statutes in the 
 following reign of Henry VIII. By the first of these 
 statutes, 7 Hen. VIII. c 2. the dispensing licences granted 7 jjen. VIll. 
 by the crown, notwithstanding the omission of the clause, 
 saving the king's prerogative, in stat. 4 Hen. VJI., were 
 expressly declared to be void, excepting only such as 
 should be executed before a certaia ihort day then to 
 come.
 
 8 Origin and Policy [part i. 
 
 23 Hen. VIII. The second of these statutes, 23 Hen. VIII. c. 7. is a 
 mere recital of the stat. 5 Rich. II. stat. 6, and stat. 4 
 Hen. Vll. and a declaration that they should stand in full 
 
 S2 Hen. VIII. force and effect. The third statute, 32 Hen. VIII. c. 14. 
 is intituled " an act for the maintenance of the navy of 
 , England, and for certain rates of freight." It confirms 
 
 the preceding statutes, and appoints a certain price of freight 
 between the port of London, and the principal ports in 
 Europe, which, except in the time of war, was not to be 
 exceeded. It likewise confines certain privileges, granted 
 by royal proclamation, to merchant strangers importing 
 and exporting merchandize, to such articles as were so 
 imported or exported, in any " ship, bottom, or vessel of 
 this realm, commonly called an English ship, bottom, or 
 vessel." (c) And, to assist in the execution of the act, and 
 to enable merchants to find and procure freight, the owners 
 of English vessels were commanded to affix a notice in 
 some public place in Lombard-street, fortlie space of seven 
 days, of their purpose of sailing, and of their voyage. 
 
 Such were the two first stages of our navigation laws, in 
 their progress to the system now established. In the for- 
 mer of these periods, we see that their object was the 
 maintenance of the navy ; and we see it pursued by an 
 uniform course, the encouragement of English ship owners, 
 and a preference to goods imported or exported in English 
 vessels. In the latter period we see the same object, and 
 the same means more strongly expressed, and an important 
 advance to a necessary precision in defining what should 
 be regarded as English ships. The crew and the bottom 
 are here first distinguished. 
 
 The third stage commenced with a total change of views, 
 
 and w ith a violent retrogression of the former system. The 
 
 6Edw. VI. stat. 5 and () Edward VI. c. 18. commences with a com- 
 
 {c) This is Ihc first instance of vour of English ships. — Reeves on 
 an easement in duly made in fa- shipping, &c. 16.
 
 CHAP. I.] Of the Navigation Laics. 
 
 plaint that the stat. 4 Hen. VII. had disappointed the 
 views of the legislature. 
 
 The statute then repeals the act of the 4th of Hen. VII., 
 and allows all merchants of countries in amity with Eng- 
 land, to bring in wines of any part of France, or Thou- 
 louse woad, in any ship whatever, the owner, master, and 
 mariners, being of parts in amity with England. Here we 
 see a total departure from the former system of preferring 
 English ships and mariners : and this change was further 
 followed by stat. 1 Eliz. c. 13. in which stat. 5 Rich. II. l Eliz, 
 and stat. 4 Hen. VII. were formally repealed. So far 
 there appears a violent conclusion of the former naviga- 
 tion policy of so many kings and parliaments. But the 
 ministers of Elizabeth were no less clear-sighted as to the 
 true interests of the country, than dexterous in apparently 
 conceding to the jealousy of foreigners. The former acts 
 were repealed to conciliate the feelings of those foreign 
 states, which now began to retaliate our prohibitory laws. 
 But the interest of English shipping was still preserved 
 by a clause in the same act, which, professing only to se- 
 cure the royal revenue, secured a preference to English 
 vessels, as effectually, and less invidiously, than the for- 
 mer exclusive system. By this clause it was enacted, that 
 all owners of merchandise, using other vessels than those 
 of which the queen, or some of her subjects of this realm, 
 were not possessors and proprietors, and the masters and 
 mariners, for the most part, subjects of the queen, should 
 pay subsidy and custom for ii«e same as if strangers and 
 aliens born, (c?) 
 
 The above statute contains a further clause in favour of 
 our naval growth ; for, with the purpose of promoting the 
 building of large vessels, it ordains that no hoy, or plate^ 
 
 (d) This act was only of a tern- nate regulations, of no conse- 
 porary duration, namely, for five quence now to the general subject, 
 years. It contains some subordir-
 
 10 Origin and Policy [part i. 
 
 belonging to an English subject, should be employed in 
 carrying merchandise from this kingdom to parts beyond 
 the seas, on pain of forfeiture of such hoy or plate. But 
 the most important maritime statute of this reign, and in- 
 deed the most important advance in our navigation system, 
 5 Eliz. previous to the act of Cromwell, was the stat. 5 Eliz. c. 5., 
 intituled an act touching politic constitutions for the mainte- 
 nance of the navy; an act which now first, and at once, in- 
 troduced the two main principles of our navigation acts, 
 as at present existing : the encouragement of the fisheries, 
 and the exclusive possession of our own coasting trade. 
 
 The fisheries It was enacted in this statute, that all English raer- 
 eacouraged. ^j^^nts might export in English vessels herrings, and other 
 fish taken upon the seas by English subjects, to any foreign 
 parts, without paying any custom for the same ; no toll, 
 tax, or other restraint, was to be imposed in any port, or 
 market, upon fish so taken ; no purveyor should take the 
 same without agreement with the owner or seller. None 
 was to buy of a stranger, or out of a stranger's vessel, 
 any herring not being sufficiently salted, packed, and 
 casked, &c. The act was to endure for four years. 
 
 13 Eliz. This act, the object of which was to render the fisheries 
 
 subservient to the interest of shipping and navigation, was 
 gr followed by two other acts of this reign ; the stat. 13 Eliz. 
 
 c. 11., and the 23 Eliz. c. 7. By the former of these sta- 
 tutes, no fish taken or brought into the realm by a stranger, 
 could be dried within England, to be sold, on pain of for- 
 feiture : by the latter statute, which was intituled an act 
 for the increase of mariners^ and for maintenance of the na-- 
 ztgaliotiy our merchants were prohibited from purchasing 
 their salted fish in foreign parts, instead of employing our 
 own fishermen, (c) The words of the act, describing the 
 consequences of this practice, are very strong. It is owing 
 to this, says the preamble, that two hundred sail and more, 
 
 (r) Reeves on shipping, 24.
 
 CHAP. I.] Of the Navigation Laws. 11 
 
 of good and serviceable ships, trading yearly to Ireland, 
 have now decayed ; as also a great number of mariners and 
 seamen, fit for her majesty's service. The first, therefore, 
 of these three acts, was a statute encouraging our fisheries, 
 by exempting the fish taken by British vessels from all 
 tolls or restraints : the two latter statutes added a further 
 encouragement by a direct prohibition of the sale or pur- 
 chase of foreign fish. 
 
 In the following reign the two statutes, 1 Jac. I. c. 23. 1 Jac. I. 
 and stat. 3 Jac. I. c. 12., adopted and acted upon this po- 3 Jac. I. 
 licy ; those acts being made for the encouragement of the 
 herring and pilchard fishery, on the coasts of Somerset, 
 Devon, and Cornwall. This encouragement of British 
 fisheries, with a view to the maintenance of our navy and 
 mariners, was thus commenced in the act of the 5th of Eiiz., 
 and was followed up to the 3d of James I. when it ceases 
 to appear, until revived and more strongly adopted in the 
 act of navigation. It is now one of the first and most 
 established principles of our navigation system. 
 
 The 5th of Eliz. likewise introduced, as above said, the 
 second main principle of our present system, the exclusive 
 possession of our coasting trade, as a peculiar nursery for 
 ships and seamen. But as the shipping of England was 
 not yet equal to the demand of her trade, and particularly 
 to her consumption of fish in a period of very imperfect 
 agriculture, it was found necessary to repeal this statute 
 by the 39th of Eliz. c. 10. ; and the reason assigned is, that 
 the natural subjects were not able to supply a tenth part 
 of the realm with salted fish of their own taking. Ano- 
 ther very fair and liberal principle is affirmed in this act ; 
 as the subjects of this country, says the act, may carry out 
 salted fish, it would be unequal not to alloAv them also to 
 bring it in, but rather to entrust this branch of trade wholly 
 to foreigners. The truth is, that some very able men had 
 already written upon the subject of trade and commerce ; 
 and it was understood now. nearly as well as in the pre- 29 Eliz.
 
 12 Origin and Policy [part i. 
 
 sent day, that a profitable dealing comprehended buying 
 as well as selling, and the taking of goods in payment, 
 where the merchant could make more of them than by 
 money. 
 
 The 5th of Eliz. enacted that no person should cause to 
 . be laden or carried in any bottom, whereof a stranger born 
 was owner, shipmaster, or part owner, any kind of fish, 
 victual, wares, or things of what kind or nature soever, 
 from one port or creek of this realm, to another port or 
 creek of the same, on pain of forfeiting the goods so laden 
 or carried. 
 
 Such was the act of the 5tli of Elizabeth, which, as con- 
 tinued and qualified by the subsequent acts above enumer- 
 ated, constituted our practical navigation system, till the 
 period of the act of navigation. It had already introduced 
 two out of the three main principles of the system, as now 
 established, viz. the encouragement of fisheries, and the 
 exclusive possession of our own coasting trade. The third 
 of these principles, the exclusive possession of the trade 
 with our own colonies, followed immediately afterwards. 
 
 If we may here indulge in a momentary pause, and 
 review what has been above stated, it will appear that our 
 navigation laws, as they now exist, have been only gradu- 
 ally formed to their present shape and policy ; and that, 
 in early times, their object was neither very clearly seen, 
 nor very consistently followed. Our writers upon law 
 have indeed occasionally fallen into the same error with 
 the writers upon our constitution. They have regarded, 
 as belonging to one time, and to one set of men, that which 
 has been the work of generations and centuries ; and, could 
 we revive those who are now considered as the fathers of 
 our law and constitution, tliey would doubtless behold with 
 more admiration than recognition, what we now call their 
 original principles, and their wise foresight for themselves 
 and tlioir remote posterity.
 
 CHAP. I.] Of the Navigation Laws. 13 
 
 If we content ourselves Avith the grave statement of 
 truth, both as to our law and to our constitution, we shall 
 allow more to the present time, and less to our ancestors. 
 Every age, acting upon the general principles of prudence, 
 and according to the compass of its own knowledge, has 
 provided for its own immediate concerns ; has applied a 
 remedy to an actual or imminent evil, or adopted the most 
 direct means for the attainment of an evident good. As 
 far as respects our navigation laws, this is, perhaps, all we 
 must allow to our ancestors. They have made laws and 
 repealed them, according to the necessities of their own 
 times. But, as their knowledge was not only much less 
 than that of the present times, and as the political relations 
 of the kingdom, and its commercial intercourse, were so 
 much more limited and simple, it is as unjust to ourselves, 
 as absurd in its own nature, to refer to them for the whole 
 reason and policy of a system so artificial and extensive as 
 our present navigation law. The subject matter of our 
 present maritime policy, at least the three principal por- 
 tions, the fishery, the coasting trade, and our colonial com- 
 merce, are almost entirely of modern origin, and all the 
 important regulations regarding tliem are to be sought in 
 modern statutes. To return, however, (o our more imme- 
 diate subjects. 
 
 The colonial, or, as it is more generally called by our 
 earlier writers, the plantation trade, received the exclu- 
 sive character which has since become attached to it, not 
 so much from any regard of the mother country to the co- 
 lonies, as from the peculiar circumstances of the origin of 
 such colonies. 
 
 Such colonies were long considered as belonging more Colonies and 
 immediately to the crown than to the people : hence the plantations. 
 crown deemed itself entitled to any peculiar profit which 
 could be derived from them. All the early regulations of 
 the colonies were made with this view, and are directed to 
 this end. The colonists are commanded to send the whole
 
 14 Origin and Policy [part i. 
 
 of tlieir produce to England, " that the staple of their 
 commodities might be made here ; and that his majesty, 
 after so great an expense in the plantations, and having 
 so many of his subjects transported thither, might not be 
 defrauded of what was justly due for customs on the goods." 
 In the document from which the above words are quoted 
 (the instructions to Sir William Berkeley, governor of 
 Virginia, (/) 1639) the governor is commanded to suffer 
 no ship to depart from Virginia laden with the produce 
 of that colony, before bond and sufficient sureties should 
 be given to bring the same into his majesty's dominions : 
 he was likewise to take bonds of the owners of tobacco, 
 that it should be brought to the port of London, and there 
 pay its customs. 
 
 Colonies, &c. The exclusive possession of the colonial trade by the 
 mother country originated, therefore, in these views of 
 revenue, and only in a secondary degree from the sup- 
 posed family analogy of the parent state and its remote 
 settlement. Hence, not in England only, but in all the 
 old kingdoms of Europe possessing plantations, the colo- 
 nial system has the same character ; these kingdoms en- 
 courage the produce of their colonies in preference to the 
 like produce from other states ; and, in return, require 
 that these colonies should send their produce exclusively 
 to the mother country. 
 
 In the reign of James I., and during the first years of 
 Charles I., our colonial trade was placed under strict and 
 somewhat selfish regulations. The governors were in- 
 structed to watch over the interests of the king's revenue, 
 and, to that end, to take the bonds above described ; but, 
 so long as this object of the revenue was secured, the king 
 and council appear to have little concern for any other 
 interests. In the year 1646, when the parliament had as- 
 sumed the sovereign power, the public interest was more 
 
 (/) KccTcs, 30., and Chalmers' Folitica I Anaals, 132.
 
 Colonial 
 
 CHAP. I.] Of the Navigation Laws. 15 
 
 distinctly seen ; and, in an ordinance of the 23d of January 
 in that year, the parliament provided not only for the ex- 
 clusive transportation of the colonial produce into Eng- 
 land, but for the exclusive employment of British bottoms 
 in such transportation. 
 
 This ordinance is intituled, " privileges granted to seve- 
 ral foreign plantations ;" it indicates its object in its com- 
 mencement, by reciting, that the plantations had been 
 " greatly beneficial to the kingdom, by the increase of na- 
 vigation," and by the customs upon the produce of such 
 plantations imported into this country. — The ordinance 
 then proceeded to grant some facilities and encouragement 
 for the further settlement and supply of the plantations, 
 such as the free exportation from England, for the next 
 three years, of all merchandise and necessaries for carrying 
 on such plantations, due security only being given to the 
 commissioners of the customs, for the actual exportation of trade" 
 such merchandise to such plantation, and for the return 
 of a certificate from thence within one year, of the arrival 
 and discharge of the ship. The ordinance next proceeded 
 to allow the departure of British subjects who were willing 
 to become servants or settlers, requiring only tlie regis- 
 tration of their names at the custom-house. It then con- 
 cluded with this important provision, that none of the 
 plantations should suffer any vessel to take in any articles 
 of the growth of the said plantations, and carry them to 
 any foreign parts, except in English bottoms : " and in case 
 any of the said plantations shall offend herein, then the 
 plantation so offending shall be excluded from the benefit 
 of the ordinance (g*)." 
 
 Some of the colonies having afterwards expressed an at- 
 tachment to the house of Stuart, the parliament, in great 
 indignation, issued an ordinance against them, October 3, 
 1650, in which^ after declaring the offending colonies to be 
 
 (§•) Reeves, 32.
 
 16 Origin and Policy [part i. 
 
 traitors and rebels, they conclude by imposing a restriction 
 upon all the plantations in general ; a restriction found 
 to be so useful, if not necessary, that it has thenceforth 
 passed into our colonial and navigation system. That no 
 enemy of the commonwealth might procure a passage to the 
 colonies, and that no dangerous person might find admis- 
 sion, the parliament prohibited all foreign vessels from 
 entering any colonial port. All such ships were forbidden 
 in the most comprehensive words to come to, or trade in, 
 or traffic with, any of the English plantations in America, 
 or any islands, ports, or places which are planted by, and 
 in possession of, the people of this commonwealth, with- 
 out licence first had and obtained from the parliament or 
 council of the state. 
 
 Such was the progress of that branch of our navigation 
 and commerce, which, from its importance both in value 
 and policy, has since become distinguished by the name 
 of our colonial trade and system. Its exclusive character, 
 both as to the exportation of colonial produce, and to the 
 importation of colonial supply, originated rather in views 
 of revenue than in any object of general policy, or any 
 interests of trade and navigation. In the first settlement 
 and discovery of our plantations they were granted, go- 
 verned, and administered, as so many crown lands ; no- 
 thing was considered but revenue. A very short experi- 
 ence proved their value to the navigation and commerce 
 of the country. At this period, unfortunately in some 
 circumstances, but not without some good in others, the 
 administration of the kingdom was in the hands of a parlia- 
 ment comprehending many able men ; whose ability was 
 seconded and rendered effectual by a contempt of the 
 jealousy and enmity of foreign powers. They saw the 
 peculiar interests of the kingdom as an insular nation, 
 and they resolved to pursue them ; they began by com- 
 pleting and securing our exclusive possession of our own 
 colonial trade. They strictly confined the colonists to 
 transportation in English bottoms only j and, that they
 
 cMAp. I.] Of the Navigation Laics. lY 
 
 might secure the execution of this law by rendering the 
 transgression of it nearly impossible, they finished this por* 
 tion of their new system, for such it may be called, by pro- 
 hibiting all foreign vessels from approaching their colonial 
 ports. 
 
 The course of our deduction now leads us to the cele- 
 brated act of navigation passed by the parliament in the 
 following year, October 1651 ; an act which, aiming at the 
 increase of English shipping, and collecting all the pre- 
 vious laws which had been made from the earliest times 
 with the same purpose, at once established that system of 
 maritime policy, which has since undergone no further 
 change than what has been necessary to render it more 
 effectual. The first object of this act Avas to deprive the 
 Dutch of that carrying trade by which they had become the 
 most wealthy nation in Europe. At the period of this act, 
 they were the carriers even for the British colonies, and, 
 in such a proportion, that of forty vessels from the West 
 Indies thirty-eight are said to have been Dutch. The first 
 object of the parliament was to terminate this monopoly : 
 the second purpose was to enlarge the sphere of employ- 
 ment for English shipping and seamen, by prohibiting all 
 foreign nations from becoming the carriers for each other ; 
 confining each nation to the bringing of its own produce 
 only, and thus (as half the nations in Europe had no sufii- 
 cient vessels of their own) compelling English merchants 
 to fetch in English vessels what their foreign dealers 
 could not transport. 
 
 In pursuance of these objects, the ordinance commences 
 with a regulation, which, in terms as simple, and appa- 
 rently as equitable as comprehensive and effectual, at once 
 strikes at the root of the evil, and establishes a distinction 
 so plain, so practical, and so sufficient, that in nearly two 
 centuries nothing more has been necessary than to main- 
 tain and support it. It first enacts, that no goods or com- 
 modities whatever, of the growth, production, or manu- 
 
 G
 
 18 Origin and Polict/ [part i. 
 
 facture of Asia, Africa, or America, or any part tliereof, or 
 of any islands belonging to them, as well English plan- 
 tations as others, shall be imported into England, Ireland, 
 or any part of the commonwealth, in any other ship or 
 vessel whatsoever, but only in such as do truly, and with- 
 out fraud, belong only to the people of this commonwealth, 
 or the plantations thereof, as the proprietors or right 
 owners thereof, and whereof the mariners and masters are 
 also, for the most part of them, of the people of this com- 
 monwealth, under the penalty of the forfeiture of the goods 
 and ship. 
 
 By the effect of this clause, therefore, the whole import 
 of the productions of three parts of the world was secured 
 to English ships. The next clause is only less extensive 
 with respect to the trade of Europe : it enacts, that no 
 goods, the growth, production, or manufacture, of Europe, 
 sliall be imported into the commonwealth of England, Ire- 
 land, &c. in any ship or vessel whatsoever, but in such 
 as do truly, and without fraud, belong only to the people 
 of this commonwealth, as the true owners and proprietors, 
 and in no other, except only such foreign ships and zesse/s 
 as do truly and properli/ belong to the people of that coun- 
 try^ or place, of zc}hich the said goods are the growth, pro- 
 duction, or manufacture, or to such ports where such goods 
 can only be, and most usually are, first shipped for trans- 
 portation, under the penalty of the forfeiture of the goods, 
 and also of the ship in whicli such goods shall be so 
 brouglit in and imported. And no goods or commodities 
 whicli are of foreign growth, production, or manufacture, 
 and v^hich are to be brought into (his commonwealth in 
 shipping belonging to the people thereof, shall be by them 
 shipped or brought from any other place or country, but 
 only those of their own growth, production or manufacture. 
 As the first clause, therefore, took the colonial trade from 
 the Dutch, so this second clause deprived them of being 
 the carriers of Europe, and obliged our merchants to be- 
 come thcmselvc:» the carriers for those nations wlio had
 
 CHAP. I.] Of the Navigation Laws', 19 
 
 no shipping belono-ing to them. They were compelled, 
 moreover, to fetch all such foreign commodities from the 
 place of their growth or manufacture, instead of, as hither- 
 to, buying them in Holland, which, under this monopoly of 
 the carrying trade, was becoming auother Tyre and Sidon, 
 
 The act next proceeded to the permanent establishment 
 of our fisheries, by enacting that no cod, ling, herring, pil- 
 chard, or any kind of salted fish, should be imported into 
 the commonwealth, or in any of our plantations, but only 
 such as should be caught in vessels that truly belonged to 
 the people of this nation. The fourth and last object of 
 the ordinance was, the coasting trade, which was rendered 
 equally exclusive to us by a clause enacting that no per- 
 son should load, or cause to be loaded, in any bottom, 
 ship, or vessel whereof any stranger born (not being a de- 
 nizen, or naturalized), was owner, part owner, or master, 
 any fish, victual, wares, or things, from any port or creek 
 of this commonwealth to another, under the penalty of 
 forfeiture of the goods. 
 
 To these principal clauses were added four provisoes, 
 by which some certain exemptions were made; but all, as 
 will be seen, in favour of English shipphig only. 
 
 The first of these clauses was in favour of Levant and 
 East India goods brought in English shipping. By this 
 it was enacted, that the act should not restrain the impor- 
 tation of the commodities of tlie Straits, or Levant seas, 
 laden in the shipping of this nation, at the usual ports or 
 places within the Straits or Levant seas. 
 
 The second was in favour ©f English ships bringing 
 South American goods or produce from Spain and Por- 
 tugal, or goods and commodities which came from, or be- 
 longed to, any of the plantations or dominions of either of 
 those nations. 
 
 c2
 
 20 Origin and Policj/ [part i. 
 
 The third exempted the silk, and silk wares brought by 
 land from Italy on account of English merchants ; these 
 might be shipped in English vessels from Ostend, Rotter- 
 dam, &c., the owner in England making oath before the 
 comptrollers of the customs, that the goods were so bought 
 for his account in Italy. 
 
 The fourth exempted bullion, and goods taken by way 
 of reprisals, from the operation of the act. 
 
 Such was this act, or ordinance, which is not only the 
 ground work of our present system, but is, in all its divi- 
 sions and subdivisions, the complete frame of the whole 
 law of navigation as now established. 
 
 For the sake of a due order in our future enquiries, and 
 that the Reader may follow us with more ease, we shall 
 conclude this introductory chapter by observing, that the 
 whole substance and system of our navigation law, even as 
 now established, may be summarily represented and com- 
 prehended in the following short analysis. 
 
 The object of our navigation laws is the maintenance 
 and increase of our shipping and navy, and the employ- 
 ment of our own mariners. The means by which this ob- 
 ject is sought to be established are five : — 
 
 First, Exclusion of foreigners from the carrying trade 
 for each other, and the consequent compulsion upon the 
 British merchants to use British shipping, in fetching the 
 goods of those nations which have not tliemselves the means 
 of bringing them. 
 
 Secondly, The exclusive supply of the consumption of 
 this country and our islands in salted fish ; or, in other 
 words, the encouragement of our fisheries ; and particu- 
 larly those of Greenland and Newfoundland.
 
 CHAP. I ] Of the Navigation Laws, 21 
 
 Thirdly, The exclusive possession of our colonial trade. 
 
 Fourthly, The exclusive possession of our coasting 
 trade. 
 
 Fifthly, A system of registration, which, by ascertaining 
 the actual ownership of vessels, keeps them always under 
 the eye of the law, and renders it impossible for foreigners 
 to have such an interest in them as might be prejudicial 
 to the state ; and for merchants or captains to evade the 
 several acts for the preference and encouragement of Bri- 
 tish ships.
 
 22 
 
 CHAPTER ir. 
 
 THE PLANTATION, OR COLONIAL TRADE. 
 
 Navigation J. HE parliamentary ordinance of 1651 was the systematic 
 ' * ' commencement of the navigation laws, as now regarded 
 
 and established : but as this ordinance necessarily passed 
 away upon the restoration of the royal government, it was 
 revived, legalized, and in some degree enlarged, by the 
 stat. 12 Car. II. c. 18., which has thus become the great 
 of our shipping and navigation : — it is intituled an act for 
 the increase of shipping, and encouragement of the naviga- 
 tion of this nation^ wherein, under the good providence and 
 protection of God, the wealthy safety/, and strength of this king- 
 dom is so tniich concerned. 
 
 In the conclusion of the last chapter It was observed, that 
 the design of our shipping system might be very sim- 
 ply and suiT.marily represented ; that its object was to 
 promote the increase of British shipping by securing the 
 demand and employment of it, and that its means, to this 
 end, might be distributed under the respective heads ; the 
 colonial trade; tlie trade beyond Europe not being colo- 
 nial; the European trade; the coasting trade ; tlie fisheries; 
 and the regulations for ascertaining the ownership and 
 built of English ships. 
 
 If the act of Car. II. be examined, it will be found that 
 all its objects may be arranged with equal precision and 
 fulness under the same divisions : our enquiry, therefore, 
 will be directed in this order. We shall commence with 
 txaminijig under each head what the act of Charles has
 
 CHAP. II.] Colonial Trade. 23 
 
 enacted and required ; and then subjoin what has been 
 added, diuiinislied, or changed, by the laws since passed. 
 The coh>nial trade is first in order. 
 
 The first object of the act is to secure the exclusive and Colonial 
 total possession of the trade to our colonies, both as to our 
 supplying tliem with European good?, and becoming the 
 staple and market of their produce, to be carried in Bri- 
 tish ships only. To secure this exclusive possession, the 
 first and second section enact, that no goods shall be im- 
 ported into, or exported out of, any of the lands, islands, 
 Sec. belonging to his majesty in Asia, Africa, or America, 
 in any other sliips but in such as do truly belong to the 
 people of England, Ireland, Wales, &c., or are of the built 
 of, and belonging to, any of the said lands, islands, &c. 
 and whereof the master, and three-fourths of the mariners 
 at least, are English, under tlie pain of forfeiture of such 
 vessel, &c. — Aliens, and persons not born within the king's 
 allegiance, or naturalized and made free denizens, are pro- 
 hibited from becoming merchants or factors in such colo- 
 nies ; and every governor, before he enters upon his go- 
 vernment, is required to take an oath that he will neglect 
 no effort to procure the observance of the regulations 
 enacted. 
 
 The above sections confine the carriage of colonial pro- 
 duce to British ships. A second object was to secure to the 
 mother country the staple and market of their produce. 
 With this design the principal articles of colonial growth, 
 such as tobacco, cotton, wool, indigo, ginger, fustick, and 
 all other dyeing Avood, are expressly enumerated in the 
 act ; and it is commanded that they shall be carried only to 
 the mother country. These articles, from the express men- 
 tion, have thenceforth been called by the name of eiiume' 
 rated goods ; and that the English shipping might be bene- 
 fited by the profit of bringing them home, and English 
 merchants might exclusively enjoy the profit of sending 
 them to other parts of Europe, the 18th section of the act
 
 S4 Navigatlo7t Laios. [part i. 
 
 inflicts the forfeiture of goods and ship upon any vessel 
 which should carry such articles from such colonies to any 
 other place than the British dominions, except to some 
 other English plantation. And to take a further security 
 for the due execution of this part of the act, the following 
 section (the 19th) requires, that every ship sailing from any 
 British port, for any English plantations in America, Asia, 
 or Africa, should give sufficient bond, and one surety to the 
 officer of the port whence she sails ; that such vessel shall 
 bring such enumerated goods to some port of England, Ire* 
 land, Wales, or Berwick-upon-Tweed only. The governor 
 of any island is to take the same bond from any vessel 
 coming at first from one plantation to another, or from any 
 other place ; and copies of such bonds are to be sent to the 
 chief officers of the customs in London twice in the year. 
 
 By this regulation of our colonial trade, the navigation 
 act of Car. II. sought two immediate objects :-^— the first was 
 the exclusive supply of our colonies, in British shipping, 
 with all European goods; and, secondly, the exclusive trans- 
 mission, in British vessels to a British port, of all articles 
 which were the growth of such colonies. The 15th of 
 Car. II. c- 7. repeated and enlarged these enactments of 
 the 12th of the same king : it is intituled an act for the 
 encouragement of trade ; and the 5th sect, enacts, that, in 
 regard that his Majesty's plantations beyond the seas are 
 inhabited and peopled by his subjects, of his kingdom of 
 England, for the maintaining a greater correspondence and 
 kindness between them, keeping them in a firmer depend-* 
 ence, and rendering (hem yet more beneficial and advan- 
 tageous in tlie further employment and increase of English 
 shipping and seamen, in the vent of English woollen, and 
 other manufactures and commodities, rendering the navi- 
 gation to and from the same more safe and cheap, and mak- 
 ing this kingdom a staple, not only of the commodities of 
 those plantations, but also of the commodities of other 
 countries and places, for the supplying of them : and it 
 being the usage of other nations to keep their plantation
 
 CHAP. II.] Colonial Trade. 25 
 
 trade to themselves, — Be it enacted, (s. 6.) &c., That no 
 commo.'.ity of the growth, production, or manufacture of 
 Europe shall be imported into any land, island, plantation, 
 colony, territory, or place to his Majesty belonging, &c. in 
 Asia, Africa, or America, (Tangier only excepted) but what 
 shall be bona fide, and without fraud, laden and shipped 
 in England, Wales, &c., in English built shipping ; and 
 whereof the master, and three-fourths of the mariners 
 at least, are English, and which shall be carried directly 
 thence to the said lands, islands, plantations, &c., and from 
 no other place or places whatsoever. The 7th sect, con- 
 tains an exception in favour of the shipping of salt for the 
 fisheries of New England and Newfoundland, and of the 
 wines of Madeira and the western islands, which the act 
 permits to be transported into any of the lands, islands, 
 plantations, &c. — Then follow some clauses for the pre- 
 vention of fraud, and for the imposing penalties upon offi- 
 cers of customs for neglecting their duties (s. 8, 9.) 
 
 It will be seen that this act took away the direct trade 
 of Ireland and the colonies ; and the reason assigned was, 
 that England chiefly suffered from the emigration of her 
 inhabitants to the plantations. But as this direct trade 
 with Ireland was forbidden only by the omission of her 
 name, instead of by an express mention, it appears that the 
 merchants, deeming this omission an inadvertence of the 
 legislature, paid no regard to it. The stat. 22 and 23 
 Car. II. c. 26. was passed to terminate all such doubts by 
 an express declaration. This act directs, (s. 11.) that the 
 word Ireland shall not be admitted into the bonds taken 
 for any ships sailing from England, Ireland, Wales, &c. 
 for any English plantation in America, Asia, and Afi'ica, 
 that all such ships should unload in some port of England 
 or Wales only, and in the same manner as all other ships 
 permitted by the act of navigation to trade with the planta- 
 tions. The governors of the colonies are commanded to 
 take bonds of the same kind from all ships sailing from 
 their respective colonies laden with colonial produce, and
 
 26 Navigation Laws. [part i. 
 
 once at least, in every year, to make a return to the officers 
 of customs in London. The usual penalty of forfeiture of 
 ship is added to all those detected in such contraband trade. 
 But that the colonies might receive some return for these 
 restrictions upon their trade, it is further provided, in the 
 same acts of the 22 and 23 of Car. II. (in confirmation of 
 a previous statute prohibiting the planting of tobacco in 
 England, Wales, Guernsey, Jersey, &c.) that constables 
 should search and make presentment at the sessions of all 
 persons who had planted tobacco ; and upon a vi^arrant 
 from a justice should pluck up and destroy it wheresoever 
 found, (o) This act is continued by the 5 Geo. I. c. 11., 
 during such time as the act of tonnage and poundage of the 
 12 Car. II. c. 4. is continued, and no longer. Having thus 
 restricted the colonial trade, both as to export and import, 
 to the exclusive benefit of the mother country, the govern- 
 ment neglected no means to enforce the execution of its 
 acts ; and, in addition to the forfeitures and penalties above- 
 mentioned, employed all its naval and civil means to pre- 
 vent and punish contraband dealings and voyages. The 
 Lord Admiral was specially ordered to superintend the 
 execution of the act of navigation. The privy council is- 
 sued similar orders from time to time to the officers of cus- 
 toms to keep a vigilant attention upon all ships loading 
 and sailing from the colonies, and to see the execution of 
 that part of the act of navigation which prohibited such 
 ships from going to foreign ports without first coming to 
 England. And as the colonists themselves were particu- 
 larly active in etVorts to evade this law, orders were given 
 to tiic governors to examine the built of all ships coming 
 into their colonies, to require their certificates, and to take 
 the necessary bonds, (b) 
 
 The colonists made several attempts to procure relief from 
 a monopoly which impeded their progress in cultivation 
 
 (a) S. 1,2. liie act of llie 22 and England, &c. 
 23 of Car. II. is intituled :iii act (li) Reeves, 56; and Cliulmer*' 
 
 to prevent the planting tobacco in Fulitical Aniials, 260.
 
 CHAP, II.] Colonial Trade. 2P[ 
 
 and improvement. In 1671, Sir William Berkley, the - 
 
 governor of Virginia, complains in strong and even elo- 
 quent terms, of that act of navigation, which, by excluding 
 the colonists from all trade but with England, prevented 
 them from adding to their plantation any commodity that 
 grew out of it, such as olive trees, cotton, or wines. He 
 complains that a very promising silk trade was totally 
 ruined by this mischievous restriction ; and that ship build- 
 ing, in despite of all the advantages at hand, could not be 
 undertaken. He concludes by expressing a despair of all 
 improvement in their trade; unless such acts be qualified 
 or repealed, and liberty be given to the colonists to trans- 
 port their staves, timber, and corn, to other places besides 
 the king's dominions, (a) 
 
 In 1676 the island of Barbadoes made similar complaints: 
 but the governments, and the lords of the committee for 
 the plantations, upon considering the subject of such peti- 
 tions, contented themselves with replying, that the naviga- 
 tion laws were the settled laws of the land, and that they 
 ought to be supported. In the case of New England, in- 
 deed, an exemption was very early conceded to the pe- 
 culiar character of its produce. The New Englanders 
 complained, that they were required to give bond to land 
 all their commodities in England or Wales. Put the chief 
 produce of their plantations was timber, staves, fish, and 
 other such gross articles, which were scarcely wortli the 
 conveyance to England, but which they could sell very 
 profitably to Spain and other parts. Upon this ground 
 they solicited a relaxation from the terms of the bonds. 
 The privy council, deeming that this request was reason- 
 able, acceded to their petition ; and commanded that for all 
 commodities laden in New England, the bond should be 
 taken for returning the proceeds only, and not the goods 
 in specie. The consequence of this relaxation afforded an 
 eminent example of the unforeseen mischief of loose and 
 general terms in dispensing with laws of regulation, Thj^ 
 (a) Reeves 59. Chalmers' Fol. Aqa. 224, 3:^7.
 
 ^ Navigation Laws. [part i. 
 
 lords of the committee ordered that all goods laden in New 
 England should be exempted from the bonds required by 
 the navigation act, but which relaxation they evidently in- 
 tended in favour of the timber, staves, and fish, the pro- 
 duce of that colony only. But under the term all goods 
 the other plantations conveyed their sugar, tobacco, &c. 
 to New England ; and the New Englanders, under the cover 
 of the exemption in their favour, sent them to every part 
 of Europe. 
 
 The main produce of New England was, indeed, in those 
 articles which compose what has always been termed the 
 lumber trade : and as there w as no reason for compelling 
 the plantations to send these gross goods to England, and, 
 indeed, as many of them would not pay their freight, such 
 goods were regarded as not included in the act of naviga- 
 tion. With the single exception of Virginia, the lumber 
 trade remained open to all the plantations, until it was 
 afterwards limited in the reign of George I. The princi- 
 pal produce of Virginia was tobacco ; and this colony w^as 
 exempted from the indulgence granted to the others with 
 respect to the lumber trade, lest a facility should be thus 
 afiforded for the contraband exportation of her tobacco. 
 
 As the colonists had so many temptations to evade the 
 restrictions imposed upon their trade by the mother coun- 
 try, and as they availed themselves of every opening af- 
 Wded by any looseness, or want of comprehension, in the 
 literal terms of the several statutes, the legislature, in con- 
 firmation of its general policy, found itself compelled to in- 
 terpose from time to time by declaring and explaining its acts. 
 
 7&:8Wm.III. '^ '^^ "^^^ statute of colonial regulation, that of the 7 and 
 8 Will. III. c. 22, was passed with this purpose. The for- 
 mer acts confined the colonial trade to ships having English 
 or Irish owners, or built and owned in the plantations. 
 Thry did not, therefore, require the ships to he built in 
 England or Ireland. This act of William requires the
 
 CHAP. II.] Colonial Trade. 29 
 
 ships to be of the built of England or Ireland. It enacts 
 that no goods or merchandise shall be imported into, or 
 exported out of, any English colony in Asia, Africa, or 
 America, or laden in and carried from one colony to ano- 
 ther, or into England, Wales, or town of Berwick, in any 
 ship or bottom but what is the built of England, Ireland, 
 or of the said colonies, and wholly owned by the people 
 thereof, or any of them, and navigated with the master and 
 three-fourths of the mariners of the said places only, under 
 pain of forfeiting the ship, &c. Two exceptions are then 
 made, the one in favour of prize ships, but which must be 
 navigated by the master and three-fourths of the mariners 
 English, and be English property. The other was a tem- 
 porary exception for three years, in favour of foreign built 
 ships, employed by the commissioners of the navy in bring- 
 ing masts, timbers, and naval stores. 
 
 The same act then proceeded to supply another oversight 
 of previous parliaments, of which advantage had been 
 taken. The navigation act required the governors to take 
 an oath to observe all the clauses therein before-mentioned ; 
 a form of expression under which the governors assumed 
 a power to dispense with the observance of all that fol- 
 lowed. To meet this equivocation, the 7 and 8 of Wil- 
 liam requires such governors to take an oath to employ 
 their utmost efforts, that all the clauses, matters, and things, 
 contained in the before-mentioned acts, and those in force 
 relating to the colonies, and all the clauses in the present 
 act, should be punctually observed. Several other regu- 
 lations were added, to prevent a fraudulent connivance or 
 gross neglect upon the part of the officers of customs em- 
 ployed to superintend the export and import of the colo- 
 nies. The colonial superintendant appointed under the 
 authority of stat. 15 Car. II. c. 7. and known in the colo- 
 nies under the name of the naval officer, was required to % 
 give full and ample security to the commissioners of the 
 customs for the faithful performance of his duty. All the 
 rulea for entering^} ladiflg^; and disQharging, required by 
 
 2
 
 so Navigation Laws. [part i. 
 
 stat. 13 and 14 Car. II. c. II., for England, are extended 
 to the colonies ; officers are to have the same power of 
 visiting and searching ships ; and all wharfingers, owners of 
 quays and wharfs, &c. assisting in conveying, concealing, or 
 rescuing goods, are made subject to the same penalties. 
 
 The stat, 25 Car. II. c. 7. permitted the colonists to carry 
 goods from one colony to another only upon the payment 
 of certain duties. The colonists, under the cover of some 
 loose terms in that act, had extended its construction to a 
 permission to carry such goods to any foreign market in 
 Europe ; and the duties being less than the profits, they 
 had eagerly availed themselves of this traffic. 
 
 To ■ terminate this practice it was now declared, by the 
 act of William, (sec. 8.,) that such commodities should not 
 be laid on board till the due securities required by the 
 Navigation Acts were given to take them to England, or 
 to some English colony only. 
 
 Another means of contraband trade had been the use of 
 false and counterfeit certificates, importing that security had 
 been given at home to bring home cargoes of plantation 
 goods, of having discharged such goods in England, or of 
 having taken in the lading of European goods in England. 
 To prevent these mal-practices the governor is authorised, 
 upon reasonable suspicion, to demand further security ; and 
 a penalty of 500/. is imposed upon any person counterfeit- 
 ing any such request, certificate, or return, (sec. 10.) 
 
 Tlic act further authorizes the commissioners of the 
 treasury to appoint, as often as shall be needful, officers of 
 the customs in the colonies. Juries, upon trials for unlaw- 
 ful importation, shall be natives of England, Ireland, or 
 the colonies only. All offices of trust to be confined in the 
 same manner lo native subjects of the crown of England, 
 (sec. 11, ly.) Proprietors of colonial lands are prohibited 
 to alien, except to natural-born subjects, unless permitted
 
 CHAP. II.] Colonial Trade. 31 
 
 otherwise by licence of the king:. And all governors are 
 to be approved by the king, and to take the oath re- 
 quired by this or any other act to be taken by other 
 governors or commanders-in-chief in the plantations, 
 (sec. 16.) 
 
 The Navigation Act had been often evaded, under the 
 pretext that stress of weather compelled tlie ship to put into 
 some port of Scotland, or Ireland : the statute met tliis 
 evasion by enacting, that sucli commodities should not be 
 landed* in Ireland or Scotland, upon any pretence what- 
 ever ; but if the ship should be stranded, or should be 
 driven into any port of Ireland, by leakiness or other dis- 
 ability, and be unable to proceed upon her voyage, the 
 goods might then be put on shore, but should be delivered 
 into the custody of the collector of the customs, and should 
 there remain till they could be put on board some other 
 vessel, at the charge of the owner, and therein conveyed 
 to some port in England or Wales, or the town of Ber- 
 wick : the officer to take good and sufficient security for the 
 -delivery of the same, (sec. 14, 15.) 
 
 Such is the colonial system of shipping and navigation. Colonial 
 as constituted by this and the preceding acts, and with a *''^'^^- 
 very few alterations, now about to be mentioned, such it 
 continues to be to the present day. The government 
 looking chiefly to the revenue, and the parliament to the 
 maintenance of a navigation system well understood bv 
 the statesmen of that period, concurred in maintaininp- tlie 
 exclusive possession of the import and export trade to and 
 from our colonies and plantations. 
 
 Two important additions to the system very soon fol- 
 lowed the act of 7th and 8th Wm. III. c. 22. The first 
 was the institution of Courts of Admiralty, and the ap- 
 pointment of persosis to the office of attorney-general in 
 the colonies ; the second, was the fourth article of ttie Act 
 of Union of England and Scotland, by which all the sub-
 
 32 Navigation Laws. [part i. 
 
 Colonial jects of Great Britain were admitted into a participation 
 
 trade. 
 
 of the colonial trade, (c) 
 
 The following alterations have been made from time to 
 time ; and, together with the acts above-enumei-ated, com- 
 pose the colonial system, as existing in the present day. 
 
 In the Navigation Act, rice and molasses are not in- 
 cluded as enunierated goods. By stat. 3 and 4 Ann. c. 3. 
 they are put under the same condition. They are to be 
 brought into the kingdom under a like bond, and in the 
 same manner ; and stat. 8 Geo. I. c. 18. enacts the same 
 with respect to copper ore. 
 
 By stat. 3 and 4 Ann. c. 8. linens, the manufacture of 
 Ireland, may be laden from any Irish port by any native of 
 England or Ireland, and thence transported, (in English 
 shipping,) directly to the plantations. 
 
 By stat. 3 Geo. II. c. 28., any subject of his Majesty, 
 in a ship of English built, clearing outwards from Great 
 Britain for Carolina, may load rice in that province, and 
 carry it to any port of Europe southward of Cape Finis- 
 terre. The master was to take a licence from the officers 
 of customs at home, and to give bond that he would not 
 carry other plantation articles. 
 
 The several statutes, 13 Geo. I. c. 5., 3 Geo. II. c. 12., 
 2 Geo. III. c. 24., were passed to give liberty to export 
 salt directly to the provinces of Pennsylvania, New York, 
 and Nova Scotia : in all these cases the ships were to be of 
 British built, and navigated according to law. 
 
 The stat. 4 Geo. II. c. 15., was an act of more con- 
 sequence, as it opened to Ireland part of the import trade 
 from the colonies. It enacts, that goods of the plantations 
 
 (c) 5 Anuc, c. 8.
 
 CHAP. II.] Colonial Trade. S3 
 
 not enumerated, may be landed in Ireland, notwithstand- 
 inff the stat. 7 and 8 Wm. III. c. 22. (d) 
 
 By Stat. 8 Geo. II. c. 19., the province of Georgia was 
 allowed to have her rice carried directly to Europe. By 
 Stat. 4 Geo. III. c. 27., permission was given to carry rice 
 from South Carolina and Georgia, to any part of America 
 southward of these colonies. By stat. 5 Geo. III. c. 45., 
 the same benefit was extended to North Carolina. 
 
 By stat. 12 Geo. II. c. 30., and stat. 15 Geo. II. c. 33., 
 all ships belonging to Great Britain, and navigated ac» 
 cording to law, were permitted to load sugar in the colonies, 
 and carry it thence to any foreign part of Europe, having 
 taken a licence from the commissioners of customs in Lon- 
 don or Edinburgh. These acts were repealed by stat. 
 34 Geo. III. c. 42. 
 
 By stat. 15 Geo. II. c. 31., it was enacted, that plan- 
 tation-bonds taken in England, with respect to goods to be 
 landed in England, should contain a condition to produce 
 a certificate within eighteen months of the date thereof. 
 
 The statutes of 4 Geo. III., and 5 Geo. III., add the 
 following regulations : — 
 
 In order to prevent the sale in America of foreign mo- 
 lasses and syrups, a bond was to be required from all ships 
 trading there ; that, if they took in such foreign articles, 
 they should bring them, without diminution, to some of 
 his Majesty's colonies or plantations in America, or to iome 
 port in Great Britain, (e) 
 
 The articles of coffee, pimento, cocoa-nuts, whale fins, 
 raw silk, hides and skins, pot and pearl-ashes, of the 
 growth, &c. of any British colony in America, are added 
 
 (d) ReevcB 72, (#) 4 Geo. HI. c, IS. $. 28 and X4. 
 
 Colonial 
 trade.
 
 34 Navigation Laws. [part i. 
 
 Colonial to the goods called enumerated goods, and are ordered to 
 
 be imported directly from America into this kingdom, or 
 other British colony, under the securities and penalties of 
 Stat. 12 Car, II. c. 18., and stat. 25 Car. II. c. 7. s. 27. 
 
 Iron and lumber, the growth of a British colony in Ame- 
 rica, are prohibited from being laden in America, till bond 
 given that such iron and lumber should not be landed in 
 any other part of Europe except Great Britain. 
 
 It was a frequent fraud at this period for vessels to take 
 in a small portion of goods, as if for the American colo- 
 nies, and, procuring a clearance for such parcel, to land 
 under cover of it a cargo, the greater portion of which 
 was foreign goods. To prevent this practice, it was ano- 
 -> ther regulation of this act, that no cocket, or clearance 
 
 for the colonies, should be given, unless the whole and 
 entire cargo were ladq.n and shipped in this kingdom. 
 Salt, laden in Europe for the colonial fisheries, Madeira 
 wines, wines of the Azores, and horses, victuals, and linen 
 cloth, of and from Ireland, were excepted from this re- 
 striction, 
 
 A more important regulation concluded this act : in 
 order more effectually to prevent any contraband trade, all 
 vess(;ls were subjected to seizures which were found hover- 
 ing within two leagues of the shore of any British colony 
 in America. 
 
 The 5 Geo. HI. c. 4.3. altered the provision with re- 
 spect to iron and lumber; allowing the iron to be carried 
 to Ireland, and the lumber to the Madeiras, the Azores, 
 or to any port of Eur()])e southward of Cape Finisterre ; 
 due bond being given that they should be landed only there, 
 or in Great Britain. 
 
 The Isle of Man being employed as the emporium of a 
 smuijgUug-trade, the 5 Geo. III. c. o9. enacted, that no
 
 CHAP. II.] Colonial Trade. 
 
 rum, or other spirits, should be shipped from any British Colonial 
 colony in America, but on condition that they should not be 
 landed in the Isle of Man. (sec. 5.) 
 
 By Stat. 6 Geo. III. c. 52. (s. 30 and 31.), before any 
 ship shall take on board «ow-enumerated goods, bond shall 
 be given that such goods shall not be landed in any part of 
 Europe to the northward of Cape Finisterre, except in 
 Great Britain. But, as it was found that the letter of this 
 act excluded Ireland from the import-trade already granted 
 to her, the 7 Geo. III. c. 2. was passed to amend this 
 construction. 
 
 A very extensive smuggling had long existed between, 
 the West Indies and the Spanish Main. The English go- 
 vernment deemed it prudent to seek to regulate what it 
 could not totally prevent. The best principle of such re- 
 gulation appeared to be, that of bringing such trade under 
 the more distinct view of the government, by appointing 
 particular ports whence such articles might be exported 
 or imported. With this purpose the Free-Port Act, 
 6 Geo. III. c. 49. was passed. By this act, live cattle, 
 and all goods whatsoever, (except tobacco,) the growth and 
 produce of any non-British American colony, might be im- 
 ported into the ports of Prince Rupert's Bay, and Roseau, 
 in the island of Dominica ; and, (except sugars, coffee, 
 pimento, ginger, molasses, and tobacco,) into tlie ports of 
 Kingston, Savannah la Mar, Montego Bay, and St. Lu- 
 cia, in Jamaica, from any foreign American colony, in any 
 foreign vessel, not having more than one deck. This act 
 was enlarged in some of its provisions, and altered in 
 others, by 14 Geo. III. c. 41., and 21 Geo. IM. c. 29.; 
 l)ut these acts were repealed by 27 Geo. III., which con- 
 tains nearly the whole of the present law and regulations 
 of free-ports. 
 
 The fishery from Guernsey and Jersey, to Newfound- 
 land^ rendered necessary a certain direct commerce be- 
 
 d2
 
 36 Navigation Laws. [part i. 
 
 Colonial t« ten those islands and the American colonies. But this 
 
 trade was contrary to the stat. 15 Car. II. ; hence the stat. 
 9 Geo. III. c. 28. was passed, by which it was allowed to 
 export from those islands " any sort of craft, cloathing, or 
 other goods, the growth and manufacture of Great Britain, 
 Ireland, or those islands, to Newfoundland, or any other 
 British colony, where the fishery is carried on ; the same 
 being necessary for the fishery, or the mariners, or persons 
 employed therein." And it was further enacted, that any 
 non-enumerated goods, (except rum,) might be landed in 
 Guernsey and Jersey. 
 
 Krport trade jj^t {[^q j^st and most important change made in the colo- 
 frona Ireland. ii- i- • ■, n- i i io^ 
 
 nial trade, during this period, was ettected by stat. 18 Geo. 
 
 III. c. o5., by which this trade was laid open to Ireland. It 
 was enacted by this statute, that it should be lawful to ex- 
 port from the kingdom of Ireland, directly into the British 
 plantations in America, the West Indies, or on the coast 
 of Africa, in ships or vessels that may lawfully trade to or 
 from those places, any goods, wares, and merchandize, be- 
 ing the produce or manufacture of Ireland, (wool, woollen, 
 and cotton manufactures of all sorts, mixed or unmixed, 
 hats, glass, hops, gunpowder, and coals, only excepted,) 
 and also all goods and commodities of the growth, pro- 
 duce, or manufacture of Great Britain, which have been, 
 and may be, legally imported thence into the kingdom of 
 Ireland, woollen manufacture, in all its branches, and glass 
 excepted. (/) Foreign linens, bar-iron, slit-iron, manu- 
 factured iron-wares, (till a duty therein named should be 
 granted by the Irish parliament,) and cotton manufactures, 
 (unless cortilicated to have l)een previously exported from 
 Rome port in Great Britain,) are excepted from this per- 
 mission to export. And, that the Irish merchants and ma- 
 nufacturers might not undersell those of England, the per- 
 mission was further restricted to those goods and merchan- 
 dize of the manufacture of Ireland, which shall stand 
 
 (/) 18 Geo. III. c. 55. •. l^^C, &e,
 
 CHAP. II.] Colonial Trade. 37 
 
 chargeablo, and pay duties and taxe?, to as great an Colonial 
 amount as eoods and merchandise of the same denomina- *'"''* ' ' 
 tion and quality exported from Great Britain, now (g-) stand 
 chargeable with; whether such charges be upon the im- 
 portation of the materials of which the goods and mer- 
 chandise are made, or by duties on their exportation, or 
 by inland excise, not drawn back or compensated by boun- 
 ties. At the urgent solicitation of the people of Ireland 
 this act was still further enlarged, and rendered nearly 
 co-equal with the liberty of trade to English merchants, by 
 Stat. 20 Geo. III. c. 10. By this act, with respect to im- 
 ports, it was enacted, that any goods, Avares, or merchan- 
 dise of the growth, produce, or manufacture of the British 
 colonies or plantations, in America or the West Indies, or 
 of any settlement belonging to Great Britain on the coast 
 of Africa; and which, by any act of parliament, are re- 
 quired to be imported from thence into Great Britain : 
 and also all other goods wdiich, having been in any way 
 legally imported into such colonies, plantations or settle- 
 ments, may be legally exported from thence to Great Bri- 
 trin, may be laden in, and exported from, such colonies, 
 plantations, or settlements, and imported from thence into 
 Ireland : and, with respect to the export trade, that 
 any goods or commodities of the growth, produce, or ma- 
 nufacture of the East Indies, or other places beyond the 
 Cape of Good Hope, which are now required by any act 
 of parliament to be shipped or laden in Great Britain, to 
 be carried directly from thence to any British colony or 
 plantation in Africa or America ; as also any other goods, 
 wares, or merchandise, (which now, or hereafter, may bo 
 legally shipped, or laden in Great Britain, to be carried 
 directly from thence, and imported into any colony or plan- 
 tation in America or the West Indies, or any British set- 
 tlement on the coast of Africa,) m^^ he exported davecXl^ 
 from Ireland, and imported into such colonies, plantations^ 
 ©r settlements, any of the following statutes notwith- 
 
 (j) That is, at the time of passing the act, s. 7.
 
 38 Navigation Laws. (^part i. 
 
 Colmiial Standing ; viz. stat. 12 Car. II. c. 18., stat. 22 and 23 Car. II. 
 
 ^'^'^''- c. 26., stat. 15 Car. II. c. 7., stat. 4 Geo. III. c. 15., and 
 
 stat. 7 Geo. III. c. 21. (h) But upon the principle above- 
 mentioned, viz. that the Irish merchants, growers, and manu- 
 facturers, might not undersell those of Great Britain, nor 
 have more than an equality in this colonial trade, these 
 concessions were only made upon the condition that the 
 Irish legislature should pass such act or acts as should 
 equalize the duties and drawbacks of the same goods in the 
 two kingdoms, so as they be not exported from Ireland 
 with less incumbrance of duties or impositions than shall 
 remain on them when legally exported from Great Britain, 
 (s. 2.) As the following Irish parliament executed this 
 condition, the act took effect. 
 
 The peace of 1783 necessarily produced a most extensive 
 alteration in our colonial system. The American colonies 
 became independent states ; and so much was cut off from 
 the previous subject matter of this division of our naviga- 
 tion law. — Accordingly, from this period to the present 
 time, our colonial law has been much varied. 
 
 The first of these new laws was enacted to open the in- 
 tercourse with America. To this end were passed the two 
 acts of the 23 Geo. III. c. 96., and 23 Geo. III. c. 39. ; the 
 first of these statutes repealing the former acts by which 
 the intercourse had been prohibited, whilst the latter act 
 empowered the king in council to make such regulations 
 with respect to duties, drawbacks, and otherwise, as should 
 appear most useful. This act being temporary, and passed 
 for experiment, was continued by an annual act to the 28 
 of Geo. III., Avith no other alteration than that the same 
 discretionary power of the king in council was extended to 
 the British colonics in America, so far as regarded iron, 
 hemp, sail-cloth, and other articles the produce of the Bal- 
 tic. The 27 of Geo. III. c. 7. declared the forfeiture of 
 
 (A) 20 Geo. III. c. 10. s. 1, &c.
 
 CHAP. II,] Colonial Trade. 
 
 any ship and goods, where such goods, being the growth Colonial 
 and production of the United States, were imported into 
 the West India islands, in any other manner than by order 
 of his Majesty \\\ council or other law. The 2S Geo. 111. 
 c. 5. extended this forfeiture to the before mentioned arti- 
 cles from the Baltic. Another section of the same act pro- 
 hibited the lumber trade between the United States and 
 the West India islands, by enacting that no flour, bread, 
 rice, or lumber of any sort, should thereafter be in)ported 
 from any foreign or West India island, unless by the licence 
 of the governor, in council granted, under the necessity 
 of the case. 
 
 In the year 1788, all these laws were consolidated 
 into one act, stat. 28 Geo. III. c. fi. which now contains 
 nearly the whole of the law regarding the intercourse 
 of the British colonies with the United States. This law 
 regulates both the imports and the exports. With respect 
 to the imports it enacts, that no goods or commodities 
 whatever shall be brought from the United States into any . 
 West India island, except only the following articles, viz. 
 tobacco, pitch, tar, turpentine, hemp, flax, masts, yards, 
 bowsprits, staves, heading boards, timber, shingles, and 
 lumber of any sort; horses, neat cattle, sheep, hogs, poul- 
 try, and live stock of any sort ; bread, biscuit, flour, pease, 
 beans, potatoes, wheat, rice, oats, barley, and grain of any 
 sort ; such commodities being of the growth or production 
 of any of the territories of the United States ; and these 
 are not to be brought but by British subjects, and in Bri- 
 tish built ships, owned by his Majesty's subjects, and navi- 
 gated according to law, under the same penalty of fttfeit- 
 ing the ship and cargo. (/) As respects the exports, the 
 statute enacts that all goods, not prohi])ited at the time of 
 
 (0 Sect. 14. enacts, that no goods imported by order in council in 
 
 of the United States shall be im- case of necessity, for the supply of 
 
 ported into Quebec by sea or coast- persons engaged in the fisheries, 
 
 wi»e: but bread, &c. &c. may be 29 Geo. III. c. 16. 30 Geo. III. c. S.
 
 40 Navigation Laws. [part i. 
 
 Colonial ^jj^ ^ct to be exported to Europe, and also sugar, molasses, 
 
 coffee, cocoa nuts, ginger, and pimento, may be exported 
 from the West India islands to (he United States, by Bri- 
 tish subjects, and in British built ships, and navigated ac- 
 cording to law : — a due bond to be given that they shall be 
 so landed. An exception, however, is made in this act in 
 favour of American ships taking a lading of salt from Turk's 
 islands, the master making the usual entry upon oath, and 
 paying a tonnage duty 2s. 6d. per ton. And, to preclude 
 the possibility of this communication being employed as a 
 cover for smuggling, no other goods or commodities, except 
 salt, are to be exported from those islands, either to the 
 British West Indies, or Great Britain, or Ireland. The 
 44 Geo. III. c. 101. extended the trade of salt in American 
 vessels to the ports of Nassau, Exuma, and Crooked island, 
 all in the Bahamas : and the 57 Geo. III. c. 42. continued 
 this privilege to the 2.5th March 1819. The next sections 
 in this act make the two important provisions ; first, that 
 the goods so allowed to be brought directly from America 
 should not be brought from any foreign West India island, 
 except under the usual licence of the British governors 
 granted for a limited time, and in cases of public distress ; 
 and, secondly, that such goods should not be imported from 
 the United States into the provinces of Nova Scotia, or 
 New Brunswick, the island of Cape Breton, St. John's, or 
 Newfoundland ; but, under the same circumstances of a 
 licence by the British governor, granted in case of distress, 
 and for a limited time ; thirdly, planks, staves, horses, 
 sheep, and live stock of any sort, corn, &c. may be so im- 
 ported from the United States. And for the further en- 
 couragement of the fishery at Newfoundland, his Majesty 
 in council may authorize the governor of Newfoundland to 
 permit, in case of necessity, bread, flour, Indian corn, and 
 live stock, to be imported from the United States for the 
 supply of the inhabitants and fishermen for the then ensu- 
 ing season only : such importation to be by British subjects, 
 in British built ships, owned by British subjects, and navi- 
 gated a:cording to law. The province of Quebec is ex*
 
 €HAP. II.] Colonial Trade. 41 
 
 empted from this importation by the next statute, viz. the Colonial 
 29 Geo. III. c. 56. which was passed to prevent tJie abuse 
 of the licences of the colonial governors, under which it 
 had now become a practice to re-export for profit what 
 such licence allowed them only to import for the supply 
 of their own necessity. The 29 Geo. III. c. 56. prohibits 
 such exportation under the pain of forfeiture of vessel and 
 cargo. 
 
 The Stat, of 31 Geo. III. c. 38. extends the prohibition 
 to import certain enumerated articles into the West India 
 islands, from any foreign colony on the continent of South 
 America, (k) 
 
 The 29 Geo. III. c. 16., and stat. 30 Geo. III. c. 8. were 
 passed to enlarge the provisions of stat. 28 Geo. III. c. (., 
 with respect to the imports from the United States to 
 Quebec : they added, pease, beans, potatoes, wheat, &c. to 
 the articles before permitted to be imported. Stat. 33 
 Geo. III. c. 50. was passed to confer a similar enlarge- 
 ment, as respected the import of timber, to the trade froi 
 South America. This statute enumerates several species 
 of timber which it allows to be imported in British ships 
 from South America, and from Trinidad and Porto Rico ; 
 the principal are mastic wood, and bastard mahogany. The 
 
 (k) The following are the enu- and lumber of all sorts, are allowed 
 
 merated articles : — tobacco, pitch, to be imported from the Portu- 
 
 tar, turpentine, hemp, flax, masts, guese colonies into the West India 
 
 yards, bowsprits, staves, heading islands, provided they be imported 
 
 boards, timber, (the importation as supplies. But such articles are 
 
 of certain timber from South Arae- not to be exported from any pucU 
 
 rican islands is permitted by 33 Geo. islands or colonies, on pain of for- 
 
 III. c. 50.) shingles, or lumber of feiture of goods, ship, &;c. By 58 
 
 any sort; bread, biscuit, flour, Geo. III. c. 19., scantling, <Sfc. may 
 
 pease, beans, potatoes, wheat, rice, be imported in foreign ships into 
 
 oats, barley, or grain of any sort, ports, to be approved of by his 
 
 31 Geo. III. c. 38, s. 1. By 51 Geo. Majesty, in Nova Scotia or New 
 
 III. c. 47. s. 5., and 56 Geo, III. Brunswick, subject to such rulei as 
 
 c. 91. f . 5.} certaiu kinds of limber, his Majesty shall Ihiak Hit.
 
 42 Navigation Laws. [part i. 
 
 Colonial same act allows the iniportaiion of tar, pitch, and turpen- 
 
 tine, of their own growth and manufacture, from the United 
 States into Nova Scotia and New Brunswick in British 
 ships. And stat. 30 Geo. Ill c. 29. s. 2. in furtherance of 
 the same object, allows goods the produce of ccuutiies bor- 
 dering on the province of Quebec, and legally imported 
 into that province, by land or iiiland navigation, to be im- 
 ported from thence into Great Britain, in like manner as 
 if they were the produce of Quebec. 
 
 It has been before stated, that stat. 23 G?o III. c. 36. 
 empowered his Majesty from time to time to issue orders 
 in council for regulating the trade with America. A brief 
 review of these order* will here be necessary. It is expe- 
 dient in order to shew the gra lual alteration of the colo- 
 nial system, from the year 1783 to the present time. 
 
 The first and second of these orders were dated in May 
 and June 1783, w^hich substantially put the American trade 
 upon the footing of the other foreign trade of Great Bri- 
 tain, inasmuch as they allowed the importation of ail arti- 
 cles of the growth of the United States into Great Britain, 
 in ships of the United States or British. A third order, 
 dated in July 1783, and another dated in September of the 
 same year, first regulated the trade between our colonies 
 and the United States ; but were followed almost monthly 
 by others, the detail of which becomes .unnecessary, as they 
 were all consolidated in an order of council dated 26th of 
 December, 1783, containing, for the lirst time, the whole 
 regulation for the American trade, both with Great Bri- 
 tain and the colonies. 
 
 The first subject of observation in this order is, that in 
 enumerating the goods allowed to be imported from the 
 United States into Great Britain, namely, all articles the 
 growth of the United States, it now added the material 
 limitation, being unmanufactnred goods; and the further 
 limitation, the importation of which into this kingdom is
 
 CHAP. II.] Colonial Trade. 4:3 
 
 not prohibited by law, (except oil). It directs that tobacco Colonial 
 might be landed upon paying the old subsidy, and then be 
 warehoused upon bond. But it takes away a former allow- 
 ance For prompt payment of the old subsidy. The next 
 provision of this important order of council regulates the 
 trade between our West India islands and America : it 
 allows the exportation from those islands to the United 
 States of rum, sugar, molasses, coffee, cocoa nuts, ginger, 
 and pimento, by British subjects, in British built ships, 
 and navigated according to law, on payment of the like 
 duty, and subject to the like regulations, as if exported to 
 a British colony in America. With respect to importa- 
 tions, it directs that pitch, tar, turpentine, hemp, flax, 
 masts, yards, and bowsprits ; staves, heading-boards, tim- 
 ber, shingles, and all other species of lumber ; horses, neat 
 cattle, sheep, hogs, poultry, and all other species of live 
 stock and live provisions ; pease, be?-ns, potatoes, wheat, 
 flour, bread, biscuit, rice, oats, barley, and all other species 
 of grain, being the growth of the United States, might be 
 imported by British subjects in British built ships, navi- 
 gated according to law, from the United States to any of 
 the West India islands. In April 1785, an order of coun- 
 cil greatly restricted the lumber trade. It was allowed 
 during such time only as should be deemed necessary 
 for the supply of the inhabitants ; and no goods or com- 
 modities whatever, being of the manufacture of the 
 United States, were to be imported into the province of 
 Quebec. 
 
 An order of council, of 1789, added wheat to the articles 
 excepted from importation, on account of an alarm as to 
 the injury wliich the American crops had received from the 
 Hessian fly. But in 1790, liberty was given, as before, to 
 import wheat from the United States. (I) Upon the basis 
 and regulations of these orders, which were occasionally 
 extended or narrowed, and supported by annual acts of con- 
 
 (0 Reeves oa shipping, 288.
 
 44 Navigation Laws. [part i. 
 
 Colonial tinuance, the trade with America was carried on till the 
 
 *rade. ^^^^ 1796. It was now deemed expedient to settle the 
 
 trade between the two countries by treaty ; accordingly, 
 the 37 Geo. lit c. 97. was passed, by which liberty was 
 given to import into this kingdom directly, from any of the 
 territories of the United States, in British built vessels, 
 conforming in all respects to the regulations of law, as to 
 their navigation and registry, or in American built ships, 
 &c., owned by American subjects, all articles of the growth, 
 production, and manufacture of the United States, not 
 otherwise prohibited by law, upon the payment of such 
 duties of custom and excise, as attached upon like articles 
 imported in British ships from any foreign countries. This 
 act contains several other provisions, which become unim- 
 portant under the present head. 
 
 This statute permitted the importation of pig-iron, bar- 
 iron, pitch, tar, turpentine, rosin, pot-ash, pearl-ash, ma- 
 hogany, masts, yards, and bowsprits, provided they were of 
 the growth or manufacture of the United States ; and all 
 unmanufactured goods and merchandise whatsoever, not 
 prohibited by law to be imported, with the usual restric- 
 tions as to the built and ownership of the vessels importing 
 them. In order to communicate to Ireland the same trade 
 with America, the 41 Geo. III. c. 93. re-enacted the pro- 
 visions of this act. 
 
 The Commercial Treaty with America expiring in 1805, 
 it was still deemed expedient to maintain the same rela- 
 tions of commerce, and to the same extent. Accordingly, 
 the 46 Geo. III., which was in continuation of a previous 
 act, was passed, continuing the trade between the two 
 countries till June 1807. Upon the expiration of this lat- 
 ter act, an order of council directed, that all its regula- 
 tions should be observed until other provisions should be 
 made by the legislature ; whereupon the 47 Geo. III. was 
 passed, reviving, and continuing to a fixed period, the 
 above-recited acts; and empowering his Majesty to sus-
 
 CHAP, II.] Colonial Trade. 45 
 
 pend their provisions before the 1st of March, 1808, as he Trade with 
 should deem expedient. 
 
 The 48 Geo. III. c. 85. is the next act for regulating 
 the trade with America. By this act goods, which may be 
 lawfully imported from the United States into Great Bri- 
 tain, are to be admitted on payment of the lowest duties 
 payable on the like articles from other foreign countries in 
 British or foreign bottoms respectively ; and American to- 
 bacco is made subject only to the same duty as tobacco im- 
 ported from the British colonies ; and American snuff to 
 the same duty as European snuff imported from Europe. 
 The like drawbacks are allowed upon the exportation of 
 such goods as on other foreign goods. And British goods, 
 exported to America, are made subject to the like draw- 
 backs as if sent to the British colonies. This act was con- 
 tinued by the 49 Geo. III. c. 59. ; and the relations be- 
 tween Great Britain and America remained upon the same 
 footinff until the breaking: out of hostilities. 
 
 '& 
 
 The war in Europe having terminated, a treaty of peace American 
 was made between Great Britain and the United States ; ^grce. 
 and a convention of commerce signed in July 1815. The 
 56 Geo. III. c. 13. was passed to give effect to such parts 
 of this convention as required the sanction of parliament ; 
 and, upon the basis of this convention, and the above-cited 
 act, taken in conjuction with the navigation laws, as to 
 the description of vessels to be employed in this com- 
 merce, the trade between Great Britain and America at 
 present subsists. 
 
 The first article of the convention establishes tlie liberty 
 of commerce : the second article repeats the same provi- 
 sions with respect to duties and drawbacks on importation 
 and exportation, contained in the 48 Geo. III. c. 85. The 
 article then declares that the intercourse between th« 
 United States and the British West Indies shall not b« 
 aftected by any of the preceding provisions. It is further 
 
 2
 
 46 
 
 Navigation Laics. 
 
 [part I, 
 
 American 
 treaty of 
 commerce. 
 
 agreed, that the vessels of the United States shall be ad- 
 mitted, and hospitably received, at the principal settle- 
 ments of the British dominions in the East Indies ; and 
 that the citizens of the United States may freely carry on 
 trade between America and the British East Indies ; pro- 
 vided only, that it shall not be lawful for them, in any 
 time of war between Great Britain and any state or power 
 whatever, to export from the said territories, without the 
 special permission of the British government, military or 
 naval stores, or rice. No higher duties or charges are to 
 be imposed on American vessels than upon those of the most 
 favoured European nations ; but it is expressly agreed that 
 the vessels of the United States shall not carry any of the 
 commodities of the British East Indies, except to some port 
 or place of the United States where they are to be un- 
 laden. The permission granted by this article is not to 
 extend to allow the vessels of the United States to carry on 
 any part of the coasting trade of the British territories ; 
 but the vessels of the United States are permitted to touch 
 for refreshment, but not for commerce, at the Cape of 
 Good Hope, the island of St. Helena, or at any place in 
 the possession of Great Britain, in the African or Indian 
 sea. This convention, which was to bind four years from 
 the signature, will expire in July, 1819. («) 
 
 It will be scarcely necessary to repeat, that the trade, as 
 regulated by the above convention, can alone be carried 
 on, either with Great Britain or her colonies, in ships built 
 iiL tiie countries of the United States, (or in vessels which 
 have been condemned as prize,) owned by the subjects of the 
 United States, and whereof the master, and three-fourths of 
 the mariners, at least, are American subjects. The goods im- 
 ported, likcw ise, must be ofthe growth, produce, or manufac- 
 ture of the United States, 49 Geo. III. c. 59. The export 
 duty on goods shipped direct from GreatBritain to the United 
 Stat(!S, is the same, wliethcr tliey are shipped in British or in 
 American built shij)s, 67 Geo. III. c. 58. But this act isli- 
 
 (a) II has Ijocq siuce renewed and cxtendcdi
 
 CHAP. II.] Colonial Trade. 47 
 
 mited to expire with the convention of commerce. The third American 
 article in the convention, which opens the East India trade commerce, 
 to the United States, is confirmed by (he 5(j Geo. ITI. c. 
 51., b'!t is likewise confineci to the duration of the treaty 
 of commerce. 
 
 The commerce between America and the British colo- 
 nies, upon which we have partly touched in the previous 
 review, is regulated by 28 Geo. III. c. 6., to which we have 
 before referred; and the 56 Geo. III. c. 91. ext?nds all 
 the privileges of the 28 Geo. III. to the colonies of Deme- 
 rara, Berbice, and Essequibo. But it will be necessary 
 briefly to point out the divisions which the late treaties of 
 peace have established with regard to foreign colonies, be- 
 fore we enter into a more detailed review of their com- 
 merce ; and for this purpose we shall consider them under 
 the heads of — l^t, the British West Indies; 2d, the ceded 
 colonies ; and, 3d, British America. 
 
 The British West Indies (m) claim our first attention : — British West 
 The trade between Great Britain and these colonies is per- 
 fectly free, subject to the regulations of 7 and 8 Will. III. 
 c. 22. ; but in order to prevent the establishment of parti- 
 cular manufactures, in which the colonists might be induced 
 to engage to the injury of the British export trade, hats, 
 Avool, and woollen manufactures, are not allowed to be 
 exported. The colonists may make them for their own 
 consumption, but very severe penalties are enacted to pre- 
 vent their exportation from any British plantation. In the 5 Geo. II. c. 
 same manner, by the 10 and 11 Will. III. c. 10., it is for- ?J:,'/?,^°'^,i* 
 
 ' •' ^ Will. III. 46 
 
 bidden to export wool or woollen manufactures, the pro- Geo. III. 
 duct of any of the plantations. («) 
 
 (m) The British West Indies, in- sequiho, Honduras, 
 eluding the ceded colonies, com- («) 49 Geo. III. c. 18., permits 
 
 prehend Antigua, Barbadoes, Do- wool, being the product of any of 
 minica, Grenada, Jamaica, Mont- the British plantations in America, 
 serrat, Nevis, St. Kitt's, St. Lucia, to be exported to the United King- 
 St. Martin's, St. Vincent's. Tobago, dom. This is a temporary act, and 
 Trinidad, Torlola, the Bahamas, expires 25th March, 1819. 
 Bermudas, Demerara, Berbice, Es-
 
 48 Navigation Laws. Impart i. 
 
 Colonial Since tlie establishment of the government of the United 
 
 trade. States, the trade of the British West Indies, as we have 
 
 previously shewn, has been placed under particular re- 
 strictions with respect to their intercourse with that coun- 
 try. The 28 Geo. III., which we have before cited, re- 
 gulates the trade between the United States and the 
 colonies, and confines it to such articles as the colonies 
 did not cultivate, or did not produce in sufficient quanti- 
 ties for their own consumption. These articles, how- 
 ever, are not to be imported but in British ships, owned 
 by British subjects, and navigated according to law. Some 
 modern statutes (o) permit the goods enumerated in the 
 28 Geo. III., to be imported into Bermuda in foreign ships 
 belonging to any country in amity with his Majesty, and 
 exported from thence to any of his islands or dominions in 
 the West Indies. And a more recent statute (p) permits 
 the importation of fruit and vegetables in the like ships, 
 being the produce of the country whence they are brought ; 
 and the exportation of rum and molasses to the same coun- 
 tries in vessels of the like description. 
 
 The articles allowed to be exported from the West India 
 islands in British ships to the United States, are, sugar, 
 molasses, coffee, cocoa nuts, ginger, and pimento : (q) sugar, 
 coffee, rum, and molasses, are allowed to be exported from 
 Bermuda in foreign ships ; (r) and American vessels are 
 likewise permitted to enter certain ports in the Bahama 
 islands, to be laden with salt, (s) The 58 Geo. III. c. 27., 
 permits the importation of tobacco, rice, grain, pease, beans, 
 and flour, into any of his Majesty's colonies or plantations, 
 in the West Indies, or on the continent of South America, 
 in British built ships, owned, registered, and navigated, 
 according to law, from any colony in the West Indies, or 
 on the continent of America, under the dominion of any 
 European sovereign or state. 
 
 (o) 58 Geo. III. c. 79. 53 Geo. (q) 28 Geo. III. c. 6. 
 
 m. c. 50. (r) 5T Geo. III. c. 28. 
 
 (f) il Geo. III. C. «8. («) See ante, page 40.
 
 «HAP. n.3 Colonial Trade. 40 
 
 But for the benefit of commerce, and particularly for the Colonial 
 sake of enlarging the sale of our own commodities, by en- 
 couraging return cargoes, and the system of barter amongst 
 merchants, it has been found expedient gradually to relax 
 the former restrictive system, with respect to a great many of 
 the enumerated commodities. Upon this principle the sugar 
 colonies are permitted to export many of those enumerated 
 commodities directly to Malta and Gibraltar ; and, upon 
 the same principle, the merchants of Malta and Gibraltar 
 are allowed to export many European articles directly to 
 the same sugar colonies, and to Newfoundland, Bermuda, 
 and the colonies in North America ; also oranges and le- 
 mons from Madeira, and the western islands. Upon a simi- 
 lar principle, (the encouragement of the fisheries,) the ships 
 of our American colonies are allowed to take a variety of 
 articles from the ports of Europe south of Cape Finisterre. 
 As none of the countries south of Cape Finisterre have any 
 competition with England, with respect to manufactures^ 
 it is very properly regarded, that the British fisheries are 
 more benefited by departing from the restriction of the 
 navigation laws, than our manufactures are injured. 
 
 By the 38 Geo. III. c. 19., his majesty is authorized to 
 open ports in Nova Scotia and New Brunswick, for the 
 importation of lumber, cattle, corn, provisions, and other 
 articles in British ships, or ships belonging to the subjects 
 of any state in amity with his Majesty. But none of the 
 articles are to be imported in foreign vessels, unless they 
 are of the produce of the countries to which the vessels im- 
 porting the same shall belong. The act also allows the 
 exportation of certain goods from those ports to foreign 
 countries, either in British or foreign vessels ; but all such 
 cxportations are to be made in vessels belonging to th» 
 country to which the goods are to be exported. 
 
 Experience had, indeed, proved, that our colonial system, 
 as respected the West India islands, was a powerful 
 impediment to the g^rowth of our foreign commerce, and
 
 50 Navigation Laws. [part i. 
 
 Colonial had impeded our manufactures to a greater degree than it 
 
 had promoted our navy. Hence several acts have been 
 passed for opening ports in the West Indies; as likewise 
 many other acts for permitting various articles to be im- 
 ported into those islands from the colonies of other Euro- 
 pean sovereigns. 
 
 The political principle of Free Ports is briefly this ; that it 
 having been found expedient to relax in a certain degree 
 from that double monopoly which constitutes the colonial sys- 
 tem, but it being still necessary to guard the fundamental prin- 
 ciples of the system, and strictly to retain the licence within 
 the degree which the wisdom of the state has fixed, such 
 trade should be confined to certain ports in the colonies and 
 plantations, called Free Ports, to the end that government 
 and its officers may always have its attention upon them. 
 
 Free ports. To establish these ports, to encourage the trade that 
 
 might be carried on by means of them, and to put them 
 under suitable regulations, various acts of parliament were 
 passed, from time to time, by the legislature, and they have 
 all been consolidated in the 45 Geo. III. c. 37. 
 
 This act, with some unimportant alterations, and with 
 many additions as respects specific ports, constitutes the 
 present law of free ports ; and it is therefore necessary to 
 cite it in some detail. It is provided by the three first 
 sections of this statute, that the same articles as were enu- 
 merated in stat. 27 Geo. HI., viz. wool, cotton wool, indi- 
 go, cochineal, drugs of all sorts, cocoa, logwood, fustic, 
 and all sorts of wood for dyers' use, hides, skins, and 
 tallow, beaver, and all sorts of fuis, tortoise shell, hard 
 wood, or mill timber, mahogany, and all other woods 
 for cabinet ware, horses, asses, mules, and cattle, being the 
 growth or production of any of tlie colonies or plantations 
 in America, or of any country on the continent of America, 
 belonging to or under the dominion of any foreign EurO'* 
 pcari sovereign or states and all corn and. bullion, dia-
 
 CHAP. II,] Colonial Trade. 51 
 
 monds, and precious stones, may be imported from any of Colonial 
 the said countries into the several ports of Kingston, Sa- 
 vannah la Mar, Montego Bay, Santa Lucie, Antonio, 
 and St. Ann in the island of Jamaica ; the port of St. 
 George, in the island of Grenada ; the port of Roseau, in 
 the island of Dominica; the port of St. John's, in the is- 
 land of Antigua ; the port of San Josef, in tlie island of 
 Trinidad; the port of Scarborough, in the island of Toba- 
 go ; the port of Road Harbour, in the island of Tortola ; 
 the port of Nassau, in the island of New Providence, one 
 of the Bahama islands ; the port of Pitt's Town, in Port- 
 land Harbour, in Crooked island, another of thr Bahaiha 
 islands ; the port of Kingston, in the island of St. Vincent ; 
 and the principal port in the island of Bermuda, (s) And 
 in addition to the articles enumerated in the 45 Geo. III. 
 c. 57., the 48 Geo. III. c. 125. permits rice, grain, and 
 flour, to be imported into any of the free ports, in any 
 foreign vessels whatever, manned and navigated by persons 
 inhabiting any of the colonies and plantations from w hence 
 such goods are brought. Such importation must be in 
 ?ome foreign sloop, schooner, or other vessel not having 
 more than one deck, and being owned and navigated by 
 persons inhabiting any of the colonies or plantations in 
 America, or countries on the continent of America, belong- 
 ing to, or under the dominion of, any foreign European 
 sovereign or state. Tobacco of the like growth may be 
 imported in like manner, and then re-exported to tlic 
 United kingdom, paying on its importation here the same 
 duty as tobacco of our West Indies, or of the United 
 States. So much of this act as confined the trade to ves- 
 sels of only one deck, was repealed by the 50 CJeo, III. c. 
 21. This latter act was merely temporary : but at length 
 
 (ff) By 47 Geo. III. c, 34., the 49 Geo. III. extends the benefit of 
 
 port of Amsterdam, in the island a free port to Falmouth, iu Ja- 
 
 of Cura^oa, is made a free port; maica. And the 57 Geo. III. c. 74. 
 
 and the like goods are permitted makes Port Maria, in Jamaica, and 
 
 to be imported and exported as Bridge Town, in Barbadoes, free 
 
 at San .Tosef, in Tvlnidad. And ports. 
 
 e2
 
 53 Navigation Laws, [part i. 
 
 Colonial q^q legislature deemed it expedient to make it perpetual, 
 
 by the 54 Geo. III. c. 48. 
 
 The act in its three next following sections then proceeds 
 to such of the above ports as are constituted special free 
 ports, for the importation of foreign sugar and coffee. It 
 is made lawfiil to import into the port of Nassau, in the 
 island of New Providence, into the port of Pitt's Town, 
 in Portland Harbour, in Crooked island, and into such 
 other port or ports in the Bahama islands, into the prin- 
 cipal port in the island of Bermuda, and into such port or 
 ports in the islands called Caicos, as shall be approved by 
 his Majesty in council, sugar and coffee, the produce of any 
 foreign country or plantation, in such foreign ships and 
 vessels as are above described, which sugar and coffee may 
 be again exported free of duty All sugar and coffee im- 
 ported from the above-mentioned special free ports into 
 this kingd<^ m, is to be treated as sugar and coffee not of the 
 British plantations. 
 
 The next section provides, that no commodities, other 
 than those above-mentioned, shall be imported from such 
 foreign places in foreign ships. 
 
 The importation into the free ports is thus regulated by 
 the above sections. The act then proceeds to regulate the 
 exports. It permits the exportation from these free ports, 
 in the before-described foreign vessels, of rum of the pro- 
 duce of any British island, and of negroes (/) which had 
 been imported in any British built ship or vessel ; and of 
 all manner of goods, wares, or merchandise, which shall 
 have been legally imported into the island, except masts, 
 yards, or bowsprits, pitch, tar, and turpentine ; and also 
 except such iron as shall have been brought from the Bri- 
 tish colonies or plantations in America. 
 
 (0 The exportation ©f negroes is lisbing the slave trade. 
 DOW prohibited by the acts for abo-
 
 CHAP. ii.J Colonial Trade. 5S 
 
 The act likewise permits the exportation in British ships Colonial 
 and vessels, from any of the free port islands, to any 
 British colony or plantation in America or the West In- 
 dies, of any goods or commodities whatever, of the manu- 
 facture of Europe ; and also any goods which shall have 
 been legally imported into those islands from any of the 
 foreign plantations or countries before-described. All the 
 free port articles, first enumerated, may be exported to the 
 United Kingdom, conforming to the regulations of stat. 
 12 Car. II. c. 18., stat. 22 and 23 Car. II. c. 26., 7 and 8 
 Will. III. c. 22., and stat. 20 Geo. III. c. 10. But no 
 East India goods are allowed to be exported from any 
 of the free ports to any British colony in America, or 
 the West Indies ; and if any foreign ship shall arrive at a 
 free port with East India goods, such goods and the ship 
 are liable to forfeiture. 
 
 To facilitate the trade of the free ports, no custom-house 
 fee is to be demanded of any foreign vessel, either upon 
 importation or exportation. 
 
 By 58 Geo. III. c. 27. tobacco, rice, grain, pease, beans, 
 and flour, may be imported into any of his Majesty's colo- 
 nies in the West Indies, or on the continent of South 
 America, for the supply of the inhabitants, in British 
 built ships, &c. And pease and beans, of the growth of 
 such foreign European colonies, may be imported into any 
 ports in the British colonies of the West Indies, mentioned 
 in the several acts of parliament, by which such ports are 
 opened to a free trade, and under the rules and regulations 
 prescribed by those acts. («) And in order to encourao-e 
 the exportation of salt from the Bahama islands, any fo- 
 reign vessel described in the 45 Geo. III. c. 57., may come 
 in ballast into any port in those islands, and export the 
 
 («) See 45 Geo. III. c. 57., 46 74., 50 Geo. III. c.21., 52 Geo. Ill, 
 Geo. III. c, 72., 49 Geo. III. c. 22. c. 99., and 54 Geo. III. c. 28. 
 58 Geo. III. c. 99, 57 Geo. Ill, c.
 
 54 Navigation Laws. [part i. 
 
 Colonial articles allowed by the said act to be exported ; and also 
 
 salt, subject to the duty of tonnage, and under the regula- 
 tions imposed by 28 Geo. III. c. 6., 52 Geo. III. c. 99. 
 American vessels are likewise allowed to enter in ballast 
 certain ports in those islands to be laden with salt, 57 Geo. 
 lit. c. 74. Any of his Majesty's subjects are likewise per- 
 mitted to export, in British built vessels, navigated ac- 
 cording to law, from any of the islands in the West Indies, 
 or plantations on the continent of America, any goods of 
 European manufacture, under the regulations of the gene- 
 ral free port act (.r) This act is an extension of the 45 
 Geo. III., which confined such general traffic to certain 
 islands only ; and a later act extends, the same privilege to 
 the inland of Newfoundland. (?/) It is scarcely necessary 
 to add, that the object of these acts was to promote a com- 
 mercial intercourse and traffic between the several colo- 
 nies and plantations, and to give to any market, which was 
 overstocked with European manufactures, a relief by seek- 
 in"; a sale or barter at another. 
 
 ■» 
 
 Ceded colo- The ceded colonies, according to the division we have 
 
 "'"■ made, are Malta, the Isle of France, St. Tobago, St. Lu- 
 
 cie, (he Cape of Good Hope, Berbice, Demerara, and Es- 
 scquibo. By the 57 Geo. III. c. 36., Malta, and its de- 
 pendencies, are to be deemed and taken to be in Europe. 
 The isle of France and its dependencies are comprehended 
 under the general regulations of our navigation laws ; and 
 St. Lucie and St. Tobago are placed upon the same foot- 
 ing as the British West Indies. The three latter colo- 
 nics having been conquered from the Dutch, and ceded to 
 England by the late treaty, (August, 1814,) it became ne- 
 cessary to put them under similar regulations with the 
 British West Indies ; hut, at the same time, to allow cer- 
 tain advantages (o the subjects of the king of the Ne- 
 therlands, which their interest in these plantations, and 
 their connections with the parent state, required. The 
 
 (x) 52 Geo. III. c. 100. {t/) 57 Geo. III. c. 89.
 
 CHAP. II ] Colonial Trade. ^'< 
 
 56 Geo. III. c. 91^ was passed with this view : it enacts, Cc;'^<^ ^"^"■ 
 that all the benefits, privileges, and advantages, and all the 
 rules, regulations, and restrictions, penalties, and for- 
 feitures, in 28 Geo. III. c. 6., with respect to his Britannic 
 Majesty's plantations in North America, and the West 
 India islands, the countries belonging to the United States, 
 and between his Majesty's subjects and the foreign islands 
 in the West Indies, shall extend and apply, and be in full 
 force and effect, as to the colonies of Demcrara, Berbice, 
 and Essequibo. But the subjects of the Netherlands, be- 
 ing Dutch proprietors in those colonies, are allowed to im- 
 port all the usual articles of supply for the cultivation of 
 their estates, subject to the restriction, that such articles 
 shall not be imported for the purpose, or employed in the 
 uses of trade. And such proprietors are further permitted 
 to export from the said colonies, direct to the Netherlands, 
 the produce of their estates. The act then describes the 
 persons who are to be deemed Dutch proprietors ; and di- 
 rects that the imports and exports shall be confined to ves- 
 sels being the property of the subjects of the king of the 
 Netherlands, wherever built, and without any restriction 
 as to the mariners navigating the same, for the space of 
 five years, commencing the 1st of Jan. 1816. — But after the 
 expiration of five years, no such trade shall be carried on 
 except in vessels Dutch built, and whereof the master, and 
 three-fourths of the crew, shall be subjects of his said Ma- 
 jesty. The Cape of Good Hope having been conquered 
 by his Majesty in the late war, was not treated as a per- 
 manent acquisition, but vv'as placed under , the special go- 
 vernment of the king ; and his Majesty was empowered, by 
 several acts of parliament to make regulations touching 
 the trade and commerce of that settlement ; 49 Geo. III. 
 c. 17. By the first article in the late treaty with the king 
 of the Netherlands, this important colony is ceded to the 
 crown of Great Britain, Aug. 13, 1814. By the 54 Geo. 
 III. c. 77., the shipping of wine, the produce of that settle- 
 ment, is specially regulated. And by order in council, 
 dated 24th of September, 1814, it is ordered, that it shall
 
 56 . Navigation Laws. [paut i. 
 
 Ceded colo- be larvful, until further order, for all vessels belonging to 
 
 Biei. 
 
 the subjects of any country or state in amity with his Ma- 
 jesty, to enter into the ports of the settlement of the Cape 
 of Good Hope, and of the territories and dependencies, for 
 the convenience of repairs and refreshment only, in which 
 case a part of the cargoes of such vessels may be permitted 
 to be disposed of, for the purpose of defraying the expences 
 of such repairs or refreshment ; and that it shall also be 
 lawful for any vessels belonging to the subjects of any 
 country or state in amity with his Majesty, to import into 
 the ports of the Cape of Good Hope, and of the territories 
 and dependencies, any articles of provisions, with the per- 
 mission of the governor of the Cape of Good Hope first 
 obtained, by licence, in writing under his signature, which 
 licence he is hereby empowered to grant. And it is fur- 
 ther ordered, that goods the growth, produce, or manufac- 
 ture, of the countries to the eastward of the. Cape of Good 
 Hope, legally imported into the said settlement, or into 
 the territories or dependencies thereof, may be exported 
 from the said settlement, &c. to the ports of the United 
 Kingdom, subject to the regulations in 53 Geo. HT. c 155., 
 or to any places to which a trade in such articles is per- 
 mitted to be carried on, from the said settlement, &c. under 
 the provisions of 54 Geo. III. c. 34., and subject to the 
 regulations in the said act, in British vessels, or in such 
 vessels that shall have been built within the territories be- 
 longing to the East India Company, or in the ports under 
 the immediate protection of the British flag in the East 
 Indies. — And that it shall in like manner be lawful to ex- 
 port from the said settlement of the Cape of Good Hope, 
 or its territories or dependencies, in British vessels, or in 
 such vessels that shall have been buiU within the territo- 
 ries belonging to the East India Company, or in the porta 
 under the immediate protection of the British flag in the 
 East Indies, to any places to which trade may be lawfully 
 carried on from the said settlement, or its territories or 
 dependencies, any articles of British or European produce, 
 or manufacture, which shall have been legally imported
 
 €HAP. II.] Colonial Trade, 5' 
 
 into the said settlement, &c. ; provided, however, that no- 
 thing in this order shall extend to permit a trade in tea, 
 between the Cape of Good Hope, or its territories, or de- 
 pendencies, and the countries to the eastward thereof, or 
 from the said settlement, &c. to the ports of the United 
 Kingdom ; nor to permit any vessel under the burthen of 
 350 tons to export from the said settlement, &c. to the 
 ports of the United Kingdom, any articles the growth, pro- 
 duce, or manufacture, of any countries situated within the 
 limits of the East India Company's charter ; and that the 
 trade and commerce to and from the said settlement, &c. 
 shall be subject to such of the laws of trade and navigation, 
 and the regulations thereof, as would have affected the 
 same, if this order had not been made, except as far as such 
 laws are contrary to this present order. 
 
 The acts referred to in this order of council preserve 
 \\\e rights of the East India Company, in favour of whose 
 exclusive commerce it is provided, that the Cape of Good 
 Hope should be construed to be within tlie limits of their 
 charter, 57 Geo. III. c. 95. 
 
 The 57 Geo. III. c. 1. continues to his Majesty in coun- 
 cil the same power to regulate the trade and commerce, to 
 and from all islands, colonies, or places, belonging to his 
 Majesty, in Africa, or Asia, to the eastward of the Cape 
 of Good Hope ; notwithstanding the provisions of any act 
 of parliament which may be construed to affect the same : 
 and goods imported contrary to any orders in council so 
 made are to be deemed forfeited. This latter act will ex-' 
 pire on the 5th of July 1S20. 
 
 With respect to British America, the last division of our British Ame» 
 colonies, the trade, with very few exceptions, stands upon '■'*^*- 
 the same principles as those which regulate the commerce 
 of our West India Islands, (s) 
 
 («) Ritish America comprises Hudson*s Bay, Newfoundland, coast
 
 58 Navigation Laws. [part i. 
 
 British Arae- For the benefit of the fisheries, the 4 Geo. III. al* 
 '^'^** lowed salt to be imported from any port of Europe 
 
 into the province of Quebec, in the same manner aa 
 salt may be imported into New England and New- 
 foundland, by 15 Car. II. c. 7. The act of 4 Geo. III. 
 being a temporary act, and continued as occasion required, 
 was made perpetual by 48 Geo. III. c. 22. His Majesty's 
 subjects are likewise permitted to export from any of the 
 colonies and plantations in British America any article of 
 their manufacture or produce, or any goods which they 
 have legally imported, direct to Malta and Gibraltar, in 
 British built ships, owned and registered according to law, 
 55 Geo. III. c. 29., 57 Geo. III. c. 4.: and, as we have 
 before had occasion to observe, oranges and lemons, the 
 growth of the Azores and Madeiras, may be shipped and 
 laden at those islands respectively for exportation, direct 
 to any part of British America. But such trade is confined 
 to British ships, built and navigated according to law, 
 57 Geo. III. c. 79. 
 
 In the same manner, for the encouragement of the fish- 
 eries, and for the convenience of barter and exchange, 
 without compelling a more circuitous course, vessels from 
 the British colonies in North America, arriving with the 
 produce of those colonies at places in Europe, south of 
 Cape Finisterre, are allowed to take for exportation direct 
 to such colonies fruit, wine, oil, salt, or cork, the produce 
 of Europe, 51 Geo. III. c. 97. Canada is further allowed 
 to export to Europe, within the said limits, corn, grain, 
 lumber, &c. without the usual certificate of such commo- 
 dities being of the growth or produce of that province, and 
 without any certificate being required of the country from 
 whence they came. But no fish is to be exported unless 
 it be the produce of the Britisli fisheries, 51 Geo. III. c. 
 97. No goods of the United States, as we have previously 
 
 of Labrador, Canada, Cape Bre- Brunswick, and Nova Scotia. 
 Ion, Priucc Edward's islaud, New
 
 CHAP. II.] Colonial Trade. 59 
 
 shewn, can be imported into Quebec, either by sea or coast- British Anae- 
 
 . . ricii. 
 
 wise, except bread, flour, &c., by order of council, in case 
 
 of necessity, for the supply of persons carrying on the fish- 
 eries, 28 Geo. III. c. 6. And no goods, except of the 
 growth, produce, or manufacture, of the United States, are 
 allowed to be brought into Upper or Lower Canada, by in- 
 land navigation, or land carriage. But goods of countries 
 bordering on Quebec, brought into that province by land 
 or inland navigation, may be imported into Great Britain 
 or Ireland as of the growth of Quebec, SO Geo. III. c. 29., 
 39 and 40 Geo. III. c. 67. 
 
 By 2 Geo. III. c. 24., salt may be imported from any 
 part of Europe, into the colonies of Nova Scotia and New 
 Brunswick ; but no goods whatever are permitted to be 
 imported from the United States of America into the be- 
 fore-mentioned colonies, or the islands of Cape Breton, St. 
 John's, or Newfoundland ; or into any country or island 
 within their respective governments, 28 Geo. HI. c. 6. 
 But the 33 Geo. III. c. 50. makes it lawful to import pitch, 
 tar, and turpentine, the production of any of the territories 
 of the United States, provided such importation be made 
 by British subjects, and in Britisli vessels. And by 48 
 Geo. III. c. 125., the governors of these provinces and is- 
 lands, for the time being, may authorise the importation of 
 the articles, enumerated in the 28 Geo. III. c. 6., for a 
 limited time, from any of the territories of the United 
 States. In the same manner upon any pressing want, any 
 articles of the first necessity may be imported from the 
 United States ; but the principal officers and council of 
 these provinces are to determine upon this necessity ; and 
 the importation is strictly confined to British ships, built, 
 owned, and navigated, according to law. His Majesty in 
 council is further empowered to authorise the governor of 
 Newfoundland to import, in case of necessity, bread, flour, 
 and live stock, from any of the territories of the United 
 States J but the vessels employed in euch licensed traific
 
 60 Navigation Laws. [part i-. 
 
 nca. 
 
 British Ame- must be British built, owned and navigated according to 
 law, 28 Geo. III. c. 6. So by 51 Geo. III. c. 62., rum 
 and spirits, the produce of his Majesty's sugar colonies, 
 legally imported into the island of Bermuda, may be ex- 
 ported from thence into the provinces of Nova Scotia and 
 New Brunswick, the island of Cape Breton, Prince Ed- 
 ward's island, and the island of Newfoundland. And by 
 58 Geo. III. c. 19., the articles therein enumerated, viz. 
 timber, cattle, and supplies of the first necessity, are per- 
 mitted to be imported into Nova Scotia, or New Bruns- 
 wick, in British built vessels, or in any vessels belonging 
 to the subjects of any state in amity with Great Britain. 
 But the articles imported are required to be of the growth of 
 the country to which the vessel importing the same shall be- 
 long. And, in case the markets shall become over stocked, 
 liberty is given to re-export them in British built vessels. (6) 
 
 By s. 6. his Majesty is empowered, by the advice of his 
 privy council, to make such regulations for the importation 
 and exportation of goods and commodities, with such pe- 
 nalties and forfeitures as it may be deemed expedient to 
 annex. This last act will expire in May 1821. 
 
 As it is necessary in a work professedly treating of the 
 whole of any subject, to comprehend all the public acts of 
 the legislature, relating to such subject, we have been 
 compelled, in the preceding pages, to be more full and mi- 
 nute than may suit the occasion of persons referring to it 
 for instruction on a particular point. In order, therefore, 
 to adapt ourselves to such readers, we shall endeavour to 
 comprehend the previous doctrine in the following sum- 
 mary ; and for the convenience of practice shall condense it 
 in the form of rules. 
 
 {b) It may be laid down as a ge- tish built vesselsj it further requires 
 
 ncral rule, that when an act of par- such vessels to be owned, regis- 
 
 Uament confines the importation tered, and navigated, according to 
 
 or exportatioQ of articles to Bri- law.
 
 CHAP. II.] Colonial Trade, 61 
 
 ^^„ „ _. Colonial 
 
 RULE I. trade. 
 
 Ships permitted to trade to and from British plantations. 
 
 The rule under this head is, that no goods or commodi- 
 ties shall be imported into, or exported from, any colony 
 or plantation in Asia, Africa, or America, belonging to, or 
 in possession of. Great Britain, but in British built ships, 
 owned by British subjects, and navigated by a master, and 
 three-fourths, at least, of the mariners, British subjects, 
 7 and 8 Will. III. c. 22. 
 
 Except as follows : — Wool, cotton, indigo, cochineal, drugs of 
 all sorts, cocoa, logwood, fustic, and all sorts of wood for dyers, 
 hides, skins, and tallow ; beaver and all sorts of furs, tortoise- 
 shell, hard wood, or mill timber, mahogany, and all other woods 
 for cabinet wares ; horses, asses, mules, and cattle, (being the 
 growth or production of any of the colonies or plantations in Ame- 
 rica, under the dominion of any foreign European stale,) and all 
 coin, bullion, and diamonds, and precious stones ; and also tobac- 
 co, being the growth or produce of any island in the West Indies, 
 or of any country on the continent of America, under the domi- 
 nion of any foreign European sovereign or state, tnai/ be im- 
 ported from any of the said colonies or plantations into thefi'ee 
 ports (enumerated in page 51,) in any foreign vessel whatever, of 
 any tonnage, being owned and navigated by persons inhabiting any 
 of the said colonies or plantations in America, or countries on the 
 continent of America, belonging to, or under the dominion of, 
 any foreign European sovereign or state, 43 Geo. III. c. 57., 49 
 Geo. III. c. 22., 52 Geo. III. c. 99., 57 Geo. III. c. 74.— Sugar 
 and cofifee likewise, the produce of any foreign colony or planta- 
 tion, may be imported into Port Nassau, in New Providence ; into 
 the port of Pitt's Town, in Crooked island ; into the principal 
 port of the islands of Bermudas ; and such ports of the islands 
 called Caycos, as shall be approved by his Majesty in council. 
 
 His Majesty in council may also permit the importation into the 
 port of Road Harbour, in Tortola, and the exportation thence to 
 this kingdom, of all such articles above-mentioned, as may be im- 
 ported into the port of Nassau, 46 Geo. III. c. 72. 
 
 In addition to the articles above enumerated, by the 48 Geo. 111.
 
 62 Navigation Laws, [part i. 
 
 Colouial c. 125., rice, grain of all sorts, and flour, of any colonies or planta- 
 
 tions in America, belonging to any foreign European state, may 
 be imported into any of the free ports in the British West Indies, 
 particularly named in the above-mentioned act, of the 45 Geo. III. 
 (and other free port acts) in any foreign vessel whatever, being 
 manned and navigated by persons inhabiting any of the colonies 
 or plantations belonging to any foreign state. 
 
 So far as to imports. — In return, such vessels may export from 
 the said ports to any of the colonies or plantations in America, be- 
 longing to some foreign European state, the following articles, viz. 
 rum, the produce of any British island, and all manner of goods 
 which shall have been legally imported into the said islands, except 
 masts, yards, and bowsprits, pitch, tar, turpentine, and also ex- 
 cept such iron as shall have been brought from British colonies or 
 plantations in America. Salt may likewise be exported from, the 
 Bahamas in ships belonging to the United States. 
 
 RULE II. 
 
 Exportation of British colonial produce from British colonies. 
 
 No sugar, tobacco, cotton wool, fustic, or other dyeing 
 woods, rice, molasses, copper ore, coffee, pimento, cocoa 
 nuts, whale fins, raw silks, hides or skins, pot or pearl 
 ashes, iron, or lumber of the growth, production, or manu- 
 facture, of any British plantation, in Asia, Africa, and 
 America, may be transported to any place whatsoever, other 
 than to some British plantation, or to Great Britain, or to 
 Ireland. 
 
 1 . Except, — Sugar, coffee, rum, and molasses, the produce of any 
 British colony in the West Indies, imported into Bermuda in any 
 British ship, may be exported from certain ports in that island to 
 the territories of the United States, in Viwy foreign ship belonging 
 to any country in amity with his Majesty, above the burthen of 
 sixty tons ; 52 Geo. III. c. 79, 53 Geo. III. c. 50, 57 Geo. III. 
 c. 28. And tobacco, lumber, &c. of the growth and production 
 of the United States, legally imported into Bermuda, may be ex- 
 ported thence to the West Indies, in British built ships ; 52 Geo. 
 III. c. 79, 53 Geo. 111. c. 50. V^y 56 Geo. III. c. 91., Dutch
 
 CHAP. II.] Colonial Trade. 63 
 
 proprietors in Demerara, Berbice, and Essequibo, may export the Colonial 
 
 trsids 
 produce of their estates, on board Dutch ships, to the Netherlands, 
 
 but no where else. Iron and lumber, the production, &c. of the 
 
 British plantations in America, may be landed in any British 
 
 colony in America, Africa, or Asia, under the regulations of 
 
 4 Geo. III. c. 15. and 5 Geo. III. c. 45.; but in no part of Eu- 
 
 ope except Great Britain and Ireland. 
 
 2. Exception. — Sugar, molasses, coffee, and cocoa nuts, which, 
 together with ginger, pimento, and all goods and commodities, 
 which, in the year 1788, were not prohibited to be exported ia 
 any foreign country in Europe, may be exported from the British 
 West India islands to the United States, But this trade (with the 
 exception of salt from the Bahama islands, as before-mentioned,) 
 must be carried on in British built ships, owned, and navigated ac- 
 cording to law, 28 Geo. III. c. 6. 
 
 3. Exception. — His Majesty's subjects may likewise export 
 from any of our colonies and plantations in America, to Malta, 
 and Gibraltar direct, sugar, cofTee, cocoa, pimento, rum, molasses, 
 indigo, ginger, fustic, and other dyeing goods, being the produce 
 of any such colony or plantation, in British built ships ; 55 Geo. III. 
 c. 29. and 57 Geo. III. c. 4, &c. 
 
 4. Exception. — Lumber may be exported from the British colo- 
 nies, and carrie^l to the Madeiras, the Azores, or any part of Eu- 
 rope to the southward of Cape Finisterre ; and sugar, coffee, and 
 cocoa, being the growth and produce of any of his Majesty's sugar 
 plantations, may be exported from thence direct to any port in 
 Europe to the southward of Cape Finisterre, under certain regu- 
 lations ; 52 Geo. III. c. 98. All other goods, not before enumerated, 
 being the growth, product, or manufacture, of any British colony 
 or plantation, may be transported directly to any place whatever. 
 
 5. Exception. — Hops must not be carried to Ireland, 5 Geo. II. 
 c. 9.. ; nor rum, nor other spirits to the Isle of Man, 5 Geo. III. 
 c. 39. ; nor rum to Guernsey or Jersey, 9 Geo. III. c. 28. 
 
 G. Exception. — No hats or felt may be exported from one plan- 
 tation to another plantation, or elsewhere, 5 Geo. II. c. 22. And 
 no wool, &c. drapery stuffs, or woollen manufactures, may be ex- 
 ported from any of the plantations to any other place whatsoeveF, 
 iOandU Will.III. c. 10.
 
 64 Navigation Laws, [part i. 
 
 a^"' RULE III. 
 
 Exportation of goods, not being British colonial produce^ 
 from British colonies. 
 
 It is lawful to export in any British ship owned and na- 
 vigated according to law, from any British colony or plan- 
 tation in America, or the West Indies, any goods of the 
 manufacture of Europe to any other British colony ; also 
 any goods which shall have been legally imported into any 
 of the aforesaid colonies or plantations from any country in 
 America, belonging to, or under the dominion of, any fo- 
 reign European sovereign or state, from any of the free 
 ports, to Great Britain and Ireland ; 45 Geo. III. c. 57, 
 49 Geo. III. c. 22, 52 Geo. III. c. 99, 57 Geo. III. c.74; 
 
 Exception 1. — Goods, the produce of the East Indies, cannot be 
 exported from any free ports to any British plantation in America, 
 or the West Indies, upon forfeiture thereof, with the ship ; 
 45 Geo. III. c. 57. But tobacco of AmericaQ States, which may 
 have been taken by fair traffic into any British West India islands, 
 may be thence exported to Great Britain ; 29 Geo. III. c. 68. 
 All the articles enumerated in the exception to the first rule, ex- 
 cept hard wood or mill-timber, having been legally imported into 
 the free ports, may be exported thence, and brought into Great 
 Britain and Ireland, under the same regulations as goods of the 
 growth of the British colonics, except sugar and coffee, imported 
 into the Bahamas and Bermudas. 
 
 RULE IV. 
 
 Importation into British Colonies. 
 
 No goods or commodities, of the growth, produce, or 
 manufacture of Europe, may be imported into any land, 
 island, plantation, colony, territory or place, belonging to, 
 or in the possession of Great Britain, in Asia, Africa, and 
 America, but such as shall be shipped in Great Britain or
 
 CHAP. II.] Colonial Trade. 
 
 Ireland, in Britlsli built shipping, owned, navigated, and Colonial 
 registered, according to law ; 15 Car. II. c. 17., 39 and 
 40 Geo. III. c. 67. And no vessel is to clear out from 
 Great Britain or Ireland, except the whole cargo be there 
 laden and shipped bond fide^ and without fraud. 
 
 Exception 1. — Salt may be laden in any part of Europe for the 
 fisheries in Newfoundland, Nova Scotia, or Quebec ; and wines, , 
 oranges, and lemons, of the Madeiras and Western Islands, or 
 Azores, may be shipped from thence for any of the British co- 
 lonies or plantations in North America. 4 Geo. III. c. 15. 
 4 Geo. III. c. 19. 48 Geo. III. c. 22. 57 Geo. III. c. 89. 
 
 Exception 2. — Any persons inhabiting in Guernsey or Jersey, 
 miy transport directly from thence to Newfoundland, or to any 
 other of the British colonies or plantations in America, wherein 
 the fisheries are now, or shall hereafter be carried on, onboard 
 any ship that may lawfully trade there, articles necessary for the 
 fisheries, food, clothing, &c. 9 Geo. III. c. 28. Herrings may 
 be exported in the same manraer from the Isle of Man, 12 Geo. III. 
 c. 58. ; and tools and implements of fishery, 15 Geo. III. c. 31. 
 
 Exception 3. — Fruit and wines, from Malta and Gibraltar, may 
 be imported into any of his Majesty's sugar colonies or plantations 
 in America, or Newfoundland, or Bermuda, or into any of his 
 Majesty's colonies or plantations in North America; 55 Geo. III. 
 c 29. 57 Geo. III. c. 4. 
 
 Exception 4. — 'Although no tobacco, pitch, tar, turpentine, hemp, 
 flax, masts, yards, bowsprits, staves, heading-boards, timber, shin- 
 gles, or lumber of any sort ; bread, biscuit, flour, pease, beans, po- 
 tatoes, wheat, rice, oats, barley, or grain of any sort, may be 
 imported into any British West India inland, (including the Ba- 
 hamas and Bermudas,) from any foreign West India islands, or 
 from any colony or plantation on the continent of South America, 
 belonging to any European state ; nevertueless, in case of distress 
 for the supply of the inhabitants, by licence of the governors, or 
 commanders-in-chief, Sec. such commodities are allowed to be im- 
 ported, by British subjects, in British built ships, &c. 28 Geo. III. 
 c. 6., 31 Geo. III. c. 38, 56 Geo. III. c. 91. ; but may not be re- 
 exported. Such licence is to be given for a limited time only. 
 
 F
 
 65 Navigation Laws. [part i. 
 
 Colonial Exception 5. — Certain species of timber may be Imported in Bri- 
 
 tish built ships, &c. into any of the West India islands, from any 
 colony or plantation on the continent of South America, under the 
 dominion of any foreign European sovereign, or from Porto Rico 
 in the West Indies; 33 Geo. III. c. 50. Such timber must be of 
 the growth of the country whence it is imported. And, by 58 
 Geo. III. c. 27., pease and beans, the growth of any of the colo- 
 nies or possessions in the West Indies, or on the continent of Ame- 
 rica, belonging to or under the dominion of any foreign Euro- 
 pean sovereign or state, may be imported into any of the ports of 
 the colonies and plantations enumerated in 45 Geo. III. c. 57., 
 46 Geo. III. c. 72., 49 Geo. III., c. 22., 52 Geo. III. c. 99. and 
 57 Geo. III. c. 74., in vessels of the like description, and subject 
 to the like rules, regulations, and restrictions, as are required by 
 the 50 Geo. III. c. 21., 52 Geo. III., and 54 Geo. III. c. 48. And 
 by the above act, 58 Geo. III. c. 27., tobacco, rice, grain, pease, 
 beans, and flour, may likewise be imported into any of the colonies 
 in the West Indies, or on the continent of South America, (for the 
 supply of the inhabitants,) in British built vessels, from any colony, 
 &c. in the West Indies, or on the continent of America, under the 
 dominion of any foreign European sovereign or state, (sec. 1.) 
 
 RULE V. 
 
 Importation from the United States of America into British 
 
 Colonies. 
 
 The rule under this head is, that no goods shall be im- 
 ported from any of the territories belonging to the United 
 States, into his Majesty's West India islands, (in which the 
 Bermuda and Bahama islands are included,) or into the 
 colonies of Demerara, Berbice, or Essequibo. 
 
 Exception 1. — Tobacco, pitch, tar, turpentine, hemp, flax, masts, 
 yards, bowsprits, staves, heading-boards, timber, shingles, and 
 lumber of any sort ; horses, neat cattle, sheep, hogs, poultry, live- 
 stock of any sort; bread, oats, barley, and grain of any sort; 
 such commodities bfing the growth or production of the territories 
 of the said States : but the said articles shall not be so imported 
 except by British subjects, and in British built ships, owned, &c. 
 28 Geo. III. c. 6. 56 Geo. III. c. 91. Except also household
 
 CHAP. II.] Colonial Trade. g7 
 
 furniture, &c. by persons intending to settle in the Bahama or Colonial 
 Bermuda islands, or in any of the territories belonging to his Ma- ^^^'^^' 
 jesty in North America; 30 Geo. III. c. 27. — See likewise some 
 regulations of detail in this act. The articles enumerated in the 
 first exception may be imported into Bermuda, from the United 
 States of America, in foreign ships, and exported in British. The 
 foreign ships must belong to countries in amity with his Majesty ; 
 52 Geo. III. c. 79. and 53 Geo. III. c. 50. And, by 57 Geo. III. 
 c. 28., fruit and vegetables may be imported in the like ships from 
 the United States of America; and rum and molasses, the produce 
 of any British colony in the West Indies, which shall have been 
 legally imported into Bermuda in British ships, may be exported 
 from Bermuda to the said states, in foreign vessels, under the re- 
 gulations of the 52 and 53 Geo. III. And, by virtue of, and 
 under the regulations of the last-mentioned acts, sugar and coffee 
 may be exported from Bermuda to the United States in any foreign 
 vessels belonging to any country in amity with his Majesty.-:— As 
 to other commodities which may be exported from the West India 
 islands into the United States, see Rule II. Except. 2. 
 
 Exception 2. — No goods shall be imported from the United 
 States of America, by sea or coastwise, into Quebec ; or into the 
 countries or islands within that government ; or up the river 
 St. Lawrence from the sea ; 28 Geo. III. c. 6. : nor into the pro- 
 vinces of Nova Scotia or New Brunswick, the islands of Cape Bre- 
 ton, Prince Edward's Island, or Newfoundlarnl, or any country or 
 island within their respective governments, 28 Geo. III. c. 6. ; ne- 
 vertheless, by 33 Geo. III. c. 50., pitch, tar, and turpentine, being 
 the growth oi production of the United States, may be imported 
 thence by British subjects, in British built ships. Sec. into Nova Sco- 
 tia, New Brunswick, and the islands of Cape Breton and St. John's. 
 And by 48 Geo. HI. c. 125., the governors, &c. of Nova Scotia, 
 New Brunswick, or of the island of Cape Breton or St. John's, 
 may authorise the importation of the articles enumerated in the 
 28 Geo. III. c. 6. for a limited time, from any of the territories of 
 the United States, for the purpose of the same being re-exported 
 to any other of his Majesty's plantations. The like governors, in 
 case of emergency, may authorise the importation of scantling, 
 planks, staves, heading-boards, shingles, hoops, or squared tim- 
 ber of any sort ; horses, neat cattle, sheep, hogs, poultryj or 
 
 f2
 
 68 Navigation Laws. [part i. 
 
 Colonial live-stock of any sort ; bread, biscuit, flour, pease, beans, potatoes, 
 
 trade. , . , , . , ^ ,. . j . 
 
 ■wheat, rice, oats, barley, or grain of any sort, for a limited time; 
 
 28 Geo. III. c. 6. In like manner the governor of Quebec may 
 
 authorise the importation of live-stock, bread, &c. from the United 
 
 States, for a limited time, for the supply of the inhabitants ; 
 
 30 Geo. III. c. 8. Such importation to be by British subjects, in 
 
 vessels British built, owned, navigated, &c. according to law. 
 
 Such is the system of the colonial trade, founded upon 
 acts of parliament sweeping and prohibitory in the first in- 
 stance, but which have gradually been relaxed by the 
 changed condition of the times, the necessities of com- 
 merce, the equitable claims of the colonists, and the rea^^ 
 sonable rights of foreign and independent nations. It 
 might be expected perhaps that we should advert in this 
 placet© some of the licences and Orders of Council during 
 the late war, by which the navigation laws, on particular 
 occasions, were qualified and suspended. But, as such 
 licences and provisions were merely temporary, and passed 
 away with their respective occasions, they are to be re- 
 garded rather as war regulations, than as entering into the 
 permanent legislative system of commerce and peace. In 
 every departure from the colonial system which we have 
 had occasion to mark in the preceding pages, it may be ob- 
 served, that where the legislature have been compelled by 
 the necessities of the times to make a deviation from a 
 former rule, they have still retained such rule, and the 
 principle upon which it was built, constantly within 
 tlieir view : and they have, in most cases, so qualified and 
 restricted the exception which they liave been compelled 
 to admit, as to restrain the liberty conceded within the ex- 
 act limits of the necessity of the case. They have re- 
 garded our colonies as one of the main means of maintain- 
 ing and augmenting our navy and shipping; and, with this 
 purpose, they have endeavoured, with as much jealousy as 
 possible, to retain both the import and exports to our- 
 selves, and in our own ships. If they have been com- 
 pelled to depart from this monopoly, (for such it is,) in
 
 CHAP. II.] Colonial Trade. 69 
 
 some few instances, such departure has only l)een gradual, Colonial 
 and never with the sacrifice of fundamental principles. 
 Thus, if foreign ships have been allowed to import arti- 
 cles of the growth and production of American colonies, 
 under the dominion of any foreign European state, it is a 
 concession only to prevent illicit trade ; and it is prevented 
 from breaking in too much upon our navigation system, by 
 requiring that all such ships should be the ships of the 
 country from which the goods are so imported, navigated by 
 its subjects or inhabitants ; and that the commodities should 
 be of the growth and production of the country from which 
 they are sent : this is a restriction intended to prevent the 
 carrying trade. And, as it would be a hardship upon such 
 merchants, and an intolerable impediment to commerce, if, 
 after being allowed to import such articles, they were com- 
 pelled to return in ballast, such vessels are permitted to 
 export the rum of our colonies, of which there must always 
 be an abundance : but are prohibited from taking- any of 
 those other articles by which they obstruct or compete with 
 the trade of our own merchants. The exportation of rum 
 is thus an encouragement to the planter ; and, though cer- 
 tainly a departure from our former exclusive monopoly of 
 market, is attended with a greater good than the strict ob- 
 servance of the rule. 
 
 Again, as the colonies want a continual supply of lum- 
 ber, provisions, live-stock, &c. which can only be procured 
 cheaply from the United States, and as it is an object to 
 retain the supply of these articles to our own shipping and 
 sailors, it has been deemed prudent to allow sugar, mo- 
 lasses, coffee, &c. to be exported from tlie British West 
 India islands to the United States direct : but the naviga- 
 tion system is preserved, by requiring such exportation to 
 be by British subjects, in British ships. 
 
 Again, for the sake of admitting the merchants of our 
 colonies into a participation in the general trade of the 
 country, and for the sake of procuring a larger consump-
 
 70 Navigation Laws. [part i. 
 
 Colonial tion ofrour own manufactures, the colonies are permitted to 
 
 trddc ' 
 
 become a kind of depot for the supply of each other ; as 
 
 every colony is allowed to export to another, with some 
 
 few exceptions which we have before pointed out, whatever 
 
 may have been previously imported into it according to 
 
 the laws. 
 
 Again, with respect to the importation of goods into the 
 colonies, from other places than British ports, the naviga- 
 tion laws are no further departed from than to meet the ne- 
 cessities of our fisheries, and any urgent demand of our colo- 
 nies for provisions and articles of prime necessity. Wines 
 and fruits of the Madeiras and Azores are permitted, from 
 the evident reason that they do not interfere with the trade 
 of our own merchants and with articles of our own growth 
 and manufacture : so also Malta and Gibraltar are per- 
 mitted, for local reasons, to have a direct trade with our 
 West India islands ; to receive our sugar and coffee, and to 
 return their fruits. 
 
 Under any lu'gent necessities of the colonies, the go- 
 vernor is allowed to authorise, by licence, the importation 
 of lumber and provisions from foreign West India islands, 
 and South America, but only for a limited time ; but such 
 importations must be made in general by British subjects, 
 in British built ships. 
 
 Under all the above circumstances, it is manifest that 
 this colonial system could not have been adopted with the 
 same eftect by any other country than Great Britain, whose 
 capital, whose ships, and whose manufactures, all exist in 
 too great an extent to constitut^e her exclusive supply of 
 such colonies, and such engrossing of their trade, an in- 
 jurious monopoly. The colonial merchant and planter 
 have as wide a market, and as numerous purchasers, as 
 their stock requires : their produce is never too large for 
 the demand. The n)otIier country, therefore, enjoys the 
 benefit of the system, whilst the colonies do not suffer. An 
 eminent example of the mischief of a similar monopolyj 
 
 1
 
 CHAP. II.] Colonial Trade. 71 
 
 under other circumstances, may be seen by the relations of Colonial 
 Spain and South America. Spain, unable to purchase a 
 large colonial produce, and admitting no one else to pur- 
 chase, has necessarily impeded the growth of her colonies, 
 by confining their produce to the stock only which the mo- 
 ther country could take, and by purchasing that stock at 
 the price of those who buy from those who are compelled 
 to sell. The British empire, on the other hand, either 
 consuming all, or being enabled to sell it by an extended 
 commerce to other nations, at once encourages the colonies, 
 and advances its own general trade. 
 
 The course of this chapter has now led us to the consi- 
 deration of such parts of the colonial trade as are purely of 
 a legal nature ; and the first enquiry under this head will 
 be, what meaning has the legislature, or usage annexed, to 
 the description in the navigation acts of British huilt ships. 
 The words of the 12 Car. II. c. 18. are, that no goods shall 
 be imported from the plantations but in such ships or ves- 
 sels as do truly and without fraud belong only to the peo- 
 ple of England, or Ireland, &c. ; or are of the built of, and 
 belonging to, any of the said lands, islands, plantations, 
 or territories, as the proprietors and right owners thereof, 
 and whereof the master, and three-fourths of the mariners, 
 at least, are English. And the 7 and 8 Will. III. c. 25. 
 requires the ships employed in this trade to be of the buiit 
 ofEsigland or Ireland, or of the colonies or plantations, 
 with the like conditions as to the property and navigation 
 as are prescribed by the act of Charles. There is an ex- 
 ception in this act, which we have before pointed out, as to ' 
 prize ships legally condemned, and foreign ships employed 
 by the commissioners of the navy in conveying stores for 
 his Majesty's service. Such prize ships are, however, re- 
 quired to be the property of Englishmen ; and, together 
 with such foreign vessels, to be manned and navigated in 
 the same manner as British built ships. By 26 Geo. III. What are to 
 c. 60. s. 1., a British built ship is declared to"be such a ship BritUhTJ« 
 only as shall have been built in Great Britain or Ireland, ships, 6ic.
 
 72 ' Navigation Laws. [part i. 
 
 Colonial Guernsey, Jersey, or the Isle of Man, or in some of the co- 
 
 lonies and plantations, islands, or territories in Asia, Africa, 
 or America, which, at the time of the building of the ship, 
 belonged to, or were in the possession of, his Majesty, or 
 any ship whatsoever which has been taken and condemned 
 . as lawful prize. But such British built ship as shall be 
 rebuilt or repaired in any foreign port or place, to an 
 amount exceeding 15^. per ton, is not to be considered as 
 British built, unless such repairs shall be proved to have 
 been necessary to enable the ship to perform her voyage. 
 In case of such repairs, the master is required to report to 
 the British consul, or other officer at the port where the 
 vessel is repaired, her state and condition upon oath : the 
 ship is to be properly surveyed and a certificate to be ob- 
 tained from the British consul of the particulars of the re- 
 pairs, and that they had become necessary. If there be 
 no such consul or officer resident at or near the port, then 
 the survey of the ship is to be made by two persons to be 
 approved of by two known British merchants residing at 
 or near the port or place where the vessel is refitted. The 
 master is to produce to them vouchers of the particulars of 
 the repairs ; and their certificate is to be of the same effect 
 as that of the consul or chief officer. And if a vessel is re- 
 paired in a foreign port, the master shall, if required, make 
 proof on oath, or by affirmation, of the nature and amount 
 of the expense of the repairs, before the principal officer 
 of the customs, at the first port in his Majesty's dominions 
 at w hich the vessel shall first arrive ; and, if the expense 
 shall exceed 155. per ton, and the master shall not deliver 
 the certificate before- mentioned, the ship shall be deemed 
 foreign built, (c) Such are the cautious guards which the 
 law has imposed in order to prevent any evasion of the 
 terms British built. 
 
 Who are to be And to prevent all doubts as to the various terms made 
 
 tlsh'"*iil(»"s' "'^^' ^^ ^" ^^'^ navigation laws with respect to the persons 
 ni.jslcr», &c. 
 
 (c) 26 Geo. 111. c. 60. 8. 2.
 
 CHAP. II.] Colonial Trade. .. 73 
 
 who are to be deemed qualified to be masters of British Colonial 
 
 ^ . . , ., . . . trade. 
 
 ships, or to be British sailors, seamen, or mariners, it is 
 
 declared and enacted, by the 34 Geo. 111. c. 68., that no 
 person shall be deemed or taken to be qualified to be the 
 master of a British ship, or to be a British sailor, seaman, 
 or mariner, except the natural born subjects of his Majesty, 
 his heirs, and successors ; or persons naturalized by, or by 
 virtue of, any act of parliament, or made denizens by letters 
 of denization, or except persons who have become his Ma- 
 jesty's subjects by virtue of conquest or cession of some 
 newly acquired country, and who shall have taken the oath 
 of allegiance to his Majesty, or the oath of fidelity required 
 by the treaty of capitulation, by which such newly acquired 
 country came into his Majesty's possession, s. 6. The same 
 statute confers a qualification upon foreign seamen after 
 three years' service in time of war on board any of his Ma- 
 jesty's ships, who shall obtain certificates of their faithful 
 service and good behaviour from the commanders ; or, in 
 case of their death, from the next in rank, and take the 
 oath of allegiance, s. 7. But it also excludes from this ca- 
 pacity every person, however otherwise qualified, who, after 
 he became qualified, has taken, or shall take, the oath of 
 allegiance to any foreign sovereign or state, for any pur- 
 pose, except under the terms of some capitulation upon a 
 conquest by an enemy, and for the purpose of such capitu- 
 lation only, s. 8. But no ship or vessel shall be forfeited 
 by reason of the employment of persons so qualified, if the 
 owners can shew that such disqualification of the master 
 was unknown to them or their agents, and that such dis- 
 qualification of a mariner was unknown both to them or 
 their agents, and to the master. The statute, however, 
 allows the employment as sailors, in the seas of America 
 and the West Indies, of negroes belonging to persons qua- 
 lified in the manner before-mentioned, if the conditions re- 
 quired by the stat. Si Geo. III. c. 42. have been complied 
 with ; and in the seas to the eastward of the Ca^e of Good 
 Hope, of Lascars, and other natives of the countries to the 
 eastward of that cape.
 
 74 Navigation Laics. [part i. 
 
 Colonial And if any goods shall be imported or brought, exported 
 
 trade. ^^, carried coastvvise, contrary to any of the provisions of this 
 
 act, the goods, vessel, guns, and furniture, shall be forfeit- 
 ed ; and, if any vessel shall sail in ballast, or sail to be 
 employed in fishing on the coast in the manner before men- 
 tioned, or being required to be manned and navigated with 
 a master and a certain proportion of British mariners in 
 the manner before directed, shall not be manned and navi- 
 gated according to the provisions of this act, the vessel, 
 with her guns and furniture, and all the goods on boai'd, 
 shall be forfeited, s. 10. And all goods and vessels for- 
 feited by this act may be seized by the commander of any 
 of his Majesty's ships of war, or any commissioned warrant, 
 or petty officer, specially appointed by him, or any officer of 
 the customs ; the forfeiture to be recovered and applied in 
 the same manner as any forfeiture incurred by any law 
 respecting the revenue of the customs, s. 11. And " in case 
 any British ship or vessel 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 
 a 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 mariners, 
 or of the same having been taken prisoners during his 
 voyage ; and that British mariners could not be engaged 
 in such foreign port to supply their room ; and that for the 
 safe navigation of such ship or vessel, it became necessary 
 to engage and employ such foreign mariners, under the 
 hand of his Majesty's consul at the foreign port, where 
 the said foreign mariners were so engaged ; or, if there 
 is not any such consul tlierc, under tlie hands of two known 
 British inercliants at such foreign port, it shall not be law- 
 ful for any of the persons authorised by this act to make 
 seizures of ships or vessels navigated contrary to the direc- 
 tions of this act, to stop or detain any sudi ship or vessel 
 KO found at sea, or to hinder her from proceeding on her 
 voyage, but such persons bhull and are hereby required to
 
 CHAP. II.] Colonial Trade. 75 
 
 endorse the certificate so produced, testifying tlie produc- Colonial 
 tion thereof, and when and where met with at sea, and that 
 the number of foreign mariners correspond with the certi- 
 ficate of such British consul, or such known British mer- 
 chants, for the consideration and investigation of the com- 
 missioners of his Majesty's customs in England and Scot- 
 land respectively, s. 12. 
 
 There is in this statute a proviso, reserving to his Ma- 
 jesty the power of issuing such proclamation as he was au- 
 thorized to make by a statute passed in the last reign, s. 1. 
 and 4., which enables the king at all times, when it shall 
 be found necessary to declare war against any foreign 
 power, to publish a proclamation to permit all merchant 
 ships and other trading vessels and privateers to be manned 
 with foreign mariners and seamen during such war, so as 
 the number of such foreign seamen or mariners do not ex- 
 ceed three-fourths of the mariners at any one time em- 
 ployed to navigate such merchant ship, or other trading 
 ship, or vessel, or privateer ; and that one-fourth, at least, 
 of the mariners, or seamen so employed, be at all times na- 
 tives, or his Majesty's naturalized subjects of Great Bri- 
 tain, sudden death, and the hazard and casualties of war 
 and the seas, saved and excepted. 
 
 Since the union of Great Britain and Ireland, regula- 
 tions similar to those which we have just detailed have 
 been made by the legislature with respect to the naviga- 
 tion of Irish ships by subjects of the United Kingdom, 42 
 Geo. III. c. Gl. s. 1. to 15. 
 
 The next consideration will be, what is the construction Of the terras, 
 
 of the words in the navigation acts, growt/i, produce, and 2[,^^J andraa- 
 
 manufacture, and likewise of the term importing. The nafacture in 
 
 fourth section of the 12 Car. II. c. 18. enacts, that no goods tiouacts 
 of foreign growth, production, or manufacture, shall be 
 brought into England, Ireland, &c. in English ships, &c. 
 unless shipped or brought from the countries of their said
 
 76 Navigation Laws. [part i. 
 
 Colonial growth, production, or manufacture ; or from those ports 
 
 where the said goods and commodities can only be, or are, 
 or usually have been, first shipped for transportation, and 
 from no other places and countries. And the 19 Geo. III. 
 c. 48. explains this section of the statute of Charles ; and 
 enacts, that it shall not extend to permit any goods or com- 
 modities whatsoever of the growth or production of Africa, 
 Asia, or America, which shall be in an?/ degree manufac- 
 tured in foreign parts, to be imported or brought into the 
 kingdom of Great Britain, &c,, unless the same shall be 
 so manufactured in the country or place of which the said 
 goods and commodities are the growth and production, or 
 in the place where such goods and commodities can only be, 
 or are first shipped for transportation, and from no other 
 place or country whatever. The penalty is the forfeiture 
 of goods and ship, (d) 
 
 - These words are too precise to require much discussion ; 
 but such cases as have arisen upon them will more pro- 
 perly fall under our consideration in the following chapter. 
 The word growth applies to natural produce ; and jjro^ 
 diiction and manufacture^ to articles of human industry 
 and art. The statute of the 19 Geo. III. was meant to 
 guard against evasions ; such as the manufacturing of an 
 article in one foreign country, sending it to a second, and 
 thence exporting it to a British port, under the pretext 
 that it was the manufacture of the country whence it was 
 last brought. In any violation of this rule, the privity 
 of the master, or owner to such infringement, is not re- 
 quired to be proved, and this upon two principles ; in the 
 first place, that ignorance of the law is an excuse to no 
 one \\\\o ought to know the law ; and, secondly, because 
 
 (rf) 11 should scera Ihat this is ThrownsilkisnomaHufacturewith- 
 
 mcaiil lo Ik! explained as to goods, in Uie meaning of this act, 2 W. 
 
 the growth or production of Africa, and M. s. 1. c. 9. As to the im- 
 
 Asia, or America, manufactured in portation of American drugs, ser 
 
 foreign parts. But the section is 7 Ann. c. S. s. 12. 
 not correctly recited in this act.
 
 CHAP, II.] Colonial Trade. 77 
 
 the admission of such a principle, as the intention or good Colonial 
 faith of tlie party, would open the law with too much faci- ^'■^"'^* 
 lity to evasion. The words are negative, absolute, and 
 prohibitory ; and make no mention of the privity or con- 
 sent of the master, mate, or owner. 
 
 Though penalty or forfeiture is, in general, only appli- 
 cable to cases where there is some crime or guilt, yet they 
 do not necessarily imply either, though punishment always 
 does. Thus in Idle v. Vanneck, BunhuvT/ 230. and Mit- 
 chel V. Torup, Parker 227 ; on an information for a ship 
 forfeited for bringing over goods not of the growth, &c. it 
 was held, that privity of the master was not necessary : 
 common reason, however, makes a distinction, whether the 
 goods are a part or not part of the cargo. If a passenger 
 privately brings over a small parcel, it shall be deemed the 
 act of such passenger, and the property of such passenger, 
 and not the act of the master, or part of the cargo, at- 
 tainting the rest ; nor shall the ship be forfeited, Bun- 
 burj/, 232. 
 
 The next question is, What shall be deemed an im- ^^i^ tisto b 
 portation ? — An importation is, the coming of a vessel into deemed an 
 a port, or within the trading limits of a port, for the pur- of ^oods.""* 
 pose of disposing of her cargo, either in whole or in part. 
 It is a question of intention, as explained by some manifest 
 act or circumstance. In case of distress for provision, 
 water, &c. wliere there is no bulk broken, and no act to 
 warrant the suspicion of a pretext, and no infringement of 
 the hovering acts, such entrance by a vessel would not be 
 deemed an importation. But, to constitute an importation, 
 it is not necessary that a vessel should come to a wharf, (e) 
 But the bringing of goods in a ship is prima facie evi- 
 dence of importation, though it may be repelled by proof 
 of a contrary intention ; but the act of putting them into 
 
 (e) Leaper v. Smith, Bunbury, 79. Eleanor Hall, Edwards, 135,
 
 7S J^avi gallon Laws. [part i. 
 
 Colonial a boat for the avowed purpose of landing;, is, of course, 
 
 trade. ^^ importation, (f) It is likewise a general principle, that 
 
 coming into a port with articles on board, not having an 
 ulterior destination, is an importation of such articles ; and, 
 if the importation be prohibited by law, nothing short of 
 absolute distress or compulsion can operate as a justification. 
 According to the construction of the navigation laws, im- 
 porting means coming into the importing port with an inten- 
 tion to land the cargo ; Foster v. Harrison, in Exchequer, 
 cited Dodsoriy 230 : but a vessel arriving in a port with a 
 mixed cargo, partly of importable and partly of prohibitable 
 articles, and a clearance which is silent as to any ulterior 
 destination, affords the strongest presumption that it was 
 the intention of the parties to effect an importation of the 
 latter, and requires to be rebutted by the strongest evi- 
 dence* Tortola, Dodson, 124. Attorney-General tJ. Wil- 
 son, Price, 481. As the general rule is, that the importa- 
 tion of goods is always accounted from the time of the 
 ships' coming within the limits of the port ; so, in the case 
 of the Attorney-General v. Pouget, upon a question in the 
 Exchequer concerning the payment of export duty, that 
 court was of opinion that goods shipped could not be con- 
 sidered as exported until the ship had cleared the limits of 
 the port ; 2 Price, 381. (g) 
 
 As all the subjects of a country are bound to know the 
 laws of a country, so likewise is a foreigner, if he trade 
 with that country : and, if he trade under an insufficient 
 authority, or violate the navigation laws, his ignorance of 
 law will not protect him. It is a part of his business and 
 obligation to learn them. 
 
 As the effect of necessity is of course to dispense with 
 these laws altogether in the case of the alleged urgency ; 
 such necessity, if allowed at all, must be distinctly pleaded 
 
 (/) Adams, Tubbs, Edw. 289. (g) Edward's Appendix, e.
 
 CHAP. II.] Colonial Trade. 79 
 
 and supported by strong evidence. It has been before said Colonial 
 that mala fides in the master, mate, or owner, is not neces- 
 sary to subject to forfeiture. 
 
 An irregular importation, made under ignorance or er- 
 ror, is equally a breach of the law, and equally works a 
 forfeiture. We have before adverted to statutes by which 
 his Majesty is empowered to authorise the governors of 
 foreign colonies and plantations to grant licences for the 
 importation of goods, otherwise prohibited, for a limited 
 time, and for the supply of an urgent necessity. But such 
 governor cannot exceed, upon his own discretion, the par- 
 ticular authority and instructions communicated by the 
 crown. He cannot permit the landing of articles, not per- 
 mitted by the law, to be imported ; it would amount to a 
 power of dispensing with acts of parliament, which the 
 constitution of the country does not allow to the sovereign 
 himself. Add to this, that such a power is expressly taken 
 away by the 46 Geo. III. c. 3., by which such permission 
 is given, and exclusively vested in the crown. Governors 
 are bound by the enumeration of articles which the king, 
 in the exercise of his authority under the above statute, 
 permits to be imported ; and they cannot in the slightest de- 
 gree travel out of that enumeration. (//) The old navi- 
 gation law would embrace the forfeiture of the ship, and 
 the entire value of the cargo ; but Americans are entitled 
 by the Intercourse Act, 28 Geo. III. c. 6. (not altered by 
 the late Convention of Commerce, and confirmatory acts 
 of parliament, 56 Geo. III. and 57 Geo. III.) to a mo- 
 deration of those penalties ; extending only to a forfeiture 
 of the ship, and not its articles. 
 
 The last enquiry under the present head is, What is to be Wliataretobe 
 
 understood by colonies and plantations ? The Navigation nSTnd^" ^ 
 
 Act employing the words landsy islands, plantations^ &c. whilst plantations, 
 most of the subsequent acts adopt the words;, colonies or 
 
 (ft) Edw. 301 fo 30C
 
 80 Navigation Lazes. [part i. 
 
 Colonial plantations, 7 and 8 Will. III. c. 22. The legal meaning 
 
 trade. ^p ^ ^Qiony or plantation is, any land, territory, island, or 
 
 possession, beyond the sea, belonging to, or ilnder the do- 
 minion of the crown of Great Britain ; and, not only those 
 that now are, but any such as may hereafter become perma- 
 nentli/ so, by cession or conquest. But Heligoland, being 
 a depot only during the war, and under a temporary sub- 
 jection to our government, was held to be no part of the 
 British dominions, within the navigation laws, and there- 
 fore of course no colony. (/) But the islands and settle- 
 ments in the East Indies, whether deemed to be the pro- 
 perty of the East India Company, or immediately of the 
 crown, are all parts of the British dominions, and belong- 
 ing to the crown of England. As such, they are to be 
 deemed plantations and colonies under the navigation acts, 
 though particular statutes may have assigned them different 
 regulations as to commerce and national character. {I) 
 
 Several other questions have arisen respecting some ge- 
 neral designations or common appellations employed by the 
 navigation acts. Thus in 15 Car. II. c. 7., the term used is 
 the western islands of Azores. And, in some subsequent 
 acts, the words are, western islands, commonly called 
 Azores. A discussion was raised, and submitted to the law 
 officers by the lords of the Board of Trade, whether Te- 
 nerijfe was one of the western islands. It was determined 
 that TcneritFe was not one of the Azores, or Avestern is- 
 lands, but that it is in Africa. But under this head, viz. 
 what are colonies and plantations, the discussion has now 
 become practically of no consequence whatever ; for if any 
 difficulty existed in former times, and cases arose upon 
 them, every possible question is now set at rest by some 
 
 (i) Sarah Gill, Dod. 107. tion laws as respected the East In- 
 (fc) Chalmers v. Bell, 3 Bos. and dies. None of the subsequent 
 Pul. 60fi. Lord Alvanley and the charters of the company have re- 
 Court of C. P. were of opinion, pealed these laws ; but sec 57 Geo. 
 that the clauses in the 33 Geo. III. III. c. d5., which has relaxed Ihera 
 c. 52. did nol repeal the navij^a- as to some particulars — Post.
 
 CHAP. II.] Colonial Trade. 81 
 
 one or other of those numerous treaties of peace inacle with- Colonial 
 in late years with America and the European States. Thus, 
 in pursuance of late treaties, and by an act of parliament 
 37 Geo. III. c. 3Q., Malta and its dependencies are to bo 
 taken to be in Europe. We have already shewn that 
 Malta and Gibraltar are permitted to carry on a trade di- 
 rect with the colonies, under certain restrictions, 57 Geo. 
 III. c. 4. 
 
 A question, however, once arose, whether West India 
 produce couid be shipped from the islands to Gibraltar; 
 in other words, whether Gibraltar was a colony or planta- 
 tion within the words of the navigation acts. It was de- 
 termined that Gibraltar was no colony. (/) The construc- 
 tion of the navigation acts, by Lord EUenborough, on this 
 point, is so able, that we shall give it in his own words : — 
 " It is quite plain," he says, " from the whole scope of the 
 navigation laws, in the time of Car. II., that colonial pro- 
 duce could not legally be shipped from the plantations in 
 the West Indies to any part of Europe, except England, 
 Wales, and Berwick-upon-Tweed ; though, since the 
 Union, the privilege has been extended by particular 
 acts. A strong legislative declaration of this is to be 
 found in the stat. 25 Car. II. c. 7. s. 2., which recites the 
 prior permission to carry produce, the growth of the plan- 
 tations in America, Asia, or Africa, from the places of 
 their growth to any other of his Majesty*s plantations in 
 those parts, (Tangier excepted,) without paying duties ; 
 and that the inhabitants of divei-s of those colonies, con- 
 trary to the express letter of those laws, have brought into 
 divers parts of Europe great quantities thereof which they 
 vend to foreign shipping, &c. to the hurt and diminution 
 of the" customs and trade and navigation of the kingdom ; 
 and, for remedy, imposes certain duties on all such com- 
 modities, unless bond be given to bring the same to Eng- 
 land, or Walesj or Berwick-upon-Tweed, and to no other 
 
 - ^- (0 Lubbock V. Potts, 7 East. 440. - 
 
 G
 
 .82 Navigation Laws. [part i. 
 
 Colonial place ; and there to land, and put the same on sliore. The 
 
 term plantation, in its cornmon known Hi«^nification, is ap- 
 plicable only to colonies abro?id, jwliere things are ^rown, 
 or which were settled for the purpose principally of raising 
 produce ; and has never, in factj been applied to a place 
 like Gibraltar, which is a mere fortress and garrison, in- 
 capable of raising producejjjut supplied -with it from other 
 places. In truth, the term plantation, in the sense used 
 by the navigation laws, has never been applied either in 
 common understanding or in any acts of parliament, (at 
 least none such could be pointed out when demanded in 
 the course of the argument,) to any of the British domi- 
 nions in Europe ; not to Dunkirk, while that was in our 
 possession, nor at the present day to Jersey, Guernsey, or 
 any of the islands in the chaiinel. And the continued ex- 
 clusion of all these from the direct import trade of the co- 
 lonies aifords a strong practical exposition of the law." 
 
 It may now, indeed, be said that there does not exist a 
 single colony or plantation which is not either expressly ac- 
 knowledged to be such, either by act of parliament, or some 
 specific treaty. The only case which couid arise might be, 
 whether the cutting wood, taking in water and provisions, 
 drying nets, &c. and other acts of temporary use or pro- 
 perty, in islands or places not possessed by acknowledged 
 powers, (Otaheite, and some of the Friendly Islands,) would 
 constitute any legal notion of a colony or plantation. Cer- 
 tainly not ; the words in the Navigation Act, dominion and 
 possession, are to be construed as intending an actual oc- 
 cupation and appropriation by the crown and country ; an 
 addition to the common territory, and a communication of 
 its protection and laws. In the same manner, no settle- 
 ment by missionaries would constitute a plantation ; there 
 must be an actual occupation by the crown and sovereign 
 power. 
 
 The breach of the navigation laws is accompanied by a, 
 Ibrfeiture of the ship and cargo. The proceedings may be
 
 CHAP. 11.] Colonial Trade. S3 
 
 either summarily by the officers of the crown, by inform- Colonial 
 ation in the Court of Exchequer, or by action in the 
 courts of common law. The words of the Stat. 12 Car. II. 
 are, *' that the goods and commodities shall be forfeited ; 
 as also the ship or vessel, with all its guns, furniture, &c. 
 One-third part to his Majesty, &c. ; one-third part to the 
 governor of such land, plantation, island, or territory, 
 where such default shall be committed, in case the said 
 ship or goods be there seized ; or. otherwise, that third part 
 also to his Majesty, &c. and the other third part to him or 
 them who shall seize, inform, or sue for the same, in any 
 court of record, by bill, information, plaint, or other ac- 
 tion, &c. And all admirals, commanders, &c. are re- 
 quired to bring in, as prize, all such ships or vessels as 
 shall have offended contrary thereunto, and deliver them to 
 the Court of Admiralty, there to be proceeded against ; 
 and, in case of condemnation, one moiety of such forfei- 
 tures shall be to the use of such admirals or commanders, 
 and their companies, to be divided and proportioned 
 amongst them, according to the rules and orders of the 
 sea in case of ships taken as prize ; and the other moiety 
 to the use of his Majesty." 
 
 Upon such breaches of the navigation law s, the court of 
 common law and Admiralty have, therefore, in certain 
 cases, a concurrent jurisdiction. 
 
 In a very early case, under the 12 Car. II. c. 18., it 
 was adjudged that the subject might bring detinue for 
 goods, the importation of which was prohibited by the 
 above act, as the lord might bring replevin for the 
 goods of his villein distrained ; for the bringing of the 
 action vests a property in the plaintiff, (m) As against 
 the ship the proceeding is in rem ; and it has been de- 
 Cm) Roberts w.Wetherall, 1 Salk. Comber 361, S. C. 
 223. 12 Mod. 92. 3 Mod. 195. 
 
 g2
 
 84 Navigation Laws. [part i. 
 
 Colonial cided that, by the seizure of a forfeited ship, the pro- 
 
 ^^^ ^' perty of the owner is devested ; and he cannot maintain 
 
 trespass against the party making the seizure, although 
 
 the latter do not proceed to the condemnation of the 
 
 ship, (n) 
 
 («) Wilkins v. Despard, 5T.R. 112.
 
 85 
 
 CHAPTER III. 
 
 TRADE WITH ASIA, AFRICA, AND AMERICA, NOT BEING 
 COLONIAL. — TRADING COMPANIES — THE EAST INDIA 
 COMPANY, SOUTH SEA, HUDSOn's BAY, AFRICAN COM- 
 PANIES, SIERRA LEONE COMPANY, SLAVE TRADE, LAWS 
 
 AND TREATIES TO EFFECT ITS ABOLITION, &C. RULES 
 
 AND REGULATIONS. 
 
 XT has already been observed, that our shipping and na- 
 vigation, as respected the navigation laws, naturally divided 
 itself into five heads : the colonial trade ; the trade be- 
 yond Europe not being colonial ; the European trade ; 
 the fisheries, and coasting trade ; and the regulations for 
 ascertaining the ownership and built of British ships by 
 registers and certificates of registry. 
 
 The purpose of our work is to examine the subject before 
 us according to this method. — In the former chapter, the 
 law of our colonial trade, under the navigation act of 
 Charles II., and the subsequent changes down to the pre- 
 sent time, have been fully stated. In the present chapter 
 we propose to treat of the trade with Asia, Africa, and 
 America, not being colonial, during the same period. 
 
 In the colonial trade our legislature proposed to itself 
 the two main objects ; the exclusive possession of the 
 market of its colonies, and the exclusive carriage and 
 transport of tiieir produce and supply in British shipping. 
 In the trade with Asia, Africa, and America, not being colo- 
 nial, the simple object was the encouragement of British ship- 
 ing, and the abridgment or suppression of the Butch carry- 
 ing trade ; and, that our navigation interests might have 
 the full advantage of the large share of our merchants in ,
 
 85 
 
 Navigation Laws. 
 
 [part t. 
 
 Trade with this trade, the first attention of the legislature was directed 
 and America to the two important provisions ; first, that this branch of 
 not being CO- our trade should be carried on in English ships; and, se- 
 condly, that such voyages and such trade should be directly 
 with those countries. Thus, by the third section of the 
 12 Car. II., no goods or commodities of the growth or ma- 
 nufacture of Asia, Africa, or America, shall be imported 
 into England, Ireland, &c. in any other ship or vessel, but 
 in such as do truly and without fraud belong to the people 
 of England, Ireland, &c., or of the lands, islands, or terri- 
 tories, in Asia, Africa, or America, to his Majesty belonging, 
 and whereof the master, and three-fourths, at least, of the 
 mariners, are English. And in the next following section 
 it is enacted, that such trade shall be direct ; that is to say, 
 that all goods of foreign growth or manufacture, to be so 
 brought to England in English shipping, shall be shipped 
 only from the country of the said growth and manufacture, 
 or from those ports where the said goods and commodities 
 can only be, or are, or usually have been, first shipped for 
 transportation. The 12th, 13th, and 14th sections make 
 an exception in favour of the Levant trade, the East India 
 , Company, and the trade with Spain, Portugal, the Azores, 
 
 and the Canaries, in all of which branches, from the neces- 
 sity of the case, the navigation act of Charles II. permits 
 the importation, in British shipping, of such foreign pro- 
 duce from other ports and places than those of their growth 
 or manufacture. It is scarcely necessary to add, that the 
 immediate object of this provision, like that indeed of the 
 whole system in its origin, was to preclude Amsterdam, and 
 the ports of Holland and the Netherlands, from l)eing the 
 emporium of this trade, and to give our own marine the 
 advuntasre of fctchinjj for ourselves what the native mor- 
 chants of foreign countries could not bring in their own ships. 
 This principle has been found so beneficial to the naval, if 
 not to the mercantile interest of the country (but perhaps 
 to both,) that it has since been retained, under all circum- 
 stances, except when some peculiar properties of the trade 
 or coranaodity have required a departure from tho rule*
 
 CHAP. III.] Trade with Asia, Africa, Sfc. 87 
 
 Upon this principle of necessity, the 2 Will, and Mary, Trade with 
 s. 1. c. 9. excepts thrown silk; and the stat. 7 Ann. c. 8. and America, 
 adds the exception of Jesuit's bark, sarsaparilla, balsam of '>ot|)eiug co- 
 Peru, and other drugs, the growth and product of America. 
 In the same manner, stat. 6 Geo. I. c. 14. repealed the pro~ 
 viso in the 12th section of the act of navigation as to the 
 importation of raw silk and moliair yarn ; and enacted that 
 such raw silk and mohair of Asia should be brought only' 
 from the Turkish dominions, and no longer from Italy. It 
 was deemed necessary like'wisei' to encourage the importa- 
 tion of cochineal and irtdigo ; and for this purpose were 
 passed the stat. 13 Geo. I. c. 15., and stat. 7 Geo. II. c. 18., 
 by which those commodities were allowed for a certain 
 time to be imported from any port or place, duty free, in- 
 British or other ships in amity with this country. These 
 temporary acts have been further continued by 46 Geo. III. 
 c. 29., and 57 Geo. III. c. 23. 
 
 The same changes in the channels of trade have made 
 necessary other relaxations in this useful rule of our 
 navigation act. Thus as Russia had become the com- 
 mercial road from Persia, the 14 Geo. II. c. S6. per- 
 mits any member of the Russian company to import into 
 this kingdom, in British built shipping, any such Persian 
 produce from a Russian port. This act, however, prohi- 
 bited the wearing of such Persian silks and commod'ties 
 in England, to the injury of our domestic manufactures; 
 and saves to the East India Cortipany their powers and 
 privileges derived from their charter. The 23 Geo. II. 
 c. 34. further directs how this trade is to be carried on, viz. 
 in British built shipping, owned and navigated according 
 to law. 
 
 The scarcity and consequent high price of articles neces- 
 sary for our manufacturing process have also been the 
 cause of frequent relaxations. Thus permission was given 
 by stat. 25 Geo» II. c. 32. to all his Majesty's subjects to 
 import into this kingdom gum sene^a^ in British built ships,
 
 88 "Navigation Laws. [part i. 
 
 East India navigated according; to law, from any port or place in Eu- 
 Company. * ^ ' , , t-. t i- /-. 
 
 rope. Upon the same principle, when the East India Com- 
 pany could not supply the demand of the African Company 
 for East India coarse calicoes, &c. stat. 5 Geo. HI. c. SO. 
 gave permission to import those articles, in Britis^h ships, 
 from any port in Europe not within his Majesty's domi- 
 nions, in such quantities as should be deemed necessary for 
 the African trade. 
 
 The materials of our manufactures are naturally the 
 subject of peculiar favour, and the rule (of allowing nothing 
 but a direct trade, and no intervening carrier or market,) 
 has been frequently departed from, when required to pro- 
 cure an abundant and cheap supply of the means of our 
 industry. Thus by 6Geo. III. c. 52. s. 20., any sort of cot-^ 
 ^on wool may be imported in British built ships from any 
 country or place duty free ; (a) and the same permission is 
 extended to goat skins dressed and undressed by the 2 stat. 
 \5 Geo. III. c. 35. s. 1., and 31 Geo. III. c. 35. {h) 
 
 The institution of the great chartered companies, the 
 East India Company, and others, falls under this division 
 of our subject, as the acts by which they were created gave 
 them an exclusive right to trade with certain parts of Asia, 
 Africa, and America. It is necessary, therefore, to con- 
 sider tliem in the present chapter. 
 
 The first of the exclusive companies in commercial and 
 political importance is the East India Company. It is not 
 our object in this place to give more than a brief outline of 
 its history ; our principal design is to shew the nature, ex- 
 tent, and term, of its monopoly. By a course of things 
 which could not have been foreseen at the time of the com- 
 pany's first institution, it has become one of the most extra- 
 
 (a) A small duty isnow char<^cd. nothing in that act shall extend to 
 
 (*) They are now subject to a bullion, or goods taken by way of 
 
 •mall duty. It is provided by the reprisal by English commissioned 
 
 IMb sect, of 12 Car II. c. 18. that ships.
 
 CHAP. III.] Trade with Asia, Africa, S^c. 89 
 
 ordinary corporate bodies in Europe ; liavin^ gradually East India 
 ascended from the character of a mere mercantile factory, 
 to that of a sovereign administrator of one of the most ex- 
 tensive and populous empires in the world. Having con- 
 quered the neighbouring powers, in a great part, by its own 
 resources, and almost entirely at its own expense, the com- 
 pany has acquired many of the territories, and the property 
 of the revenues of the native princes; and thus, in addition 
 to its mercantile character, it unites that of an empire in 
 an empire, and effectually compels the mother country to 
 acknowledge it in its double character, that of a commer- 
 cial factory, and, as it were, a dependent and tributary go- 
 vernment, responsible to the sovereign and state, as far as 
 respects control, but having a property, as it were, and 
 dominion, in the territories under its charter. 
 
 Queen Elizabeth, by charter in 1600, established the 
 first incorporated company for this trade. They afterwards 
 acquired the name of the East India Company, or " united 
 Com pan?/ of merchants of England trading to the East In- 
 dies:' By the 9 and 10 Will. III. c. 4. their rights are 
 more explicitly defined, and the limits of their monopoly 
 adjusted. By section Gl they are empowered freely to 
 traffic, and use the trade of merchandise, in such places, 
 and by such ways and passages, as are already frequented, 
 found out, and discovered, or which shall hereafter be 
 found out or discovered, and as they shall esteem and take 
 to be fittest and best for them, " into and from the East 
 Indies, in the countries and parts of Asia and Africa, and into 
 and from the islands, ports, havens, cities, creeks, towns, and 
 places, of Asia, Africa, and America, or any of them, be- 
 yond the Cape of Bona Esperanza (Good Hope) to the 
 Straights of Magellan, where any trade -or traffic of mer- 
 chandise is, or may be used or had ; and to and from every 
 of them." By section 81 this trade is confined solely to 
 the East India Company ; and others trading in violation 
 of their exclusive rights are to incur the forfeiture of their 
 vessels and goods. This act reserved a power for deter-
 
 go Navigation Laws. [part i. 
 
 East India mining their charter after September 1711, on giving due 
 Company. notice, and on payment of the loan which th^ public owed 
 the company. The old East India Company, established 
 by Queen Elizabeth, and the new company incorporated 
 by the statute of Will. III., afterwards formed an union, 
 which was confirmed by 6 Ann. c. 17. In 1708 the com- 
 pany obtained an extension of their term in the exclusive 
 trade for fifteen years : this was a purchase, and the con- 
 sideration was a loan to the government. By the stat. of 
 10 Ann. c. 27., all the provisoes and powers of former acts 
 of parliament for determining their trade and corporation 
 were repealed ; and a power was reserved to the public to 
 redeem the debt due to t'le company at any time after Sep- 
 tember, 1733. The stat. of 3 Geo. II. c. 14. continued to 
 them their exclusive trade till 1766, for which they gave to 
 the public a premium of 200,000/. By 17 Geo. II. c. 17. 
 they obtained a further term of fourteen years, for which 
 they made a loan to the government of one million at three 
 per cent. The next stat. is the 21 Geo. III. c. 65. ; it is 
 intituled an act " for establishing an agreement with the 
 united company of merchants of England trading to the 
 East Indies, for the payment of the sum of 400,000/. for 
 the use of the public, in full discharge and satisfaction of 
 all claims and den?ands of the public, from the time the 
 bond debt of the East India Company was reduced to 
 1,500,000/., until the 1st of March 1781, in respect of the 
 territorial acquisitions and revenues lately obtained in the 
 East Indies ; and also for securing to the public, in respect 
 thereof, for a term therein mentioned, a certain part or 
 proportion of the clear revenues and profits of the said 
 company, and for granting to the said company, for a fur- 
 ther term, the sole and exclusive trade to and from the 
 East Indies." By s. 33. in this act, it is provided, that 
 all vessels belonging to the company, whether built or 
 purchased by them, shall be deemed British ships within 
 the meaning of the Navigation Act. The term granted by' 
 this act was determinable in 1794. The 24 Geo. II. c. 25., 
 and 33 Geo. III. c. 62. are the next in order. By these 
 
 2
 
 CHAP. III.] Trade with Asia, Africa, Sfc. 91 
 
 acta, which effected an important change In the constitu- East India 
 
 1 1 1 •• 1- I 1 Company. 
 
 tion of the company, and brought it immediately under 
 
 the supervision and controul of parliament, the terri- 
 torial acquisitions, with their revenues, are continued in 
 thft company ; but his Pvlajesty is empowered to appoint 
 cx>mmisai oners for the affairs of India, who are invested 
 with authority to superintend, direct, and control aU 
 acts, operations, and concerns, which relate to the civil 
 and military government of India. The several functions 
 of the board of control are then declared and marked 
 out. The government of presidencies is vested in the 
 governor-general and the council of the presidency ; and 
 all vacancies in the office of the governors or council are to 
 he filled up by the directors. The powers of these officers 
 in their several departments are defined ; and an authority 
 is reserved to the court of directors to suspend the powers 
 of the governor- general, with the approbation of the board 
 of commissioners. An exclusive trade is then vested in the 
 company, according to the limits mentioned in the act of 
 9 and 10 Will. III., with the proviso, " that at any time, 
 upon three years' notice to be given by parliament, after 
 the 1st of March, 1811, upon the expiration of the said 
 three years, and upon payment made to the said company 
 of any sum or sums, which, under the provisions of any 
 acts of this present session of parliament, shall, or may, 
 upon the expiration of the said three years, become pay- 
 able to the said company by the public, according to the 
 true intent and meaning of such act, then and from 
 thenceforth, and not before or sooner, the said right, title, 
 and interest, of the said company, to the whole, sole, and 
 exclusive trade to the East Indies, and parts aforesaid, shall 
 cease and determine." It is provided, however, by this act, 
 (SSGeo.III. c.52.)thatthesailingof ships upon the southern 
 whale fishery, under the provisions of 26 Geo. III. c. bO.y 
 and 28 Geo. III. c.20., into the Pacific ocean, by Cape Horn, 
 shall not be deemed an infraction of the privileges of the 
 company. This act further provides tliat, during the ex* 
 («) 3ee 33 Geo. ill. c. 53.
 
 9^ Navigation Laws. [part i. 
 
 East India elusive trade of the company, it shall be lawful for British 
 onipa y. subjects, resident in the king's dominion, to export, on 
 board the ships of the company, goods, wares, and mer- 
 chandise, of the growth, produce, and manufacture, of these 
 dominions, to any of the ports and places in the East In- 
 dies, usually visited by their ships ; and that, in like man- 
 ner, it shall be lawful for any of his Majesty's subjects in 
 the civil service in India, to consign on board the ships of 
 the Company, or in vessels freighted by them, bound to 
 Great Britain, such goods, wares, and merchandise, as may 
 T)e lawfully imported, (s. 81.) None but the company, or 
 persons acting under their licence, are to be suffered to ex- 
 port or import military stores, pitch, tar, or copper, or to 
 import into Great Britain India calicoes, dimities, muslins, 
 or piece goods, &c. (s. 82.) 
 
 It is further provided that, in case the company shall not 
 purchase every year 1500 tons of British copper, for the 
 purpose of exportation to some place within the limits of 
 their charter, the proprietors or holders of British copper, 
 resident in this country, may export that quantity, in ships 
 to be provided by the company, to any port or place they 
 think proper in the East Indies. The act further regulates 
 the manner of its exportation, and the charge of freight, 
 &c. <s. 24.) And, provided a sufficient quantity of cali- 
 coes, &c. are not imported by the company for the con- 
 sumption of the British market, the board of controul are 
 authorised to license individuals to import such goods in 
 the company's ships, under such limitations and restric- 
 tions as the board shall think necessary, (s. 85.) The act 
 then proceeds to several regulations for the benefit of in- 
 dividuals engaged in the private trade; and provides means 
 for the secure remitting of the property of private persons 
 from India to Great Britain. 
 
 In order to prevent unlawful trading, it is then enacted 
 that, if any of his Majesty's subjects of Great Britain, &c.. 
 or of the colonies, islands, or plantation^ in America, or the 
 
 1
 
 CHAP. III.] Trade with Asia, Africa, ^c. 93 
 
 West Indies, other than such as by the said united com- East India 
 pany shall be licensed, or otherwise thereunto lawfully au- " P "'• 
 thorised, shall, at any time or times, before such determi- 
 nation of the company's whole and sole trade, as is herein- 
 before limited, directly or indirectly, sail to, visit, haunt, 
 frequent, trade, traffic, and adventure to, in, or from the 
 said East Indies, or other parts hereinbefore mentioned, 
 contrary to the limitations, &c. of this act, they shall incur 
 the forfeiture of ship or vessel, &c. and also all the goods 
 and merchandize laden thereupon, and all the proceeds 
 and effects of such goods and merchandize, and double the 
 value thereof; one-fourth part of such forfeiture to the 
 person who shall seize and inform, and sue for the same ; 
 the other three-fourth parts to the use of the united com- 
 pany, they defraying the charge of the prosecution, (s. 129.) 
 Persons going to India, without the licence of the com- 
 pany, are to be deemed unlatvful traders, and may be ar- 
 rested and sent back to England. 
 
 Upon these statutes, the 24 Geo. III., and 33 Geo. 
 III., the rights of the company subsisted until the 53 Geo. 
 III. c. 155., which is the next and most important act. 
 This act has partially repealed the monopoly of the 
 company, and thrown open to the British merchant the 
 trade of the East. This act continues under the govern- 
 ment of the company, for a further term, the territorial 
 acquisitions in India, with the late acquisitions on the con- 
 tinent of Asia, and in the islands north of the Equator: it 
 confirms to them the sole and exclusive trading with China, 
 and the sole and exclusive right of trading and trafficking in 
 TEA, " in, to, and from, all islands, ports, havens, coasts, 
 cities, towns, and places, between the Cape of Good Hope 
 and the Streights of Magellan." But this, as well as all 
 other exclusive trade, is to cease on the expiration of three 
 years' notice by parliament, any time after the 10th of 
 April 1831, and upon the discharge of the public debt 
 owing to the company, (s. 2 ) There is, however, the same 
 saving clause as in the statute of 9 and 10 Will. III., and
 
 94 .Navigation Laios. [part i. 
 
 East India S3 Geo. III., by Avliich, after sueh determination of their 
 Company. charter, the company is still to continue incorporated, and 
 to enjoy the right of trading in common with others. It 
 then provides that, after April 1814, any of his Majesty's 
 subjects may trade to and from the United Kingdom ; and 
 from and to ports and places in the company's present 
 limits, except China, in ships navigated according to law. 
 But the company are alone permitted to export military 
 stores to certain places. 
 
 All ships engaged in the private trade are to clear out 
 from some port in the United Kingdom ; and all goods im- 
 ported in private vessels are to be brought to some port in 
 the United Kingdom, which shall have been declared fit 
 and proper for the deposit of their goods and merchandise 
 by order of council, (c) Such ships are not to go within 
 certain limits in India, without licence from the directors ; 
 nor to any places except to some one of the principal set- 
 tlements, xiz. Fort William, Fort St. George, Bombay, 
 and Prince of Wales's Island, without a special licence. 
 The directors are, however, required to give licence to the 
 private vessels to enter the principal settlements in India ; 
 but special licences are required for the continent of Asia, 
 between the Indus and the town of Malacca, or the islands 
 north of the Equator, or Bencoolen. These are left to the 
 discretion of the directors, subject to the controul of the 
 board of commissioners, who, if they think fit to direct the 
 company to issue any licences for this trade, which the 
 court of directors have declined to issue without such di- 
 rection, are to record their reasons, and the special circum- 
 stances of the case. By the 13th section it is provided, 
 that no ship under three hundred and fifty tons shall clear 
 out^or be permitted to trade, within the limits of the com- 
 
 (c) By orders of council of the pool, Dec. 1814; Hull, feft. 1815; 
 
 following dates, the ports under- Greenock and Port Glasgow, March 
 
 mentioned have heen declared fit 1815; Bristol, Augmt 1817. 
 ftud proper fur such trade Liver-
 
 CHAP. III.] Trade with Asia, Africa, ^c. 95 
 
 jiany's charter. The 20th section reserves a power to the Eust India 
 Jegialature, during the farther term granted to the com- " P '" 
 pany, for authorizing private trade, as well between places 
 without as witliin the company's limits, as between the 
 United Kingdom and those limits, except China. In order 
 to encourage the fishery carried on to the southward of 
 the Greenland seas and Davis's Streights, it is provided that 
 ships engaged in the southern whale fishery may sail be- 
 tween the Cape of Good Hope and the Streights of Ma- 
 gellan : but no vessel is to pass farther to the northward 
 than eleven degrees of south latitude, without a licf^nce 
 from the board of the controul ; and no ship, under 
 three hundred and fifty tons, is to sail without a licence, 
 (s. 32.) 
 
 These are the principal provisions relating to commer- 
 cial purposes in this act ; such as are purely political or 
 CEconomioal are not within the present subject of inquiry. 
 
 In order that the forms of the registry acts may be ob- 
 served in the East Indies, the 55 Geo. III. c. 116. im- 
 powers a collector of duties, or senior merchant, of six 
 years' standing, in ports in which there is no collector or 
 (Comptroller of customs, to register, and grant certificates 
 of the registry, of all vessels built in the territories under 
 the government of the East India company ; and all such 
 vessels, when so registered, are to be deemed British built. 
 But no vessel, registered under the authority of the act, is 
 entitled to the privileges of a British built ship, in any 
 voyages or trade beyond the limits of the company's 
 charter ; except such as are specified in the 53 Geo. III. 
 c. 155., and 54 Geo. III. c. 3i. (d) 
 
 It is further provided, that no Asiatic sailors, Lascars, 
 &c. shall be deemed to be British sailors, seamen, or ma- 
 riners, within the intent and meaning of the act of the 
 
 (d) This exception applies to ships engaged ia the soulheru whale fishery.
 
 96 Navigation Laws. [part i. 
 
 East India 34 Geo. III. But, in case British seamen cannot be pro- 
 Company, cured in the East Indies, the governor of any colony, 
 island, or territory, may license a vessel to sail with a less 
 proportion of British seamen than is required by law : but 
 such vessel, upon her voyage back from the United King- 
 dom, must have the full and proper proportion of seven 
 British seamen to every hundred tons ; but vessels trading 
 within the limits of the company's charter, including the 
 Cape of Good Hope, may be manned and navigated wholly, 
 or in any proportion, with Asiatic sailors, or Lascars. 
 
 It has been generally understood that certain provisions of 
 the navigation acts did not apply to the East Indies : some 
 doubts however existing, the 57 Geo. III. c. 95. was passed, 
 which declares, that nothing contained in the navigation acts, 
 or in any other act, passed for the like purposes, shall extend 
 to, or in any way affect, the importation or exportation of any 
 goods by the East India company, or by any other of his 
 Majesty's subjects, in British registered vessels, navigated 
 according to law ; or in vessels registered and trading under 
 the provisions of 55 Geo. III. c. 116. It is likewise made 
 lawful to import into any island or territory, within the limits 
 of the company's charter, not being under their govern- 
 ment, in the vessels of any state, not being an European 
 state, in amity with England, and lying Avithin the said 
 limits, any articles of the growth, produce, and manufac- 
 ture of any such state ; and to export from thence, in any 
 such vessel, goods which have been legally imported. 
 
 Such are the commercial privileges of the East India 
 company, which, since the opening of their trade by the 
 53 Geo. III., has assumed a different character. 
 
 Their temporary rights are — 1. The exclusive trade to 
 China, in tea; with such authority of regulations as re- 
 spect the free trade to India as are given them by the late 
 act. — 2. The administration of the government and re- 
 venues of their territories in India, subject however to the
 
 CHAP. III.] Trade loith Asia, Africa, Sfc. 97 
 
 controul of commissioners, appointed by the executive au- Eait India 
 thority at home. Their rights in perpetuity are, to be a ^'^P^'^y* 
 body politic aud corporate, with perpetual succession, and 
 a joint stock for ever ^ notwithstanding^ their exclusive 
 trading may be determined by parliament. 
 
 Although their commercial privileges and power of ad- 
 ministering the resources and government of India should 
 be determined by the legislature, they would, nevertheless, 
 still remain an incorporated company in perpetuity, with 
 the exclusive property of Calcutta, Fort William, Madras, 
 and Fort St. George, Bombay, Bencoolen, aud other 
 smaller settlements in India, as factories acquired or pur- 
 chased by their own resources. The legislature, there- 
 fore, acting upon just principles, will be competent only to 
 deprive them of all exclusive trade ; and to take into its 
 own hands, or into those of the crown, the government 
 and collection of the revenue in India. 
 
 It is not within the limits of a work of this nature to 
 enter into the political reasons for the several statutes 
 of which it treats, any further than as the intention of 
 the legislature explains the construction of its acts. It is 
 sufficient, therefore, to observe of the board of controul, 
 first established by 24 Geo. III. c. 25., that its main pur- 
 pose was to maintain the sovereignty of the crown and par- 
 liament over a territory which had gradually enlarged itself 
 from a factory into an Empire. The board of controul, 
 therefore, may be said to possess these three principal func- 
 tions : — 1. That of connecting India with the government 
 at home as an integral part of the general empire. — 2. That 
 of superintending the conduct of the company's servants, 
 and repressing those wars of ambition, aggrandisement, or 
 private gain, the frequent occurrence of which first at- 
 tracted the attention of the legislature. — 3. That of bring 
 ing home, and prosecuting in the English courts of law, 
 «uch crimes and offences as affected the honour of the 
 crown, and the interests of general equity and humanity.
 
 98 Navigation Laws. [part i. 
 
 East India What the 24 Geo. III. had left incomplete, the 33 Geo. 
 
 oinpa y. jjj^ ^ ^g supplied : it enlarged and regulated the con- 
 troul in Great Britain ; it added new provisions with re- 
 spect to patronage and promotion ; it confirmed the general 
 trade, but added special limitations ; it defined the illicit 
 and clandestine trade, and regulated some appropriations 
 of the company's revenue; it established a method of suing 
 for forfeitures and penalties and proceedings as to seizures ; 
 it enacted some regulations for the administration of general 
 justice in India, and made some new provisions as to the 
 directors of the company's, and their concerns in England, 
 By 35 Geo. III., (continued by the 42 Geo. III. c. 20., 
 during the continuance of the company's exclusive right of 
 trade under the oo Geo. III. c. 52.) the importation of 
 goods from India and China, and other parts within the 
 limits of the company's trade, is allowed in ships, not of 
 British buillj or registered as such, having been taken up 
 and employed in the East Indies on account of the com- 
 pany ; and the same ships are allowed to export goods to 
 the East Indies as British built ships, (e) 
 
 As the public duties of the ofilcers of the government 
 and revenue in India might be impaired by their private 
 interests, if allowed to engage in traffic, all governors and 
 counsellors, collectors, supervisors, and others, employed 
 in the revenue, are prohibited from trade, except for the 
 company. The judges of the supreme court of judicature 
 in Bengal are prohibited altogether from trade. 
 
 South Sea ^^^^ South Sea Company was constituted and erected 
 
 Company. into a corporation by the 9 Ann. c. 21. By this statute 
 they were to liave the solo trade to all places of America ; 
 on the east side, from the river Oronoco, to the southern- 
 most part of Terra del Fuego ; on the west side, from the 
 
 (e) Sec ante as to registering acts extends to the exportation or 
 •hips built in India, 55 Geo III. importation of the East India Cona- 
 c. U^. Nothing in the Da'vigation pany, 57 Geo. 111. r. 93.
 
 CHAP. III.] Trade with Asia, Africa, ^c. 99 
 
 southernmost part of Terra del Fue<?o, throuffh the South South Sea 
 
 - . . 1-1 • . Company. 
 
 Seas, to the northernmost part of America ; as likewise to 
 
 all places within the same limits, which were reputed to be- 
 long to Spain, or which should thereafter be discovered 
 within those limits, not exceeding three hundred leagues 
 from the continent of America, between the southernmost 
 part of Terra del Fuego, and the northernmost part of 
 America on the west side ; except the kingdom of Brazil, 
 such other places on the east side of America as were then 
 actually in possession of the crown of Portugal, and the 
 country of Surinam. Provided, however, that the com- 
 pany should not sail beyond the southernmost part of Terra 
 del Fuego, except only through the Strjeights of Magellan, 
 or round Terra del Fuego ; nor should go from thence to 
 the East Indies, nor return to Europe, except by the same 
 course, through the Streights of Magellan, or Terra del 
 Fuego ; nor should trade, &c. in any goods or produce 
 of the East Indies, Persia, China, or any other places 
 within the limits of the East India Company ; nor should 
 send any ship, within the South Seas, from Terra del 
 Fuego to the northernmost part of America, above three 
 hundred leagues to the westward of, and distant from, 
 Chili, Peru, Mexico, California, or any other shores of 
 North or South America, contained between Terra del 
 Fuego and the northernmost part of America. 
 
 The monopoly of this company continued a century 
 without much inconvenience to the general commerce of 
 the country ; but, during a period of the lale war, when 
 the intercourse with South America was unexpectedly 
 thrown open to Europe, tlie exclusive privileges which tlie 
 company claimed occasioned a serious impediment to the 
 trade of the general merchant. The South Sea Company 
 had become, in fact, little more than a title, without any 
 thing deserving the name of capital, and with no active use 
 of the extensive privileges and rights which it claimed : it 
 seemed absurd, therefore, to continue an obstacle of this 
 kind to the increasing trade of Great Britain ; and to re- 
 
 H 2
 
 100 Navigation Laws. [part i. 
 
 South Sea spect the charter of a company which had abandoned all 
 P ^* the purposes and conditions upon which it had been 
 granted. 
 
 On account, indeed, of certain frauds and abuses (f) 
 which had been practised relating to the capital stock, or 
 pretended capital stock of this company, their property had 
 been taken out of their hands, and vested in trustees for 
 the satisfaction of their creditors ; but their corporate 
 character still existed, 7 Geo. I. c. 28. A considerable 
 trade was, notwithstanding, carried on within the limits of 
 their charter, and no very serious obstacle was opposed by 
 the company to this infringement of their rights. Their 
 charter and their privileges were considered nearly as ob- 
 solete ; but when the question was raised as to the lawful- 
 ness of this traffic, the courts of law had no difficulty in 
 deciding, (the question being discussed upon an action on 
 a policy of insurance,) that a vessel could not trade within 
 the limits of their charter unless expressly licensed by 
 them, (g) At length the 47 Geo. III. c. 23. repealed so 
 much of the act of 9 Anne, as vested in the South Sea 
 Company the exclusive trade, as far as respected places, 
 which at the time of passing the act were, or thereafter 
 might be, under the British dominion. For the encourage- 
 ment of the southern whale fishery, the 42 Geo. III. c. 77. 
 had already repealed the necessity of a licence from the 
 South Sea or the East India Company, for ships passing- 
 through the Streights of Magellan, or round Cape Horn, 
 and trading in the Pacific Ocean. And several acts of par- 
 liament had also passed for the benefit of the fisheries, 
 which had gradually broken in upon and restricted the ex- 
 clusive rights of this company. — At length tlie 55 Geo. HI. 
 c. 57. altogether abolished its commercial privileges. By 
 this last act the sole and exclusive privileges of trade and 
 traffic, vested in the company by the 9 Anne, are declared 
 to be absolutely repealed ; '• and shall be deemed and taken 
 
 (/) Souih S<u bubble, {s) TuulmtQ t'< Audertoo, 1 Taunt. S33.
 
 CHAP. III.] Trade ivith Asia, Africa, Sgc. 101 
 
 to have ceased and determined from and after the 12th of ^"uth Sea 
 
 CoDipaay. 
 May 1815, to all intents, constructions, and purposes what- 
 soever." In consideration of the surrender of such ex- 
 clusive privileges, a guarantee fund was established in the 
 pui)lic stocks ; and it was provided by the above-cited sta- 
 tute that when such fund should amount to the capital 
 stock of £^610,464. 3^. bearing an interest of 3 per cent. 
 per annum, the same should be transferred to the South 
 Sea Company, as a full satisfaction for the surrender of 
 their monopoly. 
 
 In 1670 a charter of Charles II. eranted an exclusive Hudson's Bay 
 trade to another part of America, to the governors and 
 company of adventurers of England trading into Hudson's 
 Bay. They were to have tlie sole trade and commerce of 
 and to all the seas, bays, streights, creeks, lakes, rivers, and 
 sounds, in whatsoever latitude, that lie within the entrance 
 of the streights commonly called Hudson's Streights, toge- 
 ther with all the lands, countries, and territories, upon the 
 coasts of such seas, bays, and streights, which were then 
 possessed by any English subjects, or the subjects of any 
 other Christian state, together with the fishing for all sorts 
 of fish, of whales, sturgeon, and all other royal fish, toge- 
 ther with the royalty of the sea. But this extensive char- 
 ter has not received any parliamentary confirmation or 
 sanction. 
 
 By a royal charter, made in the 24th year of tlie reign African Com- 
 of Charles II., a great portion of Africa was granted to 
 certain persons by the name of the Royal African Company. 
 This Company, since their establishment, had been put 
 to great expence in rebuilding and enlarging several of 
 their forts and castles on the coast, and otherwise main- 
 taining their settlements. By the 23 Geo. II. c, 31., which 
 was an act for improving and extending the trade to Afri- 
 ca, a new company was established, by the name of the 
 Company of merchants trading to Africa. The first section 
 of this act grants a free trade to Africa to all his Majesty's
 
 lot 
 
 Navigation Laws. 
 
 [part I. 
 
 African Com- subjects between the port of Sallee, in South Barbary, and 
 the Cape of Good Hope. The forts, settlements, and fac- 
 tories, of the original Company were vested in the new 
 Company by this statute : but they were prohibited to trade 
 in their joint capacity ; and their affairs were directed to be 
 placed under the management of a committee, chosen an- 
 nually, who were precluded from making any orders and 
 regulations in restraint of a free trade with Africa. By 23 
 Geo. II. c. 40. the Royal African Company was abolished, 
 and all their forts and factories on the coast were vested 
 in the Company of Merchants trading to Africa. 
 
 Sierra Leone 
 Company. 
 
 The Sierra Leone Company was incorporated by the 31 
 Geo. III. c. 53. The object of their incorporation was 
 not only with a view of establishing a general trade and 
 commerce with Africa, but for exploring the interior of 
 that continent ; and to assist them in this purpose, his Ma- 
 jesty was empowered by act of parliament to make them a 
 grant of the peninsula of Sierra Leone. After an experi- 
 ment of sixteen years, the Company found it expedient to 
 relinquish the government and management of this colony, 
 and expressed a desire to surrender to the crown the set- 
 tlement which had been granted them by letters patent ; 
 and supplicated that their charter of incorporation might 
 cease and determine. Accordingly, the 47 Geo. III. s. 2. 
 c. 44. was passed, by which the letters patent were declared 
 void, and the peninsula of Sierra Leone was revested abso- 
 lutely in his Majesty. The Sierra Leone Company, there- 
 fore, has now altogether ceased. 
 
 South Ame- 
 rica. 
 
 The trade with Spanish South America and Great Bri- 
 tain, except such as is carried on with the insurgent pro- 
 vinces at the private hazard of adventurers who can elude 
 the vigilance of the ^tfardas fie costas, still remains under 
 the exclusive monopoly of Spain; but by the late treaty 
 with that country it is provided, by the fourth article, that 
 in the event of the commerce of the Spanish American pos- 
 sessions being opened to foreign nations, his Catholic Ma-
 
 CHAP. III.] Trade with Asia, Africa, S^c. 103 
 
 jesty undertakes that Great Britain shall be admitted to South Arae- 
 trade with those possessions upon the footing of the most 
 ftivoured nations. In favour of the Portuguese dominions 
 in South America, the rule in the third section of the 12 
 Car. II. c. 18. has been relaxed. Thus by 48 Geo. III. c. 
 11. it is enacted, that it shall be lawful to import into 
 Great Britain directly from Brazil, or any of the territo- 
 ries or possessions of the crown of Portugal on the con- 
 tinent of South America, in ships or vessels built in the 
 kingdom of Portugal before the first day of January 1808, 
 or in ships or vessels built in any of the aforesaid terri- 
 tories, or possessions on the continent of South Ame- 
 rica, or in vessels of war, or in ships condemned as prize, 
 &c. and owned by subjects of the Portuguese government 
 resident in the before-mentioned territories, and whereof 
 the master and three-fourths of the mariners, at least, are 
 subjects of the Portuguese government, and resident in 
 the said territories, &c. any goods, wares, and merchan- 
 dise, the produce or manufacture of the said territories, 
 not prohibited by law to be imported from foreign coun- 
 tries, (h) 
 
 We have already explained the condition of British com- United States. 
 merce with the United States of America. It was necessarily 
 so implicated with our colonial trade, that we preferred to 
 review it under that head for the convenience of our arrange- 
 ment. (/) Though our own courts of law are not bound to 
 notice any acts of a foreign legislature, yet, as the practice 
 of our navigation is necessarily affected by such laws of 
 foreign countries, it is incumbent upon us briefly to obs'erve, 
 that the American Congress, in the year 1817, enacted a 
 system of laws corresponding in a great degree with our 
 
 (/j) Spanish treaty, signed at Ma- likewise, as to this trade, 31 Geo. 
 
 drid, July 5th, 1814. For the trade III. c. 38., 53 Geo. III. c. 50. s. 13., 
 
 between South America and the co- 56 Geo. 111. c. 91., gjid 58 Geo. 111. 
 
 lonies of Great Britain in the We.st c. 27. 
 
 Indies and North America, see Co- (») See ante, page 44, 
 loaial trade, chap. 2. passim ; se«
 
 104 ^ Navigation Laws. [part i. 
 
 Unit^ states, own navigation laws, and more particularly, as respects 
 two important principles, of not alien mg a carrying trade, 
 and of confining to themselves the coamiog trade of their 
 own shores. It is not within the purpose of this r/ork to 
 enter more fully into these foreign laws ; but it will not 
 be w ithout use to add the following Rules, or Laws, thui 
 recently enacted by the United States. 
 
 RULE I. 
 
 ^ . . No goods shall be imported into the United States from 
 
 Navigation ^ . * . • i o 
 
 laws of the any foreign place, except in vessels of the United States, 
 
 United States. ^^ ^^^ ^^^^ foreign vessels as truly and wholly belong to the 
 citizens and subjects of that country of which the goods are 
 the growth, production, or manufacture, or from which 
 goods can only be, or most usually are, first shipped for 
 transportation ; provided, nevertheless, that this regulation 
 shall not extend to vessels of any foreign nation which has 
 not adopted, and which shall not adopt, a similar regula- 
 tion. 
 
 RULE II. 
 
 No goods shall be imported, under penalty of the for- 
 feiture thereof, from one port of the United States to ano- 
 ther port of the United States, in a vessel belonging wholly, 
 or in part, to a subject of any foreign power : but this 
 clause shall not be construed to prohibit the sailing of any 
 foreign vessel from one to another port of the United States ; 
 provided no goods (other than those imported in such vessel 
 from some foreign port, and which shall not have been un- 
 laden,) shall be carried from one place to another in th« 
 United States.
 
 CHAP. III.] Trade with Asia, Africa, ifc. 105 
 
 RULE III. 
 
 (A) From and after the SOth of September, 1818, the ports Navigation 
 of the United States shall be, and remain closed, against upited States. 
 every vessel owned wholly, or in part, by a subject or sub- 
 jects of his Britannic Majesty, coming or arriving from any 
 place in a colony or territory of his Britannic Majesty, 
 which is, or shall be, by the ordinary laws of navigation 
 and trade, closed against vessels owned by citizens of the 
 United States : and such vessel that, in the course of her 
 voyage, shall have touched at, or cleared out from, any 
 place in a colony or territory of Great Britain, which shall, 
 or may be, by the ordinary laws of navigation and trade 
 aforesaid, open to vessels owned by citizens of the United 
 States, shall nevertheless be deemed to have come from 
 the place in the colony or territory of Great Britain closed 
 as aforesaid, against vessels owned by citizens of the United 
 States, from which such vessel cleared out and sailed be- 
 fore touching at and clearing out from an intermediate and 
 open place as aforesaid ; and everysuch vessel, so excluded 
 from the ports of the United States, that shall enter, or at- 
 tempt to enter the same, in violation of this act, shall, with 
 her tackle, &c. together with her cargo, be forfeited to the 
 United States. 
 
 RULE IV. 
 
 From the SOth of September, 1818, the owner, consignee, 
 or agent, of every vessel, owned wholly, or in part, by a 
 subject or subjects of his Britannic Majesty, which shall 
 have been duly entered in any port of the United States, 
 and on board of which shall have been there laden, for ex- 
 portation, any articles of the growth, produce, or manu- 
 facture, of the United States, other than provisions and sea 
 
 (Af) The two last rules were established April 18, !81f .
 
 106 
 
 Navigation Laws. 
 
 [part I. 
 
 Navigation 
 laws of the 
 United States. 
 
 stores necessary for the voyage, shall, before such vessel 
 be cleared outward at the custom-house, give bond in double 
 the value of such articles, with sureties, to the satisfaction 
 of the collector, that the articles so laden on board such 
 vessel for exportation shall be landed in some place other 
 than a place in a colony or territory of his Britannic Ma- 
 jesty, which, by the ordinary laws of navigation and trade, 
 is closed against vessels owned by citizens of the United 
 States ; and any such vessel, sailing without giving such 
 bond as aforesaid, shall, with her tackle, &c. together with 
 the article or articles laden on board the same, be forfeited 
 to the United States. Provided, always, that nothing in 
 this act contained shall be deemed and construed, so as to 
 violate any of the provisions of the convention, to regulate 
 commerce between the territories of the United States and 
 of his Britannic Majesty : — signed, July 3, 1815. 
 
 SI are trade. 
 
 The convention of commerce, above cited, does not affect 
 this last rule ; the only stipulation in that treaty under the 
 head of the intercourse between the United States and the 
 West Indies, &c. being, that each party should remain in the 
 complete possession of its rights with respect to such an 
 intercourse, as before that treaty. The rule, therefore, at 
 the present date, (I) is in its full force. 
 
 The next head under this chapter is one of the first im- 
 portance, viz. the statutes abolishing the slave trade, and 
 the treaties between the several European powers in fur- 
 therance of this great object of humanity. The first, and 
 nearly the principal of these acts, is the 46 Geo. III.c. 52. ; 
 as this act, and those that follow it, hereafter to be men- 
 tioned, are very complicate, their enactments will be best 
 represented in the form of rules. This method will afibrd 
 us the opportunity of retaining, and briefly expressing, all 
 the regulations, and omitting the more formal phraseology. 
 After reciting an order in council dated the 15th of August 
 
 (0 March 1819.
 
 CHAP. III.] Trade with Asia, Africa, Sfc. 107 
 
 1805, as the irroundwork of the act, the 46 Geo. III. c. 52. Slave trade, 
 proceeds to the enactments condensed into the following 
 rules : — 
 
 RULE I. 
 
 No slaves, except in such special cases as are hereinafter 
 excepted, shall be exported from any part of his Majesty's 
 dominions, to any foreign island or colony whatever, under 
 the penalty of the forfeiture of the ship and cargo ; such 
 ship and slaves to be seized, and the persons offending pro- 
 secuted, as hereafter mentioned. 
 
 RULE IL 
 
 No British subject whatever, nor any persons resident 
 in his Majesty's dominion, shall export, or cause to be ex- 
 ported, or in any manner assist in exporting, any slaves 
 from Africa, or elsewhere^ (except from the British West 
 India islands, in certain special cases, hereafter excepted,) 
 to any foreign island or colony whatever; nor ship, nor 
 tranship, at Africa, or elsewhere, any slaves, with such pur- 
 pose of exporting them to such foreign island, or colony, 
 under the penalty of the forfeiture of the ship and slaves, 
 (so far as any British subject, or person resident in the 
 British dominions, shall have any property or slave therein) 
 such ship and slaves to be seized, and the persons offending 
 to be prosecuted, as is hereafter mentioned. 
 
 RULE III. 
 
 Any of his Majesty's subjects, or persons resident in his 
 dominions, importing, or transhipping, or causing to be 
 imported or transhipped, any slave contrary to this act, 
 shall forfeit for each slave 50/. ; unless it can be proved 
 that the prohibited act arose from inevitable accident, such
 
 108 - Navigation Lazes. [part i. 
 
 Slare trade. proof to be on the accused party; or, unless such slave 
 i shall have been sentenced to transportation by a compe- 
 
 tent judicature in any British island. In such case the 
 captain of the ship is to be provided with a certified copy 
 of such judgment and sentence. 
 
 RULE IV. 
 
 All dealing and traffic in slaves in Africa is unlawful ; 
 as likewise all contracts relating to the removing or trans- 
 porting such slaves from Africa or the British West India 
 islands. And all British subjects, and residents within the 
 British dominions, dealing by themselves or agents in such 
 contracts for transferring of any slaves, or dealing with the 
 slave himself, contrary to this act, shall forfeit 100/. for each 
 slave, 47 Geo. III. c. 36., 51 Geo. III. c. 23. 
 
 RULE V. 
 
 No subject of his Majesty, or person resident within his 
 dominions, shall remove, or assist in removing, as slaves, 
 or for the purpose of being dealt with as slaves, any of the 
 inhabitants of Africa, or of any place in the West Indies, 
 or America, not within the dominions of his Majesty, either 
 immediately, or by transhipment at sea, from Africa, or 
 any sucli country or place, to an]^ otlier country or place 
 whatever. And no such subject or resident shall receive 
 or confine on board any such inhabitant of Africa, &c. for 
 the purpose of his being so removed under the penalty of 
 the forfeiture of ship and slaves, and 100/. for each such 
 inhabitant of Africa, &c. 47 Geo. III. c. 36.
 
 CHAP. III.] Trade with Asia, Africa, ^c. 109 
 
 RULE VI. 
 
 All British subjects, or residents, &c. employing their slave trade, 
 vessels, capital, or credit, in trading in, or carrying slaves 
 from Africa, or elsewhere, to any place under any foreign 
 sovereign or state, shall forfeit double the value of all the 
 money, ships, goods, &c., so by him or them employed, 
 advanced, or secured. All mortgages, bond, or other secu- 
 rities, for the payment of any such unlawful services, or 
 advances, shall be void ; except in the cases of bond fide 
 holders purchasing and receiving the same without know- 
 ledge of their having originated in unlawful purposes, 
 46 Geo. III. c. 52. 
 
 RULE VII. 
 
 Insurances of slaves, and ships engaged in such trade, to 
 be void, and the insurers to forfeit 500/., 46 Geo. III. c. 
 52., 51 Geo. III. c. 23. 
 
 RULE VIII. 
 
 No British ship, boats, or mariners, shall be employed 
 in or at Africa, in supplying with slaves any foreign ship 
 or factory, or person employed as their agent, under the 
 penalty, if with the knowledge of the owner, of the for- 
 feiture of such ship or boat, &c., to be seized and prose- 
 cuted as is hereafter mentioned, and the master to forfeit 
 3001. (same statutes.) 
 
 RULE IX. 
 
 No foreign ship, destined directly or indirectly to Africay 
 for the purpose of tbe slave trade, shall be fitted out in any
 
 110 Navigation Laws. [part i. 
 
 Slave trade. British port ; and if any person shall put goods on board 
 for the purpose of being so employed in the slave trade, 
 the ship, goods, &c. to be forfeited. And any British sub- 
 ject or resident, knowingly fitting out or manning such fo- 
 reign ship, shall forfeit 100/., 46 Geo. III. c. 52. 
 
 RULE X. 
 
 No British subject, or resident, &c. shall fit out, man, 
 or navigate, or be concerned in the fitting out, &c., any 
 vessel for the purpose of being employed in the slave trade, 
 neither by himself or agents ; penalty forfeiture of ship, 
 &c. 47 Geo. III. c. 36. 
 
 RULE XI. 
 
 No person shall carry a slave from one British colony 
 to another, without a licence from the governor or chief 
 officer, and a bond in 50/. for every slave, for the true land- 
 ing of such slaves in the place specified in such licence ; 
 and for producing within a limited time, according to the 
 ordinary length of the voyage, a certificate from the chief 
 officer of the customs of such place, that the said slaves 
 have been so landed and left there. The bond shall be 
 Void, unless prosecuted within three years from the date. 
 But this provision is not to extend to any slave employed 
 ih navigation or fisliing, nor to domestic slaves attend- 
 ing their masters at sea on voyages to foreign parts : but 
 such domestic slaves are not to exceed in number two for 
 each passenger; and, where slaves arc employed as sailors 
 or fishermen, their names shall be indorsed upon the clear- 
 ance or permit, 46 Geo. 111. c. 5!:?., 51 Geo. III. c. 23. 
 
 RULE XII. 
 
 Any inhabitant of Africa, or any territory not within the 
 dominions of his Majesty, unlawfully carried away and im- 
 
 1
 
 CHAP. III.] Trade imlh Asia, Africa, S^c. 1 1 1 
 
 ported into any of his Majesty's dominions, and there sold, Slave trade, 
 or detained, as a slave, may be seized and prosecuted in 
 the manner of contraband goods, 47 Geo. III. c. 36. All 
 slaves so seized and taken shall be condemned to the sole 
 use of his Majesty, for the purpose only of divestin^^ and 
 barring all other property and interest ; but sliall not be 
 disposed of, or dealt with, as slaves, by or on the part of 
 his Majesty. But such officers as may be empowered by 
 the king in council to receive and provide for such slaves, 
 may enter and enlist any of them into his Majesty's ser- 
 vice, or bind them for any term not exceeding fourteen 
 years, to such persons, and upon such conditions, as his 
 Majesty shall direct by any order of council, 47 Geo. III. 
 c. 3G., 55 Geo. III. c. 172. 
 
 RULE xin. 
 
 Where any slave, taken as prize, of or by any of his 
 Majesty's ships or privateers, duly commissioned, shall be 
 finally condemned, there shall be paid to the captors by 
 the treasurer of the navy, in the like manner, as the bounty 
 called head money is now paid, such bounty as his Majesty 
 may direct by order in council, 47 Geo. III. c. 36., the 
 captors to produce a certificate of the sentence of con- 
 demnation, and of the numbers taken and condemned ; 
 idem: any doubtful claims to this bounty to be decided by 
 the admiralty couits. 
 
 RULE XIV. 
 
 Upon the condemnation of any slaves seized and prose- 
 cuted as forfeited, (by others than the commanders of his 
 Majesty's ships of war,) a reward of 13/. for every man 
 10/. for every woman, and 3/. for every child under four- 
 teen, shall be paid to the person prosecuting ; and like 
 sums to the governor of any colony in which such seizure 
 shall have been made. But where such seizure shall have
 
 112 Navigation Laws. [parti. 
 
 Slave trade. ^^^^ vfiAdie at sea by the officers of his Majesty's ships of 
 war, a reward of 20/. for every man, 15/. for every woman, 
 and 5/. for every child, shall be paid to such officer, so 
 seizin"^ and prosecuting to condemnation; the certificate 
 of such seizure and prosecution to be granted by the officer 
 appointed to receive and protect such slaves, and addressed 
 to the lords of the treasury. The counterfeiting of such 
 documents, or using the same, is felony without benefit of 
 clergy; idem. 
 
 RULE XV. 
 
 Such seizures of ships and slaves, forfeited for any of- 
 fence, against this act, (47 Geo. III.) may be made by any 
 officer of the customs and excise, as well as by the com- 
 manders, &c. of his Majesty's ships of war. All offences 
 against the act are to be tried as if committed within the 
 body of the county of Middlesex. The parties, wherever 
 the action is commenced, may plead the general issue, and 
 give the acts and the special matter in evidence. And in 
 the event of the plaintiff being nonsuited, or discontinuing 
 his action, &c. the defendant shall recover treble costs. 
 All penalties and forfeitures to be sued for within three 
 years after the offence committed, 46 Geo. 111. c. 52., 53 
 Geo. III. c. 112. 
 
 RULE XVI. 
 
 His Majesty in council may make regulations as to ne- 
 groes who have been bound apprentices under 47 Geo. III. 
 c. 36., so that they may not become chargeable to the is- 
 land in which they have been so bound. But no act as 
 to enlisting for any limited period of service, or granting 
 any pensions after certain periods, shall extend to any 
 •egroes serving in any of his Majesty's forces; idem.
 
 CHAP. III.] Trade with Asia, Africa, Sfc 113 
 
 RULE XVII. 
 
 All ships, whether British or foreign, duly condemned Slave trade, 
 under any acts for the abolition of the slave trade, shall 
 be entitled to be registered as British ships, in the same 
 inanner as if taken and condemned as prizes of war ; 5-i 
 Geo. III. c. 59. 
 
 RULE XVIIL 
 
 When any slaves shall be captured or seized, the 
 persons claiming any right in such slaves shall put them 
 on shore, upon which the chief officer of the customs of 
 the place shall make enquiry, whether such persons shall 
 be willing and able to furnish food and necessaries for 
 the said slaves during the proceedings and adjudication ; 
 and shall report to the governor the result of such enquiry. 
 And where such persons shall not be able or willing to 
 support the said slaves, the governor shall provide them 
 with the due support during the proceedings, and the 
 court shall direct the necessary charges to be defrayed by 
 the persons receiving possession under the decree ; 55 Geo. 
 III. c. 172. Where the proceedings of the court shall 
 extend to any length, and the persons claiming the pro- 
 perty of the said slaves shall not be able or willing to sup- 
 ply the food and necessaries, a valuation shall be made of 
 the slaves, and they shall be delivered over to the officer 
 appointed by his Majesty to receive slaves condemned ac- 
 cording to the IT Geo. III. c. 36.; and such slaves shall 
 be decreed to be restored ; restitution, according to such 
 valuation, shall be made by the treasurer of the navy ; 55 
 Geo. in. c. 172. In the event of such restriction, the 
 court, if it deem fit, may adjudge the captors, in addition 
 to the restitution in value^ to pay costs and damages, idem.
 
 Hi Navigation Laws. [part i, 
 
 RULE XIX. 
 
 ^lave trade. All British subjects or residents carrying on the slave 
 
 trade, or any way engaged therein, as principals, agents, 
 or abettors, are declared to be felons, and shall be trans- 
 ported for a term not exceeding fourteen years, or kept 
 to hard labour for a term not exceeding five years, nor less 
 than three years. All petty officers, servants, or seamen, 
 knoAvingly serving on board ships engaged in such traffic, 
 and all persons knowingly underwriting, or procuring to 
 be underwritten, any policies of insurance on such ships, 
 are to be deemed guilty of a misdemeanour, and shall be 
 punished by imprisonment, for a term not exceeding two 
 years. But these provisions are not to extend to the pre- 
 vention of the lawful removal of slaves from one British 
 colony to another, nor to the removal of slaves from ves- 
 sels in distress, nor to their transportation when convicted- 
 of crimes; 55 Geo. III. c. 23. 
 
 RULE XX. 
 
 All felonies or misdemeanours committed in Africa, or 
 in any place other than the United Kingdom, or on the 
 high seas, or in any place where the admiral lias jurisdic- 
 tion, shall be enquired of either according to the statute 
 of 28 lien. VIII. , so far as the same act is now unrepealed, 
 or according to 11 and 12 Will. 111.-51 Geo. III. c. 23. 
 But the penalties and forfeitures of former acts are not 
 hereby repealed or altered. Any new enactments in 51 
 Geo. III. c. 23. to be regarded as accessional, ide?n. 
 
 RULE XXI. 
 
 The offences declared by 51 Geo. III. to be felonies or 
 niisdcmcaauursi, committed on the high sea, &c. or where
 
 CHAP, III.] Trade icith Asia, Africa, ^c. 
 
 115 
 
 the admiral has jurisdiction, may be enquired of under Slave trade, 
 any commission issued according to the direction of the 
 46 Geo. III. c. 54. And all persons convicted of any such 
 oftences, under any such commission, are made liable to 
 the same penalties and forfeitures, as if they had been 
 trie3 and convicted within this realm by virtue of any 
 commission made according- to the 28 Hen. VIII. — 58 
 Geo. III. c. 98.(wO 
 
 (m) By 46 Geo, III. c. 54. all 
 treasons, piracies, felonies, rob- 
 beries, murders, conspiracies, and 
 other offences, of what nature or 
 kind soever, committed upon the 
 sea, or in any haven, river, creek, 
 or place, where the admiral or ad- 
 mirals have authority or jurisdic- 
 tion, may be enquired of, deter- 
 mined, and adjudged according to 
 the common course of the laws of 
 this realm, used for offences com- 
 mitted upon the land within this 
 realm, and not otherwise, in any 
 of his Majesty's islands, planta- 
 tions, colonies, dominions, forts, 
 or factories, by virtue of the king's 
 commission, under the great seal 
 of Great Britain, to be directed to 
 any such four or more discreet 
 persons as the Lord Chancellor of 
 Great Britain, Lord Keeper, or 
 commissioners for the custody of 
 the great seal of Great Britain, for 
 the time being, shall from time to 
 time think fit to appoint ; and the 
 said commissioners so to be ap- 
 pointed, or any three of them, shall 
 
 have such and the like powers and 
 authorities for the trial of all such 
 murders, treasons, piracies, felo- 
 . nies, robberies, conspiracies, and 
 other offences, within any such 
 island, plantation, colony, domi- 
 nion, fort, or factory, as any com- 
 missioners appointed, or to be ap- 
 pointed, according to the 28 Hen. 
 VIII., by any law or laws now in 
 force, have or would have for the 
 trial of the said offences within this 
 realm; and all persons convicted 
 of any of the said offences, so to 
 be tried by virtue of any commis- 
 sion to be made according to the 
 directions of this act, shall be lia- 
 ble to, and shall suffer all such and 
 the same pains, penalties, and for- 
 feitures, as by any law now in force 
 persons convicted of the same re- 
 spectively would be liable to in 
 case the same were respectively 
 inquired of, determined, and ad- 
 judged within this realm, by virtue 
 of any commission made accord- 
 ing to the directions of the said 
 statute of 28 Hen. VIII. 
 
 1 §
 
 116 Navigalmi Laws. [^paut i 
 
 RULE XXII. 
 
 SlaTe trade. Governors and commanders-in-chief, in Africa, within 
 
 the limits of the settlements, forts, and factories, be- 
 longing to his Majesty, or the African Company, in Africa, 
 may seize and prosecute all ships, slaves, natives of Africa, 
 conveyed or dealt with as slaves, and all goods and as- 
 sets forfeited for any ofllence against 46 Geo. III. c. 52., 
 and 47 Geo. III. c. 36. Such governors and commanders, 
 and all persons by them deputed, in the making of such 
 seizures, are entitled to all the benefits and provisions of 
 acts of parliament made for the protection of officers seiz- 
 ing and prosecuting, for any offence against any act 
 relating to the trade and revenues of the British colonies 
 or plantations in America ; r>l Geo. III. c. 23. And petty- 
 officers, or seamen, on board ships engaged in the slave 
 trade, giving information, within three months after the 
 arrival of any such ship in port, that offenders removing and 
 dealing in slaves may be apprehended, shall not be liable 
 to any punishment, if such information ])e given within 
 the same time from the arrival of the offending vessel at 
 any port or place out of his Majesty's dominions, to his Ma- 
 jesty's am.bassadors, envoys, consuls, &c., and such person, 
 so giving information, shall not be liable to any punish- 
 ment under the slave abolition acts. All ambassadors, 
 consuls, &c. are required to receive such information, and 
 to transmit the particulars to one of his Majesty's prin- 
 cipal secretaries of state ; 51 Geo. HI. c. 23. 
 
 RULE XXIII. 
 
 Certain importations of slaves into the British colonies 
 on the continent of South America, having been made 
 under a belief that they >\ere authorized by law, are, by 
 the r;S (ieo. III. c. 49. declared valid, and prosecutions 
 discharged.
 
 CHAP. III.] Trade with Asia, Africa, ^c. 117 
 
 RULE XXIV. 
 
 Many estates in the Bahamas and irj Dominica havinj^ Slave trade, 
 become impoverished, so as not to afford food and employ- 
 ment to the slaves, his Majesty is empowered by his li- 
 cence to allow the slaves therein to be transported thence 
 to any of the British possessions on the continent of South 
 America, upon proof that such transportation Mould not be 
 to the disadvantage of the slaves, and upon a bond from 
 tlieir owner that such slaves should be removed in fami- 
 lies ; 58 Geo. III. c. 49. But no person whatever shall 
 convey any slave from any British colony on the continent 
 of South America to any other country whatever, except 
 to some other British colony on the same contingent, ex- 
 cept under the circumstances before expressed in some of 
 the rules above given; 58 Geo. HI. c. 19. 
 
 Such are the existing- laws of the slave trade, as respect 
 this country ow/y. But it belongs to the praise of the 
 British government and people, that they have not only 
 employed their own efforts to effect the abolition of this 
 iniquitous traffic, but have exerted their powerful in- 
 lluence w ith every foreign state to co-operate with them 
 in the same object of general humanity. Under the effect 
 of this system, the British government has rendered, or is 
 in the progress of rendering, the abolition of tlie slave 
 trade a part of the public laAV of Europe. It will be seen 
 in the following treaties, that some of the European so- 
 vereigns have wholly concurred with the British legisla- 
 ture in this benevolent purpose ; having rendered slaves, 
 and all ships engaged in the slave trade, a kind of contra- 
 ])and against the Law of Nations : and, under this cha- 
 racter, authorized the armed ships of the respective coun- 
 tries to seize and conilscate them. Other powers, indeed, 
 have not gone so far; but have recognized the justness of 
 the same principle, both by an immediate diminution in the
 
 118 Jslavigaiion Laws. [parti. 
 
 Siare trade, actual compass of their traffic ; and by an express pur- 
 pose, or rather contract, for its gradual, total, abolition. 
 As the government of England, therefore, is empowered 
 by these treaties to act even against foreign ships as re- 
 spects the slave trade, and as these regulations have thus 
 become a part of our own law, it is necessary to examine 
 in detail the several treaties and their specific stipu- 
 lations. 
 
 Treaty with By the iirst article, his Catholic Majesty engages that 
 
 Tentint'^ traffic the slave trade shall be abolished throughout the entire 
 in slaves, Sept. dominions of Spain on May 13, 1820; and that, after that 
 period, his subjects shall not carry on the slave trade 
 on any part of the coast of Africa, in any manner what- 
 ever. 
 
 By the second article it is agreed, that the said Spanish 
 slave trade shall inwiedintelT/, (i. e. upon ratification of the 
 treaty,) cease in every part of the coast of Africa, north of 
 the Equator. 
 
 The third and fourth articles then stipulate for the sum 
 of £400,000. to be paid by Great Britain, as a compen- 
 sation to Spain for such abolition. 
 
 The ffth article declares all such slave traffic, (con- 
 trary to the treaty,) to be illicit and contraband trade, 
 and authorizes all British and Spanish ships to seize any 
 offending vessels or persons accordingly ; Spanish vessels 
 to be equally authorized to seize offi?nding ships and per- 
 sons belonging to Great Britain. 
 
 The sixth article is an engagement of the Court of Spain 
 to act in conformity with the said treaty. 
 
 The seventh article stipulates, that every Spanish slave- 
 i>hip, (so long as the trade contiri\ies lawful,) shall b«
 
 CHAP. III.] Trade with A^ia, Africa, ^c. 119 
 
 provided with a royal passport, conformable with a model Slave trade. 
 annexed to the treaty. 
 
 The eighth article is a mere explanation of the seventh. 
 
 The ninth article stipulates, that every British or Spa- 
 nish ship of war shall have a right to visit the merchant 
 ships of either nation, suspected to be engaged in the 
 slave trade ; and, if they find any slaves on board, may 
 bring such ships and persons for judgment before the 
 nearest tribunal established for that purpose ; but either 
 power to pay damages for any illegal detention or bring- 
 ing in. And such seizures to be made only by king's 
 ships, and by vessels provided with special instructions 
 for that purpose. 
 
 The tenth article marks with more precision the signiri- 
 cation of the ninth, confining the seizure of slave ships to 
 such only as shall have slaves actually on board. 
 
 The eleventh article stipulates, that all ships employed 
 to prevent the slave trade, shall be provided with a copy 
 of the instructions annexed to the said treaty. 
 
 The twelfth^ and concluding article^ stipulates that, 
 for the trial of all ships seized in the illicit traffic of 
 slaves, there shall be established two mixed commissions, 
 formed of an equal number of persons of the t\\ o nations, 
 named for that purpose by the respective sovereigns ; and 
 that these commissions shall reside, one in a possession be- 
 longing to his Majesty, the other within the territories of 
 his Catholic Majesty : one of which commissions is directed 
 by the said treaty to be always held upon the coast of 
 Africa ; and the other, in one of the colonial possessions 
 of his Catholic Majesty. 
 
 Annexed to the treaty is the copy of instructions re- 
 quired to be given to king's ships employed in preventing
 
 ]90 JKavigation Laws. [part i. 
 
 Slave trade. tliis traffic ; but, as it contains nothing more than the 
 substance of the treaty, reduced into practical directions 
 for the use of commanders, it is unnecessary to repeat 
 them. 
 
 Annexed, likewise, to the treaty is another paper, in- 
 tituled, " Regulations for the mixed commissions which 
 are to reside on the coast of Africa, and in a colonial pos- 
 , session of his Catholic Majesty." These regulations con- 
 
 sist of thirteen articles ; and being- imperative upon our 
 ships, and of authority in our courts, must be briefly no- 
 ticed as part of our Navigation Law : — 
 
 The Jii^st article stipula<:es, that these mixed commis- 
 sions shall decide, first, upon the legality of the capture; 
 and, secondly, in case the captured vessel shall be liber- 
 ated, upon the costs of such detention. Sentence to be 
 given within twenty days from the cause being in court ; 
 but two months to be granted in the event of the absence 
 of witnesses, or a further time, but never exceeding four 
 months, upon application by an interested party, with se- 
 curity for costs and dair.agos. 
 
 The second article regulates the composition of the 
 mixed commission. The Kings of England and Spain are 
 each to name a commissary- judge, and a commissioner 
 of arbitration ; the proceedings are to be written in the 
 language of tlie country in which the commission shall re- 
 side ; the judges are to take an oath to judge fairly and 
 impartially ; and the acts of the co«irt are to be registered 
 by a secretary appointed by the sovereign of the country 
 in which the commission shall sit. 
 
 The third article v'e^\\\dXe?, the form of process, which is to 
 consist of three parts : 1st, the examination of the papers of 
 the vessel ; 2nd, the deposition on oath of the captain and 
 of two or three of the crew of the detained vessel, and of 
 I he captor; and, 3dly, in the event of the two conimissarj
 
 CHAP. III.] Trade with Asia, Africa, ^c. \2l 
 
 judges not agTeeing- upon the sentence, whether as to the Slave trade, 
 legality of (he detention, or the indemnification to be al- 
 lowed, or upon any other question which might result from 
 the stijHdations of the treaty, they are directed to draw by 
 lot the name of one of the two commissioners of arbitration, 
 who, after having considered the documents of lue process, 
 shall consult with the commissary judges upon the case in 
 question ; and the final sentence shall be pronounced con- 
 formably to the opinion of the majority of the commissary 
 judges, and of the commissioner of arbitration so chosen. 
 
 The fourth arlicle exempts from seizure any Spanish 
 slave ships which shall have originally embarked from any 
 part of the coast of Africa south of the equator, tliougli 
 the slaves may have been marched to such place of embark- 
 ation from any part of Africa north of the equator. 
 
 The fiflh arlicle requires the captain to state, in his de- 
 claration, the luime of himself and vessel ; the latitude and 
 longitude of the place of seizure; and the number of slaves 
 so seized. The sixtli article regulates the restoration of 
 the vessel, and tlie payment of damages in the event of the 
 ship being liberated ; and the seventh article orders, that 
 in the event of condemnation, the ship and cargo (excepting 
 the slaves) shall be hiAvful prize, and shall be sold for the 
 profit of the two govenunents : but that the slaves shall 
 receive from the mixed commission a certificate of eman- 
 cipation, and shall be delivered over to the government 
 on whose territory the commission, which shall have so 
 judged them, shall be established, to be employed as ser- 
 vants or free labourers. 
 
 The eighth article (in the event of the liberation of the 
 ship) enumerates the several grounds of damages and com- 
 pensation to be paid by the captors, namely, according to 
 the damage done or suffered pro tanto to the ship, stores, 
 freight, cargo, demurrage, &c. but as all these articles 
 conform to the practice of ■ our admiralty courts, it ii
 
 122 Navigation Laws. [paut i. 
 
 Slave trade. unnecessary to repeat them. The ninth article confines 
 the compensation for slaves illegally seized to the value 
 of such a number of them as the vessel might legally carry ; 
 the tenth prohibits the judge, commissary, and secretary 
 of the commission from receiving any emolument for the 
 performance of their duties from any of the parties ; the 
 eleventh gives to any party (who may imagine himself ag- 
 grieved by the sentence of the court) the right of repre- 
 senting his case to his government. The twelfth article^ 
 in the event of any aggravated illegal capture, empowers 
 the government of the detained vessel to demand repara- 
 tion to be made to itself, and require the government to 
 which the captor belongs to inflict a punishment according 
 to the offence. And the thirteenth and concluding article 
 regulates the manner in which the vacancies of the com- 
 mission shall be supplied in the event of death, &c. 
 
 In order to execute the stipulations of this treaty, and 
 the regulations and instructions annexed, the 58 Geo. III. 
 c. 36. was passed. Following, and nearly repeating the 
 words of the treaty, this statute enacts, that all British 
 ships of war, duly authorised, may seize all Spanish sus- 
 pected vessels; and that British vessels suspected of hav- 
 ing slaves on board may be visited, searched, and seized, 
 by British or Spanish vessels, (duly authorised, and having 
 a copy on board of the special instructions required in the 
 said treaty,) and being so seized, may be carried for adju- 
 dication before the tribunals appointed by the treaty, and 
 shall be liberated or condemned in the manner appointed 
 by such treaty, repeated in this act in confirmation of the 
 same. The statute then proceeds to enact the several ar- 
 ticles of the treaty, with no other material alteration than 
 a provision that the institution of the mixed commissionB 
 should not allect the jurisdiction of prize courts of appeal^ 
 or of admiralty courts, in cases brought before them ; 5S 
 Geo. lll.c. :i(). 
 
 The treaty with Portugal is next in order: the three
 
 CHAP. Ill ] Trade with Asia, Africa, ^c. 123 
 
 first articles of this treaty repeating the substance of a con- Treaty witb 
 vention signed betMeen England and Portugal, Jan. ^ii, jyiy i^yir. 
 1815, contain only tlie declaration, that the two courts had 
 agreed in that convention, that the Portuguese traffic in 
 slaves should continue to be lawful in the following terri- 
 tories : — first, in tlie territories possessed by the crown of 
 Portugal upon the coast of Africa to the south of the 
 equator; that is to say, upon the eastern coast of Africa, 
 the territory laying between Cape Delgado and the Bay 
 of Lourenco Marques ; and upon the western coast, all 
 that which is situated from the eighth to the eighteentli 
 degree of south latitude ; secondly, in those territories ow 
 the coast of Africa, to the south of the equator, over which 
 his most faithful Majesty has declared that he has retained 
 his rights, namely, the territories of Molembo and Cabinda, 
 upon the western coast of Africa, from the fifth degree 
 twelve minutes, to the eighth degree south latitude. By 
 the third article his Majesty engages to promulgate a law 
 in his dominion which should prescribe the punishment of 
 any of his subjects engaging in the slave trade ; and, by 
 the fourth aiticie, every Portuguese ship destined for the 
 slave trade on any point of the coast of Africa, where the 
 traffic in slaves continues lawful, is to be provided witli a 
 royal passport, conformable to the modes annexed to the 
 convention, and which model forms an integral part of the 
 same. By the fifth article, the ships of war of both coun- 
 tries respectively are empowered to visit all merchant ves- 
 sels of the two nations, suspected upon reasonable grounds 
 of having slaves on board, acquired by illicit traffic. The 
 two contracting parties agree to xnake good any losses 
 which their respective subjects may incur unjustly by Ihe 
 arbitrary and illegal detention of their vessels. By sixth 
 article, no British or Portuguese vessel shall detain any 
 ship not having slaves aclually on board ; and by the se- 
 venth, all ships of war of the two nations shall be furnished 
 by their own government with a copy of the instructions 
 aanexed to the said convention ; such instructions to b« 
 written in both languages, and signed by the minister of
 
 124 Navigation LaKS. " [part i, 
 
 Treaty vvith their respective marine, with a reservation of the power of 
 " ' altering such instructions according to circumstances. By 
 
 the eighth article two mixed commissions are to be estab- 
 lished, named by their respective sovereigns ; one to re- 
 side within the territories of Portugal, and the other within 
 the territories of the king of Great Britain : one always to 
 be held upon the coast of Africa, and the other in the Bra- 
 zils. The ninth and tenth articles relate to the indemni- 
 fication to be granted to all the proprietors of Portuguese 
 vessels and cargoes, captured by British cruizers, between 
 June 1, 1811, and the period at which the two commissions 
 pointed out in the eighth article of the convention shall 
 assemble at their respective posts. By the eleventh arti- 
 cle, the king of Great Britain engages to pay the 300,000/. 
 indemnification, (stipulated by the convention of 21 Jan. 
 1815,) in favour of the Portuguese vessels captured by 
 British cruizers, up to the period of June 1, 1814. The 
 article prescribes the manner of payment. By the twelfth 
 article, the form of passport for the Portuguese ships 
 destined for the lawful traffic in slaves ; the instructions 
 for the ships of war of both nations destined to pre- 
 vent the illicit trade in slaves ; and, thirdly, the regula- 
 tions for the mixed commissions, which are to hold their 
 sittings on the coast of Africa, at Brazils, and in London, 
 are directed to be received as an integral part of the con- 
 vention. 
 
 Annexed to this treaty arc instructions framed according 
 to the convention, and regulating its practical execution. 
 The, regulations for the mixed connnissions ditl'er very 
 little from those of the Spanish convention. They are 
 Cfjually framed with the view of i)roventing this traffic, 
 and procffHling to a summary adjudication upon all vessels 
 engaged in it ; but, at tlie same time, they are cautiously 
 conceived, so as to execute justice in all cases beyond 
 suspicion ; to pre\('nt capiicious and unlawful deten- 
 tions, and to giv(^ indemnity to all pei'sons who may be 
 aggrieved by the abuse of the powers of visit and search
 
 CHAP, in.] Trade with Asia, Africa, Sgc. 
 
 12! 
 
 with which tlie two nations have respectively entrusted Slave trade, 
 the commanders of their ships of war. 
 
 ' To give effect to this treaty, the 58 Geo. III. c. 85. was 
 passed, by which British ships of war are authorised to 
 seize all vessels suspected, upon reasonable grounds, of 
 having slaves on board acquired by illicit traffic. This 
 act, moreover, carries into effect all such other articles of 
 the above convention which required the confirmation and 
 authority of the legislature. 
 
 For the like humane purpose, articles have been intro- Treaty wUli 
 duced into the treaties entered into between his Britannic 
 Majesty and the other powers of Europe. By the treaty 
 with Denmark, his Danish Majesty engages, according to 
 the eighth article, to co-operate with his Britannic Majesty 
 in the abolition of the slave trade, and to prohibit all his 
 subjects, in the most effectual manner, and by the most 
 solemn la^\ s, from taking any share in such trade. 
 
 By the treaty with the king of the Netherlands, (May, Treaty with 
 loio^ ^1 • c J.X X • X the king of 
 
 1818) the sovereign ot those countries engages to co- the Nether- 
 
 operate in the most effectual manner with the king of lands. 
 
 Great Britain, in order to bring about a total abolition of 
 
 the slave trade on the coast of Africa and to proliibit all 
 
 liis subjects, by penal laws the most formal, from taking 
 
 any share whatsoever in such inhuman traffic. 
 
 By the treaty of Paris, ]May 1814, his most Christian Treaty with 
 ' '' France- 
 
 Majesty, " concurring without reserve in the sentiments 
 
 of his Britannic Majesty, with respect to a description of 
 traffic repugnant to the principles of natural justice, and 
 of the enlightened age in which we live, engages to unite 
 all his efforts to those of his Britannic Majesty, at the ap- 
 proaching congress, to induce all the powers of Christen- 
 dom to decree the abolition of the slave trade, so that the 
 said slave trade shall cease universally, as it shall cease 
 definitively, under any circumstances, on the part of the
 
 126 
 
 Navigation Laws, 
 
 [part I. 
 
 'Slave trade. French government, in the course of five years; and that, 
 during the said period, no slave-merchant shall import or 
 sell slaves, except in the colonies of the state of which he 
 is a subject, (w)" And by the definitive treaty of Paris, of 
 20th Nov. 1815, there is this further stipulation in an ad- 
 ditional article : — " The high contracting powers, sincerely 
 desiring to give effect to the measures on which they deli- 
 berated at the Congress of Vienna, relative to the com- 
 plete and universal abolition of the slave trade, and hav- 
 ing, each in their respective dominions, prohibited, without 
 restriction, their colonies and their subjects from taking 
 any part whatever in this traffic, engage to renew con- 
 jointly their efforts, with the view of securing final suc- 
 cess to those principles which they proclaimed in the 
 Declaration of the 4th Feb. 1815, and of concerting, with- 
 out loss of time, through their ministers at the Courts of 
 London and Paris, the most effectual measures for the 
 entire and definitive abolition of a commerce so odious, 
 and so strongly condemned by the laws of religion and 
 nature." 
 
 Treaty with 
 the United 
 Stato*. 
 
 By the treaty with the United States of America, 24th 
 Dec. 1814, it is stipulated by the contracting parties, in 
 Article 10. in these words : "Whereas the traffic in slaves 
 is irreconcileable with the principles of humanity and jus- 
 tice, and whereas both his Majesty and the United States 
 are desirous of continuing their efforts to promote its entire 
 abolition, it is hereby agreed that both the contracting 
 parties shall use their best endeavours to accomplish so 
 desirable an object." 
 
 (n) By 1st of the Additional Ar- 30th May, 1814. 
 ticlci of the treaty, done at Paris,
 
 CHAP. III.] Trade with Asia, Africa, ^c. 127 
 
 Such is the British trade with Asia, Africa and America, nfJ^J,*"'^ "^"' 
 as respects the navigation laws. It has been already ex- 
 plained in a former chapter what is meant by British built 
 ships and British seamen, (o) 
 
 As respects our trade with the three great continents, j^^ ^f "h^"* 
 there was some doubt in the earlier part of our navigation wordsgrowth, 
 system, as to the true construction of the words, growth, manufacture 
 produce and manufacture : the origin of these doubts was a of a country, 
 case before the commissioners of the customs, in which a 
 question was made, whether sugar of the French planta- 
 tions in America, being imported into France, and there 
 refined, the molasses of those sugars could be imported into 
 England as a manufacture of France ; and, as such, whe» 
 ther they ceased to be subject to the prohibition under 
 which they would lie, while merely a production of Ame- 
 rica. This question being submitted to Mr. North, (p) a very 
 eminent lawyer of that period, he replied to it by an opi- 
 nion, which it will be useful to state in a condensed form, 
 the principles of it being such as may be extended beyond 
 the case. His opinion states in substance, that the ques- 
 tion submitted to him, and all of a similar nature, turned 
 wholly upon the following considerations. First, goods of 
 the growth of the Indies, manufactured in France, might 
 be brought from thence ; as wrouglit silk, cabinets, and 
 other articles. Secondly, if in the working of such manu- 
 factures there were a refuse or waste, although the labour 
 of man went to the severing of it, and although it might 
 have also some peculiar uses, yet that refuse or waste was 
 not properly a manufacture, but retained the quality of the 
 original material, and could not be imported as the manu- 
 fiicture of the place where the separation was made. Of 
 this sort was the waste of silk, the chips or shavings of 
 wood, or the like. Thirdly, if a plain separation was 
 made, without any manufacture at all, the case was more 
 
 (o) i«e anie, page 71 and 79. (i») Reeres, 12i.
 
 128 Navigation Laws. [part i. 
 
 Of the mean- clear ; as the garble or siftinffs of spice ; thouoli it had a 
 ingof the , ,. , , f 
 wordstTowth, "ew name and peculiar uses, and was severed by men s la- 
 produce, and bour, yet it was still, in the sense of the act, the production 
 manuiacture . 
 of a country, of the spice country, and not the manufacture of the place 
 
 where it was sifted. In the present case the question was, 
 whether a mixture of other materials, together with a long 
 process of boiling, curing, and other labour and operations 
 necessary for effecting such a separation, should make the 
 refuse, waste, or dregs to be a inanufacture in the sense of 
 this law, and not the goods of the original "production ? 
 And he thought it did not. 
 
 This question, concerning the manufacturing in Europe 
 of articles the production of Asia, Africa, or America, was 
 brought to a conclusion by a determination of the Court 
 of Exchequer, in 18 Geo. III. Some ostrich feathers of 
 African produce were brought to France, and there dressed, 
 and from thence imported into this kingdom. This manu- 
 facturing in France appeared to the Court such as to justify 
 the importation under the act of navigation. But to pre- 
 vent the mischief that might ensue to that and various other 
 manufactures in this kingdom, if this practice should be 
 sanctioned by law, an act was passed, 19 Geo. III. c. 48., 
 which ordains that the provision in the fourth section of the 
 act of navigation should not be construed to permit any 
 goods or commodities whatsoever, of the growth or pro- 
 duction of Africa, Asia, or America, which shall be in any 
 degree manufactured in foreign parts, to be imported or 
 brought into the kingdom of Great Britain, Ireland, 
 Guernsey, Jersey, or the isle of Man, unless they shall be 
 manufactured in the country or place of which they were the 
 growth and production, or in the place where such goods 
 and commodities can be only, or are first shipped, and from 
 no other country or place whatsoever. But this prohibition 
 is not to prevent the importation of oil of cloves, oil of cinna- 
 mon, oil of mace, or oil of nutmegs, or any of the goods or 
 commodities which are permitted to be imported under parti- 
 cular circumstances and restrictions, by an act passed since
 
 CHAP. III.] Trade with Asia, Africa, ^c. 129 
 
 the act of navigation, and in force at the time of passing 
 tJiis act. 
 
 Again, another difficulty arose about the same period, 
 
 with respect to the exact compass of the words of the same 
 
 clause of the navigation act, '^^ shall not be shipped or brought 
 
 from any place or country^ but only those of their gromthj 
 
 This doubt likewise arose upon a case before the com- 
 missioners of customs. Some worm-seed, which is a drug 
 of Turkey, and the growth of Asia, was imported from 
 Leghorn in an English built sliip, and was alleged to have 
 been previously brought to Leghorn in another English- 
 built ship. This case being laid before the eminent coun- 
 sel of that time, it was agreed that a direct importation, 
 within the meaning, though not within the words of the 
 ia>w, was to be an importation from tlie place of their 
 grov, th, of the commodity so imported into England, by 
 British-built shipping all the zisay, and not partly by Eng- 
 lish-built shipping, and partly by foreign ships ; but whe- 
 ther by one or more ships was not material, for the law 
 intended to encourage and increase English-built shipping 
 in general, and to restrain foreign ships from such trade ; 
 and perhaps it might be difficult to get an English ship to 
 pass, jvith a small parcel of drugs, quite through to Eng- 
 land from the place of their growth, though easy enough 
 to get one English ship to Leghorn, and another for 
 England, (p) This question came again before the com- 
 missioners of the customs, and the law officers of the Crown, 
 at a later period, and in a case in which the circumstances 
 were more distinct. A parcel of hard soap, bought in 
 Turkey, the place of its production and manufacture, 
 (such as was Usually imported from Smyrna) was carried 
 in English shipping to Hamburgh, and continued there on 
 the account of the importer. It was held in this case, that 
 
 (p) Reeves 131.
 
 ] so J^^avigation Laws. [part i. 
 
 the importation of this soap into England in an English 
 ship would not be contrary either to the words or mean- 
 ing of the act of navigation ; for it was fetched all along 
 in English-built shipping duly qualified ; and though last 
 brought from Hamburgh, whicli was not the place of its 
 production or manufacture, nor the usual port where first 
 shipped for transportation, yet it was brought thither from 
 the proper place in English shipping duly navigated, by 
 the same person (or upon his account) who fetched it from 
 Hamburgh, and the property continued all along in him. 
 
 Where clauses of statutes mention direct importation, 
 the general construction of those words is to be taken as 
 intending a continued voyage. But where a deviation is 
 made by stress of weather, or other exigency, or >vhen by 
 necessity the goods were taken out upon the sea and put 
 into another ship ; these are held not to be deviations 
 from the continued voyage. (</) Thus, drugs of the growth 
 of Barbary were shipped there in an English-built ship, 
 bound for London, but which was in her voyage to touch 
 at Lisbon. On her arrival there she was found leaky, and 
 incapable of proceeding on her voyage ; the drugs were 
 therefore removed directly out of that ship, without land- 
 ing, on board another ship, English built , and tliis was 
 held to be a direct importation from Barbary, the changing 
 the ships being for necessity. 
 
 But, unless in a case of necessity, the direct importation 
 required by the navigation act is not judged to be fulfilled 
 by the whole of the voyage being performed in a British 
 ship, but it must be in the same ship ; for if trans-shipping 
 were allowed, it would be very difficult to prove whether 
 the former voyage was performed in a legal way ; and the 
 provision might thus be easily evaded. However, when a 
 ship has '-tiiTcred such damage as to be unladen at some 
 port, and the goods are put into another British vessel, 
 
 {q) See ante, page 77, 78.
 
 CHAP. III.] Trade with Asia, Africa, ^c. 131 
 
 the importation is always considered as a continuation of 
 the first voyage. But this is a case of necessity, and it must 
 be proved before the importation is allowed, (r) 
 
 Another question has occasionally arisen as to the com- Of the port 
 pass of the words, the ports xshere goods can only^ or are, or ^ ITobe" * 
 KsuallT/ have been^ Jirst shipped for transportation, but this shipped, &c, 
 doubt, whenever a case has occurred of late years, has 
 always been solved by considering it as a question of fact ; 
 namely, whether the place in question was in fact the usual 
 port of shipping- or not. But a practice now obtains which 
 makes it no longer necessary to enquire for the usual port 
 for shipping- in America, the whole continent and islands 
 being considered as one place. Accordingly, some pro- 
 duce of the United States having been sent into Canada 
 through the Lakes, and thence exported into this country, 
 and the opinion of the law officers being taken as to the le- 
 gality of such importation, they unanimously replied that 
 the importation of the produce of that part of America 
 which constitutes the territories of the present United 
 States, having been lawful before their separation from 
 Great Britain, must continue to be so unless specifically 
 prohibited by some law for the purpose. This opinion 
 was sanctioned by stat. 30 Geo. 111. c. 29., which allows 
 goods, the produce of countries bordering on Quebec, and 
 legally imported there, to be exported to Great Britain, (s) 
 
 The permission to import African goods direct from ofimporla- 
 Gibraltar is another deviation from the policy of our na- J^","*J^^J" 
 vigation laAvs. This rests upon the 27 Geo. III. c. 19., by 
 which it is permitted to British-built vessels, navigated and 
 registered according to law, to import any goods of the 
 growth or production of the dominions of the Emperor of 
 -Morocco, which shall have been imported into Gibraltar 
 directlj/ from any port of the said dominions not lying to 
 the southward of the port of Mogadore. The vessels im- 
 
 (r) Reeve"!, 138. (s) Reeves, 140, 141. 
 
 k2
 
 132 Navigation Laws. [part i. 
 
 porting such African goods into Gibraltar mtist either be 
 British built, or the property of the subjects of the Empe- 
 ror of Morocco; and such goods must be accompanied with 
 a certificate under the hand of the Governor of Gibral- 
 tar, setting forth that they were brought into Gibraltar in 
 the manner described. 
 
 The trade with the East Indies, and the exclusive charter 
 of the Company, have necessarily introduced some (Quali- 
 fied relaxations of the navigation laws, which we have for 
 Ihe most part pointed out in the commencement of this 
 chapter. With respect to the importing through Russia 
 the produce and manufactures of Persia and Armenia, by 
 the Russian Company, a question formerly arose, and was- 
 submitted to the law officers. They were of opinion that 
 the privileges granted to the Rusarian Company, of import- 
 ing through Russia the produce and maniifactayes of Ar- 
 menia, 3faJor or 3Tinor, Media, Kyrcania, Persia, or the 
 countries bordering on the Caspian Sea, ceased by the act 
 of navigation, by which all goods of foreign growth aUd 
 manufacture are prohibited under severe penalties or for- 
 feitui'es from being brought into England, Ireland, c^c. 
 from any place or places, country or countries, but only 
 from those of their growth and manufacture, &c. They 
 were likewise of opinion that, if there could be a doiibt 
 upon this point, the exclusive cliarter of the East India 
 Company entirely took away this trade, (/) 
 
 Relaxation By 42 Geo. III. c. 20., the Eant India Company are al- 
 
 of the iiayiga- j^vved to import and- export goods from and to India and 
 
 tion laws 111 , , ', ... 
 
 Ihe East In- China, in ships not British buili, during the contiriuance 
 
 of their charter ; and by 5^ Geo. III. c. 155, by which act 
 the trade of the East India Company is opened to the Bri- 
 tish merchant, it is made lawful for 1 !isIMajesty's subjects, 
 in ships navigated according to law, to import into the 
 United Kingdoms, from all places Avithin the limits of the 
 
 (/) Ciialmor's ColU'dion of OpiiiionK., Vol. II. p. 293. 
 
 (]ia trade.
 
 CHAP. HI.] Trade with Asia, Africa, b£c. 133 
 
 Company's charter, (except the dominions of the Emperor 
 of China) any goods, the product or njanufacturc of any 
 country uithin tlie limits of the said Company's charter, 
 except tea, a!thong]i such goods mai/ not he of the growth, 
 &c. of tlie place where they are shipped, &:c. {ii) And by 
 the 57 Geo. III. c. 95. we have already shewn, that the 
 navigation acts do not extend to, or in any way affect the 
 importation or exportation by the East India Company, or 
 by any other of His Majesty's subjects, (in British registered 
 vessels, &c. or trading under the provisions of 55 Geo. III. 
 c. IIG.) of ajiy goods, at, into, or from any place within the 
 limits of tiie charter of the said Company ; nor do they 
 affect the importation or exportation at, into, or from any 
 place whatsoever, in such vessels as aforesaid, of any goods, 
 of the growth, &c. of any place within the limits aforesaid, 
 or require that a!\j bond for the exportation or importa- 
 tion of goods in any particular manner shall be given in 
 respect of any such vessels, bound to or from any place 
 w ithin the limits aforesaid, {x) 
 
 During the continuance of the exclusive trade of the 
 East India Company, and during the term for which the 
 possession of the British territories in India is secured to 
 the Company, it is made lawful for the vessels of countries 
 and states in amity with His Majesty to import into and 
 export from tlie British possessions in India such goods 
 as they shall be permitted to import into, and export from, 
 the said possessions, by the Directors of the Company ; who 
 are required to frame such regulations for carrying on this 
 trade as may be most conducive to the interest and prospe- 
 rity of the British possessions in India, and of the British 
 Empire. It is not, however, lawful for the Directors to 
 frame any regulations for the conduct of this trade, be- 
 tween India and the States in amity with the Crown of 
 Great Britain, wliich shall be inconsistent with any treaty 
 
 (tt) See an/e, page 93, 94, 95, where (x) See rtntc, page 96. 
 
 this statute is more fully set out.
 
 134 Navigation Laws. [[part i. 
 
 made or entered into by His Majesty, or which may be in- 
 consistent with any act of Pai'lianient passed for the regu- 
 lation of the trade and commerce of the British territories 
 in India, (j/) 37 Geo. 111. c. 117. 
 
 The 26 Geo. III. c. 60, considerably affected the ship- 
 ping' employed in the foreign trade with Asia, Africa, and 
 America. This act puts an end to foreign ships, British 
 owned, by taking from them the privileges of a British 
 ship ; so that the trade of Asia, Africa and America, after 
 that act, was to be carried on in British built ships, equally 
 with the plantation trade. It was further affected by 34 
 Geo. III. c. 68. Hitherto the navigation system had con- 
 fined all its restrictions upon shipping, whether British or 
 foreign, to the importing of goods only, except, indeed, the 
 exporting of goods from the British plantations; but this 
 act goes further, and enacts, that no ship, registered or re- 
 quired to be registered as a British ship, shall be permitted 
 to export any articles whatsoever, unless manned with, 
 and navigated by a master, with three-fourths at least of 
 the mariners British subjects. So that now the exporta- 
 tion to foreign places in Asia, Africa and America must be 
 made by the same sort of shipping and navigation as the 
 importation hitherto had been, (z) 
 
 War acts. During tlie late war, it became necessary on some occa- 
 
 sions to relax the navigation acts, as respected this trade. 
 Such relaxations, inasmuch as they superseded the esta- 
 blished laws, were necessarily made by the authority of 
 the legislature ; and His Majesty was empowered to grant 
 licences, by and with the advice of his privy council, for 
 the legalizing of such trade. («) But as this system grew 
 
 {]/) See «H/f, of the trade be- 45, 46. ; and as to the relaxation 
 
 twccii America and India, p. 46. of the na\ij;ation act in favour of 
 
 (z) Reeves, .TiO. As to the trade the Portuguese dominions in South 
 
 between Great Britain and Ameri- America, see page 102. 
 
 ca, in British, or in American huilt (a) 39 and 40 Geo. III. c. 34. 
 
 ships, respecUve/j/, sec ante, page 43 Geo. III. c. 153. 45 Geo. III. c.
 
 CHAP, III.] Trade with Asia, jifrica, ^c. 135 
 
 out of the state hostilities, so it terminated with them ; and 
 it thus becomes unnecessary to examine it under the pre- 
 sent head. 
 
 With respect to the trade which we have been occupied Law cases and 
 J- • c ^ ^ ... , decisions, 
 
 in discussing, tew casfes have arisen in our common law 
 
 courts. Before the 37 Geo. 111. c. 117, which alloAved 
 ships in amity with this country to bring- goods from India, 
 a question arose in the Court of Common Pleas on the 
 validity of an insurance upon goods on board a Danisli 
 ship under the following circumstances : The plaintills 
 were subjects of Denmark, and resident in Copenhagen, 
 and the ship was a Danish vessel. The cargo was taken 
 on board at Calcutta; and on the vovage from Calcutta to 
 Copenhagen, she was captured by the French. An action 
 being brought against some British underwriters who had 
 insured her, an objection was taken to the plaintiff's right 
 of recovery on the ground of its being illegal, by the 12 
 Car. II. c. 18., to export goods from Calcutta in any ship 
 not belonging to a British subject ; and this objection be- 
 ing admitted by Lord Alvanley, the plaintiffs then insisted 
 that if the exportation from Calcutta were illegal, the risk 
 never commenced, and that the plaintiffs therefore were 
 entitled to a return of premium. The Court, upon argu- 
 ment, held, that the ship having loaded at Calcutta, con- 
 trary to 12 Car. II. c. 18., the assured was not entitled to 
 recover back the premium, even though it appeared that 
 the practice of loading foreign ships at Calcutta had pre- 
 vailed for a length of time, and had been authorized by 
 act of parliament soon after the shipment in question, (b) 
 
 A similar point was again raised in the case of Chalmers 
 V. Bell, (c) A Swedish ship was insured at and from her 
 loading port in the East Indies to Gottenburgh, and part 
 
 34. There were several other acts 3 Bos. & Pull.. 35. 
 passed for this purpose. (c) 3 Bos. 8i Pull. 604. 
 
 (b) Morck and Another v. Abel,
 
 136 Navigation Laics, [part i. 
 
 of the cargo was laden in a British port in the East Indies. 
 Upon the ship being captured by a French privateer, the 
 court determined that the assured could not recover, upon 
 the ground of the contract being in contravention of the 
 navigation laws. The argument for the plaintiff in this 
 case was, that the prohibition of foreigners to trade to 
 India vi^as repealed by the S3 Geo. III. c. 52., and that the 
 restrictions of the navigation laws, as respected foreigners, 
 were done away with previous to the 37 Geo. III. But 
 the court was of opinion that the navigation laws were 
 not repealed with respect to the East Indies by the clauses 
 in the 33 Geo. III. 
 
 In the case of Camden v. Anderson, in K, B.. a question 
 arose as to the exclusive right of trading to the East In- 
 dies claimed by the East India Company ; and the court 
 was of opinion, that such exclusive right as had been granted 
 by 9 and 10 Will. III. c. 44., had never been put an end 
 to ; and any infringement of it was a public w rong ; and 
 though such parts of that act as inflicted penalties, &c. 
 were repealed by 33 Geo. III. c. 52,, (which secures the 
 exclusive trade to the Company,) it was competent to un- 
 derwriters >vho had subscribed policies on ships trading 
 to the East Indf&s, in contravention of the statute of Will. 
 III., to avail themselves of the illegality of such trading 
 in an action brought on the policies, (t/) This judgment 
 was afterwards affirmed by a court of error, (c) 
 
 In Wilson v. Marryat (/) it was determined by K. B 
 that (under the treaty of peace between this country and 
 America, in 1795,) it was not necessary that the trade from 
 the United States to our settlements in the East Indies 
 should be direct ; but that it might be carried on circuit- 
 ously by the way of Europe, {g) 
 
 (d) f) T. 11. 723. tends to a similar clause in the treaty 
 (c) 1 H. and P. 272. of commerce with America, July, 
 (/) 8 T. R. ni. lS15,nowcxtende(Uotlicycari828 
 
 (e) The analogy of the case ex- by the convention of October, 1818.
 
 CHAP. III.] Trade with Asia, Africa, ^c. 137 
 
 In the earlier period of the navigation acts, a question 
 once aroTC as to the legality of retiu'ned goods ; for ex- 
 ample, tvhere tlie goods had been originally imported from 
 the place of their growth into the British dominions, and 
 thence exported to some foreign port, where not finding a 
 market, they returned to a British port. The question 
 here was, whether such returned goods should be regarded 
 as returned, or should pay the same duties as upon their 
 first importation. It was determined upon this point, as 
 weU by an opinion of the law olBcers, as upon a judgment 
 of Chief Justice Eyre, that such returned goods, their iden- 
 tity being ascertained, Mere not to be regarded as a new 
 importation. (A) 
 
 But this privilege having been abused into a means of 
 evading the law as respected tea, the stat. 11 Geo. I. c. 30., 
 which complains that tea imported into Flanders and Hol- 
 land from the East Indies, used to be imported into this 
 kingdom, on pretence that it had been formerly exported 
 from thence ; to prevent such abuses in future, enacts, 
 that no tea shall be imported but from the place of its 
 growth, although it may have been formerly exported 
 from hence. In other respects the practice seems to have 
 been fully established, the only question beiftg w hether the 
 allegation be the fact, or pretext. 
 
 In this view of our trade with Asia, Africa, and America, 
 it will be seen, that within the last thirty years it has un- 
 dergone nearly as much alteration as our colonial trade 
 itself. The principal feature of the new system lias been 
 1st, the permission to import goods of the growth or pro- 
 duction of the United States, in ships belonging to the 
 United States. 2d, A like permission to import goods of 
 the growth and production of any of the Portuguese domi- 
 nions and territories in Portuguese ships. 3d, A permission 
 to import and export goods from and to India and China, 
 
 (ft) 1 Reeves 148.
 
 138 Navigation Laws. fpART i. 
 
 in ships not British built, with other relaxations of the 
 navigation laws as respects the East India trade, both with 
 Great Britain and states in amity with her : 4th, the re- 
 pealing of the act of Anne, (by which an exclusive trade 
 was granted to the South Sea Company,) by 47 Geo. III. 
 c. 28., and 55 Geo. III. c. 57. ; 5th, the abolition of the 
 African slave trade ; 6th, the opening of a great portion of 
 the trade of the East India Company, and, therein, the 
 relaxation of a monopoly founded on the same principle 
 with our colonial restrictions : 7th, by the new system in- 
 troduced under the registry acts. 
 
 It is now very generally understood that trading monopo- 
 lies do not tend to the public benefit ; and that the kingdom 
 loses more by their effect upon general trade, than the reve- 
 nue gains by any remuneration which such companies can 
 pay to the public stock. Hence, as far as may be consistent 
 with public faith, it is not, perhaps, unreasonable to expect, 
 that the whole system of these monopolies will gradually dis- 
 appear ; and, as the capital and ships of this kingdom cer- 
 tainly exceed those of any company or joint stock corpora- 
 tion,, so the general merchant will no longer be excluded 
 from any portion of British trade by the absurd pretext 
 that his credit and capital would be insufficient. In these 
 observations, however, it is not intended to direct any re- 
 flections against the East India company ; a corporation 
 which has always regulated their trade upon the liberal 
 and enlarged principles of British merchants; and, if they 
 have long possessed a lucrative monopoly, have not em- 
 ployed it as a means of extortion against the public. But 
 in an examination of our navigation laws, and of our gene- 
 ral commercial systcMu, we should deem ourselves to be 
 wanting in just and national feelings, if we did not occa- 
 sionally remark upon the character of the system, and con- 
 gratulate ourselves and country upon the gradual efforts 
 of the legislature to amend and enlarge it. So far as any 
 restrictions are necessary to uphold and augment our naval 
 power, and so far as what is gained by our navy exceeds
 
 CHAP. III.] Trade iclth Asia, Africa, S^c. - 130 
 
 in public interest ivhat is lost by our commerce, so far, and 
 so far only, ought tlie less interest to be sacrificed to the 
 greater, and our commerce made to pay its tribute to our 
 great engine of national defence. But when our naval in- 
 terest is in no degree concerned, and the question rests 
 solely upon commercial principles, it will certainly not ad- 
 mit a doubt, that the utmost possible liberty should be given 
 to commerce ; and that, in the advanced state of its ele- 
 ments in the British dominions, all reasons for such mono- 
 poly, such, for example, as the collection of a sufficient 
 capital by inviting merchants to make a joint fund, must 
 have altogether ceased. Exclusive companies, therefore, 
 however necessary in the early periods of our trade, have 
 long ceased to bear any other character than that of impe- 
 diments to our general commerce. 
 
 Before we conclude this chapter, it will be necessary, Summarv 
 though at the expence of some repetition, to state, by way 
 of summary, the rules and exceptions which apply to the 
 trade of which we have been treating ; viz. of the trade 
 between Great Britain, Asia, Africa, and America. 
 
 RULE I. 
 
 No goods or commodities of the growth, production, or 
 manufacture, of Asia, Africa, or America, may be imported 
 into Great Britain, in any other than in British built ships, 
 owned by his Majesty's subjects, and navigated by a master, 
 and three-fourths of the mariners, at least, British subjects. 
 This prohibition is grounded on 12 Car. II. c. 18. s. 3., 
 and 26 Geo. III. c. 60. s. 1. This latter act has put an 
 end to foreign ships, British owned, being employed in 
 this trade, by taking from them the privileges of a British 
 ship. 
 
 Exception I. — Goods of the growth, produce, and manufacture, 
 of the United States, which are not prohibited by law to be im- 
 2
 
 140 Navigation Laws. [part i. 
 
 Summary. ported from foreign countrieSj in vessels built in the countries be- 
 longing to the United States of America, or any of them, or in 
 ■vessels taken by any of the vessels of war belonging to the govern- 
 ment, or any of the inhabitants of the said United States, havin? 
 commissions, or letters of marque and reprisal from the govern- 
 ment of the said United States, and condemned as lawful prize in 
 any court of Admiralty of the United Stales, (of which condemn- 
 ation proof shall be given to the commissioners of customs, in 
 England or Scotland respectively,) and owned by the subjects of 
 the United States, &c. and whereof the master, and three-fourths 
 of the mariners, at least, are subjects of the United States, 
 49 Geo. III. c. 59,, and £6 Geo. III. c. 15.(0 
 
 Exception 2. — Goods of the growth, produce, and manufacture, 
 of any of the territories and dominions of the crown of Portugal, 
 may be lawfully imported into the United Kingdom, in ships or 
 vessels built in the said territories or dominions; or in ships or ves- 
 sels taken by the ships or vessels of war belonging to the Portuguese 
 government, or belonging to any subjects of the said government, 
 having commissions, or letters of marque, or reprisals, from the 
 Portuguese government, and condemned as lawful prize, in any 
 court of admiralty in the Portuguese government, and owned by 
 subjects of the Portuguese government, and whereof the master, 
 and three-fourths of the mariners, at least, are subjects of the Por- 
 tuguese government, 51 Geo. III. c. 47. (/c) 
 
 Exce])lwn 3. — By the statutes regulating the trade of the East 
 India Copipany, it is provided, 1st, that all vessels belonging to 
 them, whether built or purchased by the said company, shall be 
 deemed to be British ships, within the meaning of the 12 Car. II. 
 c. 18., and that the said company shall be entitled, in respect there- 
 of, to all the privileges and advantages by the said act given to the 
 owners of ships wholly belonging to British subjects, the same 
 being navigated in the manner prescribed by the laws now in being 
 
 (0 See ante, page 43, 46. removed to the Brazils, and thus 
 
 {k) The 48 Geo. 111. c. 11., of rendered Ihcm a principal kingdom 
 
 which wc have before spoken, (ff«/f, and scat of empire, instead of, a8 
 
 page 10.1,) i» repralexl by this latter heretofore, a colony. 
 act, the court of Tortugal having
 
 CHAP. III.] Trade with Asia, Africa, ^c. 141 
 
 respecting British built ships, {k) 21 Geo. III. c. 65. s. 33. ; Summary, 
 and by 42 Goo. III. c. 20., the East IiidiA Company are allowed 
 to import and export in ships not British built. 2:jd, During 
 the continuance of the exclusive trade of the East India Com- 
 pany, and during the term for which the possession of the Bri- 
 tish territories in India is secured to the said Company, it is 
 made lawful for the vessels of countries and states in amity with 
 his Majesty, to import into, and export from, the British posses- 
 sions in India, such goods as they shall be permitted to import into, 
 and export from the said possessions, by the directors of the said 
 Company, who are directed to framfl 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 British possessions 
 in India, &c. 37 Geo. III. c. 117. — 3d, All vessels built in the 
 countries of the United States of America, and owned by Ameri- 
 can subjects, and whereof the master, and three-fourths, at least, 
 of the mariners, are also subjects of the said States, are allowed 
 to clear out from any port of the United Kingdom, for the follow- 
 ing principal Settlements in the East Indies; viz. Calcutta, Ma- 
 dras, Bombay, and Prince of Wales' island, with any goods which 
 may be legally exported from the United Kingdom to the said set- 
 tlements, in British built vessels, subject to the like regulations, 
 penalties, and forfeitures, as are now by law imposed upon the 
 exportation of such goods to the said settlements in British built 
 ships, .56 Geo. III. c. 51. (0 
 
 RULE II. 
 
 No goods or commodities of the growth, production, or 
 manufacture of Asia, Africa, or America, may be shipped 
 or brought from any other place or country, but only from 
 
 (A) As to the registering of ships late convention of commerce be- 
 in India, see page 95, and 35 Geo. tween Great Britain and the United 
 III. c. 1 16.~As to the employment States, (Oct. 1S18,) extends this pri- 
 of Asiatic sailors, and Lascars, see vilege to the year 1828; viz. ten 
 page 95 and 96, ante. years from the date of the above 
 
 (0 See anle. page 45, 46. — The treaty.
 
 142 Navigation Laws. [part r. 
 
 Summary. those of their growth, production, or manufacture, or from 
 those ports where they can only, or are, or usually have 
 been, first shipped for transportation. This restriction 
 applies as well to our colonial trade, as to the general 
 trade with Asia, Africa, and America, 12 Car. II. c. 
 18. s. 4. 
 
 Except. 1. — Goods and commodities of the Streiglits, or Levant 
 seas, from the usual ports or places of lading them, within the said 
 Streights, or Levant seas, 12 Car. II. c. 18. s. 12. — East India com- 
 modities, from the usual ports of lading them to the southward and 
 eastward of the Cape of Good Hope, and from Ireland, idem, s. 13. 
 (m) Goods imported from Spain, Portugal, the Azores, Madeira, or 
 Canary islands, ?V/ew?, s. 14.: bullion and prize goods from fiDy 
 port, in any sort of ships, idem, s. 15. 
 
 Excqjtion 2. — Jesuit's bark, sarsaparilla, balsam of Peru, and 
 Tolu, and all drugs of the produce of America, from the British 
 plantations, 7 Ann. c. 8. : raw silks, or other goods of Persia, from 
 any place belonging to the emperor of Russia, in British built 
 ships, 14 Geo. II. c. 36. Cochineal and indigo, from any port, in 
 British ships, or ships of a state in amity with Great Britain, 57 
 Geo. III. c. 23. (n) Gum senega, 25 Geo. II. c. 32: coarse 
 printed calicoes, cowries, arangoes, and other East India goods, 
 prohibited to be worn here, from uny port in Europe, in British 
 ships, 5 Geo. III. c. 30. Cotton wool, and goat skins, raw or 
 undressed, from any place in British built ships, 6 Geo. Ill, 
 c. ;52., and 15 Geo. III. c. 35. Goods, the merchandise of the 
 dominions of the emperor of Morocco, from Gibraltar, in British 
 built ships, 27 Geo. III. c. 19. ; and by 51 Geo. III. c. 47. s. 4. 
 Elephants' teeth and ivory are allowed to be imported from any 
 of the dominions of the crown of Portugal, in British or Portuguese 
 ships, respectively, though such commodities may not be of the 
 growth, produce, &c. of any of the dominions of Portugal. 
 
 (m) See ante, of the East India (n) As to the exceptions stated 
 
 trade in this chapter, and 33 Geo. above, sec page 86, and following 
 III. c. 63. for Ireland. pages in this chapter.
 
 l4o' 
 
 CHAPTER IV. 
 
 THE EUROPEAN TRADE. 
 
 EIGHTH SECTION OF THE NAVIGATION ACT — EASTLAND 
 COMPANY — THE RUSSIA COMPANY — THE TURKEY COM- 
 PANY — OF THE SHIPPING WHICH MAY BE EMPLOYE!! 
 
 IN THE EUROPEAN TRADE OF THE COUNTRY OF THE 
 
 MASTER AND MARINERS ACT OF NAVIGATION DIS- 
 PENSED WITH DURING WAR THE DUTCH PROPERTY 
 
 ACT THE NEUTRAL SHIP ACT OF THE LICENSING 
 
 SYSTEM LATE TREATIES AVITH EUROPEAN STATES — 
 
 RULES AND REGULATIONS OF THE EUROPEAN TRADE. 
 
 X HE next division of our subject is the European trade. 
 What the act of navigation of Charles II. requires with 
 respect to this branch of our general shipping, and what 
 alterations have been introduced from the 12th of Charles 
 II. to the present time, will be the subject of this chapter. 
 
 As far as respects the navigation act of Charles II. the 
 European trade of England is regulated by the eighth sec- 
 tion of that statute, in which it is enacted, that no goods 
 or commodities of the growth, production, or manufacture 
 of Muscovy, or of any of the countries, dominious, or ter- 
 ritories, to the Great Duke or Emperor of Muscovy or Rus- 
 sia belonging; as alsothatno sort of masts, timber, or boards, 
 no foreign salt, pitch, tar, rosin, hemp, or flax, raisins, figs, 
 prunes, olive oils, no sorts of corn, or grain, sugar, pot 
 ashes, wines, vinegar, or spirits called aqua vitce, or brandy 
 wine, shall, from and after the first day of April, which 
 shall be in the year of our Lord 1661, be imported into
 
 J 44 Navigation Laws. [part i. 
 
 12 Car. 11. England, Ireland, Wales, or tov/n of Berwick-upon Tweed, 
 c. 18. s. 8. • . . 
 
 in any ship or ships, vessel or vessels whatsoever, but in 
 
 such as do truly and without fraud belong to the people 
 thereof, or some of them, as the true owners and proprie- 
 tors thereof, and whereof the master and three-fourths of 
 the mariners, at least, are English. And that no currants 
 nor commodities of the growth, production, or manufac- 
 ture, of any of the countries, islands, dominions, or territo- 
 ries, to the Othoman or Turkish em.pire belonging, shall, 
 from and after the first day of September, whicli shall be, in 
 the year of our Lord 1661, be imported into any of the 
 aforementioned places in any ship or vessel, but which is 
 of English built, and navigated as aforesaid, and in no 
 other, except only such foreign ships and vessels as are of 
 the built of that country or place of which the said goods 
 are the growth, production, or manufacture, respectively, 
 or of such port w here the said goods can only be, or most 
 usually are, first shipped for trangportation, and whereof 
 the master, and three-fourths of the mariners, at least, are 
 of the said country or place ; under the penalty and for- 
 feiture of ship and goods. 
 
 Sect. 9. It is further enacted in the same act, that for the preven- 
 
 tion of the great frauds used in colouring and concealing 
 of alien goods, all wines of the growth of France, or Ger- 
 many, which shall be imported into Great Britain, in any 
 other ship or vessel than which doth truly and without 
 fraud belong to England, Ireland, Wales, or town of Ber- 
 wick-upon-Tweed, and navigated with the mariners there- 
 of, as aforesaid, shall be deemed alien goods, and pay all 
 stranger's customs and duties, as also to the town or port 
 into which they shall be imported ; and that all sorts of 
 masts, timber, or boards, as also all foreign salt, pitch, tar, 
 rosin, hemp, flax, raisins, ligs, prunes, olive oils, all sorts 
 of corn or grain, sugar, pot ashes, spirits commonly called 
 brandy wine, or aqua vitte, wines of the growth of Spain, 
 'the islands of the Canaries, or Portugal, Madeira, or 
 Ave^tern islands, and all the goods of the growth, produc-
 
 CHAP. IV.] Trade with Europe. ' 145 
 
 tion, or manufacture, of Muscovy, or Russia, ■wliich shall 
 be imported into any of the aforesaid places in any other 
 than such shipping, and so navigated ; and all currants and 
 Turkey commodities which, from and after the first day 
 of September 16G1, shall be imported into any of the places 
 aforesaid, in any other than English built shipping, and 
 navigated as aforesaid, shall be deemed alien's goods, and 
 pay accordingly, s. 9. {a) 
 
 It was provided, however, that this clause should not 
 extend to impose alien duties upon corn the growth of 
 Scotland, salt made in Scotland, fish caught and cured 
 by the people of Scotland, nor to seal oil of Russia, im- 
 ported in Scotch or Russian ships, but whereof the mas- 
 ter, and three-fourths of the mariners, were at least Eng- 
 lish, s. 16. 
 
 Though the necessary effects of this act upon European Act of frauds. 
 
 trade excited a very general discontent upon the part of I3:indi4 
 
 , r ■ r " Car. II. c. 11. 
 
 the merchants, and several efforts were made to procure 
 
 its repeal, the legislature^ becoming only more confirmed 
 
 in their purpose of encouraging the navy and sailors of 
 
 England, not only withstood all solicitations, but even 
 
 increased these restrictions, by passing the Act of Frauds. 
 
 This is the stat. 13 and 14 Car. II. c. 11. the object of 
 
 which was to meet and prevent seme practices by which 
 
 • the navigation law was- eluded, and particularly that of 
 
 fetching plantation goods from Holland, and the Netlier- 
 
 lands, under the pretext of their having undergone some 
 
 process by which they were rendered Dutch manufactures. 
 
 To prevent this practice the 13 and 11 Car. II. c. 11. 
 
 enacts, that no sort of wines, (other than Rhenish) no sort 
 
 of spicery, grocery, tobacco, potash, pitch, tar, salt, rosin, 
 
 deal boards, fir timber, or olive oil, shall be imported into 
 
 England, Wales, or Eerv.ick, from the Netherlands or 
 
 Germany, upon any pretence whatsoever, in any sort of 
 
 (a) Slat. 24 Geo. III. c. If. abolished all alien duties. 
 L
 
 146 Navigation Laxsss. [part I. 
 
 ships or vessels whatsoever ; an act which, beyond any 
 former act or ordinance, aimed fully and directly against 
 the great object of the Dutch to become the emporium of 
 Europe. 
 
 Relaxation of Some inconveniences of this act, however, became gra- 
 frauds. dually manifest even in this period of our navigation laws, 
 
 and were accordingly corrected by partial relaxations, 
 though the legislature had the firmness, perhaps it may be 
 added the wisdom, to persevere in their original policy. 
 The first of. these relaxing statutes is the 1 Ann. c. 12., by 
 which Hungary wines are permitted to be imported from 
 Hamburgh. The second, and indeed the only remaining 
 act of this period, is stat. 6 Geo. I. c. 15., by v,hich it is 
 permitted to the king's subjects to import fir timber, fir 
 planks, masts, and deal boards, of the growth of Germany, 
 into this kingdom, in British built ships only, owned by his 
 Majesty's subjects, and whereof the master, and three- 
 fourths of the mariners, at least, are British subjects, on 
 paying the same duty as the same articles pay when im- 
 ported from Norway. 
 
 TradingCom- During this period, a considerable portion of the Euro- 
 panics, pean trade was confined to certain exclusive companies. 
 The principal of these corporate bodies were the Eastland 
 Company, the Russia Company, and the Turkey Com- 
 pany. The first of these companies was created by a char- 
 ter of Queen Elizabeth, in 1579, by Avliich this company 
 ivas to enjoy the sole trade through the Sound into Nor- 
 way, Sweden, Poland, Ijithuania, (excepting Narva) Prus- 
 sia, Pomerania, Dantzic, Elbing, Ivoningsberg, Copen- 
 hagen, Elsinore, Finland, Gothland, Bornholm, and 
 Oeland. The Russia Company had been created by a 
 charter of Philip and Mary, and was confirmed by cl statute 
 passed in the eighth year of Elizabeth. Under their char- 
 ter the company possessed the sole privilege of trading to 
 and from the (U)minions of the emperor of Russia, as also 
 " to the countries of Armenia, Major or Minor, Hyrcania,
 
 CHAP. IV.] Trade with Europe. 147 
 
 Persia, and the Caspian sea. The Turkey Company, or, 
 as it is termed in the charter, the Coinpany of Merchants 
 trading to the Levant, was formed by a charter in the third 
 year of James I. and confirmed by letters patent in the 
 thirteentli year of Charles II. The two conditions of ad- 
 mission into this Company were, that the candidate should 
 be a merchant and free of the city of London, and should 
 pay to the Company a fee of admission of twenty-five 
 pounds if under twenty-six years of age, and fifty pounds 
 if exceeding it. 
 
 The legislature, indeed, in order to compensate the Eastland 
 general merchants for the restrictions of the navigation P^"!* 
 laws, had the wisdom to pass several acts for opening 
 these private monopolies. The first of these useful acts 
 is the stat. 25 Car. IL c. 7., by which every one of His 
 Majesty's subjects was permitted to trade to and from 
 Greenland, and there take whales and all other fish, and 
 to import into this kingdom all sorts of oils, blubber, and 
 fins. The same statute proceeds, in its ensuing clauses, 
 to open the whole trade to Sweden, Denmark, and Nor- 
 way, to every British subject or foreigner ; and further 
 enacts, that every subject of this realm might be admitted 
 into the Eastland Company upon paying forty shillings. 
 
 The second of these statutes, thus relaxing the mono- Russia Cora- 
 poly of exclusive companies, was fjtat, 10 and 11 Will. III. P^"y- 
 c. 6., by which the Russian trade was laid open in a similar 
 manner, the statute enacting, that every subject of the 
 realm of England should be admitted into the Company 
 upon payment of five pounds only. ' 
 
 A third statute, 26 Geo. II.c.18, removed the restraints Turkey Corn- 
 imposed upon general trade by the exclusive privileges of P*"^' 
 the Levant, or Turkey Company. It is enacted in this 
 act, that every subject of Great Britain may be admitted 
 into this Company upon paying the sum of twenty pounds, 
 and that all persons free of that Company may, separately 
 
 l2
 
 14S Navigation Laics. [part i. 
 
 or jointly, export from Great Britain to any part or place 
 ivithin the limits of the letters patent, in any British ship 
 owned and navigated according to law, to any person being 
 a freeman of the Company, and a Christian subject ; and 
 may import, in the same manner, all goods not prohibited 
 by law. 
 
 It has been seen that this branch of our general trade- 
 which we term the European trade, and of which this chap- 
 ter is treating, stands chiefly upon the eighth section of the 
 act of navigation, and the act of frauds relating to the Ne- 
 therlands. As this section of the navigation act, and in- 
 deed some part of the act of frauds, is very loosely worded, 
 several important doubts have arisen with respect to their 
 comprehension and construction. Some of the decisions in 
 these questions are so solid and sagacious as to be useful 
 in illustrating the law even of the present period. We 
 shall, therefore, here cursorily annex such as have this cha- 
 racter. 
 
 Cases and opl- The act prohibits the importation, from Germany and tlie 
 uions. Netherlands, of all wines except Rhenish. A question 
 
 arose, whether this term, Rhenish, was to be taken lite- 
 rally and strictly, or whether the exception extended to all 
 wines of the growth of Germany or the Emperor's domi- 
 nions. The crown lawyers adopted the latter and more 
 extended interpretation. But all doubts were removed by 
 the stat. 22 Geo. III. c. 78., by which wines, being th« 
 growth, production, or manufacture of Hungary, the Aus- 
 trian dominions, or any part of Germany, may come from 
 the Austrian Netherlands, or any places subject to the 
 Kmperor of Austria, on the same duty as Rhenish wine, 
 as also thrown silk, upon the same duty as if exported from 
 Italy. (Z*) 
 
 Queen Anne having bought some French wines in Hol- 
 (//) Reeves, 16.^, 166, 167.
 
 CHAP, IV.] Ti-ade idlh Europe. i 10 
 
 land for hor own use, a question arose, wlietlier they could 
 be lawfully imported from thence. Sir James Monta<>ue 
 was of opinion, that such an importation would be contrary 
 to Stat. V3 and 14 Car. IT., which act, as a statute of ge- 
 neral good, included the Queen ; but that the Queen might 
 buy the goods out of a neutral ship, and then order them 
 on board some of Her Majesty's ships, and therein bring 
 them to her own cellar or warehouse, the act not prohibit- 
 ing the Queen from importing French Avines. (c) 
 
 The port of Dunkirk having come into the possession of 
 the crown of England, it became a question what was its 
 character under the navigation laws. Sir Edward Northey 
 was of opinion, that as Her Majesty's possession was pro- 
 visional only, and not absolute, Dunkirk still remained a 
 part of the Netherlands only. 
 
 The above questions arose under the act of frauds, but 
 difficulties of more importance originated in the loose 
 wording of the eighth section of the navigation act. 
 
 The first question was, whether a Dutch-built ship. Cases on the 
 
 owned and navigated by En"lishmen, could import wines *"#'! ^^^^' 
 
 , "^ ^ ^ ' "I the naviga- 
 
 from France, or timber from Norway. The stat. 12 Car. tioa act. 
 
 n. permitted such importation by such ships, manned with 
 a master and three-fourths of the mariners English, upon 
 payment only of such duties as the importer of them in 
 English ships would pay. The 13 and 14 Car. H. c. 11. 
 s. G. (in order to diminish this practice of buying foreign 
 ships) directed an account to be transmitted to the custom- 
 house of all foreign-built ships made free in any of the 
 ports of England ; and enacted, that only such as should 
 be in the list sent to the custom-house, and by them to the 
 Court of Exchequer, before Dex^ember, 1662, should enjoy 
 the privilege of a ship belonging to England. The difii- 
 culty, therefor Cj was in the extension to be givcjQ to this last 
 
 (r) Reeves, 171.
 
 150 Navigation Laws. [part i. 
 
 act; whether it entirely repealed the 12 of Car. II., or 
 merely took away the equality of such foreign-built ships 
 with those of English-built. The opinion of Sir Edward 
 Northey, and other eminent council of that day, was, that 
 the act was to be construed in the latter sense only, and 
 therefore that such foreign-built, but Britisli-owned and 
 navigated ships, were not subject to forfeiture, but to all 
 the duties of alien vessels, (d) 
 
 Upon the occasion of a war between the Danes and 
 Swedes, the more important question arose, how the prize 
 ships taken by one or the other of these powers should be 
 regarded. Sir Edward Northey was of opinion, that a 
 Danish ship being taken prize by the Swedes, and con- 
 demned in the Court of Admiralty in Sweden, the property 
 was altered, and any British subject might lawfully pur- 
 chase such ship ; and such ship being owned by British 
 subjects might import timber from Sweden ; but Swedes 
 being the owners of such a ship could not import timber 
 from thence, such ship not being of the built of Sweden. 
 
 In the case of Scott v. D'Achez, (c) an English ship 
 having become French property, had imported wines and 
 ■vinegar from France, the master and three-fourths of the 
 mariners being Frenchmen ; she was, notwithstanding, held 
 to be forfeited, though she had become French property 
 before the importation. The judgment pronounced by 
 Chief Baron Parker in this case is so valuable an exposi- 
 tion of the navigation law, (12 Car. II. c. 18.) and tends 
 so mucli to explain the system, and the reason upon which 
 it is founded, that we deem it to belong to the nature of 
 our subject to give it nearly with the fulness of the origi- 
 nal report by himself. " Before the making of this law, 
 (he says) the Dutch, though they had little merchandize of 
 the growth of their own country, had used to bring in their 
 5hips the growth and manufactures of all other kingdoms 
 
 (d) Reeves, 172. (e) Parker's Rep. 27, 29.
 
 CHAP. IV.] Trade ivlth Europe. 151 
 
 in the world, — wine from France and Spain, spices from Exposition of 
 the Indies, and all commodities from other countries ; and ^■^^y^^ law^bv 
 
 their naviijation was not only a nursery for seamen, but ^"•"^^ Chict 
 
 ' . . J}aroii Parker. 
 
 brought in a great flow of Avealth upon them. This being 
 
 observed by the English, gave rise to the navigation act, 
 which was first enacted in the time of the Usurpation, in 
 1651, as appears by " ScoheWs Collections,^^ and re-enacted 
 in the l!^th of King Charles II. with some few variations. 
 Though this act concerned all other countries, yet it prin- 
 cipally affected the Dutch, who, (as appears by Lord Cla- 
 rendon's History, and Thurloe's State Papers,) were 
 greatly alarmed, and made their remonstrances by their 
 ambassadors for the repeal of it : but the English Govern- 
 ment, then and ever since, found it so beneficial that they 
 resolved to maintain it, and I hope ever will maintain 
 it. if) Upon this occasion, it may be proper to consider 
 the drift and design of the act of navigation, Mhich is ex- 
 pressly mentioned to be ,for the increase of shipping, and 
 encouragement of the navigation of the English nation." 
 
 " The means proposed as most effectual for attaining this 
 end, were by sect. 1. That the importation of all goods 
 from any of His Majesty's dominions in Asia, Africa, or 
 America, iiito England, Ireland, Wales, or Bemick-upon- 
 Tweed, and the exportation from any of those places into 
 any of his dominions in Asia, Africa, or America, should 
 be in ships or vessels, truly and without fraud belonging 
 only to the people of England or Ireland, dominion of 
 Wales, or town of Berwick-upon-Tweed, or in vessels 
 which were of the built of and belonging to any of the said 
 lands, islands, plantations, or territories, and whereof the 
 master and three-fourths of the mariners, at least, were 
 English, under the penalty of the forfeiture of the ship 
 and cargo." 
 
 " Section 3. prohibits the importation of goods from 
 
 (/) Clarendon's History, Vol, Papers, Vol. II. p> 374. 
 III. p. 2, 458. Thurloe's Statfi
 
 152 Navigation Laws. [ipart i. 
 
 Exposition of Africa, Asia, and America generally, without confining 
 tionlaM^&c. *'^^ prohibition to the King's dominions, but in such ships 
 as belong to the people of England, &:c., or of the planta- 
 tions, and whereof the master and three-fourths of the 
 mariners are English, under the same penalty. Section 
 4. That no foreign goods shall be imported into England, 
 &c. but in English built shipping, or other shipping be- 
 longing to the aforesaid places, and navigated ])y English 
 mariners as aforesaid, unless shipped from the place of 
 which the goods were the growth, production, or manufac- 
 ture, or in the port where they only can be, or most usually 
 are, shipped for transportation. Section 6. No goods to 
 be loaded or carried from one port of England to another, 
 in any vessel belonging to a foreigner not made a denizen, 
 or naturalized ; and if irj the vessel of a subject of Eng- 
 land, it must be manned as aforesaid. By these methods 
 all foreigners were excluded not only from the importation 
 and exportation of any goods of the growth or manufac- 
 ture of Asia, Africa, or America, into or out of England, 
 Ireland, Wales, or Berwick, and from carrying them 
 from one port to another, but were likewise restrained 
 from bringing them into any European country for the use 
 of the English, since the English could not import them 
 from thence, which must contribute greatly to the increase 
 of the English shipping and seamen, and the encourage- 
 ment of their navigation. But though it was the policy of 
 the legislature to prohibit the importation of all goods 
 from Asia, Africa and America, unless brought in vessels 
 of the King's domi)iions, whereof the master and three- 
 fourths of the mariners Averc English, yet it was wisely 
 foreseen, that if we restrained the importation or exporta- 
 tion of European goods, unless in our own ships, and 
 manned in the manner directed by the act, other kingdoms 
 and states would do the like ; and that, in its consequence, 
 would amount to a prohibition of all such goods, which 
 would be extremely detrimental to trade, and defeat the 
 very design of the act. To avoid this inconvenience, it is 
 provided by the eighth section (upon which, and the Uth
 
 CHAP. IV.] Trade with Europe. 153 
 
 section, this cause principally turns) that no goods of the Exposition of 
 growth or manufacture of Muscovy, or any of the coun- tioii law^&c. - 
 tries thereto belong-ino^, no sort of masts, timber or boards, 
 no foreign salt, pitch, tar, rosin, hemp or flax, raisins, 
 ligs, prunes, olive oils, no sort of corn or grain, sugar, 
 pot ashes, wines, vinegar, or spirits called aqua vitae, or 
 brandy wine should be imported into England, Wales, or 
 town of Berwick-upon-Twee<l, in any ship or vessel what- 
 soever, but such as truly and without fraud did belong to 
 the people thereof, and whereof the master and three- 
 fourths of the mariners at least, are English ; and that no 
 currants, or other commodities of the growth or product 
 of the dominions or territories of the Ottoman or Turkish 
 empire, should be imported into any of the said places in 
 any ship or vessel but which is English built, and navigated 
 as aforesaid, and in no other, except only such foreign 
 ships and vessels as are of the built of that country or place 
 of which the said goods are the growth, production or ma- 
 nufacture respectively ; or of such port where the said 
 goods can only be, or most usually are first shipped for 
 transportation, and whereof the master and three-fourths 
 of the mariners at least, are of the said country or place, 
 under the same penalty and forfeiture of ship and goods." 
 
 *• Now to apply this clause to the present case : — This 
 clause (as was observed by Mr. Solicitor General) con- 
 sists of a prohibition and an exception; wines anfi vine- 
 gars (which are the cargo of this ship) are, among other 
 goods, prohibited to be imported in any ship or vessel but 
 such as truly and without fraud belonged to the people of 
 England, and whereof the master and three-fourths of the 
 mariners Avere English." 
 
 *' But this ship i» found to be French property, and to bo 
 navigated by a French master and mariners, and therefore 
 is plainly within the prohibition in this clause." 
 
 '' Let us next see whether it Is within the exception : Ex-
 
 154 Navigation Laws. [part i. 
 
 Exposition of cent only such foreign ships and vessels as are of the built 
 the naviga- n j ' -t ^.i-ii -i i i 
 
 tioulaw &c. or that countr) or place ol which ilie said goods are the 
 
 growth, production, or manufacture respectively, or of such 
 
 port where the said goods can only be, or most usually are, 
 
 first shipped for transportation, and whereof che master, 
 
 and three-fourths of the mariners, at least, are of the said 
 
 country or place." 
 
 " This ship is found to be English built, and not of the 
 built of France, and so wants one of the requisites to bring 
 it within the exception. And the words ship, or vessel, of 
 the built of the country or place, were not inserted by any 
 accidental mistake, but intended by the legislature ; for 
 the same exception occurs in sect. 11. where forfeiture of 
 office is imposed upon any officer of the customs who shall 
 allow to any foreign built ship, bringing in the commodi- 
 ties of the growth of the country where it was built, the 
 privilege by this act given to such ship, until examination 
 and proof whether it be a ship of the built of that country, 
 and that the master, and three-fourths of the mariners, are 
 of that country." 
 
 " But it was objected, that the main design of the act was, 
 that the English should be carriers, and not foreign na- 
 ' tions, and therefore tliat they may carry as well in foreign 
 built ships, being their property, as in ships of the built of 
 their own country. By the clauses Mr. Bootlo mentioned, 
 Englishmen being the owners of foreign built sliips, and 
 qualifying them according to the 10th section, and manning 
 them with a master, and three-fourths of English mariners, 
 may undoubtedly navigate them as English ships ; and 
 it is enforced by the 1 1th section, which distinguishes be- 
 tween English and foreign property ; and with respect to 
 English property, the direction is, that if any officer of the 
 customs shall allow the privileg<? of an English built ship, 
 or other ship to any of the aforesaid places belonging, (that 
 is, England, 8cc.) to any English or foreign built ship, 
 coming into any port, and making entry of any goods until
 
 CHAP. IV.] Trade with Europe. 155 
 
 examination whether the master and three-fourths of the Exposition of 
 mariners arc English, he shall forfeit his office ; but in the iionlaw''&c. 
 case of foreign property, the enquiry is, (as I observed be- 
 fore,) whether the ship is of the built of the country of 
 which the goods are the growtli, and navigated by a master, 
 and three-fourths of the mariners of that country. And 
 lhis privilege is confined to ships being English property, 
 and manned with English mariners, and cannot beextended 
 to the present case of foreign property, without rejecting 
 the word (built) wliich is mentioned in the eighth, and re- 
 peated four or five times in the eleventh section." 
 
 " But it was ti.en insisted for the defendant, that if a fo- 
 reign ship, purchased by an Englishman, may have the 
 privilege of an English ship, pari ralione, or rather djbr- 
 iiori, an English ship being foreign property, should be en- 
 titled to the like privilege, taking it (according to Mr. So- 
 licitor's reasoning) that the encouragement of building 
 ships is the secondary consideration of the act. Because 
 if English built, (which is the case of the ship now in ques- 
 tion) the increase of shipping would have been answered 
 to the kingdom, our own timber would have been used, 
 our workmen employed, and Ave should have had the bene- 
 fit of the rigging and furniture ; whereas, if she had been 
 French built, she would have been duly qualified to have 
 imported those goods, and we should have lost the benefit 
 of the timber, labour, and equipping her with rigging and 
 furniture. This seems to be very specious and plausible at 
 first appearance, but is founded upon a supposition that we 
 could have prohibited the importation of European goods 
 in foreign bottoms : but as that could not be done with 
 security to our trade, for the reasons I have mentioned, the 
 force of this argument will soon vanish ; the parliament 
 tjierefore planned the act upon the considerations men- 
 tioned by Mr. Solicitor. Several countries, as France, 
 Spain, and Italy, can more easily buy ships than they can 
 build them. Other countries, as Russia, &c. had timber 
 and materials enough for building ships, but wanted sailors*
 
 156 Navigation Laws. [parti. 
 
 Exposition of Therefore the parliament prohibited the importation of 
 
 the naviga- i ^ i i r. -i-i 
 
 tionlaw, &c. goods ot the growth ot any European country, unless in 
 
 ships owned and navigated by the English, or in ships of 
 the built of, and manned by sailors of that country of 
 which the goods were the growth. The consequence was, 
 that foreigners could not make use of the ships they bought, 
 though the English might, which must frequently force 
 them to have recourse to our shipping ; and so the general 
 intent of the act, to secure the carriage to the English, 
 was answered as far as it possibly could be : whereas, if 
 foreign property had been sufficient to qualify ships, fo- 
 reigners might have bought ships where they pleased, and 
 manned them with their own sailors, and then not only the 
 freight, but the employment of our sailors, would have 
 been lost to England ; and this w ill greatly overbalance 
 any advantage that could accrue to England from the 
 building and equipping ships for foreign use. But besides, 
 a statute ought never to be so expounded as to have the 
 secondary intent defeat the primary intent of it." 
 
 Judgment was accordingly given for plaintiff, and the 
 ship deemed forfeited. 
 
 Ofthecoun- Several difficulties likewise arose with respect to the 
 where'' sh^ country or place where a foreign ship was built, Avhether 
 is built. it was to be taken geographically, or depended upon the 
 
 sovereignty ; for example, if one of the Hanse towns came 
 into the possession of Prussia or Ruiksia, whether a vessel 
 built in such town became a Prussian or Russian vessel, or 
 continued as formerly only allansc ship. In order to remove 
 all difficulties of this kind, the stat. 2'2 Geo. III. c. 78. was 
 passed, in which it was enacted, that any person may im- 
 port into Great Britain any sort of timber, or certain other 
 articles therein mentioned, from any foreign place in Eu- 
 rope, in a ship the properli/ of subjects under the same so- 
 vereign as the country of which such goods are the growth, 
 produce, or manufacture, although the country or place 
 where such ship was built; or to which she belongs, was
 
 CHAP. IV.] Trade witli Europe. 157 
 
 not under tlie dominion of such sovoreign at tlie time of 
 passing the act of navigation. This act, however, became 
 so mischievous to our whole navigation system, that it was 
 found necessary to correct it by another statute (27 Geo. 
 III. c. 19.) passed for the purpose. It certainly eliccted 
 too great an innovation upon our former navigation law, 
 by enacting that tlie property/, and not the hnill of the 
 ship, should be regarded : and that t!ie property should not 
 be restricted to the place of production, but might be of 
 the subjects of the same sovereign. 
 
 Anotlier diflicJiUy arose in the same period, (g) with re- Of the coiin- 
 fspect to the qualiiication required by the navigation acts, J,aJtcraud 
 that the master, arfd three-fourths of the mariners, should be mariners. 
 of the countrt/ or place to which the ship belonged. The 
 question wa?;, whether it was necessary tiiat such master 
 and mariners should be strictly citizens of such place, viz. 
 by birth or naturalization. In the case of Scott v. Schwartz, 
 (h) this question came before the Court of Exchequer on 
 an information upon the seizure of a ship as forfeited j^r a 
 ire«c/i of the navigation laws. This was the case of a ship, » 
 Russia built, from Riga, navigated by a master born out 
 of the Russian dominions, but who had, seven years before, 
 been admitted a burgher of Riga, and had ever since con- 
 tinued so, residing at Riga when not upon a vovage. The 
 ship was also navigated by eleven mariners; four of Rus- 
 sian birth ; a fifth born in Ireland, and bound apprentice 
 to the master ; the other six were born cut of the domi- 
 nions of Russia, It was insisted for tlie crown that the 
 ship was forfeited by the stat. 12 Car. II,, inasmuch as she 
 was not manned as the act requires. But Chief Baron 
 Comyn was of opinion, that this ship was navigated within 
 the meaning of the statute ; that with respect to the mas- 
 ter, though born out of the Russian dominions, he was a. 
 burgher of Riga, that he had taken the oath of allegiance 
 to the Empress of Russia, Avhich constituted him a subject 
 
 (^) 1706, an4 1T12. Reeves, 188, 1S9. (k) Coroyn's Rep. 686,
 
 158 AavJgation Laws, [part i. 
 
 Opinion of of that sovereign, and that he might, therefore, within the 
 BarouCoinyu. meaning of the act, be denominated a man of that country. 
 " The greater difficulty," he says, " will be in regard to four 
 other of the mariners, one of whom is said to have resided 
 at Riga eight years, another seven, another six, another 
 only four years, before the seizure, and during these years 
 to have sailed from Riga in this and other voyages. Now 
 I am of opinion, that these are men of that country, within 
 the intent of the act of navigation ; 1st, because the act 
 seems to intend by people of a country any that are settled 
 and fixed inhabitants there; and when it mentions mariners 
 of the said country or place, it still speaks more loosely 
 and generally ; and, consequently, a residence of four, six, 
 or eight years, may well satisfy that expression. 2d, This 
 seems to answer the design of the act, which was not to 
 create difficulties in other countries to find mariners 
 ajnongst themselves, but to prevent their supplying them- 
 selves with any mariners from other states but English. 
 Sdly, Because, by the civil law, such a residence gives the 
 country a right to their service. (0 4thly, The special 
 verdict does not find tliese persons had ever any residence 
 or habitation, since they were grown up, in any place out 
 of the dominions of Russia. It does not appear that they 
 ever made any voyage from any other country whatsoever ; 
 so that they may be properly said to be the mariners of 
 Russia. But there is no foundation to say that they were 
 ever mariners of any other country or place. And it is not 
 inconsiderable that the act of navigation requires only that 
 foreign vessels be manned by a master, and three-fourths 
 of the mariners which are o^ the same country. It does not 
 say by mariners born in tliat country, or brought up there, 
 but mariners of that country, which is a denomination they 
 must acquire long after their birth, for they could not be 
 born mariners ; and if they are of that country whilst they 
 
 (i) Qui origincm ab urbc Komi tiiicre dcbcnl, Dig. 1. 50. tit. 4. 
 lial)(!nt, si alio loco «l()initiliiiin lex 3. 
 coiislilucruut, rauucra ejus sus-
 
 CHAP, rv.] Trade with Europe, 159 
 
 are mariners, and never were mariners of any other coun- Oi)inion of 
 try, it seems fully to satisfy the words and intent of the BarouComyii. 
 act. It was insisted that they ought to be subjects, at 
 least, of the Empress of Russia. But if the laws of Russia 
 are not contrary, in this respect, to our's, by their being 
 resident there they owe a heal allegiance. But it was urged, 
 that by tJiis construction the act might be eluded ; foreign- 
 ers might stay a day or two, and then man their vessels ; 
 for, if a residence of two or three years will suffice, why 
 not for two or three weeks, or two or three days ? Where 
 will you stop ? But there is no consequence of this kind can 
 be drawn from what is said ; for if that was specially found, 
 it might alter the case ; that would be an artifice or fraud 
 to evade the act ; but nothing of this nature is found, 
 which in a penal act must be, or it cannot be intended. 
 But, upon the whole, it would be almost impracticable, and 
 make commerce very hazardous, if every merchant was to 
 search out the nativity of every mariner he employed, and 
 in case of mistake or misinformation was to forfeit his ship 
 and cargo." The Court gave judgment for the defend- 
 ant. (A-) 
 
 Some difficulties have likewise arisen ss'iih respect to 
 what should be regarded as an imporlalion. (/) Tims 
 a ship, laden with teas, was driven into Yarmouth harbour 
 by stress of weather. It was here clearly held, that such 
 compulsory entrance was not an irnporialmi against the 
 navigation acts ; that such importing indeed is not excepted 
 by the express words of the act, but is to be understood to 
 be excepted by that equity and humanity which is allowed 
 in interpreting statutes, {m) 
 
 It has been observed that though the legislature has ad- 
 hered with all possible rigour to the policy of maintainiug- 
 
 (A.) Comyn's Rep. 693. and the ca^^es there cileJ. 
 
 (0 See an/e, page 77, as to what (in) Reeves, 197. 
 
 h to be deemed an importation, 
 
 3
 
 160 Navigation Laws. [^part i. 
 
 every part of the navigation law, circumstances have still 
 arisen in which it has been found necessary to suspend or 
 relax their strict application or interpretation. This has 
 been done in every period of their history. Their first 
 stage aflbrds many examples. The difficulty of carrying 
 on commerce in war has rendered it necessary to relax our 
 navigation laws during the period of any active and exten- 
 sive hostility. 
 
 Relaxation Yhe first proceeding of the kind is an order of council, 
 
 ofthenaviga- , , ^^ , 7^ 
 
 tion laws, dated March 6, 1664, by which the act of navigation is 
 
 pending war. suspended, so far as regarded the import and export of 
 Norway and the Baltic sea ; and so far as respected Ger- 
 many, Flanders, and France, provided the merchants and 
 owners of the ships were natural born subjects. English 
 merchants might likewise employ foreign ships in the coasts 
 ing and plantation trade. 
 
 In the war of 1740, it was deemed necessary to recur to 
 a similar policy, and slat. 17 Geo. II. c. 36, was passed 
 with this pm-pose. By this it was enacted, that British built 
 ships, purchased by foreign merchants, should enjoy the 
 same privileges in these kingdoms as if they were of the 
 built of the respective countries from whence they come ; 
 such ships, however, to pay alien and other duties, the 
 same as if the ships were foreign built. This indulgence, 
 however, was to continue only during the Mar. In 1756, 
 and again in 1779, the same provisions were revived by 
 Stat. 29 Geo. II. c. 34., and stat. 19 Geo. III. c. 28. 
 
 Again, by stat. 19 Geo. III. c. 9., it was permitted to 
 bring thrown silk of Italy from any port or place, and in 
 any ship. And by stat. 20 Geo. III. c. 45, any member of 
 the Turkey Company might import any Turkey or Levant 
 goods in any ship belonging to any friendly state. The 
 act was to continue in force during hostilities with France, 
 Spain, and Holland.
 
 CHAP. IV.] Trade with Europe. 161 
 
 With the same policy, and under the same necessity, 
 were passed the five following statutes. These statutes 
 are the 21 Geo. III. c. 19., for relaxing- the act of navio-a- 
 tion with respect to flax, or flax-seed. The same of co- 
 balt and orchilla seed, by stat. 21 Geo. III. c. 62. ; and of 
 wool, barilla, jesuits-bark, and linen-yarn, by stat. 23 
 Geo. III. c. 27. With respect to all sorts of corn, grain, 
 meal and flour, by 23 Geo. III. c. 1. ; and stat. 23 Geo. 
 III. c. 9., extended the same licence to the import of rice 
 and Indian corn. 
 
 A clause in stat. 27 Geo. III. c. 19, and two clauses in 
 34 Geo. III. c. 68, are of more importance. 
 
 The clause in stat. 27 Geo. III. c. 19. was passed to cor- 
 rect the mischief which the navigation act was supposed to 
 have suffered from a provision in stat. 22 Geo. III. c. 78., 
 before cited, in favour of foreign shipping. By that act, , 
 foreign ships were allowed to import the articles enume- 
 rated in the eighth section of the act of navigation, if they 
 were of the built, or belonged to any other country than 
 that of their growth or production, provided it was a 
 country under the same sovereign. To repeal this enact- 
 ment in effect, but without an express declaration of such 
 purpose, a clause was introduced in the 27 Geo. III. c. 19., 
 by which it was provided, that the goods or commodities 
 so enumerated or described in the act of navigation, being 
 of the growth, production, or manufacture of Europe, 
 mai/ be imported into Great Britain, under the regula- 
 tions of that act; (and by stat. 13 and 14 Car. II. c. 11., 
 and stat, 6 Geo, I. c. 15.,) either in ships, which before 1st 
 May, 1786, truly and without fraud wholly belonged to 
 His Majesty's dominions, or which are the built of His 
 Majesty's dominions, and registered according to law, or 
 in ships the built of any country or place in Europe, be- 
 longing to, or under the dominion of the sovereign or 
 state in Europe of which such goods or commodities are 
 the growth, production, or manufacture, or of such ports 
 
 M
 
 162 Navigation Laws. [part i. 
 
 where those goods can only be, or most usually are, first 
 shipped for transportation, with a master and three-fourths 
 at least of the mariners belonging to such country, place, 
 or port, and in no other ships whatsoever. 
 
 By this act, the ships are required to be of a certain 
 built, as by the act of navigation : but the built, instead 
 of being of the vert/ country of production, may be only 
 of some country under the same sovereign ; and this clause 
 is so worded as to extend to countries not under the same 
 sovereign at the time when the navigation act was passed. 
 The construction, however, of this act is, that where Bri- 
 tish built ships are required by the eighth section of the 
 navigation act, they must still be employed under this 
 act. (w) 
 
 The 34 Geo. III. c. 68. still more materially affects Bri- 
 tish shipping in part of the import, and in the whole of 
 the export, trade. All articles of European trade, not in- 
 cluded in the eighth section of the act of navigation, being 
 under no prohibition or restriction whatsoever by act of 
 Parliament, might be imported in any ships, British or 
 foreign, howsoever manned or navigated ; but this act, 
 by enacting that no ship, registered, or required to be re- 
 gistered as a British ship, shall import or export any arti- 
 cles whatsoever, unless navigated by a master and three- 
 fourths at least of the mariners, British subjects, has put 
 all imports in British ships under the same restrictions 
 with those included in the eighth section of the navigation 
 act, and has created a restriction as to export which be- 
 fore was unknown to the navigation system, except in the 
 British colonies, where the export, as well as import, was 
 required to be in British ships, manned and navigated in 
 this manner, (o) 
 
 These statutes were followed by a series of acts, ren- 
 
 (n) Reeves, 340. (o) RecTCS, 341.
 
 CHAP. IV.] Trade with Europe, 163 
 
 dered necessary by the war of 1793 ; but as they all origi- 
 nated in the circumstances of hostilitie;?, and all expired 
 with the termination of the war, it becomes unnecessary 
 to examine and enumerate them. 
 
 The most important of these acts, and which are chiefly Dutch Pro- 
 worthy of notice, as a portion of their eifccts remains to P*^'*^ '^^^' 
 the present day, and because their great but unexpected 
 utility during the late hostilities will certainly occasion 
 their re-enactment in future wars, are the 35 Geo. III. 
 c. 15., being the first of a series of acts commonly called 
 the Dutch Property/ Acts, and the ^Q Geo. III. c. 76., 
 called the neutral ship act. The object of both these acts 
 was the same, viz. to afford an asylum to the goods and 
 property of foreigners who wished to w ithdraw themselves 
 and their effects from the French armies which were then 
 entering their respective countries. In order to accomplish 
 this purpose, the 35 Geo. III. c. 15. enacted, that all 
 goods, wares, merchandize and effects whatsoever, coming 
 directly from any of the ports of the United Provinces, to 
 any of the ports of this kingdom, in the vessels of any 
 country, and navigated in any manner, should be permitted? 
 until further orders, to be landed and secured in ware- 
 houses under the joint locks of His Majesty and the pro- 
 prietors, at the expense of the proprietors ; there to remain 
 in safe custody for the benefit of the proprietors, until due 
 provision should be made by law to enable the proprietors 
 to re-export, or otherwise dispose of them. 
 
 The effects of this statute were found to be so beneficial, 
 and to attract such an immense portion of wealth and trade 
 into the ports and docks of this kingdom, that the Parlia- 
 ment came to a resolution, not only to continue for a fur- 
 ther time the policy relating to Dutch ships, but to enlarge 
 it to all neutral ships whatsoever. Accordingly, the 36 
 Geo. III. c. 76. was passed, by which it was enacted, that 
 all ships and vessels belongiug to persons of any country 
 in amity with His Majesty, which were in search of a place 
 
 m2
 
 164 
 
 Navigation Laws. 
 
 [part 1- 
 
 Dutch Pro- 
 perty Acts. 
 
 ^vherein to deposit their goods, wares and merchandize, 
 might come into any of the ports of this kingdom, in the 
 same manner as Dutch ships under the 35 Geo. III. c. 15., 
 and enjoy the same benefit as to importation, warehous- 
 ing, and exportation. These acts, which at first were 
 passed only for a time, and were renewed by annual acts, 
 were at length repealed by 42 Geo. III. c. 80., which sub- 
 stituted some other provisions for continuing this trade in 
 neutral ships, in a manner less repugnant to the interests of 
 British shipping, till hostilities should finally terminate, 
 and the navigation system return as before the war. Upon 
 the renewal of hostilities, in the year 1803, the 44 Geo. 
 III. c. SO. was passed, by which the provisions of the 42 
 Geo. III. c. 80. were continued till eight months after the 
 ratification of a definitive treaty of peace. 
 
 Neutral Ship 
 Acts. 
 
 Instead of the large provisions of the Dutch property 
 and the neutral ship acts, the two last statutes of which 
 we have been speaking taking that middle course which 
 certainly will become a precedent for any future war, en- 
 acted, tiiat it should be lawful, under any order of council, 
 with respect to Great Britain, and under any order of the 
 Lord Lieutenant and council with respect to Ireland, to 
 import, in any ship or vessel belonging to persons of any 
 counti*} in amity w ith His Majesty, not being of less than 
 one hundred tons' burthen, and navigated in any manner 
 whatsoever, or in any British-built ships, owned and na- 
 vigated according to law, from any territory, possession 
 or country, not under the dominion of His Majesty, on 
 the continent of America or in the West Indies, any goods 
 or commodities whatsoever, the produce of any part of 
 such territories, possessions, or countries, into any of the 
 ports of Great Britain or Ireland. Goods so imported 
 were to be warehoused under the joint locks of His Ma- 
 jesty and the proprietor, subject to the direction of the 
 commissioners of the customs in England, Scotland, and 
 Ireland respectively ; and not to be removed but for re- 
 exportation, on due entry being made, for foreign parts.
 
 CHAP. IV.] Trade with Europe. 165 
 
 As what may be termed the war system of our naviga- Neutral Ship 
 ^ - . . Acts, 
 
 tion laws is contained in the above recited acts, and in 
 
 another of the same period, the 43 Geo. III. c. 153., we 
 shall conclude this part of our subject with a brief abstract 
 of the latter. By the first section of this act, it is allowed 
 to import organized throxcn silk of Italy, from any place, 
 in any neutral ship, notwitlistanding stat. 2. Will. & 
 Mary, c. 9., which requires it to be brought from the 
 ports of the countries where it is produced, and to come 
 directly by sea. There is an exception of certain coarse 
 silk. The act then proceeds, secondly, to allow the im- 
 portation oi flax and flax-seed., in any neutral ships, not- 
 withstanding the eighth section of the act of navigation, 
 which requires them to be imported in British ships, or in 
 ships of the country where those articles are produced, or 
 ships of the port where they are first shipped for trans- 
 portation. Thirdly, to allow any member of the Turkey 
 Company to import goods from Turkey or Egypt, or from 
 any part of the Grand Seignior's dominions within the 
 Levant seas, in ships belonging to Great Britain or Ire- 
 land, or in any neutral ship, notwithstanding the third or 
 eighth section of the act of navigation, which require 
 such importations to be in ^r'iix'&h-huilt ships, or in ships 
 of the country where those articles are produced, or of 
 the port where they are first shipped for transportation. 
 Fourthly, to alk)w the importation of goods usually im- 
 ported from any place in Europe within the Streights of 
 Gibraltar (not being goods which could heretofore be im- 
 ported only from the Grand Seignior's dominions) from 
 any place, in any neutral ship, notwithstanding the eighth 
 section of the act of navigation, which requires some of 
 those articles to be imported in British ships, or ships of 
 the countries where they are produced, or of the port 
 where they are first shipped for transportation. Fifthly, 
 to allow the importation of pitchy tar., deal boards., fir ^ and 
 timber, from any ports of Germany, in British-6mV/ ships, 
 notwithstanding stat. 13 and 14 Car. II. c. 11. which pro- 
 hibits any of those articles being imported from Germany;
 
 166 Navigation Laws. [part i. 
 
 Neutral Ship which prohibition had been taken off only as to timber, 
 fir, and deal boards, the production of Germany, by stat. 
 6 Geo. I. c. 16. Sixthly, to allow the importation of Por- 
 tugal sa/t from Portugal, in any neutral ships, notwith- 
 standing the eighth section of the act of navigation, which 
 requires it to come in British ships, or ships of the country 
 where it is produced, or of the port where it is first shipped 
 for transportation. Seventhly, to allow the importation 
 into Great Britain of wool, and into Ireland of barilla, 
 Jesuits barky linen t/arn, hemp\ indigo, cochineal, wool, and 
 cotton wool^ from any place, in any neutral ship ; which 
 must be intended as a dispensation from the third, fourth, 
 or eighth sections of the act of navigation, according as 
 those articles are respectively the produce of Asia, Africa, 
 America, or of Europe. Lastly, a power was vested in 
 His Majesty, and in the Lord Lieutenant of Ireland, by 
 order in council, from time to time to permit any such 
 goods, wares and merchandize as shall be specified in any- 
 such order in council, to be imported from any port or 
 place of any kingdom or state not in amity with His Ma- 
 jesty, in any neutral ships ; and several orders of council 
 that had been made since the renewal of hostilities, prior 
 to that act, are thereby declared good in law. (/?) 
 
 The last provision of 43 Geo. HI. amounted to a dis- 
 pensation from the navigation system in regard to coun- 
 tries with which we were at that time at war ; and it was 
 deemed proper to vest in His Majesty the same discretion- 
 ary power with respect to foreign America and the West 
 Indies. For this purpose the 42 Geo. HI. c. 80. was 
 revived and continued by 44 Goo. HI. c. 30. The 42 
 Geo. III. declared it to be lawful, under any order of 
 council, to import in any ship or vessel, belonging to any 
 country in amity with His Majesty, (not being of less than 
 one hundred tons' burthen, and navigated in any manner 
 whatsoever, or in any British-&M«7< vessel, owned and 
 navigated according to law) from any territory, posses^ 
 (i») Reeves, 354, 5, 6, &c.
 
 CHAP. IV.] Trade with Europe. 107 
 
 sion, or country not under the dominion of His Maje?ty, Neutral Ship 
 
 on the continent of America or the West ^ndies, any 
 
 goods or commodities Avhatsoever, the produce of any 
 
 such countries, into any of the ports of Great Britain. 
 
 The act then prescribed certain regulations for ianding 
 
 and warehousing such goods ; and made an exception of 
 
 tobacco, snuff, and rice. 
 
 It was by virtue of the above cited acts of Parliament, 
 and the 45 Geo. III. c. 34, by which His Majesty was 
 empowered to grant licences to his subjects, to import any 
 goods and commodities in neutral ships from countries in 
 America belonging to any foreign European sovereign or 
 state, that the facilities which our commerce required in 
 time of war were principally obtained. There is yet re- Licensing 
 maining another portion of our law of commercial inter- ^y"^™* 
 course during war, the omission of which would leave our 
 subject imperfect ; for although the condition of things in 
 Europe, in which the late extensive system of licences ori- 
 ginated, has passed away, most probably never to return ; 
 yet, as in some future war, circumstances may arise, re- 
 quiring a partial application of the same system, it may 
 not be useless to explain the principles, and to refer to the 
 leading decisions upon which the practice of granting and 
 interpreting licences was controlled and regulated. 
 
 The navigation laws, being the statutes of tlie realm, 
 could not of course be dispensed with by the prerogative 
 of the Crown. But it had been found necessary on many 
 occasions to have recourse to Parliament to suspend their 
 operation in time of war. The several acts, therefore, 
 were passed, to which we have before adverted, to alter 
 or qualify them according to the new condition of things 
 which was produced. By some of these acts, a special 
 power was given to the King in Council, to modify or dis- 
 pense with such provisions as might be found expedient in 
 particular conjunctures. Under other statutes, licences were 
 directed to be granted by an order in council, &c. : under
 
 168 jVavigatlon Laws. [part r. 
 
 Licensing^ others, the Secretaries of State, by an authority under the 
 "' " " King's sign manual, and in pursuance of an order of coun- 
 
 cil specially authorizing the grant, were empowered to act 
 in the place of the sovereign. The principal acts were the 
 43 Geo. III. c. 153. s. 15., 45 Geo. III. c. 34., 46 Geo. 
 III. c. 3., 47 Geo. III. c. 27., 48 Geo. III. c. 37., 48 
 Geo. III. c. 126. 49 Geo. III. c. 25., 49 Geo. III. c. 60. 
 As the authority to grant these licences was derived from 
 the whole legislature, the power under them was con- 
 stantly restricted to the letter and reasonable intendment 
 of the several acts, and could not be extended farther 
 than the statutes themselves permitted. 
 
 Independently of this power of bestowing licences, by 
 which the restrictions of the navigation law were removed, 
 the Crown, by its prerogative, already possessed a power 
 of granting privileges and dispensations, by which it re- 
 ceded from its own rights in a state of war. Upon these 
 conjoint legal powers therefore, viz. the licences by sta- 
 tute, which were an enlargement of the powers of the 
 Crown by acts of Parliament, and the licences by prero- 
 gative, which were of inherent right, was built a system 
 sufficiently large to accommodate itself to Europe under 
 the Milan and Berlin decrees. Being granted for com- 
 mercial purposes, they were not deemed strictissimi juris: 
 they were not construed so tenaciously as the grants 
 of the Crown in ordinary to the subject. Their object 
 was to disembarrass commerce from the restrictions which 
 the enemy had thrown upon it. The Crown, in these 
 licences, gave nothing but a more extensive liberty of 
 trade and commerce ; of importation and exportation. 
 It no way diminished its own stock, whilst it consnlted the 
 interest of the public. Hence it became, though not 
 indeed in <he first instance, a practice of tlie Courts of 
 Admiralty, and likewise of the Courts of common law (in 
 which such licences came incidentally under their cogni- 
 zance in questions of policies of insurance, freight, &c.) to 
 interpret tJiem liberally and largely, and with none of that
 
 CHAP. IV.] Trade with Europe. 169 
 
 jealous apprehension of the subject taking more than the Licensing 
 Crown intended to give, by which royal grants had been ^* ^""' 
 fettered and controlled at common law. 
 
 It would be a want of due professional feeling, now that 
 the subject presents itself, not to join the humble testimony 
 of the writer of these pages (with the concurrent praise 
 of all) to the profound and accurate learning of Sir Wil- 
 liam Scott, who, in the administration of this law, has 
 shewn how the most liberal equity can be reconciled with 
 the requisite certainty of law. He is in fact the author of 
 the whole learning of the law relating to the system of 
 licences. And if it be considered how suddenly and unex- 
 pectedly the circumstances arose, it must be matter of 
 reasonable admiration, and of the most unqualified praise, 
 that a connected set of principles, so consistent with law 
 and the practice of the Courts, was as immediately invented 
 to meet and embrace them. It must remind the common 
 lawyer of the celebrated fiction of uses, so ingeniously 
 invented and introduced by the clergy to evade the statutes 
 of mortmain. The law of licensing, a term and title 
 already known to the Admiralty Courts, was thus extended 
 to comprehend a new and unexpected state of things. A 
 certain nature, suitable principles, and rules, were given 
 to it ; and most ingeniously, and at the same time most 
 learnedly, they were made to accommodate themselves to 
 all the cases which could occur. Our limits enable us to 
 give only a summary of the leading cases which have been 
 decided upon this subject. 
 
 We have already observed, that the King, who is the 
 arbiter of foreign commerce, may regulate it, except he 
 be restrained by statutes; but he cannot change the law of 
 the land, or the law of nations, by general and unlimited 
 regulations. 
 
 He may give an enemy liberty to import ; he may plac* 
 a whole district, though the member of a hostile country,
 
 170 Js'avigation Laws, [part i. 
 
 Licensing in a state pf amity ; he may exempt any individual from 
 ystera. ^^^ operation of war.(^) But a licence to an enemy to 
 
 import goods must be express, for an enemy will not be 
 protected by a general licence, (r) In all cases, however, 
 in which the king grants a licence, he may also qualify it, 
 in which case the parties seeking to protect themselves 
 under it must conform to its regulations. (5) In the case 
 of the Cosmopolite, Sir William Scott says, " a licence is 
 a high act of sovereignty : they are necessarily stricti juris, 
 and must not be carried farther than the intention of the 
 great authority which grants them may be supposed to 
 extend. I do not say that they are to be construed with 
 pedantic accuracy, or that every small deviation shall 
 vitiate the fair effect of them." {t) Again that learned 
 Judge observes, " the shipper obtains a licence, which is 
 a thing stricti juris y to be obtained by a fair and candid 
 representation, and to be fairly pursued. («) In the case 
 of the Cosmopolite Sir William Scott proceeds to lay 
 down certain rules for the construction of licences, which 
 are most fit to be remembered. " Two circumstances," he 
 says, " are required to give due effect to a licence : 1st, 
 that the intention of the grantor shall be pursued ; 2d, 
 that there shall be an entire bona fides on the part of the 
 user. It has been contended that the latter alone should 
 be sufficient, and that a construction of the grant merely 
 erroneous should not prejudice. This is, I think, laid 
 down too loosely. It seems absolutely essential that that 
 only shall be done, which the grantor intended to permit : 
 whatever he did not mean to permit is absolutely inter- 
 dicted ; and the party who uses the licence engages not 
 only for fair intention, but for an accurate interpretation 
 and execution. 1 do not mean to exclude such a latitude 
 as may be supposed to conform to the intentions of the 
 grantor literally understood." 
 
 (q) 1 Acton, 313. * 4O 4 Rob. 11. 
 
 (r) Id. ib. (w) 4 Hob. 96. 
 
 («) 1 Bast. 475.
 
 CHAP. IV.] IVade with Europe. I'J^l 
 
 In the early cases upon licences in the common law l-icensing 
 •' '^ , System. 
 
 courts, the inclination of the Judges was in favour of a 
 
 liberal construction of them. Thus in Defflis v. Parry, (v) 
 where a licence was obtained by A. to import from an 
 enemy's country, in six ships, such goods as should be 
 specified in his bill of lading, and goods were imported 
 on board one of the six ships on account of B., C, and 
 D., to whom several bills of lading were sent for their 
 respective goods, and one general bill of lading for the 
 whole cargo was sent to A. ; the Court of Common Pleas 
 held the whole cargo to be protected. In this case Lord 
 Alvanley observed, " We are not to construe the acts of 
 government strictly against the merchant. If it had been 
 intended that the licence should have been more confined, 
 I think it would have been expressed." But in the case 
 of the Jonge Johannes, which was a case precisely simi- 
 lar, (w) Sir William Scott decided in direct opposition to 
 the judgment of the Common Pleas, holding, that when a 
 licence is granted to one person it cannot be extended to 
 the protection of all other persons who may be permitted 
 by that person to take advantage of it. " The great prin- 
 ciple," he says, " in these cases is, that subjects are not to 
 trade with the enemy without the special permission of the 
 government ; and a material object of controul which Go- 
 vernment exercises over such trade is, that it may judge of 
 the particular persons who are fit to be entrusted with 
 an exemption from the ordinary restrictions of a state of 
 war." (.r) 
 
 In some subsequent cases, however, the courts of com- 
 mon law adopted a different construction. Thus, where a 
 licence was granted to A., on behalf of himself and other 
 British merchants, to export goods to certain places within 
 the influence of the enemy, which places were interdicted 
 to British commerce, it was held sufficient to legalize au 
 
 (v) 3 Bos. & Pull. 3. (x) See likewise the case of The 
 
 (w) 4 Rob. 363. Aurora, 4 Rob. SIS.
 
 I'J^S Navigation Laws. [part i. 
 
 S*ste"m"^ insurance upon such adventure, if it appeared that A. 
 was the agent employed for the British merchants really 
 interested in it, to get the licence, though he had no pro- 
 perty in the goods himself, (t/) Where a licence was 
 granted to A. of Birmingham, for the importation of cer- 
 tain goods from Holland into this country. Sir William 
 Scott decided that such licence would not protect a ship- 
 ment made by A. in Holland in person, and under papers 
 describing the firm of his house as A. and Co. of Amster- 
 dam, (z) So a general licence is to be construed strictly, 
 and will not extend to the protection of enemy's pro- 
 perty. («) But a licence, particularly specifying ant/ Jlag, 
 protects even enemy's property ; {b) so where a licence 
 was granted to a British merchant by name, on behalf of 
 himself and others, to export to Petersburgh, and import 
 a cargo thence, it was held, that an alien enemy might 
 lawfully be interested in the export cargo, as well as in the 
 import cargo, (c) The decision in that case turned upon 
 the general words of the licence, which was to the grantee 
 byname, on behalf of himself and o^Aer*. The object was 
 to facilitate the export of British goods, to effect which 
 the goods must necessarily be consigned to foreigners. A 
 different construction would obviously have counteracted 
 the commercial purposes for which the licence was granted. 
 So it has been holden that a licence to J. H. of London, 
 merchant, on behalf of himself and other British merchants, 
 to import a cargo from certain limits, within which an 
 enemy's port was situate, in any vessel bearing any flag 
 except the French, would protect a ship trading from that 
 port in a ship in which J. H. and an alien enemy were 
 jointly interested, (rf) The Court thought that the tru« 
 
 (y)Rawlinsonr. Janson, 12East. (b) 1 Acton, 3S2. 
 
 223. Bui see Barlow v. M'Intosh, (c) Feize ». Bell, 4 Taunt. 4. 
 
 It East. 311. (rf) Hagedornr. Reid, 1 MauU 
 
 (s) Jonge V. Kassina, 5 Rob. & Selw. 567. Sed vide Hagedorn 
 
 297. ,,. Bazett, 2 Maule & Selw. 100. 
 
 (a) Josephipc, 1 ActoD, 313, Mennelt v. Bonham, 15 East. 477.
 
 CHAP. IV.] Trade with Europe. 173 
 
 construction of that licence was to protect a trade in any Licensing 
 ship except one bearing the French flag. A licence to ^* ^^' 
 " sail under any flag except the French" M'as held t*o 
 exclude French ownership, (r) But a similar licence was 
 held to protect the property of persons in countries un- 
 expectedly annexed to France, whilst engaged in British 
 commerce, (f) But a vessel carrying a cargo to the ports 
 of the enemy, under a licence to proceed thither in ballast, 
 for the purpose of bringing a cargo to this country, was held 
 not to be protected, (g) though a licence to import a cargo 
 into this country was deemed sufficient to protect a vessel 
 proceeding in ballast to the port of shipment for that pur- 
 pose. (A) Whenever a licence is granted on a condition, 
 that condition must be truly and faithfully performed. (0 
 Thus in the case of the Europa, where the condition of 
 the licence was for the vessel to touch at Leith, and it was 
 not ! ompiiid with, Sir William Scott condemned the ves- 
 sel, (y) And the sentence was affirmed on appeal. It 
 is a violation of a licence to touch at an interdicted port, 
 under a licence for a direct voyage to this country. The 
 presumption being, that at the intermediate port the ves- 
 sel might receive another destination, or might actually 
 deliver her cargo in that port.(X) Secus, if it be not 
 known to be such at the time of sailing. (/) The words in 
 a licence, " to whomsoever the property may appear to 
 belong," have been held to protect the property of an 
 enemy, (w) A licence to sail under any flag except the 
 French was not deemed to be vitiated by the owner becom- 
 
 Flindt V. Crokatt, ibid. 552. Fen- (i) Vandyck v. Whitmore, 1 
 
 ton V. Pearson, 419. Parkin v. East. 486. See likewise a note of 
 
 Dick, 11 East. 502. and the cases Gordon v. Vaughan, annexed to 
 
 referred to iu the argument in 2 the case of Sbiffner v. Gordon. K- 
 
 Maule and Selw. 104. East. 302. 
 
 (e) Edw. Adm. Cases, 44. (j) Edw. 32. 
 
 (/) Edw. 45. (k) Edw. 42. 
 
 (g) Edw. 11. (?) Edw. 40. 
 
 (ft) Edw. 34. (m) Edw. 20.
 
 174 Mivigation Laws. [part i. 
 
 Licensing [ncr a French subject during: the course of the transac- 
 Systein. . r.. , -.i, ., 
 
 tion.(«) So, in a case where permission has been given by 
 
 a licence to export a cargo, the original licence is sufficient 
 to protect the ship and cargo, not only eundoy but redeundo, 
 where the original purpose has been defeated by the ele- 
 ments, or the arts of the enemy, (o) But a licence granted 
 subsequently to the date of the capture was held to be no 
 protection, (p) In this case Sir William Scott observed, 
 " a licence is in its very nature prospective, pointing to 
 something which has not yet been done, and cannot be 
 done at all without such permission. Where the act has 
 already been done, and requires to be upheld, it must be 
 by an express confirmation of the act itself, as by an in- 
 demnity granted to the party ; but a licence necessarily 
 looks to that which remains to be done, and can extend 
 its influence only to future operations." But a licence 
 to import a cargo in one vessel was held to protect the 
 importation of the same cargo in two vessels ; and from a 
 different port, it being shewn that it was impossible to 
 make the shipment at the port specified in the licence ; (q) 
 but a licence to proceed to an enemy's port in ballast, for 
 the purpose of bringing a cargo to this country, was held 
 not to be a protection for a vessel carrying a cargo to 
 the port of shipment, (r) In cases in which the parties 
 have used due diligence, but have been prevented by acci- 
 dents not within their controul from carrying their inten- 
 tions into effect within the time, it has been holden that, 
 though their licences have expired, they are entitled to pro- 
 tection. (5) With respect to expired licences, certain rules 
 have been laid down in the Admirallj/ Courts which the 
 
 (n) Edw. 45. Edw. 11. 
 
 (0) Case of the Jonge Frederick, (s) Case of the Goede Hope, Edw. 
 
 Maj 10, 1810. This case is most iinportaut on ac- 
 
 {p) Case of the St. Ivan Wack- count of the masterly judgment of 
 
 lin, Nov. 12, 181 1. Sir William Scott, who therein dis- 
 
 (7) Edw. 319. cusses the rules of interpretation to 
 
 (r) Edw. 365.; and see anle, be applied to licences generally.
 
 CHAP. IV.] Trade with Europe. 175 
 
 courts of law have followed. A vessel proceeding in bal- Licensing 
 last, under a licence which had expired several months, to ^* ^^' 
 the port of shipment in the Baltic, for the purpose of bring- 
 ing a cargo to this country ; but having an indorsement, set- 
 ting forth the fact of a new licence which had been actually 
 obtained though not on board, and which could be applied 
 to that vessel on her arrival at the port of shipment, was held 
 to be protected, under consideration of local circumstances 
 and the situation of the countries in which such licencejs 
 were to be carried into effect, the length of the voyage, 
 &c. forming a ground for the Court to exercise an equit- 
 able discretion. (0 So, where a licence expired in conse- 
 quence of an embargo in the enemy's port. On proof of 
 the identity of the transaction, and no fraud appearing, 
 it was held to be a subsisting licence, and a sufficient justi- 
 fication for not loading the cargo within the time speci- 
 fied ; and this, notwithstanding the government had ceased 
 to grant such licences. («) Where a party has used his 
 best endeavours to fulfil his engagements under a licence, 
 and has only been prevented by the violence of the enemy 
 from completing the voyage within the prescribed time, 
 the Court has decreed restitution, even though the govern* 
 ment may have refused to renew the licence. (t>) So, a 
 licence is not abortive when the cargo, upon damage disco- 
 vered, was unloaded, and a second cargo of the same 
 identical nature with the first, and corresponding in sub- 
 stance and quality, was substituted, (ui) But, where the 
 date has been altered, it is a mere nullity ; for the Court, 
 for the sake of guarding against fraudulent acts, will al- 
 ways adhere to the general rule, that the party claiming 
 the benefit of a licence, must shew an unimpeached li- 
 cence. ( y) Where there has been a delay, but accounted 
 for, and the ship has in fact fulfilled her engagements by 
 delivery of the cargo at the port of destination, no capture 
 
 (I) Edw. 339. {x) Dod. 306. 
 
 (m) Edw. 354. {y) Dod. 308. 
 
 {v) Dod. 300.
 
 176 ' J^avigation Laws. [part i. 
 
 Licensing ^^jj ^g made, though the licence has expired; and the cap- 
 tors of a ship so circumstanced have been refused their ex- 
 pences.(2) We have already observed, that in the use and 
 application of licences, it has not been the practice of the 
 Courts of Admiralty, or of the courts of common law, to 
 limit the parties to a literal construction. It has been 
 deemed sufficient for them to shew that, under the difficul- 
 ties of commerce, they have come as near as possible to the 
 terms. Where there is no bad faith, or undue extension of 
 the letter of them beyond the meaning of the Council Board, 
 any little informalities or trifling deviations are disregarded. 
 But where licences are conditional, they are restrictive 
 within the terms of the condition. The condition is the law 
 of them: therefore, if the condition of a licence be to touch 
 at a particular place for convoy, if it be not complied with, 
 the licence is invalidated, unless the non-performance of 
 the condition be occasioned by stress of weather, or insur- 
 mountable obstacles. The only excuse for a departure 
 from the condition of a licence is, irresistible necessity. 
 When, therefore, a party is not within the terms of a 
 licence, the character of an enemy revives; and the ship 
 becomes, as such, liable to condemnation. And a licence 
 to import into one part of the United Kingdom has been 
 held not to protect an importation into another, (f/) So, 
 likewise, a vessel, coming under a licence for a direct voyage 
 to this country, has not been allowed, by analogy to the 
 rules of blockade, to touch at an interdicted port, unless 
 permission was given, (i) Where the terms are departed 
 from in any essential points, the courts have considered 
 themselves not to possess the power of relief. Therefore, 
 a licence obtained subsequently to the time of capture, 
 is no protection. For, it is incumbent on a party making 
 claim, to shew that he was at the time furnished with a 
 protection. To give protection, the existence of the li- 
 cence must be presumed. A licence, as we have before 
 
 (z)Do(3.3l6. (ft) Ed w. 367, 369. 
 
 (ff) Edw. 358, and Dod. 257.
 
 CHAP. IV.] Trade loith Europe. ifl 
 
 observed, does not act retrospectively, and cannot take Licensing 
 
 1 • 1 • X 1 • • J. o ^ • ii System. 
 
 away an interest which is vestedj in point or law, in the 
 
 captors ; where, therefore, it w as not granted until after 
 actual capture, (thougli by the course, or some irregularity 
 in the Council Otiice, it bore date previous thereto,) it has 
 been deemed to be no protection, (c) Under a licence 
 for a direct voyage to England, a circuitous course, unless 
 in a case above suspicion, and of manifest fair dealing, is 
 not protected. So it has always been considered that 
 licences are granted on a prospect of commercial advantage. 
 Thus, the permission to go from one port of the enemy to 
 another, requires tiiat the vessel shall be going thither for ': 
 
 the purposes of British trade, or a trade immediately con- 
 nected with Britain. Therefore, a vessel proceeding un- 
 der a licence to the enemy's port, for the purpose of being 
 sold, is not protected by a licence to trade, (c^) The Courts 
 of Admiralty, as well as common law, have always con-, 
 sidered it their paramount duty to guard against a fraudu- 
 lent application of licences, where there is a total and 
 essential departure from the terms, condition, or reason- 
 able intendment of the licence. Fraud, where it is in- 
 sinuated, is always investigated ; and, if proved, is fatal : 
 and where the departure is to a considerable extent, and 
 the fraud affects the whole cargo, though in different de- 
 grees, the Court will pronounce against the whole: (e) 
 And even in cases Avhere the Court wish to apply the most 
 favourable construction to licences, it possesses the mere 
 power of interpretation. It can only assume the privilege 
 of extension by favourable interpretation, where there is ■- 
 
 a total absence of malajides. Therefore, a fraudulent ap- 
 plication of a licence for a neutral vessel to extricate an 
 enemy's vessel is a ground of condemnation ; though the 
 interests of persons, not parties to the fraud, will not be 
 affected thereby. (/) The Court, for the most part, consi- 
 der the plea of compulsion as inadmissible. The vio- 
 
 (c) Dod. 160. , (c) Dod. 173. 
 
 (rf) Edw. 344. (/) pod. 183.
 
 179 Navigation Laws. Lpart i. 
 
 lence, therefore, of a hostile government does not privi- 
 lege persons to act in a contravention of the essential terms 
 of a British licence. The party, under such circum- 
 stances, must look for indemnification to the quarter from 
 which he has received the injury, {g) Such is the licensing 
 system, which we have been induced to examine at length, 
 and to cite the principal cases, as in its present form it 
 constitutes a code which will hereafter become the law of 
 our commercial intercourse during war. A treatise on the 
 law of navigation would have been imperfect without it. 
 
 Present state With the exception of the alterations made by the legis- 
 
 of the Euro- Jature under the circumstances of the late war and the 
 pean trade. 
 
 acts for the registry of British vessels, the European trade 
 
 remains to the present day almost the same as under the 
 original navigation act of Charles II. The war acts ter- 
 minated with the general peace, or, (as in some cases 
 specially provided for the sake of due notice to the mer- 
 chants in remote parts,) in six months after the signa- 
 ture of the treaties. The European trade, therefore, re- 
 mains nearly what it was before the war, with some excep- 
 tions in favour of our fisheries, and some few additions by 
 the treaties of peace with the European powers\ 
 
 A short recapitulation of the state of our trade with those 
 powers will be here necessary, though it must occasion 
 some slight repetition. 
 
 Russia. By the late treaty of peace, (h) the relations of amity and 
 
 commerce between Russia and England are establislied upon 
 the footing of the most favoured nations. (0 The trade 
 between Great Britain and Russia is confined to the Russia 
 Company, or fellowship, established by the 10 and 11 
 Will. HI. c. G., the privileges of which we have before 
 
 (jf) Dod. 242. ly subsisted between Great Britain 
 
 (/i) July 6, 1812. and Russia, which expired in 1807. 
 
 (i) A commercial treaty former-
 
 CHAP. IV.] Trade with Europe. 179 
 
 pointed out. But as the sum of five jiounds will entitle 
 any British subject to the freodoni of this fellowship, it 
 can scarcely be deemed an impediment to geneial trade. 
 By the 21 Geo. III. c. 02., drugs of the produ<ftion or ma- 
 nufacture of any part of the dominions of Russia, laden and 
 shipped at any port under the sovereignty of Russia, may 
 be imported in British built shipping into this kingdom, and 
 shall be deemed to be imported directly from the place of 
 their growth. The 14 Geo. II. c. 36., prescribes certain 
 regulations to which the Russia Company are required to 
 conform in the importation of goods from Persia; and the 
 23 Geo. II. c. 3i. makes it huvful for the Company to 
 import from the dominions of Russia raw silk of the growth 
 and produce of Persia, provided it be purchased by barter 
 with woollen or other manufactm-es, or goods exported 
 from Great Britain to Russia, (although the same be not 
 carried from thence into Persia) or wit!i the prod'jce aris- 
 ing from the sale of such exported British manufactures. 
 Both these acts save to the East India Company their 
 privileges and exclusive rights of trade. 
 
 By the treaty with Sweden, (A") the relations of friend- Sweden. 
 ship and commerce between Great Britain and that king- 
 dom are re-established on the footing whereon they stood 
 on the 1st of Jan. 1791 ; and all treaties and conventions 
 subsisting between the two states at that epoch are to be 
 regarded as renewed and confirmed by the late treaty. 
 The trade with this country stands upon the common re- 
 gulations of the navigation laws ; but by the 23 Car. II. 
 c. 7. it is provided that every person, native or foreigner, 
 may have free liberty to trade into and from Sweden, Den- 
 mark, and Norway, notwithstanding the charter to the 
 Eastland Company. 
 
 By the treaty with Denmark, (/) it is agreed between Denmark, 
 the contracting parties by the seventh article, that th« 
 
 ik) July, 1812. (0 Jaauary 7, 1S14. 
 
 n2
 
 ISO 
 
 Navigation Laws, 
 
 [part 
 
 Netherlands. 
 
 commercial relations between the subjects of the respective 
 countries shall again return to their ancient state, and the 
 sovereigns reciprocally agree to adopt measures for giving 
 them greater force and effect. Th^ twelfth article of this 
 treaty stipulates for the subjects of Creat Britain the pri- 
 vilege of a depot, in the port of Stralsui d, of all articles of 
 the growth or manufacture of Great Britain or her colo- 
 nies, on paying a duty of one per cent, ad valorem. And 
 all the ancient treaties of peace and commerce are to be 
 taken as renewed between Great Britain and Denmark, 
 so far as they are not contradictory to the stipulations of 
 the treaty of 1814. 
 
 The treaty with the king of the Netherlands (m) contains 
 no stipulation with regard to European commerce ; but 
 the fourth article guarantees to the subjects of the Nether- 
 lands the same facilities of commerce and security of per- 
 sons and property within the British territories in India, 
 which are granted to the most favoured nation. 
 
 Prance. The like facilities, privileges, and protection, are gua- 
 
 ranteed to the subjects of France by the twelfth article of 
 the late treaty. (w) And by the convention made in the fol- 
 lowing year, the king of France engages to farm to the 
 British government the exclusive right to purchase at a 
 fair and equitable price salt on the coast of Coromandel 
 and Orixa. But, with the exception of the articles relating 
 to the slave trade, there are none which affect the present 
 state of the trade between tlie two countries, or the inter- 
 ests of commerce in general. 
 
 Spain. In the treaty with Spain (o) the following articles, though 
 
 not exclusively referring to European trade, are deserving 
 of notice. In the event of the commerce of the Spanish 
 American possessions being opened to foreign nations, his 
 
 (m) August, 1814. 
 (n) May, 1814. 
 
 (o) July, 1814.
 
 CHAP. IV.] Trade with Europe. 181 
 
 Catholic Majesty promises that Great Britain shall trade 
 with those possessions on the footing of the most favoured 
 nation. And, pending the negotiation of a new treaty 
 of commerce, it is stipulated that Great Britain shall be 
 admitted to trade with Spain upon the same conditions as 
 those Avhich existed previously to 1796 ; and all the treaties 
 of commerce which subsisted at that period between the two 
 nations, are ratified and confirmed by the late treaty, {p) 
 
 In the treaty with Portugal, (Feb. 1810,) it was deemed Portugal, 
 advisable, in favour of that country, to relax several im- 
 portant provisions of the navigation act. By the emigra- 
 tion of her sovereign to the Brazils, Portugal had formed 
 a new seat of empire ; and ancient relations of friendship, 
 no less than commercial prudence, suggested the propriety 
 of admitting her to trade with Great Britain upon the 
 footing of the most favoured nation. Accordingly, the 51 
 Geo. III. c. 47. which was passed to carry into effect the 
 treaty of commerce above referred to, repeals, in favour of 
 Portugal, some important provisions of the navigation act. 
 By the second section of this act, ant/ goods of the growth, 
 production, or manufacture, o^ any of the territories or do- 
 minions of the crown of Portugal, (this of course includes 
 her American, as well as her European possessions,) are 
 allowed to be imported direct from any such territories or 
 dominions, in any ship or vessel built in any of the territo- 
 ries or dominions of the crown of Portugal, {q) By the 
 fourth section, elephants' teeth and ivory are allowed to 
 be imported from any of the territories of Portugal in 
 British or Portuguese ships, respectively, though such ele- 
 phants' teeth or ivory may not be of the growth or produc- 
 tion of any of the Portuguese dominions. By the sixth 
 section, tobacco, pitch, tar, turpentine, hemp, flax, masts, 
 
 (l>) By a decree of the king of all goods permitted to be imported 
 
 Spain, of March 1818, Cadiz, Ali- into Spain. 
 
 cante, Corunna, and Santander, are {q^ See ante, page 103, and 140 
 
 established as ports of deposit for — 142.
 
 183 Navigation Laws. []part i. 
 
 yards, bowsprits^ staves, heading boards, timber, shingles, 
 lumber of any sort, and articles of provision and food, 
 being of the growth and production of any of the territories 
 and dominions of Portugal in South America, are allowed 
 to be imported direct into any of the West India islands, 
 notwithstanding the 28 Geo. III. c. 6., and 31 Geo. III. 
 T/at""^" c. 38. (r) It is here impossible to omit a slight mention of 
 
 the famous Methuen treaty ; for, though not exactly within 
 the navigation laws, it aifords a singular example of the 
 whole commercial intercourse of two nations being compre- 
 hended within a compass scarcely exceeding a mercantile 
 bill of exchange. 
 
 In the year 1703, this treaty was concluded by a gentle- 
 man of the name of Methuen, with Peter king of Portugal. 
 It contains the following articles : — 1st, The king of Por- 
 tugal, on his part, stipulates, for himself and his successors, 
 to admit for ever hereafter into Portugal the woollen cloths, 
 and the rest of the woollen manufactures of the Britons, 
 as was accustomed till they were prohibited by the laws ; 
 nevertheless, upon this condition, — 2d, That her royal Ma- 
 jesty of Great Britain shall, in her own name, and that of 
 her successors, be obliged for ever hereafter to admit the 
 wines of the growth of Portugal into Britain ; so that 
 at no time, Avhether there shall be peace or Mar be- 
 tween the kingdoms of Britain and France, any thing more 
 shall be demanded for these wines, by the name of custom 
 or duty, or by whatsoever other title, directly or indirectly, 
 whether they shall be imported into Great Britain, in 
 pipes, or hogsheads, or other casks, thnn what shall be de- 
 manded for the like quantity or measure of French wines, 
 deducting or abating one-third part of the custom or duty. 
 But if at any time this deduction or abatement of customs, 
 whicli is to be made as aforesaid, shall in any manner be 
 attempted and prejudiced, it sliall be just and lawful for 
 his sacred Majesty of Portugal again to prohibit the 
 
 (r) See Chapter 11., on the Colonial Trade, passim-
 
 CHAP. IV.] Trade with Europe: 183 
 
 woollen cloths, and the rest of the British woojllen manu- Methuea 
 - Treaty, 
 
 fact u res. 
 
 By this treaty, says Mr. Kin^, (the editor of the British 
 Merchant,) (s) in his dedication to Sir Paul Methuen, the 
 son of the minister who negociated it, " we gain a greater 
 balance from Portugal than from any other country what- 
 ever. By it also we have increased our exports thither, 
 from about 300,000/. jearly, to near 1,500,000/. 
 
 It was by no moans the interest of Britain, during a war 
 with France and Spain, to use the wines of those countries, 
 which, doubtless, could have been imported by neutral 
 8hips ; and as Portuguese red wines were therefore become 
 in some sort the only kind we could then conveniently 
 and reasonably purchase, this treaty was beneficial to both 
 countries, especially as Portugal in return for our tak- 
 ing such quantities of her wines, has constantly consumed 
 a greater (|uantity of our manufactures, so as to occasion 
 a considerable yearly balance in our favour. 
 
 The British manufactures, moreover, by reason of this 
 trade, found a more easy entrance into Spain, and were 
 thence exported to South America, so that the Portuguese 
 trade became, in fact, a greater vent for British manufac- 
 tures than would have been acquired by the mere supply 
 of the Portuguese market itself. The only proper object 
 of all commercial treaties is to clear away impediments, and 
 to remove obstructions to a market ; but in no degree to 
 force it. Almost every nation in Europe raises a great 
 portion of its revenue by its customs on foreign importa- 
 tiojis, which charges are the main impediments to the 
 interchange of their produce. The object of commer- 
 cial treaties is either to remove, or to balance, these 
 charges of the respective governments. It is absurd, 
 therefore; to give in to an objection now so frequent with 
 
 4») Maspherson, Vol. II. p. 729.
 
 184 
 
 Navigation Laws. 
 
 [part I. 
 
 many popular writers, that all commercial treaties are 
 contrary to the established principle of the liberty of com- 
 merce. The very effect of such treaties is, in fact, to 
 restore this liberty. The objection would be good if their 
 purport were to force a demand and consumption of arti- 
 eles not called for by the taste or necessities of foreigners. 
 But so long as their object is merely to remove obstruc- 
 tions, in what respect can they be justly called restrictions 
 on the liberty of commerce ? 
 
 Sicily and 
 Sardinia. 
 
 The treaty with the King of Sardinia contains no article 
 with respect to their European trade. But in the treaty 
 of commerce and navigation between England and the 
 King of the two Sicilies, (September 1816) there are some 
 articles of importance. By the first article his Britannic 
 Majesty consents, that all the privileges and exemptions 
 which his subjects, their commerce and shipping, have 
 enjoyed, in the dominions, ports, and domains of His Si- 
 cilian Majesty, in virtue of the treaty of peace and com- 
 merce concluded at Madrid, in 1667, between Great Bri- 
 tain and Spain ; of the treaties of commerce betvveen the 
 same powers, signed at Utrecht in 1713, and at Madrid in 
 1715 ; and of the convention concluded at Utrecht, 1713, 
 between Great Britain and Sicily, shall be abolished. 
 By the fourth article, British commerce in general, and 
 the British subjects who carry it on, are to be placed upon 
 the same footing as the most favoured nation, not only 
 with respect to the persons and property of British sub- 
 jects, but also with regard to every species of article in 
 .which they may trade. (/) 
 
 Inninn 
 Islands. 
 
 . By the late treaty beween Great Britain and Russia, 
 signed at Paris, (Nov. 1815) the islands of Corfu, Cepha- 
 lonia, Zante, Maura, Ithaca, Cerigo, and Paxo, with 
 their dependencies, are constituted a single, free, and in- 
 
 (/) This treaty contains sonic tion of duties, wliich are not with- 
 clauses with respect to the reduc- in the scope q[ this work.
 
 CHAP. IV.] Trade with Europe. 185 
 
 dependent state, under -the denomination of the United 
 States of the Ionian Islands. Their trading flag is to be 
 acknowledged by all the contracting parties, as the flag of 
 a free and independent state. The commerce between the 
 United Ionian States and His Imperial and Royal Apos- 
 tolic Majesty is to be placed upon the same footing as the 
 commerce between Great Britain and these islands, (u) 
 
 There has been no treaty of commerce or navigation with ^^^^7- 
 Turkey ; and this trade remains with the Turkey Company, 
 of which we have already spoken, (x) The navigation act 
 directs, as we have before shewn, that no currants or com- 
 modities of the growth, production or manufacture of any 
 of the territories to the Othoman or Turkish empire be- 
 longing, shall be imported into England or Ireland, in 
 any vessel but which is of English-Jw?'/^, and duly navi- 
 gated, and in no other, except only such foreign vessels 
 as are of the built of that country or place of which the 
 said goods are the growth, production or manufacture, s. 8. 
 The places reserved to the Turkey Company, for their 
 trade, are the States of the Republic of Venice, (in its 
 Gulf) those of Ragusa, and all the Grand Seignior's 
 dominions ; the ports of the Levant and Mediterranean, 
 excepting those of Carthagena, Alicant, Denia, Valencia, 
 Barcelona, Marseilles, Toulon, Genoa, Leghorn, Civita 
 Vecchi^, Palermo, Messina, Malta, Majorca, Minorca, 
 Corsica, and all other ports and places of commerce on the 
 coasts of France, Spain and Italy ; and the fine for those 
 interloping in the trade, and not members of the Company, 
 is a fine of twenty per cent, on the value of the cargo. (^) 
 
 We have already pointed out, in thje chapter on the ^Z^*^^* *°*^ 
 Colonial Trade, the commerce which is allowed to be car- 
 
 («) Similar treaties were signed King of Prussia respectively, 
 on the same day by the plenip6ten- (x) See ante, page 147. 
 
 tiaries of His Majesty, with those (j/) Beawes. 
 of the Emperor of Austria and the
 
 186 J^^avigation Laws. ^part i. 
 
 ried on between the Azores, or Western Islands, and the 
 British colonies in North America, for the benefit of the 
 fisheries, (z) In the same chapter we have dwelt upon^ 
 the relaxation of the navigation laws, in favour of the 
 trade between British America, the sugar colonies, and 
 the ports south of Cape Finisterre. The direct trade be- 
 tween our colonies and Malta and Gibraltar is established 
 upon the same principle ; that of assisting our fisheries, 
 and supplying our settlements with commodities by a less 
 circuitous course. On account of the garrisons in the two 
 last mentioned places, certain facilities have been allowed ; 
 and they are in some degree considered as depots for those 
 who deal with us for colonial articles in the Mediterra' 
 nean. 
 
 Such is the European trade as it at present exists under 
 the navigation laws, and the most recent treaties. For 
 the sake of practice it may be condensed, and summarilv 
 represented in the three following Rules. 
 
 RULE I. 
 
 As to the Ships. 
 
 Russia and No goods or commodities, being the growth, produce, 
 
 or manufacture of Muscovy, or of any territories belonging 
 
 Eniimeratcd to the Emperor of Russia ; nor any sort of masts, timber, 
 or boards, foreign salt, pitch, tar, rosin, hemp, flax, rai- 
 sins, figs, prunes, olive oils, corn, or grain, sugar, pot- 
 ashes, wines, vinegar, or spirits called aqua vita% or 
 brandy wine, (being the growth, product or manufacture of 
 Europe) may be imported, but in British-^///// ships, or 
 in British ships owned by British subjects, and navigated 
 according to law, &c. : or in ships of the built of any 
 country in Europe belonging to the sovereign of that 
 
 (z) Sec ante, pnge 65, and Chap. II. passim.
 
 CHAP. IV.] Trade with Europe, 187 
 
 Eui'opean country of which such goods are the product; or Suiaraary, 
 of the built of such port, where the said goods can only 
 be, or most usually are, first shipped for transportation ; 
 and navigated by a master and three-fourths at least of the 
 mariners of that country, place, or port. Currants and 
 commodities, of the growth, &c. ctf the Turkish empire, 
 are importable only in British-built ships, or in ships of 
 the built of the country of which the goods are the pro- 
 duce •, or of the usual ports of shipping tliem for trans- 
 portation. This first rule is founded on the 12 Car. II. 
 c. 18., amended by 27 Geo. III. c. 19. Thrown silk, of 
 the growth or produce of Italy, Sicily, or the kingdom of 
 Naples, is directed to be brought from some of the ports 
 of those countries or places, whereof it is the growth 
 or production, and to be imported by sea, and not other- 
 wise. 2 W. & M. St. 1. c. 9. And thrown silk may 
 now be imported from Malta directly into the United 
 Kingdom, if it be of the production of Italy, Sicily, or 
 Naples, on the payment of the like duties as are payable 
 on thrown silk when imported directly by sea from the 
 place of its production. The importation must be in 
 British-built vessels, oAvned, navigated and registered ac- 
 cording to law. 55 Geo. 111. c. 29. 
 
 RULE II. 
 
 As to certain goods, from certain places. 
 
 No sort of wines, (other than Rhenish) no sort of spi- 
 cery, grocery, tobacco, potashes, pitch, tar, salt, rosin, 
 deal boards, fir timber, or olive oil, may be imported from 
 the Netherlands or Germany, upon any pretence, in any 
 sort of ships or vessels whatsoever. 13 and 11 Car. II. 
 c. 11. 
 
 Exception 1. — Fir timber, fir planks, masts, and deal boards, 
 the produce of Germaft^, Mrhich are importable from any place io
 
 ^^^ Navigation Laics. [part i.^ 
 
 Summary. Germany by British subjects, in British-built ships, legally navi- 
 gated, 6 Geo. I. c. 15. Wine, the growth of Hungary, which 
 may be imported from Hamburgh, 1 Anne, stat. 1. c. 11. And 
 wines of Hungary,' the Austrian dominions, or any part of Ger- 
 many, which are importable from any place subject to the Emperor 
 or House of Austria, in any such ships as are described in the first 
 •rule. 22 Geo. III. c. 78. and 27 Geo. III. c. 19. 
 
 Exception 2. — Fruit, wine, oil, cork, and salt, the produce of 
 any part of Europe, south of Cape Finisterre, may be shipped in 
 any place in such ports of Europe, for exportation direct to St. 
 John's, in New Brunswick ; St. John's, in Newfoundland ; Que- 
 bec, in Canada ; Sydney, in Breton island ; Halifax and Shelburne, 
 in Nova Scotia ; and Charlotte Town, in Prince Edward island, 
 on board any British ship legally navigated, which shall have ar- 
 rived at such place in Europe, with articles of the growth or pro- 
 duce, or fish of the said colonies, taken and cured by his Majesty's 
 subjects, carrying on the fisheries from any of the said colonies or 
 plantations, or from any part of the United Kingdom, or with 
 any of the goods or commodities (mentioned in 51 Geo. III. c. 97.) 
 from the province of Canada, whether such goods and merchandise 
 shall be the growth or produce of the province of Canada, or shall 
 have been brought into the said province by land or inland naviga- 
 tion. The articles aforesaid, the produce of any part of Europe 
 south of Cape Finisterre, shall, before the importation thereof into 
 any of the several ports before enumerated, be subject to the pay- 
 ment of such duties as goods of the like denomination or descrip- 
 tion are subject to, upon being imported into any of the said seve- 
 ral ports from Great Britain, and no other or higher du^ties. 
 
 RULE III. 
 
 As to articles unrestrained. 
 
 Bullion and prize goods, and all other goods and com- 
 modities of the growth, &c. of Europe, (not being prohi- 
 bited absolutely to be imported, and not specified in the 
 two preceding rulcs;) may be imported from any eountry4
 
 CHAP. IV.] Trade 'i£th Europe. 189 
 
 or place, in any sort of ships, owned and navigated in any Summary, 
 sort of manner. 
 
 The reasons of this rule are clear ; the 12 Car. II. 
 c. 18. s. 15. exempts bullion and prize goods ; and as 
 there are no statutes affecting the import of European 
 articles, besides those mentioned in the two first rules, 
 it follows that all others are commodities unrestrained. 
 The restriction as to the navigation of British ships, im- 
 posed by 34 Geo. III. c. 68., which applies to all imports 
 whatsoever, will be noticed under the head of the registry 
 acts.
 
 190 
 
 CHAPTER V. 
 
 THE COASTING TRADE. 
 
 HE next branch of our navigation laws is the coasting 
 trade, in \yhich it will be seen, that our navigation system 
 is still more exclusive than even with respect to the co- 
 lonies themselves. 
 
 The laws of our coasting trade are as simple and ab- 
 solute as their object is distinct and decided. They are 
 chiefly contained in the 6th sect, of the 12 Car. II. c. 12. 
 the 1 James II. c. 18. ; the 34 Geo. III. c. 68. ; and the 
 42 Geo. III. c. 61. 
 
 In the sixth section of the navigation act it is en- 
 acted, " that no person shall load, or cause to be loaden, 
 and carried in any bottoms, ships, or vessels whatsoever, 
 whereof any stranger born (unless such as shall be deni- 
 zens, or naturalized,) be owner, part owner, or master, 
 and whereof three-fourths of the mariners, at least, shall 
 not be English, any fish, victual, wares, goods, commo- 
 dities, or things, of what kind or nature soever, from one 
 port or creek of England, Ireland, Wales, the Islands of 
 Guernsey, Jersey, or the town of Berwick, to another port 
 or creek of the same, or of any of them, under pain of 
 forfeiting the goods and ship j one mqiety to the king, 
 and the other moiety to the informer." The object of this 
 provision was to exclude foreign property from the coast* 
 in": trade.
 
 CHAP, v.] The Coasting Trade. 191 
 
 The 1 Jac. II. c. 18. extended this prohibition from The Coasting 
 foreign property to foreign built ships, which, as may be 
 seen, were not included in the above clause of the act of 
 navigation. By the act of James II. every foreign built 
 ship or vessel bought and brought into the kingdom, 
 to be employed in our coasting trade, is to pay at the port 
 of delivery five shillings per ton, over and above all other 
 duties ; one moiety to the chest of Chatham, and the other 
 moiety to the Trinity Company. 
 
 By 34 Geo. III. c, 68. no goods, wares, or merchan- 
 dize, shall be carried from any port, member, or creek, or 
 place of Great Britain, or of the islands of Guernsey, 
 Jersey, Alderney, Sark, or Man, to any other port, mem- 
 ber, creek, or place of the same, or of any of them, in 
 any ship or vessel ; nor shall any ship or vessel be per- 
 mitted to sail in ballast from one of the said ports 
 or creeks to another, unless such ship or vessel shall, 
 respectively, be wholly and solely manned with, and 
 navigated by, a master and mariners, all British sub- 
 jects. 
 
 The 42 Geo. III. c. 01. extends this provision to Irish 
 ships. 
 
 With the exception of several acts passed to prevent 
 smuggling, which do not fail within the plan of this work, 
 all the regulations of our coasting trade are contained 
 in the above statutes. («) 
 
 (fl) Masters of vessels, before and 56 Geo. III. c. 104. There are 
 
 they clear out coastwise, are re- several acts of parliament regu- 
 
 quij-ed to give bond not to be con- lating the licences which are re- 
 
 cerned in any illegal transaction, quired to be taken out by vessels 
 
 32 Geo. III.c. 50 ; and the owners exceeding a certain burthen : but 
 
 are likewise required to give bond these acts belong to the details of 
 
 that the vessel be not illegally revenue and custom, rather than 
 
 employed, nor out of the liiuits of to a treatise on the general law. 
 her licence, 46 Geo. III. c, 137,
 
 192 Navigation Laws. [part r. 
 
 The Coasting The navigation law regards this trade to belong as 
 peculiarly to British subj cts, as the internal navigation 
 of the country itself. Upon this principle the legisla- 
 ture confines it entirely to British ships, seamen, and 
 capital. 
 
 The prohibitions upon this head are so simple and 
 unqualified, that no cases have arisen out of the sta- 
 tutes.
 
 193 
 
 CHAPTER VI. 
 
 THE FISHERIES — GREENLAND SEAS AND DAVIs's STRAITS, 
 NEWFOUNDLAND FISHERY. — SOUTHERN WHALE FISH- 
 ERY. — HERRING FISHERY. BOUNTIES, &€. — CASES AND 
 
 DECISIONS. USAGES AND CUSTOMS. — RULES AND RE- 
 GULATIONS, &C. 
 
 JL HE next branch of the navigation laws is the fisheries, 
 which being peculiarly adapted to form British seamen 
 to maritime experience and habits, have very early been 
 distinguished by the active encouragement of the legis- 
 lature. 
 
 It has been observed by some of our wisest statesmen, 
 that our fisheries have not increased in the proportion 
 of our commerce ; and though our long line of coast, 
 and the character of the population on our shores, ap- 
 pear peculiarly favourable to success and enterprize in 
 that branch of industry, we have suifered other nations, 
 and particularly the Dutch, to maintain a rivaiship with 
 us in our own waters, and to aftbrd the principal supply of 
 fish to the other kingdoms of Europe. But, within late 
 years, this observation has ceased to be just. The Green- 
 land and Southern whale fishery of Great Britain has 
 long been without rivalry, and the circumstances of the 
 late war have almost made it exclusively our own ; whilst 
 our herring fishery, under the encouragement of the le- 
 gislature, has increased to an amazing extent. The me- 
 thod of curing herrings is now so perfect, and so familiar to 
 the British seamen, that we not only supply the Catholic 
 population of Europe with fish, in preference to all other 
 countries, but we are also enabled to ship large cargoes 
 to the East Indies and South America.
 
 194 
 
 Navigation Laws. 
 
 [part I. 
 
 Encourage- 
 ment of the 
 Fisheries by 
 the Naviga- 
 tion Act. 
 
 One of tlie principal enactments in the act of navi- 
 gation of Charles II. is directed to this encouragement 
 of British fisheries. The fifth section of 12 Car. II. en- 
 acts, that any sort of ling, stock-fish, pilchards, or any 
 other kind of dried or salted fish, usually fished for, and 
 caught by the people of England, Ireland, Wales, or 
 the town of Berwick, or any sort of cod-fish, or herring; 
 or any oil, or blubber, made of any kind of fish what- 
 soever, or any whalefins, or whalebones, which shall be 
 impo^-ted into the British dominions, not having been 
 caught in vessels truly and properly belonging thereunto, 
 as proprietors and right owners thereof; and the said fish, 
 cured, saved, and dried, and the oil and blubber (and such 
 blubber to be accounted and paid as oil,) not made by 
 the people thereof, imported into England, Ireland, or 
 Wales, or the town of Berwick, shall pay double aliens' 
 duty. This act was shortly followed by the 13 and 14 
 Car. II. c. 11, in which a duty, since called the Meditev' 
 ranean duty^ being imposed on under-sized' ships trading 
 into the Mediterranean, an exception was made in favour 
 of ships, one moiety of whose full lading was fish only ; 
 and in such case the fish exported, and any goods and 
 merchandize imported in the same ship for that voyage, 
 were not^ to be subject to any other duty of tonnage or 
 poundage for them than were theretofore accustomed. 
 And by stat. 9 Geo. II. c. 33. that moiety must consist of 
 fish taken and cured by His Majesty's subjects only. 
 
 For the encouragement of the North Sea island and 
 Wcstmony fisheries, the 15 Car. 2. c. 7. was, amongst 
 other objects, passed. In this statute it was enacted, that 
 no fresh herrings, fresh cod, or haddock, coal-fish, or gull- 
 fish, should be injported into England, Wales, or Ber- 
 wick, but in English built ships, or in ships bona fide 
 belonging to England, Wales, or Berwick, and having a 
 certificate as required by that act, and whereof the master 
 and three-fourths, at least, of the mariners are English ; 
 and which hud been fished, caught, and taken, in such
 
 tioa Act. 
 
 CHAP. VI.] The Fisheries. ' 1'95 
 
 ships, and so navigated, and not bought or had of any Encourage- 
 
 stransrers born, or but of any straneers' bottoms, under IV.^','* "^ **}® 
 
 '=• ' . z:) 7 JMslicncs by 
 
 pain of forfeiting the fish and the vessel. By the 18 Car. the Naviga- 
 II. C.2. made perpetual by 32 Car. II. c.2. no ling, herring-, 
 cod, or pilchard, fresh or salted, dried or bloated, or any 
 salmon, eels, or congers, taken by foreig;ners, aliens to 
 this kingdom, are to be imported or exposed to sale 
 in this kingdom, under pain of forfeiture. 
 
 The Greenland and Newfoundland fishery, a branch 
 of navigation of more duration and of greater national 
 benefits, secured the next encouragement of the legisla- 
 ture in the important statute, 25 Car. II. c. 7. It Avas 
 herein enacted, that it should be lawful for all His Ma- 
 jesty's subjects, and for every other person of what nation 
 soever, residing and inhabiting here, during the time of 
 such their residence, freely to trade into and from Green- 
 land and those seas, and there to take whales and all 
 other sorts of fisli, and to import into this kingdom all 
 sorts of oil, blubber, and fins thereof, and to use and ex- 
 ercise all other trade to and from Greenland, and the parts 
 adjacent of Newfoundland, and any other of His Ma- 
 jesty's colonies. And because it was necessary to encou- 
 rage harpooners, it was permitted for a limited time to 
 navigate with one moiety harpooners, and to have one 
 moiety only of the rest of the mariners English ; provided 
 the Captain was English. The importation of fish fo- 
 reign caught, and in foreign vessels, was at first rendered 
 impossible, by duties amounting to a prohibition ; and af- 
 terwards (by Stat. 10 and 11 Will. III. c. 24.) was pro- 
 hibited, under the forfeiture of ship and cargo. In the 
 same sessions a similar act was passed for the encourage- 
 ment of the fishery at Newfoundland. 
 
 These statutes allowing an importation of the produce of 
 these fisheries without duty, a practice now arose of 
 evading them by English smacks buying, when out at sea, 
 fish caught by foreigners, and then bringing' it to our ports 
 
 o2
 
 196 
 
 J^avigation Laws. 
 
 [part i. 
 
 Encourage- 
 meot of the 
 Fisheries, by 
 the Naviga- 
 tion Act. 
 
 as British caught. To prevent this practice was passed 
 the 1 Geo. I. c. 18. enacting, that no herring, cod, pil- 
 chards, salmon, or ling, fresh or salted, dried or bloated, 
 nor any gril, mackerel, whiting, haddock, sprats, coal-fish, 
 gull-fish, congers, nor any sort of flat fish, nor any sort of 
 fresh fish whatsoever, shall be imported or exposed to sale 
 in that part of this kingdom called England, which shall 
 be taken by, bought of, or received from, any foreign or out; 
 of strangers' bottoms, under a penalty of 20/. (afterwards 
 by 9 Geo. II. c. 33. made 100/.) on every person offending 
 against the act. The penalties of 1 Geo. I. not to extend 
 to eels, stock-fish, anchovies, sturgeon, and caveare. By 
 the 10 and 11 Will. III. c. 24. an exception from these 
 statutes was made in favour of lobsters and turbot, which 
 are therein allowed to be bought, whether of British or 
 foreign catching. 
 
 Pisheries en- 
 couraged by 
 bounties. 
 
 In order to a further encouragement of the British 
 fisheries, a system now commenced of allowing them an 
 exemption from the salt duties, in the nature of a bounty, 
 to be paid them by the collectors upon the exportation of 
 fish, British caught and British imported. The principal 
 act, for this purpose, was the 5 Geo. I. c. 18. which enu- 
 merates the species of fish caught in our seas, or in our 
 northern fisheries, and commands the collector of the salt 
 duties to pay bounties of so much per hundred or barrel, 
 upon cod fish, ling, herrings, &c. when exported. This 
 system of l)oun(ios ^\as exteiuied to the Greenland fishery 
 by the 6 Geo. II. c. 33. which gave a bounty of 90s. 
 (afterwards increased to 10.?. by 22 Geo. II. c.45.) per ton 
 iipoii all British ships of two hundred tons and upwards, 
 r( turning from the fishery of the CJreenland seas and Davis's 
 Straits with their cargoes to a British port. This bounty 
 was increased by several acts till the 11 Geo. 111. c. ^"8. 
 This act, which was to continue for fifteen years, enacted, 
 that the bounty of lO.v. should expire at llu^ eml of five 
 years, and then be i(;duced to 3i)s. for the next /ive years, 
 and afterwords to 20*. This act continued in force till
 
 fAixp. vr.] The fisheries. 197 
 
 December, 1786. But tJie legislature, finding at the end Fisheriesea 
 of the first five years that the trade fell off with the J^oun'tfes. ^ 
 depreciation of tlie bounty, the stat. 22 Geo. III. c. 19. 
 restored the full bounty for five further years. 
 
 These acts, which were only temporary, were eonso- Acts for the 
 
 lidated in one important statute, which how constitutes in «»courage- 
 
 • ' . meat oi tlic 
 
 great part the law of the Greenland trade. This act is fisheries in 
 
 the 26tli Geo. III. c. 41., further continued by 32 Geo. III. seL^^'nTn^ 
 ,.€.22.; and 38 Geo. III. c. 35. (with other intermediate vis's Strait*, 
 acts,) and, lastly, by 55 Geo. III. c. 39. By these several 
 statutes, (until the 25th of March, 1820,) certain bounties 
 are to be paid to British ships, owned by British subjects, 
 usually residing in Great Britain, Guernsey, Jersey, or 
 Man, which proceed from those places on the whale 
 fishery to the Greenland Seas or Davis's Strails, or to 
 the seas adjacent, manned and navigated with a master 
 and three-fourths at least of the mariners British subjects, 
 usually residing in Great Britain, Ireland, or Guernsey, 
 Jersey, or Man. Such ship, after she has been visited and 
 admeasured by the officer of the port, and it shall ap- 
 pear upon inspection and examination upon oath of cer- 
 tain persons, and be certified by such officer, that she 
 is properly furnished with tackle and eq\iipment for the 
 whale fishery, according to the requisites of the act, and 
 means to proceed thither, aiul endeavour to take whales, 
 or other creatures living in the seas, and on no other de- 
 sign or view of profit in the voyage, and to import the 
 whale-fins, oil, and blubber thereof into Great Britain, 
 i?pecifying the port, and shall give bond for so doing ; 
 upon these terms such ship may have a licence from the 
 commissioners of the customs to proceed on such voyage; 
 and upon the return of such ship, and her condition being 
 reported by the ofliccr of the port, and oath made by the 
 master as to the performance of the voyage, and that all 
 the M'hale-fins, oil, and blubber, imported, were really and 
 bond fide caught and taken in those seas by the crew of 
 6uch bhipj or with the assistance t)f some other ship
 
 198 
 
 Navigation Laws. 
 
 [part f. 
 
 Bounties of 
 30s. per ton 
 to ships in 
 the Green- 
 laud trade. 
 
 Extent of 
 Fishery de- 
 fined. 
 
 Accounts to 
 be laid before 
 Parliament. 
 
 licensed for that voyage, there is to be paid by the com- 
 misisoners of the customs a bounty of SO*, per ton of 
 such' ship. Such ship must sail on her voyage on or be- 
 fore the 10th of April, and continue in those seas dili- 
 gently endeavouring- to catch whales or other creatures, 
 and not depart before the 10th of August, unless laden 
 with a certain quantity of oil, blubber, or whaie-fins, 
 unless she shall be compelled by some unaccountable 
 accident to depart. Ships of more than four hundred 
 tons, already employed in the fishery, migjit continue to 
 be rated as of four hundred tons, and not Inore. All ships 
 coming into the fishery after the 25th of December, 1786, 
 and being more than three hundred tons, shall not receive 
 a bounty for more than three hundred tons; and such 
 ships respectively are not to equip and man for more than 
 four hundred or three hundred tons. If a log-book has not 
 been constantly kept on board, no bounty v, ill be allowed. 
 The log-book must be produced to the Captains of His 
 Majesty's ships of war with which they may chance to fall 
 in, and also to the British consul at any foreign port. 
 Provision is likewise made, that ships owned by the king's 
 subjects residing in Ireland, and fitting out from thence, 
 should, on complying with the conditions of this act, be 
 entitled to these bounties. Permission is given to in- 
 sure the bounties, in order that when ships were lost, the 
 owners might have some indemnity. liarpooners, line- 
 managers, and boat-steerers, are secured from impress- 
 ment. The extent of the fishery is defined to fifty-nine 
 degrees tiiirty minutes north, and no further. The com- 
 missioners of the customs are annually to lay before par- 
 liament an account of the ships employed. 
 
 But it appearing not necessary to keep ships in the 
 Greenland seas so long, it was enacted by stat. 29 
 Geo. 111. c. 53. that they should have the bounty, al- 
 though thoy loft those seas before the 10th of August, 
 and were not laden with the quantity of whale-fins and 
 of oil and blubber required by stat. 26 Geo. III.
 
 €HAP. VI.] The Fisheries. 199 
 
 c. 41. provided they did not depart from thence till 
 the expiration of sixteen weeks from the time of sail- 
 ing- from the port from Avhence they cleared out. These 
 statutes and bounties were contuiued by several tem- 
 porary statutes till the 55 Geo. III. c. 39. This act, in Bounties 
 substance, repeats the 26 Geo. 111. c. 41. and following Mafch^Y820. 
 statutes, as to the general regulations, and continues the 
 bounties till the 25th of March, 1820. (a) 
 
 By Stat. 39 and 40 Geo. III. c. 51. the Greenland trade 
 was greatly assisted, by directing that the duty should be 
 taken on the oil, and not on the blubber before it was 
 boiled ; in which circumstance the southern whalers, who 
 always boil their blubber during the voyage, had before 
 an advantage over the Greenland fishery. This easement 
 has been continued in the new consolidation act, for lay- 
 ing duties, Stat. 43 Geo. III. c. 68. The 46 Geo. III. 
 c. 9. permitted vessels engaged in this trade until the sig- 
 nature of preliminary articles of peace, in consequence of 
 hostilities with France, to complete their complement of 
 men at any of the ports in the Frith of Clyde, or Lough 
 Ryan, or at Lernick, in the isles of Shetland, or Kirkwall 
 in the Orkneys. This act has been continued by the 
 55 Geo. III. c. 39. until the 25th of March, 1820. 
 
 This system of bounties was immediately afterwards Newfound- 
 extended to the Newfoundland fisheries ; namely, to ships '^.nd Fishcrr. 
 employed in the British fishery on the banks of New- 
 foundland, being British built, and owned by thB king's 
 subjects residing in Great Britain or Ireland, Guernsey, 
 Jersey, or Man, of fifty tons or upwards, navigated with 
 not less than fifteen men, three-fourths of whom were the 
 king's subjects. They were to clear out from Great Bri- 
 tain ; to catch not less than ten thousand fish on the 
 banks, and land them on the southern or eastern side of 
 Newfoundland, betbre the 15th of July; then return to 
 
 i(a) See Mr. Reeves's Observations OQ tlie earj^er Acts, pag. 371 to 378.
 
 ^00 
 
 J^lavigation Laws. 
 
 [part I. 
 
 Newfound- 
 laud Fishery. 
 
 the banks, and come back again in like manner to tlie 
 island with the same cargo, 15 Geo. III. c. 31. The 
 same act extended similar bounties (for a like term of 
 years now expired) for five ships employed in the whale 
 fishery in the Gulf of St. Lawrence, on the coast of 
 Labrador, or any seas to the southward of the Green- 
 land seas and Davis's Straits. Such ships were to be 
 British built, owned, and navigated ; were to clear from 
 Great Britain, Ireland, Guernsey, Jersey, or Man, and 
 were to take one whale at least, and return in the same 
 year to some port' in England, with the oil so taken. 
 The act then proceeded to extend the importation of 
 train oil, duty free, (from English ships,) to ships be- 
 longing to Ireland, Guernsey, Jersey, and Man. 
 
 Bounties in 
 this trade ex- 
 pired. 
 
 Of the extent 
 ofUie Ncw- 
 fwiii'dlaud 
 fishery. 
 
 The bounties under this statute having expired, the 
 26 Geo. III. c. 26. (renewed from time to time by other 
 statutes till 25 March, 1811,) was passed, by which ano- 
 ther scale of bounties was given to ships British built, 
 owned and navigated according to law, employed in the 
 Newfoundland fisheries. The regulations to be the 
 same with those required by stat. 10 and 11 Will. III. 
 c. 25. But all these acts (as respects bounties,) having 
 ceased in 1811, the present law of the Newfoundland 
 trade is chiefly contained in the 15 Geo. III. c. 31. and in 
 such clauses of regulation as remain yet unrepealed in 
 some of the early acts herein mentioned. Under this act, 
 and these unrepealed clauses, the present state of the 
 Newfoundland fishery may be briefly stated as follows : — 
 
 By the 10 and 11 Will. III. c. 25. all His Majesty's sub- 
 jects, residing within Great Britain or Ireland, or the domi- 
 nions thereunto belonging, trading to Newfoundland, and 
 the seas, rivers, lakes, creeks, harbours, in or about New- 
 foundland, or any of the islands adjoining or adjacent 
 thereunto, shall have, use, and enjoy the free trade and 
 traflic, and art of merchandize and fishery, to and from 
 Newfoundland, and peaceably use and enjoy the freedom of
 
 cflAP. VI.] The Fisheries. 201 
 
 taking bait and fishing in any of the rivers, lakes, creeks, Newfound- 
 harbours, or roads, in or about Newfoundland and the '* ^^^' 
 said seas, or any of the islands adjacent thereunto, and 
 liberty to go on shore on any part of Newfoundland, or 
 any of the said islands, for the curing, salting, drying, and 
 husbanding of their fi«h, and for making of oil, and to cut 
 down wood and trees there for building and making or re- 
 pairing of stages, ship-rooms, train-fats, hurdles, ships' 
 boats, and other necessaries for themselves and their ser- 
 \ants, seamen, and fishermen, and all other things which 
 may be useful or advantageous to their fishing trade, as 
 fully and freely as at any time heretofore hath been 
 used or enjoyed there by any of the subjects of His Ma- 
 jesty, without any hindrance, interruption, or disturbance, 
 from any person ; and no alien or stranger, not residing 
 within Great Britain or Ireland, shall at any time here- 
 after take any bait, or use any sort of trade or fishing in 
 Newfoundland, or in any of the islands or places before- 
 mentioned. But the privilege of drying fisli on the island 
 of Newfoundland is not to be exercised by any of His 
 Majesty's subjects arriving at Newfoundland from any 
 other country except Great Britain or Ireland, or one of 
 the British dominions in Europe, (i) 
 
 No person residing in, or carrying on the fishery in 
 Newfoundland, shall sell or exchange any ship, vessel, 
 or boat, or any tackle, apparel, or furniture, which may 
 be used by any ship, vessel, or boat, or any seans, net=, 
 or other implements or utensils for catching or curing 
 fish, or any bait, or fish oil, blubber, seal-skins, pelti-y, 
 fuel, wood, or timber, to or with any person except His 
 Majesty's subjects, (c) And any person residing in, or 
 carrying on the fishery in Newfoundland, who shall 
 there purchase or take in exchange, or by way of bar- 
 ter, any goods from the subject of any foreign state, 
 or assist in so doing, may be. apprehended and committed 
 
 (b) 15 Geo. III. c. 31. sect. 4. (c) 26 Geo. III. c. 2*5. sect. 11. 
 
 39Geo. III. e, 33. sect. 1.
 
 Jsavigation Laws. 
 
 [part r. 
 
 Newfound- 
 land Fishery. 
 
 Belaxation 
 of the NaTi- 
 gation Laws 
 in favour of 
 the Fisheries. 
 
 to prison, and shall forfeit double the value of the goods, {d) 
 Vessels not exceeding thirty tons, and not having a deck, 
 employed solely in the fishery on the banks or shores of 
 Newfoundland, or in trading coastwise there, are not re- 
 quired to be registered, (e) 
 
 For the encouragement of this fishery, as we have before 
 observed in our chapter on the colonial trade, it is made 
 lawful to lade in British built ships, owned, navigated, and 
 registered according to law, in any part of Europe, salt for 
 the fisheries of Newfoundland ; and to lade in the Madei- 
 ras and Azores, wines of the growth thereof, and export 
 the same to any of the British colonies or plantations. (/) 
 And oranges and lemons of the Azores or Madeiras may 
 be laden at the said islands for exportation direct to any 
 of the British colonies in North America, in British ships, 
 navigated and registered according to law.(g) And any 
 inhabitant of Guernsey or Jersey may transport direct 
 fifom thence to Newfoundland, or any of the British colo- 
 nies in America where the fishery is carried on, in any ships 
 wliich may lawfully trade there, any sort of craft, food, 
 Tictuals, clothing, or other goods fit and necessary for 
 the fishery in those parts, or for the use of mariners or 
 other persons employed on board the ships or on shore 
 in carrying on the said fishery ; such craft, &c. being 
 the produce or manufacture of Great Britain, or the said 
 islands, and such food or victuals, being the growth or 
 produce of Great Britain, Ireland, or the said islands. (A) 
 And any of His Majesty's subjects residing in the Isle 
 of Man may export from thence, and import into any 
 of the. British colonies, in British ships, manned and 
 navigated according to law, herrings caught and cured 
 by them, in the same manner as victuals of and from Ire- 
 land may be imported into the said colonies, by 15 
 Car. II. c. 7. 12 Geo. III. c. 58. So, likewise, fruit, 
 
 ((/) ef) Geo. in. c. 26. sect. 16. 
 
 (e) 27 Geo. Ill, c. 19. 
 
 (J) 15 Car. II. c. 7. 4 Geo. III. 
 
 C, 15. 
 
 (ff) 57 Geo, III. c. 89. 
 (//) 9 Geo. III. C. 28.
 
 CHAP. VI.] The Fisheries. 203 
 
 wine, oil, salt, or cork, the produce of Europe, south Nswfound- 
 of Cape Finisterre, may be laden in any port of Eu- ^" ^* 
 
 rope for exportation direct to St. John's, in New- 
 foundland, on board any British ship, owned, navigated, 
 and registered according to law, which shall have ar- 
 rived at any such port of Europe with articles the pro- 
 duce of the British colonies in North America, or with 
 fish taken and cured by His Majesty's subjects carrying on 
 the fisheries from any of the British colonies in North 
 America, or from any part of the United Kingdom. (0 
 
 Before any blubber and train oil imported into Great 
 Britain, as being taken and caught on the banks and 
 shores of Newfoundland, and parts adjacent, wholly 
 by His Majesty's subjects carrying on the fishery from 
 that , island, shall be admitted to entry, on payment 
 of the duty payable on such oil, the master is required 
 to deliver to the collector or other chief officer of the 
 customs at the port of importation, a certificate under 
 the hand and seal of the governor, or deputy go- 
 vernor of Newfoundland, or of the collector or other 
 chief officer of the customs of the port or place in New- 
 foundland, where the oil or blubber shall have been taken 
 on board ; or if no such officer or governor or deputy 
 governor shall be residing there, then a certificate shall 
 be produced under the hand and seal of the naval officer 
 or other principal officer of the said port or place, or of 
 one of His Majesty's justices of the peace for the district, 
 testifying that oath had been made before him (who 
 is required to administer such oath, and to grant such 
 Certificate,) by the shipper of such blubber or oil, that 
 the same was really and bona fide the produce of fish or 
 creatures living in the sea, actually caught and taken 
 wholly by His Majesty's subjects carrying on such fishery, 
 and usually residing in the island of Newfoundland, or 
 in his Majesty's European dominions. And the master of 
 
 (b) gee Chaj). II. on the Colonial Trade, passim, and 51 Geo. 111. c. 9T. 
 
 3
 
 204 
 
 Newfound- 
 land Fishery. 
 
 xsavigation Laws. 
 
 [part I. 
 
 the ship in which the blubber or oil shall be imported, 
 is required to make oath before such collector or other 
 chief officer at the port of importation, that the blubber 
 or oil so imported is the same as mentioned and referred 
 to in the said certificate ; and the importer or consignee 
 of such blubber or oil is also to make oath before the 
 collector or comptroller, or other proper officer of the 
 customs, at the time of entry, that, to the best of his 
 knowledge and belief, the blubber and oil so imported 
 was actually caught and taken by British subjects, usually 
 residing in Newfoundland, or in his Majesty's European 
 dominions ; and, on failure of such certificate being pro- 
 duced, and proof on oath being made, such blubber and oil 
 shall be deemed to be of foreign fishing, and charged with 
 duty accordingly, 55 Geo. III. c. 135. By the 49 Geo. III. 
 c. 27. certain parts of the coast of Labrador are annexed 
 to the government of Newfoundland, 
 
 Southern 
 
 Whale 
 
 Fishery. 
 
 Prpmhims 
 and bounties 
 in the South- 
 ern Whale 
 Fishery. 
 
 The Southern Whale Fishery was first recognized, if n<)t 
 established, by 16 Geo. III. c. 47. the preamble of this sta- 
 tute stating, that "a valuable whale fishery had been lately 
 discovered in the seas to the southward of the latitude 
 of 44 degrees north." The same system of bounties was 
 extended to this fishery by 26 Geo. III. c. 50., 28 Geo. III. 
 c. 20., and 29 Geo. III. c. 53. These acts were all re- 
 pealed by 35 Geo. III. c. 92. and another form of the 
 trade established, and which, with some slight additions 
 from subsequent statutes, chiefly enlarging the limits, 
 continues to tlie present day to be the law of this fishery. 
 In giving the substance of this act, we shall either in- 
 terpose or subjoin these additions, and the acts by which 
 they are made. 
 
 By the 35 Geo. III. c. 92, continued by the 51 Geo. III. 
 c. 34., and 55 Goo. III. c. 45. the following premiums are 
 to be given : — To each of eight ships, cleared out betweeU 
 the 1st of January and 31st of December, 1815, and 
 between the let of January and 31st of December, in
 
 CHAP. VI.] The Fisheries. 205 
 
 each of the four siicceedins: years, and which shall carry Southern 
 
 Wliale 
 on the said fishery, to the soiUiLisard of the equator^ and Fishery. 
 
 return before the 1st of December, in the year subsequent 
 to that of clearing out, with the greatest quantity of oil 
 or head matter (not less than twenty tons in each ship,) 
 three hundred pounds. To each of four other ships, 
 cleared out between the 1st of January and 31st of De- 
 cember, 1815, and between the 1st of January and 31st of 
 December, in each of the four suucceding years, and which 
 shall proceed to the southward of the S6th degree of south 
 latitude, there to fish, and not return till after fourteen 
 calendar months from the day of clearing out, but before 
 the 31st of December, in the second year after clearing 
 out, with the greatest quantity of oil or head-matter, (not 
 less than 20 tons in each ship) four hundred pounds. To 
 one other ship, cleared out between tlie 1st of January 
 and 31st of December, 1815, and between the 1st of 
 January and 31st of December in each of the four suc- 
 ceeding years, and which shall double Cape Horn, or pass 
 through the Straits of Magellan into the South sens, and 
 fish during four months to the westward of Cape Horn, in 
 those seas, or which shall double the Cape of Good Hope, 
 and fish during four months to the eastward of 105 degrees 
 of east longitude from London, and not return till after 
 sixteen calendar months from the day of clearing out, but Regulations 
 before the 31st of December, in the second year after JJl^tTe"^'"* 
 clearing out, and having the greatest quantity of oil or Fishery. 
 head-matter, (not less than 30 tons) six hundred pounds. 
 To each of nine other ships, arriving with the next 
 greatest quantity, not less than thirty tons in each ship. 
 Jive hundred pounds. Ships returning with a cargo of oil, 
 as above, to any port of Ireland, are equally entitled to 
 the bounties. The ships are to be navigated by a master 
 and three-fourths of the mariners being the King's subjects, 
 usually residing in Great Britain, Ireland, Guernsey, 
 Jersey, or Man, or if the ships clear out from ^reat Bri- 
 tain, then they may be navigated by persons being Pro- 
 testants, and who, not being subjects of His Majesty^,
 
 206 Navigation Laws. [part i. 
 
 Southern have been heretofcfre employed in carry ine: on this fishery : 
 
 Whale r J J n j . 
 
 Fishery. ^^^ ^^^^^ shall first make oath, if it be their first voyage 
 
 from Great Britain, that they have already established, or 
 intend to establish themselves and families in Great Bri- 
 tain as subjects thereof; and if it be their second voyage, 
 that they have actually so established themselves. Various 
 regulations are contained in this act for attaining the object 
 designed, and preventing frauds. Each ship is to have on 
 board, for every fifty tons, an apprentice indentured for 
 three years. There is a penalty of fifty pounds on a mas- 
 ter permitting his apprentice to quit his service before the 
 expiration of the term. A log-book is to be regularly 
 kept and produced to the collector of the customs at the 
 return home, and verified on oath ; and is likewise to be 
 submitted to the captain of any of His Majesty's ships with 
 which they may happen to fall in. The master, mate, and 
 two of the mariners are to make oath, that the oil and 
 head-matter are the produce of their own fishing. A 
 penalty of 50.0/. is incurred if the cargo be made up from 
 the fishing of any other crew. If oil or head-matter be 
 mixed with water to increase the quantity, the whole for- 
 feited, and the premium lost. The quantities are to be 
 ascertained by an officer of the customs. Any produce of 
 the fishing in the going out or returning home, although 
 not taken within the prescribed latitudes, may be reckoned 
 towards the requisite quantity. If a ship make two voy- 
 ages within any of the periods, she is to have only one 
 premium. Harpooners, line-managers, and boat-steerers, 
 are privileged from being impressed. 
 
 Limits of the Any ship or vessel employed in carrying on the said 
 sltip's'fn tlic southern whale fishery, may sail and pass for that purpose 
 Soutlieru to the eastward of the Cape of Good Hope, and to the 
 FiblKT/. westward of Cape Horn, or through the Straits of Ma- 
 
 gellan. But no such ship, sailing to the eastward of the 
 Cape of Good Hope, shall pass to the northward of the 
 equator, or make more than 51 degrees of east longitude 
 from London; and no such ship, sailing or passing to
 
 CHAP. VI.] The Fisheries. 207 
 
 the westward of Cape Horn, or through the Straits of Southera 
 
 Whale 
 Magellan, shall, either to the northward or southward fishery. 
 
 of the equator, make more than 180 degrees west lon- 
 gitude from London. These limits were enlarged by 
 the 38 Geo. III. c 57., 42 Geo. III. c. 18., 43 Geo. III. 
 c. 90., and 51 Geo. III. c. 34. Licensed ships sailing 
 to the eastward of the Cape of Good Hope, may now 
 pass beyond 51 degrees of east longitude, provided thai, 
 after passing 51 degrees of east longitude, they shall 
 not pass to the northward of 10 degrees of south latitude 
 until they shall be to the eastward of 115 degrees of east 
 longitude ; and that then, until to the eastward of 180 
 degrees, they shall not pass to the northward of 10 degrees 
 of north latitude. Licensed ships, having passed to the 
 westward of Cape Horn, or through the Straits of Magel- 
 lan, may also pass beyond 180 degrees of west longitude ; 
 provided that, after passing the 180th degree, they do not 
 pass to the northward of 10 degrees of south latitude, 
 until within 51 degrees of east longitude from London. 
 Every such ship or vessel intending to sail or pass to the 
 eastward of the .Cape of Good Hope, or to the westward 
 of Cape Horn, or through the Straits of Magellan, shall be 
 obliged to take a licence for each respective voyage, from 
 the East India Company, specifying which of the said voy- 
 ages such ships shall be licensed to perform; and such li- 
 cence shall be valid only for the voyage therein expressed. 
 
 But the East India Company is not to be required Licences 
 to grant any licence to pass to the eastward of the Cape {'ilJJIIi'^Jjom-^*'^ 
 of Good Hope, to more than ten ships in any one p^"y- 
 year or season, or to grant any licence to any ship or 
 vessel, to pass to the eastward of the Cape of Good Hope, 
 unless the person applying for the same shall deliver to 
 the Court of Directors of the Company a manifest, or cer- 
 tificate, under the hand of the collector or comptroller 
 or other chief officer of the customs belonging to the port 
 whence such ship is intended to clear out, verified by the 
 oath of the owner or owners, or the master of such ship,
 
 208 
 
 Navigation Laws. 
 
 [part 1, 
 
 Southern 
 
 Whale 
 
 Fishery. 
 
 specifying the names and places of abode of the owner or 
 owners, and master of the said ship, and also the species, 
 quantity, quality, and value of all goods then on board 
 of such ship, nnd of all goods (if any) intended to be 
 afterwards taken into, or on board of the same before her 
 departure outwards ; and also, unless it shall by such ma* 
 nifest or certificate, appear unto the said Court of Direc- 
 tors, that no goods or merchandizes whatever (save and 
 except the stores of such ship or vessel, and the tackle, 
 materials, and other things necessary for the purpose of 
 the voyage) are taken or intended to be taken on board 
 of such ship or vessel. 
 
 But by the 42 Geo. III. c. 77., from the 22nd of 
 June, 1802, British-built ships, legally navigated, may 
 pass through the Straits of Magellan or round Cape 
 Horn, to carry on the fisheries in the Pacific Ocean, 
 from Cape Horn to 180 degrees of west longitude 
 from London, and to trade within the said limits without 
 any previous licence or permission from the East India 
 or South Sea Company. And by the 53 Geo. IH. c. 155, 
 ships of 350 tons and upwards, registered measurement, 
 on the Southern Whale Fishery, may pass through the 
 seas to the eastward of the Cape of Good Hope, and west- 
 ward of the Straits of Magellan, provided that they do 
 not pass farther to the north^^ard than 11 degrees of south 
 latitude, between the 64th and 150th degrees of east lon- 
 gitude fiom London ; without a licence from the Board of 
 Conimissioners for the Afi'airs of India ; but no ships of less 
 tonnage shall sail within any of the seas to the eastward of 
 the Cape of Good Hope, or to the westward of the Straits 
 of Magellan, without such a licence .from the said Board 
 of Commissioners, specially authorizing the same. 
 
 It is not, however, lawful for any ship or vessel to 
 go to, or touch at, any place upon the continent of 
 Asia, from the river Indus to the town of Malacca inclu- 
 sive, or any island under the government of the East
 
 CHAP. VI.] The Fisheries. 209 
 
 India Company, to the northward of the equator, nor the ^f^"HierQ 
 
 ^ , in' T-» 1 -I 1 • Whale 
 
 L-onipany s lactory at liencoolen, or its dependencies, or i^ishery. 
 
 the dominions of China, without a licence in writings from 
 the Court of Directors, specially authorizing the same. 
 The East India Company are not obli<^ed to i^rant any 
 licence to sail within the limits of their trade rouiul the 
 Cape of Good Hope, until the owners have given l)ond in 
 tlie penalty of 2000/., for such ship not taking- on board 
 goods, the produce or manufacture of the East Indies, or 
 places between the Cape of Good Hope and the Straits 
 of Magellan, to the value of 100/., except such as are 
 necessary for their voyage. Doing any thing in breach of 
 this act shall disable a ship from being entitled to any 
 licence in future. Power is given to the governor of 
 St. Helena, the commanders of the Company's ships, or 
 agents thereto authorized by the Company, to search 
 licenseal ships for East India goods. Ships doubling the 
 Cape of Good Hope, or Cape Horn, or passing through 
 the Straits of Magellan, and not being less than 200 tons' 
 burthen, may be armed for resistance and defence on a 
 licence being obtained from the Admiralty ; which licence 
 is to be granted on exhibiting a certificate from the Com- 
 missioners of the customs, testifying that such ship is 
 entered out for such voyage, and that the OAvner has 
 entered into bond, in a penalty of 1000/., with condition 
 that such arms shall be used only for resistance and de- 
 fence, in cases of involuntary hostility. 
 
 And for the easy manning of ships and vessels employed 
 in this fishery, the 54: Geo. IH. c. ill, (which repeals the 
 52 Geo. III. c. 103) enacts, that no ship or vessel employed 
 in the said fishery, the master of which shall have taken the 
 oath, or made the declaration of fidelity and allegiance to 
 His Majesty, required by the act 3j Geo. III. c. 92., shall 
 lose the benefit of any fishing voyage, by reason that the 
 master shall not have taken the oath, or made the declara- 
 tion of his having already established, or of its being his 
 intention to establish himself and family in Great Britain, 
 
 p
 
 210 
 
 Navigation Laws. 
 
 [part I. 
 
 Southeru 
 
 Wfi.ile 
 
 Fisliery. 
 
 British 
 fishery. 
 
 or by reason that all or any of the foreign Protestants, 
 employed as ni?a*iners in navigating such ship or vessel, 
 shall not have taken any of the oatii^, or made any 
 of the declarations required by the act passed in the 35tli 
 year of his present Majesty's reign, eutitlcd " an act 
 for further encoura£:if!<r and reffulatintr ihe Southern 
 Whale Fisheries." Lastly, temptations are held out to 
 invite foreigners to come and settle here, and carry on the 
 southern whale fishery from this country. 
 
 The fishery next in order is the British Fishery, insti- 
 tuted by 23 Geo. II. c. 24., entitled "an act for the en- 
 couragement of the British White Herring Fishery." 
 This act incorporated certain persons, under the style of 
 The Society of the Free British Fishery, to continue for 
 twenty years ; and enacted certain bounties. Tliis act was 
 continued and amended in some of its provisions by 28 
 Geo. II. c. U., the 30 Geo. IL c. 30., the 11 Geo. III. 
 c. 31., and the 10 Geo. III. c. 26. These acts having all 
 expired, the 26 Geo. III. c. 81. was passed, which, with 
 some slight additions by subsequent acts, hereafter sub- 
 joined, continues to be tlie law of this fishery to the pre- 
 sent time. These subsequent acts are the 48 Geo. HI. 
 c. 110., 52 of Geo. III. c. 153., and 55 Geo. HI. c. 04. 
 Upon all these acts, taken together, the law of this fishery 
 is now as follows — 
 
 Picsent rules 
 and rt;j:;ula- 
 tioiis of the 
 White Her- 
 ring Fishery. 
 
 From the first day of June, 1800, a bounty of threa 
 pounds per ton shall be paid annually to the owner or 
 owners of any whole-decked buss, or vessel, of not less 
 than sixty tons' burthen, (/.) being British-built, owned in 
 Great Britain, and manned, navigated, and registered, 
 according to law, which shall be fitted out for, and be 
 
 (A.) Extended to vessels not less 
 llian of forly-five tons, Ly 51 
 Geo. III. c. 101., corrected by 52 
 (leo. 111. c. 15.*}. But no vessel of 
 bulwccQ sixty and forly-five tons 
 
 sliall he entitled to any bounty on 
 the tonnnge, unless manned with 
 tea men, or with eight men and 
 two boys, not under thirteen year* 
 of nge.
 
 CHAP. VI.] The Fisheries. 211 
 
 actuallv emploved in, the deep sea British white herring British 
 
 „_, n • • Tij'i Fiihory. 
 
 fishery, on the coasts of Great Britain or Ireland, in the 
 
 manner and under the reguhitions prescribed by tliis act ; 
 
 provided that such bounty shall not, in respect of any buss 
 
 or vessel, be computed or paid on any greater number of 
 
 tons than one hundred, althoui^h such buss or vessel shall 
 
 l)e of greater burthen. If any buss or vessel, properly 
 
 fitted for the deep sea white herring fishery, in the manner 
 
 required by this act, shall be hired for carrying on the 
 
 said fishery, the persons hiring the same shall be entitled 
 
 to the bounty on the tonnage thereof, in the same manner 
 
 as if such persons were owners of such buss or vessel. (0 
 
 From the said first day of June, 1809, there shall Bounties to 
 be paid for every barrel containing thirty-two gallons white Her- 
 of white herrings, caught in the British fisheries, and ring Fishery. 
 landed in Great Britain, and cured and packed accord- 
 ing to the directions of the act, a bounty of two shil- 
 lings, (wi) This bounty is increased to four shillings by 
 the 55 Geo. III. c. 94, as hereafter mentioned. The sta- 
 tute then proceeds with a detail of the manner of ap- 
 pointing commissioners, officers, &c. for the execution 
 of the act. It then proceeds to enact, that every vessel 
 so claiming bounty shall have been fitted out with sixteen 
 bushels of salt for every last of herrings which such vessel 
 shall be capable of containing, and shall have a net of three 
 hundred square yards for every ton of admeasurement, 
 and with the number of men following : ten men, if the 
 vessel be sixty tons ; eleven men, if not exceeding seventy 
 tons ; and one man for every ten tons exceeding seventy, 
 two of which number respectively may be foreign seamen. 
 Such vessel shall be cleared out from the port of Great 
 Britain, where she was bond fide fitted for her intended 
 voyage, and shall proceed directly to Brassey Sound, in 
 Shetland, where she shall arrive on or before the twenty- 
 second day of June, in each year; and the crew shall not 
 shoot or wet the nets before the twenty-fourth day of 
 
 (/) 48 Geo. III. c, no. {m) Idem,
 
 212 Kavfgatlon LatL's. [part i, 
 
 British ^]^g same month, from which day thev sliall continue to 
 
 Fishery. ^ i • . . 
 
 fish in manner herein described on the coasts of Great 
 
 Britain or Ireland, until the fifteenth day of September 
 following, unless before the last-mentioned day the quan- 
 tity of herrings taken, and cured, and packed on board 
 thereof, shall amount to four barrels of herrings not re- 
 packed, or in tlie state in which they are called sea-sticks, 
 for every ton not exceeding one hundred tons of the 
 admeasurement of the vessel ; and tliat no fish, other 
 than heurings, shall be taken or cured by the crew of 
 such buss or vessel, nor shall any fisli, not taken by the 
 crew thereof, be received on board the same during the 
 whole course of the voyage, save only for the sustenance 
 of the crew ; and that all the herrings which sluill ])e 
 taken by tlie crew, and cured and packed on board, shall 
 be landed in Great Britain. 
 
 All owners, or tlieir agents, intending to claim bounty 
 for the deep sea British herring fishery, shall give a no- 
 tice, in writing, to the ofiicer of the port at wliich they fit 
 out, and which notice shall express the name of the vessel, 
 the port to which she belongs, and whether British built, 
 or prize ship, lav, fully condemned ; as likewise the names 
 of the owners, and the master, the tonnage, and the 
 date of registry ; and shall further specify the quantity of 
 salt, the number of barrels full, and that of those empty ; 
 the quantity of netting, of materials for the same, and 
 of provisions for the crew ; the particulars of which such 
 oflicer of the port shall examine, and certify (if duly 
 specified) upon the back of such notice. Upon which, 
 one or more of the owners, and the master, shall make 
 oath of acting in conformity with the said notice and the 
 act ; Hucii oath and notice shall be transmitted to the com- 
 missioners ; and such owner and master shall enter into 
 bond with oru' or more sureties, in a sum of treble the 
 amount of the bounties, for the faithful performance of 
 the voyage and its conditions. The herrings, taken daily, 
 to be distinguiijhej from all other herringSj by marks
 
 CHAP. VI.] The Fisheries. 213 
 
 upon tlu' barrels, The master to keep a journal, in the liritish 
 usual lurin ol a seaman s journal, i he owners to pay to the 
 crew t\\() sliiilip.os por barrel, over and above their wages, 
 by an^reonient(??). The remainder of the act contains re- 
 gulations for the duties of the officers of customs; and pu- 
 nishments for perjury and fraud, or misdemeanours, com- 
 mitted under the act. 
 
 This act, 18 Geo. III. c. 110. together with the 51 
 Geo. III. c. 101. by which it was amended, and the 
 52 Geo. III. c. li)o. which rectified a mistake, con- 
 tinued in force until the first day of June, 181^, and 
 thence to the end of tlie next session of parliameivt. It 
 has been sub^^equently amended, and rendered perpetual, 
 by the 55th Geo. III. c. 91. The principal amendment 
 iji this last act, which is now the law of the British 
 fishery, respects i\w increase of bounty, and son5e pow ers, 
 granted to superintendants of the fishery to seize nets, &c. 
 
 Instead of two shillings per barrel, the bounty under 
 the 48 Geo. III. c. 110., the 55 Geo. III. c. 91. enacts, 
 that a bounty of four shillings per barrel shall be granted 
 after the first day of June, 1815. 
 
 The same act allows the vessels employed in the herring 
 fishery to take cod or ling, w hich was prohibited iu the 
 48 Cjeo. III. It likewise authorizes a superintendant, 
 appointed by the I^iords of the Admiralty, to proceed to 
 any place, to which the Commissioners of the her- 
 ring fishery may send him, to prescribe order ainongst 
 those employed in such fishery, and gives him the ne- 
 cessary powers for this purpose. The master of every 
 vessel is required to make oath of the quantity of salt 
 used and expended in curing the herrings, and that no 
 part of such salt was embezzled or sold. Herrings to be 
 cured and packed within twenty-four hours after they are 
 taken. The act then proceeds with several regulations 
 
 (w) 48 Geo, III. c, 1 10.— See sections passim.
 
 214 Navigation Laws. [part i. 
 
 British in detail to prevent fraud in the salt duties, in tranship- 
 
 Fishery. ... 
 
 ment, or re-packing in additional barrels ; and further re- 
 gulates the curing of herrings in bulk, the curing them in 
 pickle, vats, and cisterns ; the size of the letters to be 
 branded on the barrels, and the certificates for re-packed 
 herrings sent coastwise. 
 
 Salt acts In The above acts, together with the salt acts, or acts 
 
 th^^T h allowing the use of salt, duty free, for the purpose of the 
 
 Fishery. fisheries, now constitute the law of the British fishery. 
 
 The salt acts, as they concern the fisheries, are the 41 
 
 Geo. III. c. 21., and the 55 Geo. III. c. 179. 
 
 The 41 Geo. III. c. 21. allowed (till October I80I,) all 
 persons engaging in these fisheries (i. e. herrings, pil- 
 chards, mackerel, and all sorts of Avholesome fish,) to 
 ship on board their respective vessels as much salt, duty 
 free, as may be deemed necessary, for curing and preserv- 
 ing the fish expected to be taken, in the proportion of ten 
 bushels for every ton burthen of the admeasurement of 
 the vessel. Such persons to make entry at the next 
 excise office of their names, abodes, and warehouse, 
 where they propose to store such salt, and likewise give 
 bond to the commissioners of excise, in five hundred 
 pounds, to give due account to the excise of the use of 
 such salt, according to this act; and that no part of it has 
 been embezzled, sold, or otherwise disposed of, than 
 according to the manner allowed by the act. The other 
 provisions of this act merely regulate the duties of excise 
 officers to prevent frauds, and the means of prose- 
 cuting breaches of the act, of recovering penalties, &c. 
 When salt shall have been shipped, according to the 
 clause above-mentioned, the excise officer shall give a 
 certificate, which shall specify the name of the vessel and 
 master, the tonnage, the quantity of salt shipped, and the 
 warehouse from whence taken ; the port whence sailing, 
 and wliither bound. And, upon arrival at the port of 
 unshipping, the master shall make entry, in writingi 
 
 3
 
 CHAP. VI. ] 'Ihe Fisheries. 215 
 
 within twenty-four liours, A\itli tlie proper oflicer of ex- J^FV*^'^" 
 
 . . . . lishery. 
 
 cise, specifying the quantity and kind of the cargo, the 
 
 account of the salt expended in curings, and of the 
 quantity rcmuiniiii;' unused. The master furthermore to 
 produce the certificate fiom tlie excise ofiicer of the port 
 from whence he first sliipped liis salt. The excise officer 
 then to proceed on board, and to grant permission under 
 las hand for unlading and landing such fish. The 53 
 Ceo. III. c. 179. revives and continues the 41 Geo. Ill, 
 e. 21. until the 25th day of March, 1821 ; and contains no 
 new^ enactment, except that a greater allowance of salt 
 fchall be made for cod, ling, and hake, than under the 
 41 Geo. III. .The 55 Geo. III. c. 179. provides, under 
 this head, that, from and after the passing of this act, 
 there may be given for, or in respect of, cod, ling, or hake, 
 cured and preserved by dry-salting in bulk, and produced 
 to the proper officer of excise, in a good, wholesome, 
 and merchantable state, a credit or allowance, not exceed- 
 ing fifty pounds, of salt, for every one hundred weight of 
 such cod, ling, or hake, so cured, preserved, and pro- 
 duced. It is, however, provided, that nothing contained 
 in this act shall be deemed to extend to authorize 
 making or giving any credit or allowance for salt used 
 in the salting, curing, or preserving, any such cod, ling, 
 ov hake, beyond the quantity of salt actually and borut fide 
 em})loyed and spent in the curing and preserving thereof 
 by dry-siiiting in bulk. 
 
 The result of the several Jaws for the protection and Summary, 
 encouragement of the British fishery may be condensed 
 into the following Rules : — 
 
 RULE I. 
 
 No British ship or vessel shall be permitted to sail from 
 any of the ports of this kingdom, or of the island of 
 Guernsey, Jersey, Alderney, Sark, or Man, to be em- 
 ployed in the fishery on the said coasts, unless wholly
 
 S15 
 
 Summarr. 
 
 Kav'isralion Laws. 
 
 [''ART I. 
 
 and solely manned with, and navigated by, a master and 
 mariners, all British subjects, 34 Geo. III. c. 68. sect. 4. 
 42 Geo. III. c. 01. 
 
 RULE II. 
 
 No sort of fish whatever, of foreign fishing, except 
 eels, stock-fish, anchovies, sturgeon, botargo, or caveare, 
 turbotSj and lobsters, can be imported into England. 
 
 This prohibition depends upon IS Car. II. c. 9. (originally 
 a temporary act, but made perpetual by 32 Car. II. c. 2.) 
 10 and 11 William III. c. 24. 1 Geo. I. stat. 2. c. 18. 
 9 Geo. II. c. 23. and 26 Geo. III. c. 81. sect. 43, 44. 
 
 Bounties. 
 
 RULE III. 
 
 Fish, of every kind and sort whatsoever, of British 
 taking and curing, caught or taken in any port of the 
 ocean, by the crews of any vessels built in Great Britain, 
 &c. or in any of the plantations or territories belonging 
 to Great Britain, owned by His Majesty's subjects, and 
 navigated and registered according to law, may be im- 
 ported into Great Britain in vessels owned, navigated, 
 and registered as aforesaid, without payment of any duty 
 whatsoever, 49 Geo. III. c. 98. sect. 13. 
 
 This act provides as a further security, that oath shall 
 be made before the collector or other chief officer of 
 customs, at the port of importation, that such fisli was 
 actually caught and cured AvhoUy by His Majesty's 
 subjects. 
 
 By 26 Geo. III. c. 81, and several subsequent acts, a 
 bounty is paid on the export of pilchards, or shad, cod- 
 fish, ling, or hake, whether wet or dried, salmon, white 
 herrings, red herrings, and dried red sprats, being of 
 British fishing and curing. Drawbacks are likewise al- 
 lowed from the salt duties, for encouraging the export of
 
 CHAP. VI.] The Flsherlefi. 217 
 
 certain fish; and for the purpose of curing and preserving • ""*"^^'T- 
 them, salt is directed by certain acts, as we have above 
 bhenn, to be delivered to the fish-curer, and to be used 
 free of duty, S8 Geo. III. c. 89., 41 Geo. III. c. 21., 
 55 Geo. III. c. 179., (which expires 25i\\ IMarch, 1821,) 
 and 57 Geo. III. c. 49. 
 
 By 51 Geo. HI. c. S4., and 55 Geo. III. c. 45., pre- 
 niiums are given to vessels engaged in the Southern 
 Whale Fishery. (o). And by 48 Geo. III. c. 110., which 
 ^^ as corrected and amended by two subsequent acts, and 
 made perpetual by 55 Geo. III. c. 94., certain liberal 
 bounties are given, under regulations extremely wise 
 and politic, to persons engaged in the British white 
 herring fishery. Formerly bounties were given for a 
 limited time to vessels employed in the Newfoundland 
 fishery and parts adjacent, but they ceased in the year 181 1. 
 In the Greenland and Davis's Straits Fisheries, bounties 
 are given by various acts of parliament, to which we have 
 already drawn the reader's attention. It should seem, 
 IioAvever, that these bounties will cease on the 25th March, 
 1820. And for the further encouragement of the fisheries 
 of this kingdom, the 50 Geo. III. c. 108. protects the per- 
 sons employed in them from impressment, under certain 
 qualifications, (p) 
 
 With respect to the fisheries, few cases have arisen in Cases and de- 
 our courts of law. Tliere is one case, howe^-er, which, "*'<^"*- 
 on account of its importance, requires to be stated at 
 length. Trover for a whale, (fj) the half of a whale, 
 and certain quantities of whale-flesh, blubber, oil, sper- 
 maceti, and whale-bone. Upon the trial of this case, at 
 Guildhall, before Lord Chief Justice Mansfield, it ap- 
 peared that the plaintiffs Avere the owners of the William 
 
 (tf) See ante, J). 207. Grenvllle, 1 Taunt. 2il. May 21, 
 
 (p) See the clauses of the act. 1808. 
 
 {q) Fenniug and others v. Lord
 
 218 JSavi<i^aiion Laws. [part i. 
 
 Cases and de» Fenning, and the defendants owners of the Caernavon, 
 cisions. j^^^^ being ships employed in the summer of the year 
 
 1805, in the Southern Whale Fishery, among the Galli- 
 pagos Islands. While Luce, the captain of the plaintiff's 
 ship, was engaged in killing a whale*, he struck another, 
 one of a shoal, with an harpoon made fast by a short line 
 or warp to a small buoy called a drong. The wound 
 produced the usual effect of this weapon. It retarded 
 the progress of the fish, by causing it to struggle with the 
 harpoon for a considerable time, while its companions 
 escaped into the offing. The droug, floating on the water, 
 marked its course, so that it was with more certainty pur- 
 sued by Anthony, the master of the Caernarvon, who, in 
 consequence of a signal made to him by Luce, followed 
 the fish, and killed it. He extracted from it the oil and 
 other valuable matter, but rendered no part of it to the 
 plaintiffs. Numerous witnesses deposed, that a custom 
 had universally prevailed in these seas, from the origin of 
 the fishery until within a few years past, that the party 
 who first struck the fish with the droug should receive one 
 half of it from the party who killed it. But it aj)peared 
 by the testimony of the defendant's w itnesses, that for a few 
 years part, since 1792, many captains of tlie ships employed 
 among the Gallipagos islands, among otliers, an Ameri- 
 can, had usually agreed that the striking a fish with a 
 droug should not entitle the striker to a share. In the 
 year 1805, Anthony, with five or six English captains, of 
 whom Luce was not one, had, upoii their arrival at tlic 
 fisliing station, acceded to these terms. The defendant's 
 counsel contended that the plaintifi' must be nonsuited, 
 because, according to his own claim, he was tenant in com- 
 mon witli the defendant ; but on account of the testimony 
 of one witness, who stated that the person m ho first struck 
 the fish was entitled to the whole, rendering half to the 
 party who killed it, the Chief Justice left the case to 
 ilw Jury, who found, tliat by the custom the plaintiff was 
 entitled to half the fish, and gave him in damages the 
 value of a moiety. A rule nisi for a new trial w as ob-
 
 CHAP. VI.] The Fisheries. 219 
 
 tained, upon the ground that either there was not such a Cases and de- 
 custom of a particular trade as to be binding in law ; or, 
 if ever there had been such a custom, the verdict was 
 contrary to the evidence of the present practice of the fish- 
 cry ; and the dissent of the captains now frequenting those 
 peas remitted all the parties to their common law right ; 
 which was, that possession alone confers property in ani- 
 nm\sfer(e natiDcc, and that the striking with a missile wea- 
 pon gives no property in them. The defendant's counsel 
 likewise claimed to set aside the verdict, upon the ground 
 tuat the parties being tenants in common, the action could 
 not be maintained. In shewing cause against the new 
 trial, the plaintiff's counsel contended, that there was 
 evidence of a general custom established in this trade, 
 sufficient to make it obligatory upon all who frequented 
 that fishery. In the Greenland trade the custom in- Customofihe 
 deed is the reverse. There the question is, whether the trade, 
 whale is a fast or a loose fish ; unless the harpoon is in the 
 whale, the whale fast to the towing-line, and the towing- 
 line attached to the boat, the first harpooner has no right ; 
 the taker always has the whale, (r) But although that 
 practice differs from the law established in these islands. 
 
 (r) In an action of trover for a and though she afterwards break 
 
 whale, uhich had been struck by a from the first harpoon, but coa- 
 
 harpooner of the plaintiff's ship, tinues fast to the second, the se- 
 
 and afterwards by a harpooner of cond harpoon is called a, friendly 
 
 the defendant's, the counsel on harpoon, and the fish is the pro- 
 
 both sides, and all the parties con- perty of the fust striker, and of 
 
 ' ccrned, agreed the law to be, both him alone. But if the first har- 
 
 by the custom of Greenland, and poon or line breaks, or the lineat- 
 
 as settled by former determina- tached to the harpoon is not in the 
 
 tions at Guildhall, London, as fol- power of the striker, the fish is a 
 
 lows : — While the harpoon remains loose fish, and will become the pro- 
 
 in the fish, and the line continues at- perty of any other person who 
 
 tached to it, and also continues in strikes and obtains it. — Littledale 
 
 the power or management of the and others i> Scaith and others, 
 
 striker, the whale is a/ast fish; and York Lent Assizes, 17S8, cited in 
 
 though during that lime struct by 1 Taunt, p. 243. 
 
 .the harpooner of ^aother ship,
 
 220 Navigation Laws. [part i. 
 
 Cases and de- the numerous cases which have been decided on tiie cus- 
 tom of the Greenland Fishery sulTiciently shew that the 
 local rule is binding within its own limits. Although this 
 custom is not so old as the common law, yet it is as old as 
 the trade itself, and it is equally binding with the compa- 
 ratively modern custom of merchants, which postpones the 
 payment of a bill of exchange during the three days of 
 grace. This fishery, they added, is not confined to the 
 English. The French, Americans, and many other na- 
 tions, partake in it. As the law which regulates it aftects 
 the subjects of so many different nations, it may become a 
 matter of treaty, or a cause of warfare, between their 
 respective governments ; and though, like many other 
 customs of trade, it had its commencement in tlie practice 
 of a few, it is not now to be altered by any other than the 
 supreme authority. It is not, therefore, competent for 
 five or six Englishmen to legislate for all their fellow- 
 subjects, and even for all the ^\ orld. Even if it had hap- 
 pened that those persons and the plaintiff were all wlio 
 fished there in that season, ^^ hat case is there except that 
 of a co-operation, so constituted by law. v> here the act of 
 the majority can bind the minority. But further, the 
 very evidence of an agreement to supersede the cu torn, 
 proves the continuance of it ; and the utmost the defend- 
 ant can urge, is, that there was conflicting testimony as 
 to any conventional alteration of the law, upon which the 
 Jurv, whose proper province it is, have expressly decided 
 tliat the old custom of the trade still continues. It is 
 iimnaterial whether this be called an universal agreement 
 in tlie trade, or a custom. If it be necessary to consider 
 this practice as in the nature of a laAV, it possesses the 
 quality so essential to that character — of being higlily 
 rejisouable. For all the witnesses agreed that he who 
 strikes a whale with a droug, most materially contributes 
 to the taking of it. But it is not necessary to shew this ; 
 for, if it be considered as an agreement, there is clear 
 evidence thiit it has been universally adopted in the trade; 
 it niubt, therefore, remain in force, ualess it be proved .
 
 riiAP. VI.] The Fisherk'S. 29A 
 
 lliat there is a sii])se(iiicnt ajj^reenient suporscdiiig It, nhlcli Cases and dc- 
 1 1 1 II I 1 • -n- 1 1 cisious. 
 
 has been adopted by t!ie pluiJitill; but as he was not a 
 
 party to the agreement of the few other adventurers, his 
 rif>lit cannot be affected by it. As to the second pointy 
 they contended that the cnttiniv up of the Avhale, and 
 expressing- the oil, was such a destruction of the subject 
 matter of a tenancy in common, as would enable one 
 tenant in common to maintain trover against his com- 
 panion. The plaintiff' in this case is entitled to the 
 possession of the whale in specie^ either to the whole, 
 or part : if to the wliole, the defendant was guilty 
 of a tortious conversion in cutting it up, and using 
 it as his own; if to a part only, the defendant hav- 
 ing put it out of the plaintift''s power to take posses- 
 sion of it in its original state, the right of action ac- 
 crues. 
 
 The defendant's counsel was stopped by the Court. 
 
 Mansfield, C. J. — There is no pretence to say that 
 the custom proved w as such, that the owner of the droug 
 should have the v>hole whale, subject to the claim of the 
 taker for a moiety of the proceeds : and it ^vould be very 
 inconvenient if it were so ; tor the fish might often be 
 killed at a great distance from tlie vessel of the former. 
 This is an action of trover, founded on the defendant's 
 taking the plaintiff"'s property, and converting it to his 
 own use. According to the custom proved for the plain- 
 tiff", the fish belongs to the tuo parties, and they are 
 iena?its in common of the whale. It is admitted that the 
 taking by the defendant, and his refusal to deliver, is no 
 misfeasance in a tenant in common, and does not give a 
 right of action. Can it then be contended that, although 
 he has a right to keep the wliale, he has not a right to 
 apply it to the only purpose which can make it profitable 
 to the owners ? He must of necessity have a rig'it to 
 do that which is requisite for the preservation of 
 the chattel j otherwise it becomes good for nothing.
 
 222 Navigation Laws. [_part i. 
 
 Cases and dc- I can understand why his destroying" that which belongs 
 cisious. j^ i^jg companion should give a right of action ; but I 
 
 cannot see why his preserving it should have the same 
 eftect. It would be difiicult ibr the defendant to get rid 
 of the merits of the plaintifi's case, though a considerable 
 degree of doubt might be created by a change of practice 
 in the trade ; but it is unnecessary to decide that ques- 
 tion. Heath, J., was of the same opinion. Lawrence, 
 J., said, I collect from his Lordship's notes, that he who 
 struck with a droug is entitled to half (the whale) ; as 
 some witnesses say, to half the oil ; as others, to half the 
 blubber ; and since there is a tenancy in common, one 
 tenant cannot sue the other. But it is said, if the one 
 party is entitled at the time the whale is killed, the other 
 cannot change the form of the property, though it tends 
 to preserve the thing itself, and that the changing it is a 
 tortious conversion ; but no case has been cited which 
 warrants this position. The whale is killed at sea ; and 
 the only thing to be done with it is, to convert it into oil. 
 The defendant has done that which is for the benefit of 
 all parties. They are tenants in common of the produce, 
 just as they were of the whale; and, consequently, the ac- 
 tion is not maintainable. Chambre, J. There must of 
 necessity be a custom in these things to govern the sub- 
 jects of England, as well amongst themselves, as in 
 their intercourse with the subjects of other countries. 
 The usage of Greenland is held to bo obligatory, not only 
 as between British subjects, but as between them and all 
 other nations. I remember the first case upon that usage 
 which was tried before Lord Mansfield, who was clear 
 that ever?/ person was bound hy it; and said, that were it 
 not for such a custom, there must be a sort of warfare 
 perpetually subsisting between the adventurers ; and he 
 held it strongly binding, from the circumstance of its 
 extending to diflforont nations. The same necessity must 
 prevail in the hJouth Seas, although the fishery has not 
 been so long in use, in order to regulate our intercourse 
 with the French, Amciicans, and others, who resort
 
 riiAP. VI.] Tlie Fisheries. 223 
 
 tliither. A few persons may, by compact among- themselves, 
 for a particular season, renounce any advantages, and 
 subject themselves to any disadvantages which they please, 
 and this would bind all those who assented to it ; but 
 Luce was no party to this compact. But upon the second 
 point I entertain no doubt. The demand which is sup- 
 posed to have been made by the plaintiff for an ac- 
 tual division, was riot proved ; and if such a demand 
 had been made, an instantaneous division was imprac- 
 ticable on account of the bulk of the animal. The 
 practice in the iishery is, to preserve that which is 
 valuable, and to throw away that which is useless ; for 
 Avhich purpose it is necessary first to cut up the 
 fish. The Court made the rule absolute to enter a 
 nonsuit. 
 
 From the preceding- case, Avhich is the leading and Customs of 
 
 1 t 1 I 1 • .1 /> 11 • 1 the Greenland 
 
 almost the only case on the subject, the loUowing rules .^^^^ Southera 
 
 may be drawn : — First, that in the Southern Whale ^^'i>ale 
 
 Fishery. 
 Fishery, he who strikes a whale with a loose harpoon 
 
 is entitled to receive half the produce from him who kills 
 it. The fish belongs to the two parties, and they are 
 tenants in common of tlie whale. Secondly, that the 
 custom in the (ireenland Whale Fishery is the reverse; 
 the rule in that trade being that, unless he who strikes 
 a fish continues his dominion until he reduces it into pos- 
 session, any other person who kills it acquires the entire 
 property. Thirdly, that where the general consent of the 
 persons engaged in a trade has established certain rules 
 for the conduct of that trade, it is not competent for any 
 number of individuals to establish a contrary regulation ; 
 for, although they may agree among themselves to adopt 
 new rules, they cannot thereby deprive one, who has not 
 assented to their compact, of the benefit of the old rules, as 
 against themselves ; more especially if the trade arv he 
 custom be of such a nature that the subjects of several 
 nations partake in the trade, and are governed by the cus- 
 tom 5 and it makes no difference in such trade, though it
 
 224 JSavigat'ioii La IS. [lAUTf. 
 
 Customs of ^ p recent orij^in. Fourflily, this case estal^lislus 
 
 the Greenland » •' ' 
 
 and Southern (though the point is a principle of general law, and has no 
 
 Fishery peculiar relation to the present subject of the fisheries,) 
 
 that one tenant in common of a chattel cannot maintain 
 trover for it against his companion, unless the latter liave 
 so disposed of it as to render it impossible that the plain- 
 tiff should ever take and use it. (s) Fifthly, that the con- 
 version of a chattel by a tenant in common (In this in- 
 stance of the whale,) to its general and profitable appli- 
 cation, though it change the form of the substance, is not 
 such a destruction of the subject matter, as to prevent the 
 plaintiff from taking and using it in its altered state ; 
 therefore, it creates no right of action. 
 
 What is a rc- In an action by the owners of a vessel employed in the 
 port tcrenlitle Southern Whale Fishery against the commissioners of the 
 
 a ship to the customs, for the recovery of the bounties ^iven by the 
 bounty. ,.i^, ^,,. 
 
 legislature lor the encouragement or that trade, it was 
 
 held by Lord Kenyon, that the arrival at a place within 
 the Exchequer survey of a port, though no duties be in fact 
 collected in such place, was a returning to a port in Great 
 Britain, within the meaning of the act of parliament ; 
 and although it was stated, that the uniform and esta- 
 blished rule adopted at the custom-house in all cases of 
 bounties limited as to time was to construe " months," 
 when mentioned in acts of parliament, as calendar, and 
 not lunar months, his Lordship held, that the months 
 within which the voyage was to be performed, must be 
 taken to be lunar months. (0 In the same case it was 
 likewise held, that an affidavit verifying the muster-roll, 
 upon which it appeared that the proper number of ap- 
 prentices was on board when the vessel cleared out y was a 
 
 (s) Where a ship was sent to the destruction. They found that it 
 
 West Indies and lost in a storm; was. Bull. N. P. 34. 
 in an action of trover hy a jsiat (0 *l'l»c words in the acts of 
 
 owner, Lord King, C. J. left it to Pailiament on which the bounties 
 
 the Jury, whether this was not a now dcpeud are calendar luoutks.
 
 CHAP. VI.] The Fisheries. 225 
 
 sufficient proof of the fact of such apprentices being on 
 board when the vessel sailed, (w) 
 
 In general, it has been the practice, in time of war, not Ofthenation- 
 
 to make capture of fishinsj-boats and small vessels, en- ^ I character 
 r T> ^ 'of lishmg vei* 
 
 gag^ed-in the coast fishery. But this is a matter of amity, sels. 
 and not of national right. Thus, in the Younsf Jacob and 
 Johanna. (J7) This was the case of a small Dutch fishing 
 vessel, taken April 1798, on her return from the Dogger 
 Bank, in Holland, and claimed for merchants there. Sir 
 William Scott, in his judgment, observed, that in former 
 w ars it had not been usual to make captures of these small 
 fishing vessels ; but this rule was a rule of amity only, 
 and not of legal decision ; it has prevailed from views 
 of mutual accommodation between neighbouring countries, 
 and from tenderness to a poor industrious order of people. 
 In the present war there has, I presume, been sufficient 
 reason for changing this mode of treatment; and as they 
 are brought before me for my judgment, they must be re- 
 ferred to the general principles of this court. They fall 
 under the character and description of ships constantly 
 and exclusively employed in the enemy's trade. But it 
 has been argued, in distinction, that vessels of this kind 
 have no decisive character arising from destination, or 
 from the port of their return. They come, it is said, fre- 
 quently to this country, and resort indifferently to any 
 port which will afford them a market. When a case shall 
 occur of a vessel so destined occasionally to the ports of 
 this country, it will be time enough to consider by what 
 rule it is to be governed ; but all the facts of this case 
 point so entirely to Holland, that I have no hesitation in 
 pronouncing that it is subject to condemnation, 
 
 (u) 1 Esp. 246. (*) 1 Rob. 19,
 
 2v:rt 
 
 CHAPTER Vil. 
 
 THE REGISTRY ACTS. 
 
 i HE next and last part of our navigation system is 
 that which is intended to crouji and give efiect to the 
 whole, namely, the registry of Briiisli ships, so as to 
 ascertain tlieir built and property; to prevent foreigners 
 from being concealed owners in them, and to render it 
 impossible for our merchants to evade the laws which the 
 legislature has established for the maintenance and ad- 
 vancement of our naval interests. 
 
 Qri<rinal ol)- Before we enter upon this subject it will be necessarv 
 
 jftctoftheXa- shortly to state, what the navigation laws had required as 
 
 vigation Act, , , , •, , . .' . , 
 
 as to tlie built "^^ ^"^ built and ou iiership oi vessels, previous to the iib 
 
 ^"'•"^"<^"1^'P Geo. III. c. 60. Tlie principal object of the navigation act, 
 
 oi British , . . 
 
 ships, as to the character of the shipping, was to provide that the 
 
 vessel should be British property, which the legislature 
 
 at that time deemed to be suilicient for the two ultimate 
 
 ends of the system — tiie maintenance of tlie navy by the 
 
 encouragement of sr.ilors, and of commerce by the profits 
 
 of the cariyiiig trade and colonial monopoly. It was 
 
 only in a more advanced state of the system that they 
 
 began to look to the huill of the ships, and therein to the, 
 
 furtlier prosecution of our naval interests by the encou- 
 
 nigement of docks, ship-building, and domestic artificers. 
 
 Under these confined views in it;; original objects, the 
 
 btatute of 12 Car. II. was satisfied with requiring that the 
 
 shipping, employed in tlie plantation trade, should belong 
 
 to the people of this country, or, (allowing an alternative) 
 
 should be of tiie built of, and belonging to liie ])iantations. 
 
 If the .ship, tiicrefore, ^vcrc owned by persons in the mother
 
 CHAP. V41.J 'J'he Reghby Acts. 227 
 
 country, it was iniinatoiial wluro it was built; but if it was Original ob- 
 j*i -J 1 ^ ^- -i. ^1 jectoflheNa- 
 
 owiied by ^sou^o persons in the plantations, it must also vio-aiioii Act 
 
 liave been built there. In the trade with Asia, Africa, ^c. &c, 
 and America, the ship mif;lit be owned by any subject of 
 (liis country or the plantations, and nothing is said of the 
 built. The act looked merely to the ownership. In the 
 European trade, the act directs only that goods of the 
 growth, <!tc. of Russia, (and the other enumerated goods 
 in the eighth section,) shall be imported in ships which 
 belong to the people of England, Ireland, &c. ; except 
 currants, and goods, (he produce of the Turkish empire, 
 which are not to be imported but in vessels of English 
 built ; the clause being silent as to the ownership. In the 
 coasting trade no stranger is to be om iier, or part owner, 
 of a ship : but no provision is made to i?ecure an English 
 built; and in the fisliery the rule only was, that the ships 
 engaged therein should be oi^ncd by subjects of this coun- 
 try. And although in all these trades the act invariably 
 required that the master and three-fourths of the mariners 
 should be Englijli, in the fishery nothing is said of the 
 master and mariners. 
 
 Lest any vagueness or ambigiiilj/ should exist as to the What was to 
 r-i T 1 1 • • 1 •. • 1 .1 I be deemed 
 
 term English shipping, w here it was required, the seventh Ei)<^lish ship- 
 section of the navigation act defines what is to be under- P'"S- 
 stood by it ; that is to say, '• shipping built in England, 
 Ireland, Wales, the islands of Guernsey or Jersey, or 
 town of Berwick upon Tweed, or in any of the lands, 
 islands, dominions, or territories to His Majesty, in Africa, 
 Asia, or America, belonging, or in his possession." And 
 it provides that where any ease, abatement, or privilege, 
 is given in the book of rates to goods or commodities im- 
 ported or exported in English buiit shipping, it is always 
 to be construed as extending only to such ships whereof 
 the master and three-fourths of the mariners are English. 
 And wherever it is required that the master and three- 
 fourths of the mariners should be English, the act declares 
 that the true intent and moaning of this provision is, 
 
 q2
 
 ^28 Navigation Laws. [part i. 
 
 Original ob- that they should be such durinff the whole voyage, unless 
 jectoftheNa- . -, . , i i , • i • • i 
 
 vigation Act, m case of sickne?s, death, or being taken prisoners in th« 
 
 &c. &c. voyage. And, in order to prevent frauds in colourings (as 
 
 the act terms it,) and buying foreign ships, the tenth sec- 
 tion provides, that no foreign built ship shall be deemed 
 or pass as a ship belonging to England, Ireland, &c., or 
 enjoy the benefit and privilege of such a ship or vessel, 
 until the person claiming the property in such vessel shall 
 make appear to the chief officer of the customs in the port 
 next to the place of his abode, that he is not an alien, and 
 shall take an oath before such chief officer, that such ship 
 was bona fide, and without fraud, bought by him for a valu- 
 cible consideration, expressing the sum, as also the time, 
 place, and persons from whom it was bought, and who are 
 his partners, if he have any ; all which partners are re- 
 quired to take the same oath before the chief officer of the 
 customs of the port next to their abode : and that no fo- 
 reigner, directly or indirectly, has any interest, part, or 
 share therein. Upon taking this oath, tlie chief officer of 
 the customs is to grant a certificate, whereby such ship 
 may for the future pass, and be deemed as a ship belong- 
 ing to the said port, (port of the officer's residence,) and 
 enjoy the privileges of such ship. A register of such 
 certificates was to be kept, and sect. 11. inflicts penal- 
 ties upon officers of customs, who should allow the privi- 
 lege of an English ship to such ship coming into port 
 and making entry, until examination whether the master 
 and three-fourths of the mariners Mere English ; or who 
 should allow such privilege to a foreign built ship, bring- 
 ing in commodities the growth of tlie country where it was 
 built, without examination and proof whether it was a 
 ship of the buill of that country, and that the master and 
 three-fourths of the mariners were of that country. So, 
 likewise, if any governor should allow a foreign built ship 
 to load or unload before such certificate be produced, and 
 examination made, whether the master and three-fourths 
 of the mariners be English, such governor is for the first 
 oflencc to be removed from his ofiice.
 
 CHAP. VII.] The Registry Acts. 229 
 
 We have seen that the act of navigation, except in two Eiicourage- 
 
 , . , . ^ . meiit of liri- 
 
 instances, was content simply with encouraging proper/y in tish shipping 
 
 shipninff, and was indifferent as to the built; but the bene- ^ 13 and 14 
 
 •^^ *' . Car. II. and 
 
 fits of the new system began soon to be felt, and it was the i Jac. II. 
 
 policy of the legislalnre to force them to the utmost. 
 The 13 and 14 Car. 11. c. 11. provides, that for the better 
 increase of shipping and navigation, the collectors of the 
 customs in all the ports of England should forthwith give 
 an account to the collectors and surveyors of the port of 
 London of all foreign built ships in their ports, owned and 
 belonging to the people of England, and of their built 
 and burthen. The collectors and surveyors were further 
 required to make a list of all such ships, and to transmit 
 it to the Court of Exchequer, before 1st December, 1662, 
 there to remain upon record. The act then provides, that 
 no foreign-built ship, that is to say, not built in any of 
 His Majesty's dominions of Asia, Africa, and America, or 
 other than such as shall be bona fide bought before the 
 1st of October, 1662, and expressly named in the said 
 list, should enjoy the privilege of an English ship, although 
 owned or manned by English, (except such ships as were 
 taken by letters of marque, or condemned as lawful prizes 
 in the Courts of Admiralty,) but that all such ships should 
 be deemed aliens' ships, and pay duties as such. The 
 same act gave a bounty for seven years to persons building 
 ships of three decks, or two decks and a half, with a fore- 
 castle, and five feet between each deck, mounted with 
 thirty pieces of ordnance at least. The object of this pro- 
 vision was, for the increase of good and serviceable ship- 
 ping, and for securing the public trade and commerce. 
 
 The next act foy encouraging British shipping, 1 Jac. 2. 
 c. 18. was by continuing certain payments and duties upon 
 foreign-built ships, employed in the coasting trade. We 
 have already spoken of this act. 
 
 Then follows the 7 & 8 Will. III. c. 22. The professed System of re- 
 gistry intro- 
 j^bject of this statute was to give a monopoly ot the ducediathe
 
 230 Mvigaiion Laws. [parti. 
 
 Plantation colonial trade, both in import and export, to ^ritkh-buili 
 Trade by 7 & . , • , , , , f A u i • 
 
 8W.III. c. 22. shipping exclusively, and to prevent irauds by colouring 
 
 foreign ships under English names. In order to check this 
 growing evil, it was proposed to institute a strict system of 
 registry in the plantation trade. The act, therefore, pro- 
 vides that no ship should be deemed or pass as a ship of 
 the built of England, Ireland, &c. or any of the planta- 
 tions in America, so as to be qualified to trade to, from, 
 or in the plantations, until the person claiming property 
 therein should register it in the following manner. If the 
 ship, at the time of the register, belonged to any port of 
 England, Ireland, Wales, or Berwick, then proof was to 
 be made on oath of one or more of the owners before the 
 collector or comptroller of that port. If the ship belonged 
 to the plantations, or to Guernsey or Jersey, then the like 
 proof was to be made before the Governor, together v»ith 
 the principal officer of His Majesty's revenue, residing in 
 
 Oath to be h^q plantation or island. The act then gives the form of 
 taken by the , • i n i i i i /-i 
 
 owner of a the oath, and directs that it shall be attested by the Go- 
 
 shipemployed yernor or custom-house officer who administers it, under 
 
 in the Planta- . 
 
 iion Trade. their hands and seals ; that it shall be then registered and 
 
 delivered to the master of the ship, for the security of her 
 navigation. A duplicate of the register is to be trans- 
 mitted to the commissioners of the customs for the port of 
 London, to be entered in a general register to be there 
 kept. Any ship trading to or from the plantations, and 
 not having made proof of her built and property as directed 
 by this act, to be forfeited as a foreign ship, except prizes 
 regularly condemned; and the 19th section directs that 
 such prizes shall be specially registered. 
 
 This act exempts from registry fishery boats, hoys, 
 lighters, barges, or any open boats or vessels, though of 
 English or plantation built, whose navigation was confined 
 Fhip> nnmr to the coast. And the 21st section enacts that no ship's 
 "h '<r d name, when registered, shall be afterwards changed with- 
 
 out registering such ship de novo, (which was also required 
 to be done upon the transfer of property to another port)
 
 ciiAr. A'li.] The Registry Acts. ^31 
 
 and delivorino^ up tlic former certilicatc to be cancelled, 
 under the before-inoutioned penalties. And in case there Forms to be 
 bIjouUI be any alteration of property in the said port, by [^""^ aUera- 
 the sale of one or more sliares in any ship after registering tion in the 
 
 1 ,. ,1 1 11 1111- i)r<)i)erty of 
 
 thereof, such sale was always to be ackno\\ ledged by ni- ^ny ship. 
 
 dorscnient on the certificate of the register before two 
 witnesses, in order to prove that the entire property in 
 such ship remained to some of the subjects of England, 
 if any dispute should arise thereupon. 
 
 The provisions of this act did not, however, wholly ex« 
 elude frauds. The certificates of the register were often 
 sold to foreigners ; and such certificates being delivered 
 to the purchasers, the ships of foreigners, under colour 
 thereof, were introduced into the plantation trade. To 
 prevent this practice, the 15 Geo. II. c. 31. enacted that Further se- 
 no ship required to be registered, and carrying goods, Q^^red'hv 15 
 &c. to or from the plantations, should be permitted to Geo. II. c. 31. 
 trade, or be deemed qualified for that purpose, until the 
 master, or person having charge of such ship, should upon 
 oath, before the governor or collector of customs of the 
 plantation where he arrived, give a just and true account 
 of the name and burthen thereof, and of tlie place from 
 w hence she came, and of other particulars. 
 
 And because masters of ships frequently lost and mis- Of the forms 
 
 laid certificates, to the great ])reiudice of the owners, who *p "^ S^/"" 
 
 ' i^ • •' ' plied 'n'ltn up- 
 
 the eby lost their voyage:-, and were deprived of the benefit on the loss of 
 of registering their ships de novo^ the act further provides, ficate'of 're- '" 
 that if any ship duly qualified to trade to, from, or in His g'stry. 
 Majesty's plantations, should happen to be in any of the 
 plantations, and the certificate of the register should be 
 lost or mislaid, the master, or person having charge of the 
 ship, may make oath before the governor or collector of the 
 customs in the port where the ship should happen to be, 
 (according to a form given by tlie act,) that the ship, as 
 he verily believes, was registered according to law, that 
 fihe had a certificate granted at such u port, but that it is
 
 233 Navigation Laws. [ 
 
 PART I. 
 
 lost and mislaid, and he cannot find it, nor knows where it 
 is, nor what is become of it ; that it has not been, nor 
 shall be, with his privity and knowledge, sold or disposed 
 of to any person whatsoever ; and that he, and Ihree- 
 , fourths of the mariners navigating the ship, are British 
 
 subjects, and that the ship does now, as he believes, belong 
 , wholly to British subjects, and that no foreigner has, to 
 
 his knowledge or belief, any slvire, property, or interest 
 therein. The master is likewise to give security in a cer- 
 tain amount, proportioned to the ship's burthen, that she 
 was duly registered for the plantation trade, and that the 
 certificate of the register, if found, shall be delivered up 
 to the commissioners of the customs to be cancelled ; that 
 no illegal use has been, or shall be made of it, and that 
 the same has not been or shall be fraudulently disposed of, 
 and that the ship wholly belongs to British subjects. Upon 
 such oath and security the governor and collector is to give 
 a certificate, without any fee, under their hands and seals, 
 of his having made such oath and given such bond ; and 
 thereupon the ship is to have libt riy to trade for that voy- 
 age only, and the officers who take such oath and bond 
 are to transmit an account thereof to the commissioners of 
 the customs. 
 
 Of the means In order to obtain a certificate de novo, the master and 
 
 of obtaining a „ , 
 
 certificate de ^^^ ot the owners are to make proof, upon oath, (to the 
 
 ""i'**' satisfaction of the commissioners of the customs, if, the 
 
 owners lived in Great Britain, Ireland, Guernsey, or 
 Jersey, and of the governor and collector of the customs 
 in the plantations, if the ship was registered in the planta- 
 tions, and none of the owners resided in Great Britain, 
 Ireland, Guernsey or Jersey,) of the loss of the certificate, 
 and also of the name, built, property, and other particu- 
 lars required by 7 &' 8 AVill. III., and before the same 
 persons, as is required in the case of original registers, and 
 to give security in 500/. if the ship is of one hundred tons, 
 and so in proportion if more, to the collector of the port 
 to which tho ship belongs j that the original certificate has
 
 CHAP, vn.] The Regislry Acts. 233 
 
 not been, nor shall be, fraudulently disposed of, or used 
 contrary to law, and that, when found, it shall be delivered 
 up to be cancelled. In such case the ship is to be regis- 
 tered de iiovoy a certificate to be delivered to the owners, 
 as directed by 7 & 8 Will III. statirtg it to be granted 
 by virtue of this act , and such new register is to have the 
 same force and effect as the original register. 
 
 The next statute in order was the 20 Geo. II. c. 45., by Prize ships 
 which prize ships, legally condemned, were put upon the same?ootin''' 
 
 same footing as British built ships, and, with the same ^^ British- 
 ... 11. I 1 • T-« built ships, 
 
 privileges, made subject to the same regulations. By andshipsbuilt 
 
 7 Geo. III. c. 45., ships built in the Isle of Man, and i" the Isle of 
 
 . ^ , . ' Man. 
 
 owned by the King's subjects there, were directed to pass 
 
 as British built ships, upon the persons interested therein 
 
 making proof of the built and property according to the 
 
 forms of the 7 & 8 Will. III. 
 
 But notwithstanding so many cautious restrictions, it Foreigners 
 
 was still found difficult to exclude foreigners from becom- tj^g^ ^^^ ^ 
 
 ing largely interested in British ships; the 13 Geo. III. shareiuaBri- 
 
 * - . n 1 • t'*'^ *hip with- 
 
 c. 2o. was, therefore, passed to stop the increase oi this out consent of 
 
 mischief. Amongst other things it recites, that many in- ^^^ owners of 
 
 '^ , . three-fourths 
 
 conveniences had arisen from foreigners and other per- in value. 
 
 sons, not natural born subjects, becoming possessed of, 
 and entitled to any part or share in British ships ; that, 
 by reason of this practice, other part owners of a ship 
 could not obtain the register required by the act of Wil- 
 liam for tlie security of the navigation of the ship, whereby 
 the trade and commerce of the kingdom had been greatly 
 hindered and obstructed. In order, therefore, to prevent 
 such abuses in the sale of shares of Britisli-built ships to 
 foreigners, this statute in express terms enacts, that no 
 foreigner, or other person not being a natural-born subject, 
 shall be entitled to, or shall purchase, or contract for, any 
 part or share of any British ship or vessel belonging to 
 .natural-born subjects, without the consent in writing of 
 the owner or owners of three-fourth parts in value at least 
 of sucU ship or vessel first obtained and indorsed on the
 
 234 JS^avi gallon Laws. Lpart i. 
 
 certiiicate of the rei]jij?ter before twd witnesses ; otherwiso 
 such ag^reement, purchase ayid sale, to be void. The last 
 act, previous to the 26 Geo. III. was the 18 Geo. III. 
 c. 50. By this act the plantation trade was thrown open to 
 Ireland, and ships and vessels built and owned by His 
 Majesty's subjects in that country Mere declared entitled 
 to all the privileges of B.iiish-built vessels. 
 
 We now come to the celebrated act of the 26 Geo. Ill 
 c. 00. The changes which had happened in America, and 
 the prospect of an independent commercial state about to 
 arise in the vicinity of our colonies, suggested the neces- 
 sity of some stricter regulations as to our plantation trade. 
 Frauds, as respected our shipping, were of frequent oc- 
 currence in our colonics ; and British vessels, with planta- 
 tion registers, were constantly sold or fraudulently trans- 
 ferred to foreigners. An improved system of registration 
 OrifTin and w as likewise deemed necessary to check the enormous 
 iiuulrru reo-is- gi'owth of smuggling. This evil, it was thought, might be 
 try acts. restrained, if every vessel were to be registered at the port 
 
 to wliich she belonged. The true name of the vessel 
 might then be easily ascertained, together with the name 
 of the master and of the port. And if the names and 
 occupations of ail the owners were required to be described 
 before a certificate of registry could be granted, it might 
 be expected that many persons would be discouraged from 
 engaging in the building, equipping and employijig vessels 
 of tliis description, from the apprehension that their names 
 mu'^t ap})e;ir : and if such ships were made subject to for- 
 feiture on bing found without a register, they could not 
 «\scape luidcr the colour of foreign documents. {ij) 
 
 These w ere among some of the reasons which suggested 
 an alteration in the system of registry. The defects in the 
 old registry laws were obvious; and the principal one 
 was, that evasion was easy. As the law stood, registers 
 %vere granted in pursuance of the 7 & 8 Will. HI., and 
 
 {y) Reeves, 401.
 
 CHAP. VII.] 7he Regislvi/ Acts. 235 
 
 15 Geo. II. c. .'Jl. The act of William confined tlio trade Origin ami 
 
 , ,. , , . T^ • • I 1 -1 1 • I policy of the 
 
 to and iroin tiie plantations, to liritisli-built ships, owned inodcm rf-^is- 
 
 by British subjects ; or to foreign sliips taken as prize, and ^^y ''*^'*- 
 legally condemned : but not\\ ithstandiug no other sort of 
 ship was entitled to a register, it had been the practice to 
 grant registers to foreign ships wrecked or stranded on 
 the coasts of this kingdom, on their being purchased and 
 repaired by British subjects ; and foreigners, not only in 
 our colonies, but in all parts of the world, were found 
 constantly engaged and interested in British vessels, (z) 
 Many other inconveniences were experienced under the 
 old system ; and, more especially, the diiiiculty of tracing 
 the property in ships, and their transfer from one owner 
 to another. And A\hen it was considered how great was 
 the national stake in this species of property, and how 
 considerable a part it composed, not only of the wealth 
 but of the actual defence of the kingdom, it was deemed 
 expedient to mature a system which should provide for the 
 permanence and security of shipping above all otiier things ; 
 which should obtain for British vessels a decided prefer- 
 ence in all quarters of the world ; which should give to our 
 own docks, our own shipwrights, and artificers, advantages 
 heretofore shared with others, and which siiould communi- 
 cate to the public and the state such precise inforn.ation 
 with respect to the extent and nature of this kind of pro- 
 perty as eiTectually to prevent foreigners from becoming 
 engaged in it to tiie hazard of so many important interests. 
 The 26 Geo. III. c. 60., was therefore passed, and fol- 
 lowed up by other acts of amendment and improvement. 
 
 The public are indebted for this act, or rather the sys- 
 tem of which this act was the foundation, to the industry 
 and ability of the late Earl of I^iverpool, a nobleman, 
 who, without ostentation, did more to upiiold the maritime 
 predominance of this country than almost any man who 
 has preceded, or followed him. According to this act, 
 every British vessel now effectually sails under a specific 
 
 (z) Reeves, 403.
 
 ^36 Navigation Laws. [part i. 
 
 licence, which is granted to her by the appointed officer, 
 upon the verification of her being British built, and pos- 
 sessing all the other qualifications which the law requires ; 
 and which licence, on the other hand, is refused if she 
 have not complied with the conditions of the law. The 
 great object of our navigation laws, as we have before had 
 occasion to remark, is to confine our trade to our own 
 mariners and shipping ; to ships, the property of our own 
 merchants, and the built of our own country. The object 
 of the registry acts is to second and enforce this national 
 purpose, by compelling every vessel claiming to be Bri- 
 tish, to make an enrolment of her name, tonnage, pro- 
 perty and built, that she may every moment, and invari- 
 ably, be before the public eye, and that foreigners may be 
 prevented from having any interest in her. The policy of 
 these acts may not be at first perceived. The proper point 
 under which they are to be considered is that of complet- 
 ing the system of our navigation laws ; an object which 
 they effect by bringing its principal subjects, ship-owners, 
 ships, and sailors, under the distinct view of the law, and 
 by the registration of every act of transfer, effectually pre- 
 venting those opportunities of evasion which would follow 
 by a confusion of identity. 
 
 But in the developement of the registry system which we 
 are now about to subjoin, we shall consider all the sta- 
 tutes relating thereto (as well those which preceded the 
 26 Geo. III. as those which follow it) as if consolidated 
 into one system; and distribute the law of registration, as 
 it now exists, into the several heads into which the order 
 of these statutes has cast it. 
 
 And, first, as to the ship. 
 No sliip l)uilt No ship or vessel, foreign-built, except prizes legally 
 
 out ol Ills , , ■ 1 -1. I -w r • 
 
 MiijcstYHdo- condemned, nor any ship built or rebuilt upon a toreign 
 millions cnii- j^^^^^^i or bottom, although owned by British subjects and 
 tied to tlie ' ' " , . , 1 I. ^L 
 
 |)rivilcgesofa navigated according to law, shall be entitled to any ot the 
 
 British ship, privileges of a British-built, or a British-owned ship; 
 
 2
 
 CHAP, vn.] The Registry Acts. 237 
 
 such privileges to be confined to such ships only as are 
 wholly of the built of Great Britain, Ireland, Guernsey, 
 Jersey, or the Isle of Man, or of the British colonies, 
 plantations, &c. It is provided, hovi'ever, that foreign Proviso for 
 ships, built before May, 1786, and which wholly belong buUt^beforr' 
 to any of the people of Great Britain, &c., or of any of 1st May, 1786. 
 the colonies, plantations, &c., as the right owners thereof, 
 and navigated according to law, and registered in the 
 manner hereinafter directed, shall continue to enjoy the 
 privileges they have hitherto enjoyed, and to import and 
 export goods under the accustomed regulations. And 
 ships, which before the passing of the 26 Geo. III. were 
 built or rebuilt upon any foreign bottom or keel, and duly 
 registered as British ships, are to continue to enjoy the 
 privileges to which they were previously entitled. It is 
 provided likewise, that no ship Avhich shall have begun to 
 be repaired or rebuilt before the 1st of May, 1786, shall 
 be prevented from being registered according to this act, 
 by an order under the hands of the commissioners of the 
 customs in England, &c. or of the commissioners of the 
 customs in Scotland, &c., which order the commissioners 
 are empowered to grant, if it shall be made appear to 
 their satisfaction on oath, that such ship was stranded by 
 the act of Providence, and not with a fraudulent intent, 
 and was at the time of being so stranded the sole property 
 of foreigners; or that such ship was a droit of admiralty; 
 and provided it be in like manner ascertained that the said 
 ship, from the damage which she has received by strand- 
 ing, was rendered unfit to proceed to sea, without under- 
 going a thorough repair in this kingdom ; and that she was 
 necessarily sold for the benefit of the foreign owners ; or, 
 as a droit of admiralty, under the authority of the Court, 
 and fairly and openly purchased by a British subject ; and 
 that, being the sole property of a British subject, she has 
 been so much repaired that two-thirds of her at least an^ 
 •of British built. («) 
 
 (a) 28 Geo. III. c. 60. ». 1-
 
 238 Navigalion Laws, [part i. 
 
 No ship r?- 2. No sliip or vessel to be deemed or taken to be British 
 
 irTM^'cl'erf ^"ilt, or to enjoy the privileges thereunto belonging Avhich 
 
 15«. per ton, shall be rebuilt or repaired in any foreign port or place, 
 
 port, to be if such repairs shall exceed the sum of 15^, for every ton 
 
 deemed Bri- of the said ship or vessel, according to the admeasurement 
 
 tish-built, un- , „ , , • i n i ^ 
 
 less ill case of thereof, unless such repairs shall be necessary by reason 
 
 extraordiQary ^^' extraordinary damage, to enable her to perform the 
 damage. ... 
 
 voyage in v,I\ich she is then engaged, and to return in 
 
 safety to some port of His Majesty's dominions. In 
 such case, before such vessel is repaired, so as to ex- 
 ceed the sum of I5s. per ton, the master, or other person 
 having charge of the vessel, is to report her state and con- 
 dition, upon oath, to the British consul, or other chief 
 British officer, if there be such consul or officer at the port 
 wlicre it shall be necessary to repair such ship, and shall 
 cause her to l^e surveyed by two persons approved by such 
 consul or officer, and shall deliver to such consul or officer 
 Particulars of in writing the particulars of the damage sustained by such 
 tained to be ship, and shall verify upon oath the particulars and amount 
 
 dolivorcd to of sucli repairs ; and that the same were become necessary 
 
 the consul or . • i i • i 
 
 chief British inconsequence ot damage sustained during the voyage to 
 
 officer, and ^i,j^|^ port, to enable tlie vessel to prosecute her intended 
 the iipcessitv ^ ' i r. tt- -i»t 
 
 of the re|>;iirs course, and to return to some port or place of His Ma- 
 jesty's dominions, which the said consul or chief officer is 
 required to certify under his hand and seal. If there be 
 no consul or officer resident at the port where the repairs 
 are necessary, the survey is to be made by two known Bri- 
 tish merchants residing at or near the port. The master 
 is to produce to them the vouchers of tlie particulars, and 
 the amount of the repairs ; and their certificate of them is 
 to be of equivalent force with the certificate of the con- 
 sul or chief ofHccr. The expenses of the ship^s repairs are 
 to be certified on her arrival, before the collector or 
 <omptrollers of the customs at the port where she first 
 arrives ; and if they shall exceed \^s. per ton, and the 
 master shall refuse to deliver to the collector and comp- 
 troller Oie ccillficatc which he is required to produce, the 
 
 3 
 
 to becertilicd.
 
 CHAP. YIl] 
 
 The Registnj Acts. 
 
 239 
 
 ship is to be deemed foreign built to all intents and pur- 
 poses whatsoever, {a) 
 
 3. No BritiHli-built ship c;iptured by the enemy shall be Sliips captur- 
 registered as a British-built ship, or enjoy any of the pri- |^j.'^.j '^'^■*-''P* 
 vilen^es thereof; biil, thouj^h owned by a British subject, 
 
 shall be deemed a f(ireig;n shij). (Z») But if recaptured by 
 any of His jMajesty's sliips of Mar, or by ships in alliance 
 with this couiitry, she may be registered, and shall be 
 deemed to liave all the privileges of a British-built ship, 
 the same as if she had n(;t been captured by the enemy, (c) 
 
 4. No subject of His Majesty, whose usual residence is Subjects re- 
 in a country not under the dominions of His Majesty, shall *"v'"?? '" ^"- 
 
 •^ , . . rci;;n parts, 
 
 be entitled (during the time he shall continue so to reside) not to be own- 
 to be the owner, in whole or in part, of any British ship shis '^'**^^ 
 required to bo registered, unless he be a member of some 
 British factory, or agent for a partner in any house of 
 co-partnership actually carrying- on trade in Great Britain 
 
 (a) 26 Geo. Hi. c. GO. s, 2., ami 
 nee ante, Ch. II.p. 71. 72. 
 
 (ft) 48 Geo. III. c. 70. 
 
 (c) 49 Geo. HI. c. 41. The for- 
 mer act had declared, th it British 
 sliips captured by the eiien\y, which 
 should afterwards become the pro- 
 perty of British subjects, should 
 not he eiititled to the privilege of 
 British ships. But this act beino- 
 deemed harsh, and in some degree 
 discourai^iag the recapture of ships 
 taken Isy the enemy, the 49 Geo, 
 III. c. 41. was pas.sed to amend it. 
 -The 45 Geo. III. c. 72, passed for 
 the encouragement of seamen, and 
 more effectually manning His Ma- 
 jesty's navy, had enacted that 
 prize vessels legally condemned in 
 the Court of Admiralty should, to 
 all intents and purposes wlutso- 
 
 evcr, be deemed British-builf, be- 
 ing first duly registered according 
 to the provisions of 26 Geo. III. 
 c. 60, The 49 Geo. Ill, c. 34. per- 
 mitted the Governor of Malta to 
 make registry of vessels condemn- 
 ed tiiere as prize, and to grant cer- 
 tificates thereof, under such re- 
 gulations 33 governors residing in 
 any colony might do by 26 Geo, 
 III. c. GO. Such registries were to 
 be as valid as if made in Great 
 Britain; and ships so registered, 
 owned by natives of Malta, iver« 
 permitted to be navigated as Bri- 
 tish prize ships to Great Britain, 
 fi:c. But copies of such certificates 
 of registry were to be transmitted 
 to the custora-house in London. 
 See ])ost. As to the Registration vi 
 Frizc Ships.
 
 240 
 
 Navigation Lazes. 
 
 [p.qiT I. 
 
 Foreigners 
 not to pur- 
 chase shares 
 in British 
 ships, without 
 the consent 
 of the owners 
 of three- 
 fourth parts 
 in value. 
 
 or Ireland, (d) And no foreigner or other person, not 
 being- a natural born subject of His Majesty, shall be en- 
 titled to, or shall purchase or contract for, any part or 
 share of any British ship belonging only to the natural 
 born subjects of His Majesty, without first obtaining the 
 consent, in writing, of the owners of three-fourth parts in 
 value at least of such ship, to be indorsed on the certi- 
 ficate of the registry of such ship, before two witnesses; 
 and all agreements and contracts by foreigners for any 
 part or share in a British vessel, without such consent, 
 indorsed as aforesaid, are declared null and void. 
 
 Of ships which 
 are required 
 to be regis- 
 tered. 
 
 5. The act then proceeds to require a registry of 
 every merchant ship, and prescribes certain forms upon 
 the transfer of property therein. Every ship having a 
 deck, or of the burthen of fifteen tons or upwards, be- 
 longing to any of His Majesty's subjects in Great Britain^ 
 Guernsey, Jersey, the Isle of Man, and any of the colo- 
 nies, plantations, or territories, in Asia, Africa, and Ame- 
 rica, in the possession of His Majesty, shall be registered ; 
 and persons claiming property therein must obtain a cer- 
 tificate of registry from the collector or comptroller of 
 customs in Great Britain, or from the governor or other 
 chief officer, in Guernsey, Jersey, or in any of the said 
 plantations. But no ship of war, or vessel belonging to 
 the Royal Family is required to be registered, or any 
 lighters, barges, boats, &c. or vessels used in inland navi- 
 gation ; and no vessel, not exceeding thirty tons, and 
 not having a whole or fixed deck, employed in the New- 
 foundland fishery, or in the coasting trade in the North 
 American colonies, (c) 
 
 Where rrgis- 
 try is to be 
 made. 
 
 6. No registry is to be made, or certificate thereof 
 granted, in any other port or place than the port or place 
 
 (d) 26 Geo. III. c. 60. sect. 8. & 
 13 Geo. III. r.2fi. 
 («) 2C Geo. 111. c- GO. sect, 3. & 
 
 6 & 27 Geo. III. c. 19. sect. 8.— 
 For tlic form of registry, see th» 
 Act in the Appendix.
 
 CHAP. VII.] The Registry Acts. 241 
 
 to which the vessel belongs, (except for prizes condemned 
 
 at Guernsey, Jersey, &c. which are to be registered in a 
 
 special manner,) or unless by an express authority from 
 
 the commissioners of the customs. And the port to which Port to which 
 
 a vessel is to be deemed and taken to belong, is declared \q^^^I^ ^' 
 
 to be the port from and to which such vessel shall usually 
 
 trade ; or, being a new ship, shall intend so to trade, and 
 
 at or near which the husband, or acting and managing 
 
 owner, usually resides. (/) 
 
 7. Before a registry is made, an oath must be taken Oftheoathto 
 by the owner, if the ship be owned by one person ; or if ^^^.^^ registry 
 owned by two, then by both, if both be resident within granted. 
 twenty miles of the port where the register is required ; 
 or by one, if one or both of them shall be resident at 
 a greater distance from such port or place. But, if the 
 number of the owners exceed two, then the oath must be 
 made by the major part, if the greater number of them be 
 resident within twenty miles of such port or place, not in 
 any case exceeding three of such owners ; or by one of 
 such owners, if all shall be resident at a greater dis- 
 tance. 
 
 THE FOLLOWING IS THE OATH REQUIRED TO BE TAKEN. 
 
 " I, A. B. [place of residence and occupation,] do make oath, 
 that the ship or vessel [name] of [port or place,] whereof [mas- 
 ter's name] is at present master, being [kind of built, burthen, &c. 
 as described in the certificate of the surveying officer,] was [when 
 and where built, or if prize, capture and condemnation,] and that 
 I, the said A. B. [^and the other owners, names and occupations, 
 (if any) and where they respectively reside, viz. town, place, or 
 parish, and country, or if member of, and resident in, any factory 
 in foreign parts, or in any foreign town or city, being an agent for, 
 or partner in, any house or co-partnership, actually carrying on 
 trade in Great Britain or Ireland, the name of such factory, fo- 
 reign town or city, and the names of such house or co-partner- 
 
 (/) 26 Geo. 111. c. 60. sect. 4, 5.
 
 242 Navigation Laws. [part i. 
 
 ship,] am [or are] sole owner [or owners] of the said vessel, and 
 that no other person or persons whatever hath or have any right, 
 title, interest, share, or property therein, or thereto ; and that I, the 
 said A. B., [and the said other owners, if any,] am [or are] truly 
 and bona fide a subject [or subjects] of Great Britain ; and that 
 I, the said A. B., have not [nor have any of the other owners, to 
 the best of my knowledge and belief,] taken the oath of allegiance 
 to any foreign state whatever [except under the terms of some 
 capitulation, describing the particulars thereof,] or that since my 
 taking [or his, or their taking] the oath of allegiance to [naming 
 the foreign states respectively to which he, or any of the said 
 owners shall have taken the same,] and prior to the passing of aji 
 act in the twenty-sixth year of the reign of King George the 
 Third, (intituled, An Act for the further Increase and Encourage- 
 ment of Shipping and Navigation,) I have [or he, or they, hath, or 
 have] become a subject [or subjects] of Great Britain [either by 
 His Majesty's letters patent, as a denizen, or denizens, or na- 
 turalized by act of i)arliament, as the case may be, naming the 
 dates of the letters of denization, or the act or acts of parliament 
 for naturalization respectively,] or [as the case may be,] I have 
 or he, or they, hath, or have] become a denizen [or denizens, or 
 naturalized subject or subjects, as the case may be,] of Great Bri- 
 tain, by His Majesty's letters patent, or by an act of parliament, 
 passed since the first day of January, one thousand, seven hun- 
 dred, and eighty-six, [naming the times when such letters of de- 
 nization have been granted respectively, or the year or years in 
 which such act or acts for naturalization have passed respectively,^ 
 and that no foreigner, directly or indirectly, hath any share, or 
 part, or interest in the said ship or vessel." — Sect. 10. 
 
 Tt is provided, liowcvor, by 27 Geo. III. c. 19. sect. 4. 
 tliat no oath taken to acquire a temporary residence in a 
 foreign state is to be deemed an oath of allegiance to such 
 state. 
 
 Of th*- oath 8. If the number of joint owners exceed three or more, 
 
 where the ^^^^ three shall not personally attend to take ilie oath, then 
 
 owners ox- i j 
 
 ccctlihrcc, or such oniiers as shall attend shall make /wr/Acr oath, that
 
 c\iAP. VII.] The Registry ylcts. 243 
 
 the part owners then absent are not resident within twenty the ship be- 
 niiles of the port or place of registry, and have not wil- bJIIfy coipo- 
 fully absented themselves, or are prevented by illness rate, or be 
 from attending. (^) If the ship belong to the h.ast India America for 
 Company, or other body corporate, the oath may be taken ^'^^[j'^f^''^'^ 
 by the secretary or other olHcer anthorized by them.(//) 
 Ajid ships built in North ^Xinerica for European owners 
 may be registered there, on the oath of their principal, 
 husband, or agents. Btit such ships, so registered, must, 
 notwithstanding, be registered de novo upon their arrival 
 in any port in His Majesty's European dominions, upon 
 the oath of the owners, and according to the requisites of 
 the 26 Geo. III. c. 60(/). 
 
 9. Previous to the registering or granting any certifi- Examination 
 
 ° 5 » o J of ships be- 
 
 cate of registry, the ship is to be examined by some per- fore the re- 
 sons skilled in the building or admeasurement of ships, g'^try. 
 appointed by the commissioners of the customs, or by the 
 governor, &c. of any of the colonies or plantations. They 
 are to examine her as to every particular contained in the 
 form of her certificate, and are to deliver a true account, 
 in writing, of her built, description, and admeasurement, 
 to the person making the registry ; and the master and 
 person, who shall be appointed for that purpose, or attend 
 on the part of the owners, shall sign his name to the cer- 
 tificate of such surveying or examining officer, in tes- 
 timony of the truth thereof, provided he shall agree to 
 the particulars therein described. (A) 
 
 10. Persons giving false descriptions of any of the par- of the penal 
 
 ticulars required to be contained in the registry, or wil- ties for talse 
 ^ . . descriptions 
 
 fully making false registers, are to forfeit, upon conviction, and registers. 
 
 100/. and to be incapable of holding any office or employ- 
 ment under His Majesty. (/) 
 
 (g) 26 Geo. III. c. 60. sect. 11. (i) 27 Geo. III. c. 19. sect. 9. 
 
 (ft) 27 Geo. III. c. 19. sect. 5.— (fc) 26 Geo. III. c. 60. sect. 12. 
 
 The act give* the form of the oath. (/) Idem. sect. »3. 
 
 Jl2
 
 244 
 
 Navigation Laws. 
 
 [part I. 
 
 Of ascertain- 
 ing the ton- 
 nage of ves- 
 sels whea 
 afloat. 
 
 11. A method is then prescribed of ascertaining- the ton- 
 nage of vessels when afloat, (w) viz. drop a plumb-line 
 over the stern of the ship, and measure the distance be- 
 tween such line and the after part of the stern-post, at the 
 load water mark ; then measure from the top of the said 
 plumb-line, in a parallel direction with the water to a 
 perpendicular point, immediately over the load water 
 mark, at the fore part of the main stem ; subtracting from 
 such measurement the above distance, the remainder will 
 be the ship's extreme length, from which is to be de- 
 ducted three inches for every foot of the load draughts 
 of water, for the rake abaft, and also three-fifths of the 
 ship's breadth, for the rake forward, the remainder shall 
 be esteemed the just length of the keel, to find the ton- 
 nage ; and the breadth shall be taken from outside to 
 outside of the plank, in the broadest part of the ship 
 either above or below the main wales, exclusive of all 
 manner of sheathing or doubling that may be wrought 
 upon the side of the ship ; then multiplying the length 
 of the keel for tonnage by the breadth so taken, and that 
 product by half the breadth, and dividing by ninety-four^ 
 the quotient shall be deemed the true contents of the 
 tonnage, provided always, that nothing herein-before con- 
 tained shall in anywise be construed to alter the manner 
 of admeasuring the tonnage of any ship or vessel, which 
 has heretofore been practised for the purpose of ascer- 
 taining the like duties, or any other duties or imports 
 whatever ; payable according to the tonnage of any ship 
 or vessel. 
 
 Bond not to 
 lend certifi- 
 cates, hut to 
 return them. 
 
 12. Al the time of obtaining tlie certificate of registry, a 
 bond is to be given by the master and such of the owners 
 as personally attend, in a penalty (wliich varies according 
 to the description of the vessel,) that the certificate shall 
 not be sold, lent, or otherwise disposed of, to any person ; 
 and tliat it shall be solely made use of for the service of 
 the ship for which it is granted ; and that in case the ship 
 
 (m) 26 Geo. III. c. 60. sect. U.
 
 CHAP. VII.] The Registry Acts. 245 
 
 shall be lost, taken by the enemy, burnt, or broken up, or 
 otherwise prevented from returning to the port to which 
 she belongs, the certificate, if preserved, shall be deli- 
 vered up within one month after the arrival of the master 
 in any port or place within His Majesty's dominions, to 
 the collector and comptroller of the customs, &c. or other 
 proper officer ; and if any foreigner, or any person for his 
 use or benefit, shall purchase, or otherwise become en- 
 titled to the Avhole, or any part, or share of, or any in- 
 terest in, such ship, and the same shall be within the 
 limits of any port in Great Britain, Guernsey, Jersey, 
 Isle of Man, or the British colonies, plantations, &c., 
 then the certificate of registry shall, within seven days 
 after the purchase or transfer of property, be delivered 
 up to the person authorized to make registry at such 
 port ; and if such ship shall be in any foreign port when 
 such transfer of property shall take place, then that 
 the same shall be delivered up to the British consul or 
 other chief British officer resident at, or nearest to, such 
 foreign port ; or, if such ship shall be at sea when such 
 transfer of interest or property shall take place, then that 
 the same shall be delivered up to the British consul or 
 chief British officer at the foreign port or place, in or 
 at which the master shall first arrive, after such pur- 
 chase or transfer of property at sea, immediately after 
 his arrival at such foreign port. But if the master shall 
 arrive at a port in Great Britain, &c. or in any port 
 of the plantations or colonies, then the same shall be de- 
 livered up in manner aforesaid, within fourteen days after 
 the arrival of the ship in port. And if the ship have any j^iediterra- 
 Mcditerranean pass, such pass is to be delivered up at nean pass to 
 the time of the certificate to the person authorized to y., ^^h cer- 
 receive such certificate; such pass to be transmitted to tificate. 
 the Commissioners of the Admiralty, to be cancelled; 
 and such certificate to be transmitted to the commis- 
 sioners of the customs. («) 
 
 (n) Sect. 15. By 27 Geo. III. be taken before any such per- 
 c. 19. fi««t. 6. & 7. the bond may ton* as the commissioners of the
 
 246 
 
 ^lavigaiion Laws. 
 
 [part I- 
 
 Oftheia- 
 dorsements 
 required to be 
 made on an 
 alteration of 
 the property 
 of the ship in 
 the same port, 
 by 26 Geo. III. 
 c. 60. s. 16. 
 
 13. The provisions of 7 & 8 W. III. as to indorsements 
 on certificates of registry upon any alteration in the pro- 
 
 customs, or the governors of plant- 
 ations, &c. may choose to appoint, 
 and in such manner as they shall 
 deem expedient ; and such bond is 
 to be of the same effect as if taken 
 by persons authorized to make the 
 registry of the ship. And upon 
 the change of the master of any 
 ship, the person who shall become 
 master shall give a fresh bond. 
 
 The nature of a Mediterranean 
 pass is this : — in the treaties that 
 have from time to time been made 
 with the different Barbary States, 
 it has been agreed, that the sub- 
 jects of the king of Great Britain 
 should pass the seas unmolested by 
 the cruizers of those states ; and, for 
 better ascertaining what ships and 
 ■vessels belong to British subjects, 
 it is provided that they shall pro- 
 duce a pass, under the hand and 
 seal of the Lord High Admiral, or 
 the Lords Commissioners of the 
 Admiralty. In pursuance of these 
 treaties passes are made out at the 
 Admiralty, containing a very few 
 words, written on parchment, with 
 ornaments at the top, through 
 which a scolloped indenture is 
 made ; the scolloped lops are sent 
 to Barbary, and being put in the 
 possession of their cruizers, Ihe 
 commanders are instructed to suf- 
 fer all persons to pass who have 
 passes that will fit these scolloped 
 tops. The protection afforded by 
 these passes is such, that no ships 
 which traverse Hie seas frequented 
 by these rovers, ever fail to furnish 
 thenisclvcs with them ; whether iu 
 
 the trade to the East Indies, Africa, 
 or the Levant, or in the trade to 
 Spain, Italy, or any part of the 
 Mediterranean; and from the more 
 particular need of them in the lat- 
 ter, they, no doubt, obtained the 
 name of Mediterranean pauses. 
 For the accommodation of mer- 
 chants in distant parts, blank passes, 
 signed by the Lords of the Ad- 
 miralty, are lodged with the go- 
 vernors abroad, and with the Bri- 
 tish consuls, to be granted to those 
 who comply with the requisites 
 necessary for obtaining them. As 
 this piece of security is derived 
 wholly from the stipulations made 
 by the Crown with a foreign power, 
 the entire regulation and manage- 
 ment of it has been under the di- 
 rection of His Majesty, who, with 
 the advice of his Privy Council, 
 has prescribed the terms and con- 
 ditions upon which these passes 
 shall be granted. Among others 
 are the following : they are to be 
 granted for none but British-built 
 ships, or ships made free, navi- 
 gated with a master and three- 
 fourths of the mariners British 
 subjects, or foreign Protestants 
 made denizens. Bond is to be 
 given, in the sum of three hundred 
 pounds if the vessel is under one 
 hundred tons, and in five hundred 
 pounds if it is of that or more, for 
 delivering up the pass within 
 twelve months, unless in the case 
 of ships trading from one foreign 
 port to another ; and such passes 
 need uot be returned ia less than
 
 CHAP. VII.] 
 
 71ie Registry Acts. 
 
 247 
 
 perty of a sliip in the port to ^vbicli she belongs, beings 
 found insufilcient, it is further provided by the act, 
 (the leading provisions of which we are detailing,) that 
 in addition to the indorsement required by tho act of 
 William, there shall also be indorsed on the certificate of 
 registry, before two witnesses, the town, place, or parish, 
 where the persons to whom the property in the ship, or 
 any part thereof, shall be so transferred, shall reside ; or 
 if such person usually reside in any country not under tho 
 dominion of His Majesty, but in some British factory, 
 the name of such factory, of which such person is a mem- 
 ber, must be expressed ; or if such person reside in any 
 foreign town or city, and is not a member of any British 
 factory, the name of such foreign town or city must be 
 mentioned ; and also the name of the house or co-partner- 
 ship in Great Britain for or with whom such person is an 
 agent or partner ; and the person to whom the property 
 in such vessel is transferred is required to deliver a copy 
 
 three years. The rules ^nd orders 
 under which Mediterranean passes 
 were lately granted were made by 
 the ]King in council, on the 14th 
 of June, 1 722, and on the 28th of 
 August, 1776, upon representa- 
 tions made by the Board of Ad- 
 miralty of the abuses then prac- 
 tised. It has been found expe- 
 dient at the conclusion of a war, 
 and sometimes during peace, to re- 
 call and caijcel all passes that have 
 been issued, and to issue others in 
 a new form. This has been done 
 for two reasons; first, that these 
 useful instruments, by various 
 means, either accidental or frau- 
 dulent, came into the hands of fo- 
 reigners, wlio, under cover of 
 them, carried on, in security, a 
 trade which otherwise would have 
 JjeJongcd to British subjects, and 
 
 which had been purchased by the 
 Crown at the exponce of keeping 
 up this sort of alliance. Secondly, 
 that i\xe Barbary States com- 
 plained tliat. adhering to the rule of 
 litting the other part of the inden^ 
 ture to the passes, they were 
 obliged to suffer sliips to pass 
 that did not belong to British sub- 
 jects. For these reasons, the passes 
 were called in, in the years 1722, 
 1729, 1750, 1763, 1776, J7S3, and 
 for the last time, we believe, at 
 the conclusion of the late war. 
 By Stat. 4 Geo. III. c. 18. it is 
 made felony, without benefit of 
 clergy, to forge, counterfeit, or 
 alter the Mediterranean passes; 
 and such offences comnitttd out 
 of the kingdom may be orose- 
 cuted in any country. — Reeves o^ 
 Shipping, p. 406, 407.
 
 248 Navigation Laws. [part i. 
 
 of such indorsement to the officer making the registry, 
 who is to cause an entry thereof to be indorsed on the 
 oath or affidavit upon which the original certificate of 
 registry was obtained ; and also to make a memorandum 
 in the book of registers, and to give notice to the com- 
 missioners of the customs. But the provisions in the above 
 clause of 26 Geo. III. c. 60. sect. 16., not being deemed 
 sufficient, the legislature subsequently directed that 
 
 A certain 14. Upon any alteration of property in any ship in 
 
 dorsement on the port to which she belongs, an indorsement is to be 
 
 the change of uiade on the register according to a form ffiven by 34 
 property in a . <=> j 
 
 ship in the Geo. III. c. 68. sect. 15. (o) to be signed by the person 
 
 Pj^'^*. *? ^^I'^o transferring the property, or by some person legally au- 
 directedby thorized for that purpose, and a copy of such indorse- 
 c. 68^sect 15 ^^^^ ^^ to be delivered to the person authorized to 
 grant the registry ; otherwise such sale or contract, &c. to 
 be void. An entry thereof to be indorsed on the affidavit 
 on w hich the original certificate was obtained ; a memo- 
 randum to be made in the book of registers, and notice 
 given to the commissioners of customs, (p) 
 
 Certificate to 15. Upon the transfer of the property in any ship from 
 redtedlnihe^ ^^^ ^^ ^^^ Majesty's subjects to another, in whole or in 
 bill of sale of part, the certificate of the registry of the ship is to be 
 transfer, truly and accurately recited in words at length in the bill 
 
 citherof or instrument of sale : otherwise such bill or instrument 
 
 whole or part, 
 valid, unless 
 in writing. 
 
 (o) Form of Indorsement in registry, unto [names, residence, 
 
 CHANGS OF Property. and occupation of the purchaser.'] 
 
 Witness [my, or our hand or 
 
 Be it remembered, that [ I, or hands,] this [date in words at full 
 
 wc,] [names, residence, and occu- length.] 
 
 pation of the persons selling,] have Signed in the presence of 
 this day sold and transferred all [Two witnesses,] 
 [my or our] right, share, or in- 
 terest in and to the ship or vessel (/>) See likewise 42 Geo. III. 
 [name of the ship or vessel,] men- c. 61. lect. 17. ai to Ireland, 
 tioned in the within certificate of
 
 CHAP, vii.] The Regi^tiy Acts. 249 
 
 of sale to be null and void to all intents and purposes, (q). 
 And no transfer, or contract, or agreement for a transfer 
 of property in any ship, is to be valid for any purpose either 
 in law or equity, unless such transfer be by bill of sale 
 or instrument in writing, containing- the recital of the 
 register in words at length, (r) 
 
 16. Provision is then made for the sale of vessels, Of vessels al»- 
 either in whole or part, when absent from port. If a when altcra-'^ 
 
 ship shall be at sea, or absent from the port to which t'O"* •" pro. 
 1,1 . • 1 11 • • 1 perty made, 
 
 she belongs, at the time when such alteration in her pro- 
 perty shall be made, (rule 14.) so that an indorsement or 
 a certificate cannot be immediately made, the sale or con- 
 tract, or agreement for sale, shall, notwithstanding, be 
 made by a bill of sale or other instrument, in writing, 
 as before directed, and a copy of such bill of sale, or 
 other instrument, in writing, shall be delivered, and a 
 copy of such bill of sale or other instrument, in writing, 
 and an entry thereof shall be indorsed on the oath or af- 
 fidavit, and a memorandum thereof shall be made in the 
 book of registers, and notice of the same shall be given 
 to the commissioners of the customs ; and within ten days 
 after such ship shall return to the port to which she belongs, 
 an indorsement shall be made and signed by the owner, 
 or some person legally authorized for that purpose, 
 and a copy thereof shall be delivered in manner herein- 
 before mentioned. Otherwise, such bill of sale, or contract, 
 or agreement for sale thereof, is declared to be utterly 
 null and void to all intents and purposes whatsoever- 
 and entry thereof shall be indorsed, and a memorandum 
 thereof made, in the manner lieieinbefore directed. (^) 
 
 17. But in all cases where the owner of any ship shall Regulations 
 
 reside in any country not under the dominion of His Ma- *"^ *?^1^'^'^ ^^ 
 *" • property 
 
 where owners 
 
 reside in any 
 
 (q) 26 Geo. III. c. 60. sect. 17. and 42 Geo. III. c. 61. sect. 16. country not 
 
 as to Ireland. (s) 34 Geo. III. c. 68. sect. l«. under the do- 
 
 (r) 34 Geo. III. c. 68. sect. 14. 4? Geo. III. c. 61. sect. 18- MaT^ty?^^"
 
 250 Jsaviiralion Laws. [part i, 
 
 jesty, as member of some British factory, or agent for,' 
 or partner in, any house or co-partnership actually carry- 
 ing on trade in Great Britain or Ireland, at the time when 
 he shall transfer such property in any ship or vessel, so 
 that an indorsement cannot be made immediately, nor a 
 copy of such bill of sale or other instrument in writing be 
 delivered, nor an entry thereof indorsed on the oath or 
 affidavit, nor a memorandum thereof made in the book of 
 registers, nor notice of the same be given to the commis- 
 sioners of the customs, in the manner before mentioned, 
 the same may be done at any time within six months after 
 such transfer shall have been made ; and that within ten 
 days after such owner, or some person legally authorized 
 for that purpose by him, shall arrive in this kingdom, if 
 such ship shall then be in any port of this kingdom : and if 
 not, then within ten days after such sliip si all so arrive, 
 an indorsement shall be made by the owner, or some per- 
 son legally authorized for that purpose, and a copy thereof 
 shall be delivered in manner hereinbefore mentioned, 
 otherwise such bill of sale, or contract, or agreement for 
 sale, is declared to be utterly null and void, to all intents 
 and purposes whatsoever, and entry thereof shall be in- 
 dorsed, and a memorandum thereof made, in the manner 
 hereinbefore directed. (0 
 
 Whce ihe jg When {\\(i property in any ship belonjiina: to His 
 
 properiy is i i ^ . i ^ :^ 
 
 transferred by Majesty's subjects shall by sale be transferred in whole or 
 is to be' re-is- ^" P''^''^^ to any other of His Majesty's subjects, and such 
 tered de novo, ship shall be required to be registered de novo^ the officer 
 unless the in- i . , . ^ • ^i i -ji • 
 
 strnment of empowered to make registry may require the bilJ. or in- 
 
 salc is pro- strumcut of sale, to be produced: and in case such bill or 
 duced. 
 
 instrument shall not be produced, the officer shall not 
 
 grant a certificate of registry de novo, but the commis- 
 sioners of the customs and the governor, lieutenant-go- 
 vernor, or commander in chief of Guernsey, Jersey, or of 
 any British plantation, if application shall be made to any 
 
 (0 31 Geo. III. C.6S. sect. 17.
 
 CHAP. VII.] The Reglslri/ Acts. 251 
 
 of them, upon due consideration of the case, may give Commission- 
 directions for registering such ship de novo, notwithstand- niaydve dl-* 
 ing sucli bill or instrument of sale shall not have been rections for 
 produced, provided all other regulations required by law 
 be complied with, (u) 
 
 19. The statute of 7 &: 8 Will, as we have before shewn, On alterations 
 was only intended to prevent frauds and abuses in the the saiueVort'! 
 
 plantation trade; but it was the policy of the new reg-istrv *^^ owners 
 
 1,. ,.. „, 0-' whose proper- 
 
 acts to amend and improve the provisions OI that statute, ty is not trans- 
 
 and to extend and apply them to all merchant-ships what- ]^'^^^^\ ^^^y 
 
 ^* •'. ^ nave the ship 
 
 ever, exceeding a certain tonnage. The act of William registered de 
 
 permitted part-owners, upon a transfer of property, and a "^"' 
 change of partnership, to require of the proper officer a 
 registry de novo of the ship, instead of an indorsement on 
 the old registry. The 26 Geo. 111. c. 60., had not directed 
 a new registry to be made in such cases, and therefore 
 such registers could only be granted under the former sta- 
 tute. In order to meet this case, the o4 Geo. III. c. 68., 
 enacts, that when there shall be any alteration of property 
 in the same port, by the sale of one or more shares in any 
 ship, after registering thereof, and the owners who were 
 owners thereof at the time such ship was last registered, 
 or whose property therein has not been so transferred, 
 shall be desirous of having the ship registered de novo, the 
 officers may register such ship de novo, provided all the 
 requisites of the laws concerning the registry de novo be 
 complied with, (v) 
 
 20. The law had already declared, that British ships, As soon as the 
 ., /'i-i -11 • ni transfer of 
 the property oi which was m whole or in part transierred property in a 
 
 to persons not being subjects of His Majesty, should not be ?^'P ^* ^^* '* 
 
 entitled to the privileges of British vessels ; and to prevent master, he 
 
 frauds in the employment of such ships, as British ships, Klrgct^toT'* 
 
 contrary to the intention of the laws of navigation, they portwhereshe 
 
 were required in certain cases to be registered de novo, ^r^d denovo; 
 
 («) 34 Geo. III. c. 68. sect. 20. (v) Sect. 21.
 
 ^^2 Navigation Laws. [part i. 
 
 on failure x^i the event of such transfer of property, which was 
 
 whereoi she r r ^ 7 
 
 is to be deem- frequently made by the owners whilst the ship was at 
 
 edforeign, ^j^^ 34 q^^ jjj ^ ^g jj ^^ ^^^^^ ^^^ ^ ^ ^. 
 
 and not again . _ ' 
 
 registered,uii- ligent notice should be given to the proper officers of 
 
 onler!^ *^^*^"^ the customs. It directs, in terms, that as often as any 
 transfer of property in any ship shall be made while upon 
 the sea, on a voyage to a foreign port, in case the master 
 is privy to such transfer, or in case he is not, as soon as 
 he shall become acquainted therewith, such ship shall pro- 
 ceed directly to the port for which the cargo is destined, 
 and shall sail from such port to which the cargo then 
 on board is destined, to the port of His Majesty's do- 
 minions to which she belongs, or any other port in 
 which she may be registered, and may take on board, in 
 the port for which her original cargo was destined, or 
 other port, being in the course of her voyage to the port 
 in which she may be registered de novo, such cargo as shall 
 be destined, and may be legally carried to the port where 
 she may be registered de novo ; and if such transfer shall 
 be made while such ship is in any foreign port, and the 
 master is privy to such transfer, or in case he is not, as 
 soon as he shall become acquainted therewith, such ship, 
 after having delivered the cargo, shall sail from such port, 
 to the port to which she belongs, or to any other such port 
 in which she may be registered, and may take on board at 
 the port to which her original cargo was destined, or other 
 port, being in the course of her voyage to the port in 
 which she may be registered de novo, such cargo as shall 
 be destined and may be legally carried to such port where 
 she may be registered de novo, and if such transfer shall 
 be made while such ship is on a fishing voyage, and the 
 master of such ship is privy to such transfer, or in case he 
 is not, as soon as he shall become acquainted therewith, 
 such ship, after having finished fishing, without touching 
 at any foreign port, except for repairs or refreshments, or 
 for delivering any part of the cargo, shall sail to the port 
 to which she belongs, or any other port where she may be 
 registered, and may take on board at the foreign port last
 
 CHAP. VII.] The Registry Acts. 253 
 
 described, or any otlier port, being in the course of her 
 voyage to the port where she may be registered de novo, 
 such cargo as shall be destined and may be legally carried 
 to such port ; and such ship shall be registered de novo as 
 soon as she returns to the port to which she belongs, or 
 to any other port in which she may be registered ; on 
 failure whereof such ship shall, to all intents and purposes, 
 be deemed to be a foreign ship, and shall not again be 
 registered, or entitled to the privileges of a British ship, 
 unless the commissioners of the customs, or the governor, 
 lieutenant-governor, or commander in chief of Guernsey, 
 or Jersey, or of any British plantation, shall, on consi- 
 deration of the special circumstances of the case, think fit 
 to order the said ship to be registered : provided that the 
 regulations required by the laws in force concerning the 
 first registry of ships shall be complied with ; and pro- 
 vided also, that in no case of the transfer of property, in 
 whole or in part, the ship shall be registered de novo, un- 
 less she shall return to the port to which she belongs, or 
 to such port in which she may be registered de novo, within 
 twelve months after the date of such transfer, if such ship 
 shall not be on a voyage to the east of the Cape of Good 
 Hope, or to the west of Cape Horn ; or within two years, 
 if the ship be on a voyage to the east of the Cape of Good 
 Hope, or to the west of Cape Horn, at the time of such 
 transfer taking place ; except by order of the commis- 
 sioners, or governor, as aforesaid, upon special repre- 
 sentation of the circumstances of the case, in manner 
 before authorised. (:r) 
 
 21. And in order to prevent frauds, and the employment change of 
 
 of the vessel in illicit trade, it is deemed expedient that the ^^^j^rsed^oS*" 
 
 name of the master of a British ship should always be the certifi- 
 
 known at the custom-house, and that upon any change of n^oran^jum 
 
 masters immediate notice should be given to the proper made in the 
 
 1 , - ^ 1 ^/- /"< TIT bookofregis- 
 
 oificers. One of the clauses, therefore, of the 2b Geo. 111. ^grs. 
 
 c. 60., directs, that as often as the master of any ship 
 (x) 34 Geo. III. c. 68. sect. 23.
 
 254 Navigation Laws. [part i. 
 
 registered shall be changed, the master or owner shall 
 deliver to the persons authorized to make registry, at the 
 port where such change shall take place, the certificate 
 of registry, who shall thereupon endorse and subscribe a 
 memorandum of such change, and forthwith give notice 
 of the same to the proper officer of the port where such 
 ship or vessel was last registered, w ho shall likewise make 
 a memorandum of the same in the book of registers, and 
 forthwith give notice thereof to the commissioners of the 
 customs, (t/) 
 
 No change to 22. We have already seen that the statute of 7 & 8 Will. 
 
 name of siiipsT ^^^' ^^^^ provided that ships should not change their names 
 
 which, toge- without registering de novo. This restriction, however, 
 
 ports, must appears to have been confined to vessels engaged in the 
 
 be conspicu- plantation trade. But in order effectually to prevent the 
 ously painted ),.,., .iii -i /.i- 
 
 on the ship's frauds which were practised by changmg the name oi a ship, 
 
 stern. jjj,(j more especially among illicit traders, the 26 Geo. III. 
 
 enacts, that no owner of any ship shall give any name to 
 such ship, other than that by which she was firstregistered ; 
 and the owner of every ship which shall be so registered, 
 shall, within one month from the time of such registry, 
 cause to be painted in white or yellow letters, of a length 
 not less than four inches, upon a black ground, on some 
 conspicuous part of the stern, provided there shall be 
 sufficient space for the purpose, but if not, then in letters 
 as large as such space will admit, the name by w hich such 
 ship shall have been registered, and the port to which she 
 belongs. In a distinct and legible manner, and keep and 
 preserve the same : and if such owner or master shall wil- 
 fully alter, erase, obliterate, hide, or conceal, or cause, 
 or procure, or permit the same to be done, (unless in the 
 case of square-rigged vessels in time of war,) or shall, in 
 any written or painted paper, or other document, describe 
 such ship by any name other than that by which she was 
 first registered, or shall verbally describe, or cause, or 
 procure, or permit such ship to be described by any other 
 
 {y) 26 Geo. III. c. 60. sect. 19.
 
 CHAP. VII. J The Registry Acts. 255 
 
 name to any ofticor of the revenue, such owner or master 
 shall forfeit 100/. (;:) 
 
 23. Every person who shall apply for the certificate of Persons ap- 
 the registry of any ship in Great Britain, Guernsey, Jer- fi'^,'."f .^"^ '^^'^' 
 sey, or the Isle of jVIan, is required to produce to the per- Great Britain, 
 son authorized to j^rant such certificate a true and full (i„ce a par'u"' 
 account, under the hand of the builder of such ship, of culir account 
 the proper denomination, and of the time when, and the j,.^,,^, f[,g '^ 
 place where such ship was built ; and also an exact account builders, and 
 
 ' • 1 1 e ^^ make oath 
 
 of the tonnage of such sliip, together with the name or to ihciridca- 
 
 the first purcfiaser, (which account the builder is required ^'^y- 
 to give under his hand, to the person demanding it for the 
 purpose of applying for a certificate of registry) and he is 
 also required to make oath that tiie ship for which the cer- 
 tificate is required is the same as that described in the 
 builder's account: (a) and persons making application in 
 the colonies, for the like certificates, are required to con- 
 form to the above particulars, (i?*) 
 
 24. We have already detailed (c) the provisions made If certificates 
 by the 15 Geo. II. c. 31. sect. 2., when the certificate was ^[,"^"0' blT"^ 
 lost, and the ship was in the plantations. Upon a certain granted, upoa 
 
 ii 1 • 1 1 ii . 1 -x • ,1 security jriven 
 
 oath being made by the master, and security given, the ^^1 oath 
 
 governor of the coloiiy or plantation, where the loss was taken, ac- 
 
 1 1 cording to 15 
 
 alleged to have luippenea, was empowered to grant a cer- Geo. 11. c. 3. 
 
 tificate to entitle the vessel to trade for one voyage only ; ^ ~^' ^'^'^' ^^^• 
 
 •^ '^ . -^ c. 60. s. 10. 
 
 and after the exigency of a single voyage was provided 
 for, upon the loss of the certificate being proved by the 
 master, and security given by him and one of the owners, 
 the ship was permitted to be registered de nozo. The 
 26 Geo. III. c. 60. sect, 22. adopts this provison of the 
 15 Geo. II., and extends it to all cases of certificates lost,- 
 without confining it to the plantation trade ; but instead 
 of the oath prescribed by the 15 Geo. II., it requires that 
 
 (s) 26 Geo. III. c. CO. sccl. 19. {h) Sect. 21. 
 (a) Sect. 20, (c) See ante. 
 
 3
 
 256 JS'^avigation Laws. [part i. 
 
 an oath shall be taken as directed by the tenth section, 
 that is, the like oath which is required to be made before 
 a ship is registered, or a certificate granted by virtue of 
 that act. (d) 
 
 Ships altered 25, It was a great object within the policy of the regis- 
 
 to be re°'ister- jt* 
 
 ed anew* or *^y ^^^^ ^^ prevent any confusion m the identity of a ship; 
 
 deemed fo- it Mas therefore enacted, that if any ship, after she shall 
 
 have been registered, should, in any manner whatever, be 
 
 altered in form or burthen, by being lengthened, or built 
 
 upon, or should be altered from a sloop to a brigantine, 
 
 or from any one denomination of vessel to another, by the 
 
 mode or method of rigging or fitting, in such case she 
 
 should be registered de novo, upon her return to the port 
 
 to which she belonged, or to any other port in which 
 
 she might be legally registered ; otherwise she was to be 
 
 deemed and taken to be a foreign ship, (e) 
 
 The con- 26. And in order to prevent frauds in the obtaining of 
 
 demnation of registers for vessels represented to be prizes, it is provided 
 
 prizes, and ° . . 
 
 the particu- by these acts, that upon registering vessels condemned as 
 
 sels°&c raust P^'i^es, the owners, before they shall be entitled to a cer- 
 
 be produced, tificate of registry, shall produce to the proper officer of 
 
 owner to a ^^^ customs a certificate of condemnation, under the hand 
 
 certificate of and seal of the Judge of the court in which the ship has 
 resistrVa 
 
 been condemned ;(/") and a true and exact account in 
 
 writing of all the particulars of the ship, (which are re- 
 quired by the third section of the 26 Geo. III. c. 60.) to 
 be made and subscribed by some skilful person appointed 
 by the Court to survey the ships. Oath must likewise be 
 made that the ship is the same ship which is mentioned in 
 the certificate of the Judge of the Court of Admi- 
 ralty, (g) The act then provides, that prizes condemned 
 in Guernsey, Jersey, or the Isle of Man, shall be re- 
 gistered at Southampton. (^) 
 
 (rf) 2fl Geo. III. c. GO. sect. 10. Judge to grant such certificate. 
 
 (e) Sect. 24. (g) 26 Geo. III. c. 60. sect. 25. 
 
 (J) The act authorizes the (ft) Sect. 26.
 
 CHAt». VII.] The Rfglstry Jets. 257 
 
 27. In all cases where a ship, condemned as prize in The sum on 
 any of His Majesty's colonies, shall be registered and a prize sold ia 
 
 obtain a certificate of reffistry, an exact and particular ^^^ colonics, 
 
 , . . , / .. ^ / „ to lie subioin- 
 
 account must be subjoined to the certificate, of the sum for ed to thecer- 
 
 which such vessel has been sold, to be verified on the oath ^ificate. 
 "of the person applying for such registry and certificate. (0 
 
 28. The certificate is next to express whether the ship Otherparticu- 
 
 be of the built of Great Britain or Ireland, Guernsey, '^" ***.^.^ ^^" 
 
 ' •' ' pressed m a 
 
 Jersey, the Isle of Man, or of the colonies, plantations, certificate, 
 islands, or territories belonging to His Majesty, or of any 
 foreign country ; and shall, if British built, be entitled to a 
 " certificate of British Plantation registry;''* and, if foreign 
 built, shall be entitled to a " certificate of foreign ship's re- 
 gistr?/, for the European trade^ or British property^'' as the 
 case may be. (A) 
 
 29. The master of every ship, which shall have pro- Certificates of 
 
 cured a certificate of the registry, is required upon de- f^g'^try areto 
 
 ° •" . . "^ produced 
 
 mand to produce such certificate to the principal officers upon demand, 
 
 of every port in His Majesty's dominions, or to the Bri- ^ every port. 
 
 tish consul or chief British officer in any foreign port in 
 
 which such ship shall arrive, for the inspection of such 
 
 officer or officers, British consul, or chief British officer, 
 
 in order to satisfy him or them that she has been properly 
 
 registered under the penalty of 100/. s. 34. 
 
 30. The certificate is then made a public document. Certificate of 
 always to be present with the ship, in the nature of a '^,*j° j^"^^ j" \^ 
 protection and licence ; and the master of every ship which every port, 
 shall have procured a certificate of the registry, is re- 
 
 (0 26 Geo. III. c. 60. s. 87. The 32d and 33rd sections of this act 
 
 object of this clause was to facili- apply to ships in existence at the 
 
 tate the lery of the duties payable passing of the act. The subject 
 
 upon the arrival of the ship in the matter of these sections, therefore, 
 
 first British port, has ceased to be of interest in a 
 
 (it) S. 28. The 29th, 30th, Slst, general treatise.
 
 258 Navigation Laws. [part i. 
 
 quired upon demand to produce such certificate to the 
 principal officers of every port in His Majesty's dominions, 
 or to the British consul, or chief British officer in any 
 foreign port in which such ship shall arrive, for the in- 
 spection of such officer or officers, British consul, or chief 
 British officer, in order to satisfy him or them that she has 
 been properly registered, under the penalty of 100/. (/) 
 
 Certificates to ^I. The proper officer at every port where registers 
 be iiumbered, . . . 
 
 and an ac- and certificates shall be granted, is moreover required 
 
 tnuismittedTo Progressively to number the same, beginning with progres- 
 the coramis- sive numeration, at the commencement of each year, and 
 customs. *o enter an exact copy of such certificates with the number 
 
 thereof, in a book, and also within one month to transmit 
 to the commissioners of the customs a true copy, together 
 with the number of every certificate which shall be so 
 granted ; and if any such officer shall neglect or refuse so 
 to do, he is, for the first offence to forfeit one hundred 
 pounds, and for the second offence two hundred pounds, 
 and be dismissed from his office ; (771) and the copies of cer- 
 tificates granted in Scotland are to be annually transmitted 
 to the custom-house in England, (n) 
 
 «8 Geo, III- The act then proceeds to a scale of charges to be paid 
 
 c. 60.8.37,38. ypQjj ^l^Q fjj.g^ registry of ships, in lieu of the stamp du- 
 ties, and empowers the privy council to order ships to be 
 registered, to whom certificates of registry have been pro- 
 mised in consideration of their services, though not enti- 
 tled thereto by law ; and suits commenced in the colonies 
 touching certain requisites granted to ships under particu- 
 lar circumstances, are staid till His Majesty's pleasure be 
 known. But these sections, as they apply to particular 
 and local circumstances, have long ceased to interest. 
 
 Sect 40, 41. The act then inflicts certain penalties on officers neg- 
 
 lecting their duty ; and persons making false oaths, in any 
 
 (0 26 Geo. III. c. 60. a. 34. (m) Sect. 35. (n) Sect. 39.
 
 CHAP, vii.] The Registry Acts. 259 
 
 of the matters of the act requiring to be verified by oath, 
 are declared guilty of corrupt perjury; and a penally of 
 500/. is enacted against persons counterfeiting, erasing, 
 altering, or falsifying any certificate required or directed 
 to be obtained by this act. The penalties and forfeitures 
 under the act are to be recovered in any of His Majesty's 
 Courts of Justice ; and it is further declared, that any offi- 
 cer concerned in seizures or prosecutions under this act. Sect. 42, 
 shall receive the same share of the produce arising from 
 such seizures, or in the case of seizure for unlawful im- 
 portation, shall be entitled to such share of any pecu- 
 niary penalty for any offence against this act, as any officer 
 is by any law or regulation entitled to, under prosecutions 
 for pecuniary penalties. 
 
 32. In order, however, that the provisions of this im- Acts relatire 
 portant act might not be construed to infringe upon the 
 general laws of shipping and navigation, it is specially 
 provided by the forty-third section, that every matter con- 
 tained in any act passed touching the trade, shipping, and 
 navigation of Great Britain, and the colonies, plantations, 
 islands, and territories thereunto belonging, which was 
 not thereby expressly altered or repealed, should conti- 
 nue in full force, and that so far as the same related to 
 the registry of ships and vessels, should be deemed to 
 extend io all ships authorized and required by the above 26 Geo. III. 
 act to be registered, and to have certificates of registry. 
 
 S3. Ships registered in Ireland are subject to the same Irish ships. 
 regulations as British ships, and are to be deemed entitled 
 to the same privileges in all cases whatever. («) 
 
 A subsequent statute then enacts, that all ships and ves- What ships to 
 sels which by the 26 Geo. III. c. 60. are declared not to be alleaThTpt 
 entitled to any of the privileges or advantages of a British 
 
 (n) 26 Geo. III. c. 60. s. 44. 27 Geo III. c. 67. art, 6. and 42 Geo. 
 Geo. HI. c. 1». 8. 1, 2. 39 &40 III. c. 61. 
 
 s2
 
 260 Navigation Laws. [part i. 
 
 built ship, or of a ship owned by British subjects, and all 
 ships and vessels not registered according to the 'directions 
 of the above act are to be deemed alien ships, although 
 such ships should be owned by His Majesty's subjects, and 
 are made liable to the same penalties and forfeitures as 
 alien ships, (p) 
 
 As it often happened that masters, owing to disputes with 
 . their ow ners, or from other causes, detained the certificate 
 6f registry, whereby a ship was prevented from pursuing 
 her voyage, and exposed to other great inconveniences, 
 the Legislature, with a view to this evil, provided a sum- 
 mary remedy by the next act of Parliament in order. 
 
 Masters mali- 34. On complaint, made on oath, by the owner of any 
 Sinig certi- ^^^P> ^hose certificate of registry is detained and refused 
 ficates of re- to be delivered up by the master thereof, of such detainer 
 fopwialties. or refusal, to any Justice of the Peace residing near to 
 the place where such detainer and refusal shall be, either 
 in Great Britain, Guernsey, Jersey, or Man, or in any 
 colony, plantation, island, or territory to His Majesty 
 belonging in America, such Justice, by warrant under his 
 hand and seal, may cause the master to be brought before 
 him to be examined touching such detainer and refusal. 
 And if it appear that the certificate is not lost or mislaid, 
 but wilfully detained by the master, such master is to for- 
 feit, upon conviction, the sum of 100/. ; and, upon failure 
 of payment thereof, within the space of two days after such 
 conviction, he may be committed to the common gaol, to 
 remain without bail, for such time as the Justice shall 
 deem proper, not being less than six months, nor more than 
 twelve months, {q) And if the certificate be not found, 
 the Justice is re<iuired to certify the detainer, refu- 
 sal, and conviction, to the person who granted the cer- 
 tificate of register for such ship, who is required to 
 register it de novo, notifying on the back of the certi- 
 
 Cp) 27 Geo. III. c. 19. sect. 13. (?) S8 Geo, III. c. 34. lect. 13.
 
 CHAP. VII.] The Registry Acts. 261 
 
 ficate the grounds on which such ship Mas registered 
 de novo.(r) 
 
 35. But the good purposes of this act not being efFec- Further pro- 
 tually secured by the above clauses, further provisions ,n;,sters*of'"* 
 
 were introduced in a subsequent statute, (5) which enacts, ships detain- 
 in" C6rtin» 
 that in case the master of any ship, who shall have re- cjites of re- 
 ceived the certificate of tlie registry thereof, (whether o'*t'"y- 
 such master shall be part owner or not) shall wilfully 
 detain and refuse to deliver up the same to the proper 
 officers empowered to make registry and to grant a cer- 
 tificate thereof, on the owner or owners, or the major part 
 of the owners, of such ship, if such master has not any 
 property therein ; or on the other owner or owners, or 
 the major part thereof of such ship, if the master has any 
 share or property therein, requiring him so to do, it may 
 and shall be lawful for the owner or owners, or the major 
 part of the owners of such ship, (the certificate of registry 
 of which shall be detained and refused to be delivered 
 up) to make complaint on oath against the master of the 
 ship who shall so detain and refuse to deliver up the same, 
 of such detainer and refusal, to any Justice of the Peace 
 residing near to the place, in Great Britain, &c. or in any 
 of the colonies, plantations, or territories to His Ma- 
 jesty belonging; and on complaint, the said Justice or 
 other magistrate shall, and is required by warrant under . 
 his hand and seal, to cause such master to be brought 
 before him to be examined touching such detainer and 
 refusal ; and if it shall appear to the said Justice, &c. 
 upon examination of the master or otherwise, that the 
 said certificate of registry is not lost or mislaid, but is 
 wilfully detained by the said master, such master shall 
 be thereof convicted, and shall forfeit and pay the sum of 
 100/., and on failure of payment thereof be committed to 
 the common gaol, to remain without bail for such time as 
 the said Justice shall deem proper, not being less than six 
 months, lior more than twelve months. 
 
 (r) Idem. sect. U. (») 34 Geo. III. c. 68. sect, l«.
 
 263 Navigation Laws, [part i. 
 
 The difference between the provisions in the two sta- 
 tutes does not appear, at first sight, obvious ; but the follow- 
 ing points of discrepancy will be found upon a comparison. 
 
 The 28 Geo. III. speaks of a detainer and refusal ge- 
 nerally ; the subsequent act is confined to a detainer and 
 refusal to deliver up to the proper officers empowered 
 to make registry. In the first, the terms wilful and ma- 
 licious detainer are employed ; in the last act, the word 
 malicious is omitted. The first makes no provision for 
 the case of a master being also part owner ; but the last 
 is in terms pointed to this case. The first applies to a 
 request by any of the owners ; the last is restricted to a 
 request by the owner or owners, or at least a majority of 
 the part owners, if the master himself be not one ; or 
 by the other owner or owners, or the majority of the 
 other owners, if the master he one. The 28th empowers 
 the magistrate to grant a search warrant ; the last act does 
 not. No case, it is apprehended, can come within this 
 act, unless the demand upon the master be to deliver the 
 certificate to the proper officer ; a demand to deliver it, 
 in order that an indorsement may be made upon it at the 
 custom-house, will not bring the master who refuses to 
 comply within the penalty of this last act.(0 But the 
 act, in the same terms almost as the preceding act, directs 
 the Justice or magistrate to certify the detainer, refusal, 
 and conviction to the person who granted such certificate 
 of registry, who is directed, upon the regulations of the 
 law being complied with, to make registry of such ship 
 de novOy notifying on the back of the new certificate the 
 ground upon which the ship was so registered. (?/) 
 
 No ship to be 36. No ship required to be registered, and carrying any 
 
 dcciiud qua- oroods to or from the British plantations in America, or to 
 lined to trade "^ '^ ' 
 
 udiil iiKistcr or from one plantation to another, shall be permitted to 
 
 sIihII havo 
 
 ni:i(lc, oatii to 
 
 p.iriitulars (t) See Abbott on Shipping, pag. («) 34 Geo. III. c. 68. sect. 19. 
 
 hrrei.i mcu- 41.^ „hcre the acts aro compared^ 42 Geo. 111. c. 61. sect. 21. 
 
 tlODCU. 
 
 and Hex v. Fulcy, 13 East. 91.
 
 CHAP. VII.] The Registry Acts} 263 
 
 trade, or be deemed qualified for that purpose, until the 
 master shall upon oath (or in case of a Quaker, upon his 
 solemn affirmation,) before the governor or collector of 
 the customs of the plantation where he shall arrive, give a 
 true account of the name and burthen thereof, and other 
 particulars, according to a form prescribed, (tw) And in 
 case any ship shall unload any goods in any of His Ma- 
 jesty's plantations in America, before such proof shall be 
 made, such ship shall be forfeited, and prosecuted in like 
 manner as if she had not been registered, (.r) 
 
 37. The master of every ship arriving in any British The master 
 
 colony or plantation in America, shall, before he pro- try™f j^e"' 
 
 ceeds to the place of unloading, come directly to the cus- ship with the 
 
 tom-house for the port or district where he arrives, and cers, before 
 
 make a iust and true entry, upon oath, before the collec- proceeding to 
 
 1 11 1 • • \ ^ the place of 
 
 tor and comptroller, or other principal officer of the cus- unloading. 
 
 toms there, of the burthen, contents, and lading of such 
 ship, with the particular marks, numbers, qualities, and con- 
 tents of every parcel of goods therein laden, to the best of 
 his knowledge ; also where and in what port she took in 
 her lading, of what country built, how manned, who was 
 master during the voyage, and who are owners thereof, 
 and whether any and what goods, during the course of 
 such voyage, had or had not been discharged out of such 
 ship, and where ; and the master of every ship going 
 out from any British colony or plantation in America, 
 before he shall lade any goods to be exported, shall, 
 in like manner, enter and report outwards such ship 
 
 (to) A. B. maketh oath (or if a intended, in and by the certificate 
 
 Quaker, solemnly affirms) that the now produced by him, and that 
 
 ship called the , whereof he, the same does now, as he believes, 
 
 this deponent or affirmant, is mas- belong wholly to His Majesty's 
 
 ter, or hath the charge or com- subjects, and that no foreigner has, 
 
 inand during the present voyage, directly or indirectly, any share, 
 
 being of the burthen of tons, property, or interest therein, to his 
 
 came last from , and that knowledge or belief; 15 and 16 
 
 she is, as he verily believes, the Geo. III. c. 31. sect. 1. 
 
 same ship described, meant, and (jc) U and 16 Geo.III c. 31.». 1.
 
 264 
 
 Navigation Laws. 
 
 [part I. 
 
 And before 
 departure to 
 deliver a con- 
 tent. 
 
 And whether 
 coming in or 
 going out, to 
 answer ques- 
 tions upon 
 oath. 
 
 with her name and burthen, of what country built, and how 
 manned, with the names of the master and owners thereof, 
 and to what place he intends to pass or sail ; and before 
 he shall depart with such ship, he shall also deliver unto 
 the collector and comptroller, or other principal officer of 
 the customs at the port or place where he shall lade, a 
 content, in writing, under his hand, of the name of every 
 person who shall have laden any goods, togetlier with the 
 marks and numbers ; and either coming into, or going out 
 of, any British colony or plantation, whether laden, or in 
 ballast, the master shall publicly, in the open custom- 
 house, to the best of his knowledge, answer, upon oath, to 
 such questions as shall be demanded of him by the collec- 
 tor and comptroller, or other principal officer of the cus- 
 toms, concerning such ship and the destination of her 
 voyage, or concerning any goods laden on board, upon 
 forfeiture of a hundred pounds, sterling money of Great 
 Britain, for every neglect ; to be prosecuted, recovered, 
 and divided, in the same manner, and by the same rules 
 and regulations, as other pecuniary penalties for offences 
 against the laws of the customs or trade of His Majesty's 
 colonies in America, (j^) 
 
 None but ships 
 British-built, 
 orcondemned 
 as prize, or 
 under the 
 Shive Trade 
 Acts, are to 
 import or ex- 
 port goods 
 into or from 
 the British co- 
 lonies. 
 
 38. No goods shall be imported into, or exported out 
 of, any colony or plantation in America belonging to, 
 or in the possession of, His Majesty, or shall be laden in, 
 or carried from, any one port or place in the said colonies 
 or plantations to any other port or place in the same, or to 
 Great Britain or Ireland, in any ship but what is of the 
 built of Great Britain, Ireland, the islands of Guern- 
 sey, Jersey, the Isle of Man, or some of the colonies, 
 plantations, or territories, in Asia, Africa, or America, 
 belonging to, or in the possession of. His Majesty, except 
 ships taken by any of His Majesty's ships of war, or by 
 any privateer or other ship, and condemned as lawful 
 prize in any Court of Vice-Admiralty, and also except 
 ships condemned as forfeited in any court of record or 
 
 (y) 7 Geo. III. c. 46. sect. 9.
 
 CHAP. VII.] The Registry Ads. 26b 
 
 in any Court of Admiralty or Vice-Admiralty, for any 
 offences relating to the slave trade; such ships respectively 
 being owned by British subjects, navigated and registered 
 according to law, on forfeiture of all goods otherwise im- 
 ported, as also the ships ; and the commanders of ships of 
 war are to seize as prize all ships offending, and to deliver 
 them to the Court of Admiralty, (s) 
 
 39. All ships, whether British or foreign, adjudged to Ships con- 
 be forfeited under any act for the prevention, abolition, or oflences 
 regulation of the slave trade, in any court of record in against the 
 Great Britain, or which shall be condemned in any Court of ^cts, may be 
 
 Admiralty or Vice-Admiralty in any part of His Maiesty's r('S's*p'"^«l ^* 
 . . , ^ .,. ,1, Britishshjps. 
 
 dominions, tor any offence m relation to the slave trade, 
 
 shall be entitled to a certificate of registry as British 
 ships, and thereupon enjoy all the privileges and advan- 
 tages of British-built ships, in like manner with ships 
 taken and condemned as lawful prize of war ; but such 
 ships shall be subject to the same duties and regulations, 
 and shall be registered in the same manner, and subject 
 to the same conditions and restrictions, penalties and for- 
 feitures, and shall be owned and navigated, as ships con- 
 demned as lawful prize are required to be, in order to 
 their obtaining British registers, and enjoying the pri- 
 vileges of British ships, according tolaw.(fl) 
 
 Having thus detailed the principal provisions of the Administra- 
 
 registry acts, we believe it cannot escape the observation gistry acts 
 
 of the reader, that they abound in many particulars, at \^*^ courts of 
 
 ' •' J r 7 lawandcqui- 
 
 m 
 
 ty- 
 
 (z) 12 Car. II. c. 18. sect. 1. 7 & fore this act, a ship condemned for 
 
 8 Will. III. c. 22. sect. 2. 26 Geo. being engaged in the slave-trade, 
 
 III. c. 60. sect. 10. 27 Geo. III. was deemed not to be eutillcd to a 
 
 c. 19. sect. 13. 39 & 40 Geo. III. British register as a prize ship le- 
 
 c. 67. art. 6. 54 Geo. III. c. 59. gaily condemned : Rex y. Collector 
 
 sect. 1. of Customs in London, 1 Maul^ 
 
 (fl) 54 Geo. III. c. 59. sect. 1. Be- & Sclwyn, 2G2. 
 1
 
 266 Navigation Laws. [part i. 
 
 once complicate and minute, and difficult to reduce to prac- 
 tice as the necessities of commerce may require. Never- 
 theless, with all their formalities, they have been found ad- 
 mirably adapted to effect the purpose for which they were 
 intended, and the difficulties which arise in the detail of the 
 system disappear, when the advantages resulting from their 
 policy are brought before our view. They have sometimes, 
 indeed, introduced much perplexity in questions of title to 
 shipping, and have been employed to supersede equity by 
 the formalities of the law ; but in a course of practice, and 
 as they have been fully investigated and understood, the 
 rigorous construction of them which once prevailed in 
 our courts of justice has been softened down, and yielded 
 to more equitable and practical considerations. They are 
 properly maiutained, in their substance, as the basis of the 
 navigation of the country ; but they have been construed 
 latterly in our courts of justice, not with literal strict- 
 ness, but as a system of laws founded on great purposes 
 of public policy ; open to considerations of natural equity, 
 and yielding in their letter to cases of unavoidable acci- 
 dent and invincible necessity. The courts, therefore, 
 have not excluded that construction which the urgency 
 of a case will often require, and have administered them 
 with the exercise of fair discretion under difficulties and 
 doubts. In all questions, therefore, upon these laws, it 
 will be found in the cases which we are about to consider, 
 that the courts have never lost sight of their original 
 purpose, and have never given them a larger authority 
 than what belongs to them with reference to their leading- 
 object. The law requires a compliance with the general 
 provisions of these statutes in order to constitute a perfect 
 title to shipping; and it annuls (in the nature of a con- 
 dition subsequent, defeating a previous title upon the 
 omission of certain acts,) all contracts for an interest in 
 ships in which any of the substantial requisites are want- 
 ing. In this respect, indeed, as in most others, the re- 
 gistry acts bear a strong analogy to the stamp acts. The 
 strict observance of the stamp acts is enforced for the 
 
 2
 
 CHAP. VII.] The Registry Acts. 267 
 
 purposes of revenue. The strict observance of all the 
 forms of registration, as respects shipping, is required for 
 the great maritime interests of the country. But, in both 
 cases, these formalities are merely modes of title : they in 
 no respect alter the nature of a contract. 
 
 Before we enter upon the review of the cases it must be Public and 
 
 allowed us to observe, that althousrh these acts were P^^^*^*^ !"*5* 
 ' _ ® rests untied 
 
 chiefly framed upon political views, they have been found, in this system 
 in their execution, most admirably to combine the public *' 
 
 interests of the state with the private advantages of the 
 merchant ; and, therein, to indemnify the latter for the 
 numerous and complicate forms which they prescribe. 
 They not only secure to the British mechanic the building 
 and equipping of all the vessels which are employed in 
 the coasting trade, colonial, foreign, domestic commerce, 
 and the fisheries of the country, but they acccomplish many 
 other beneficial purposes. They prevent frauds upon 
 underwriters ; they give confidence and security to con- 
 tracts, by making the property of ships always a legal and 
 never an equitable interest ; they enable a purchaser, the 
 assignees of bankrupts, and other representatives of an 
 owner, to trace a ship from port to port in all the various 
 transfers through which she may pass. Besides this, as is 
 well observed by Mr. Reeves, (6) a very considerable 
 utility arise^, from the documents which are formed in the 
 execution: of the registry acts. The registry of shipping, 
 which is made up to the 30th of September, in every year, 
 contains facts of importance, which become premises for 
 conclusions both of a political and commercial nature. In 
 this register is seen how many ships and vessels belong 
 to every distinct port, their tonnage and size, and the 
 number of men employed in navigating them. It is now 
 accurately known where to look for the most abundant 
 supply of seamen when the public service demands them. 
 It is further know n at what ports to enquire for ships of a 
 
 {b) Reeves, 4S3.
 
 268 JSTavigation Laws. [part i. 
 
 particular tonnage — whether they are wanted by the go- 
 vernment for transports, or by the merchant for freight. 
 Such facts should be known ; but they were never brought 
 forward, and made the subject of familiar knowledge, till 
 the general register of shipping was required under Lord 
 Liverpool's acts. 
 
 Cases and de- A registry is not a document required by the law of 
 
 cisions. 
 
 nations as expressive of a ship's national character, (c) 
 
 Indeed the registry acts are altogether to be considered 
 
 as forms of municipal institution, and scarcely any traces 
 
 of a like systenv are to be found in the laws of any other 
 
 Of foreign nation. So, likewise, a foreign built ship, British owned, 
 
 ships British . • i i • i . m, 
 
 owned; their ^^ not required to be registered, (rf) The policy of the na- 
 
 pnvileges and vigation law and of the registry acts generally, is to con- 
 fine our commerce as much as possible to British-built 
 ships, and with this purpose to confer certain privileges 
 upon such ships to which foreign vessels are not entitled ; 
 and in some trades, as in the colonial and coasting trade, 
 to inflict a forfeiture on any foreign vessel engaging therein. 
 But it was not the policy of the Legislature to prevent 
 British subjects altogether from employing foreign ships in 
 neutral trade in as ample a manner as they can be employed 
 by aliens. The disability, therefore, of foreign ships is this, 
 that they cannot be employed in certain trades ; that they 
 cannot procure a registry, and, therefore, cannot become 
 entitled to the privilege of British-built ships ; but, though 
 they cannot be registered, British subjects, in some particu- 
 lar cases, are not prohibited from owning and navigating 
 them, or employing them on certain occasions. There is 
 a sufficient security, however, for their not being exten- 
 sively employed, as they are liable to the alien duties, and 
 other disadvantages from which British-built shipping is 
 
 (e) Lc Chcrainanl v. Pearson, (<f) Long v. DuS, 3 Bos. & PulL 
 4 Taunt. 367. 309.
 
 CHAP. VII.] The Regisiri/ Acts. 269 
 
 exempted. The registry acts indeed, by taking from these 
 vessels the privileges of British shipping, have pretty 
 nearly put an end to foreign ships, British owned, being 
 employed in any trade whatever. 
 
 » 
 
 Doubts had formerly existed on the 26 Geo. III. c. 60. 
 as to the precise distinction between the privileges of Bri- 
 tish-built ships, and foreign ships British owned ; that 
 doubt was removed by the 27 Geo. III. c. 19. which de- 
 clares that all ships not entitled by the 26 Geo. III. to the 
 privileges of British-built or British-owned vessels, and 
 all ships not registered according to the said act, shall, 
 although owned by British subjects, be deemed alien ships, Tobedeeraed 
 
 and be liable to the same penalties and forfeitures as alien alien ships, 
 
 ^ ^ and subject to 
 
 ships. The result, therefore, seems to be this, that fo- duties, penal- 
 reign ships are under great disabilities, but they are not '^!' o^"„'u: " 
 an interdicted property. British subjects may be owners bited property 
 of them, and may navigate them, except in certain branches :g(.j^ 
 of commerce ; but they are not entitled to any of the pri- 
 vileges of British-built ships, and cannot be registered. 
 
 It should seem, moreover, by analogy to a recent decision, 
 and upon principles of public policy, that a foreign-built ship, 
 owned in part or in whole by British subjects, would be 
 under disabilities not attaching to such ship if British sub- 
 jects had no share or interest in her. For example : by of forelo-a 
 the commercial treaty with the United States of America, ships, Britiib 
 vessels built in the countries belonging to them are per- 
 mitted to import goods of the growth and manufacture of 
 the United States into Great Britain ; but such vessels 
 must be owned by the subjects of the United States. In 
 the same manner, the 51 Geo. III. c. 47. allows to Portu- 
 guese ships, owned by the subjects of the Portuguese 
 government, the privilege of importing goods of the 
 growth and manufacture of the dominions of the Crown 
 of Portugal into Great Britain. These privileges, thus 
 conceded to these States, are a dispensation of the rule in 
 the third iection of the navigation act. Now, it would
 
 270 
 
 Navigation Laws. 
 
 [part I. 
 
 seem at first view reasonable that British subjects might 
 participate in a trade which the law allows to foreigners ; 
 but the law is otherwise, and the principle appears to be a 
 sound and wise one. It is quite manifest that an Ameri- 
 can or Portuguese ship would lose her privilege of im- 
 porting goods into this country, if she were owned in whole 
 or part by British subjects ; the privilege being conceded 
 only to ships of the built of the particular country, im- 
 porting goods of the growth or manufacture of that coun- 
 try, and owned hy its subjects. There is, indeed, no ex- 
 press determination upon this point: but it would appear 
 from the following case that the rule of law is as exten- 
 sive as we have stated it. 
 
 A privilege 
 given by act 
 of parliament 
 to ships be- 
 longing to 
 any state in 
 amity with 
 His Majesty, 
 &c. does not 
 extend to fo- 
 reign-built 
 ships British 
 owned. 
 
 An information was filed by the Attorney General for 
 the condemnation of a ship and her cargo, on the ground 
 of an illicit importation of flax-seed, &c., from Russia. It 
 appeared that she had been American property ; had been 
 purchased by a British subject in 1809, and from that period 
 had made several voyages to this country ; some voyages 
 in the character of an American, and others under different 
 flags ; but she had not received, nor was she entitled to 
 receive, (being foreign-built) the character of a British 
 ship by being registered as such. The report of her at 
 the custom-house on the occasion of the present importa- 
 tion, was ; ' In the ship Jane, — no register — foreign-built — 
 property all British — from Archangel — cargo, flax-seed, 
 &c.' The point raised was, whether the vessel was pro- 
 tected under the 43 Geo. III. c. 153. s. 4., which made it 
 lawful, during the continuance of hostilities, for any per- 
 son to import into the United Kingdom any sort of flax, 
 or flax-seed, in any ship belonging to any kingdom or 
 state in amity with His Majesty, navigated by foreign sea- 
 men, from any port or place whatsoever, upon the same 
 terms and conditions, &c. as if the same had been imported 
 in foreign ships of the built of the country or place of 
 which such flax or flax-seed was the growth, &c., notwith- 
 standing the prohibition in the navigation act. The Lord
 
 CHAP. VII.] The Registry Acts. 271 
 
 Chief Baron, (Thompson) who tried the cause, reserved Attorney Gen. 
 the point of law, whether a British subject could own ^' ' *°"' 
 such a ship, and employ her in such an importation, by 
 virtue of the clause in the act above cited. Upon the part 
 of the defendant it was contended, that although the ves- 
 sel in question was confessedly a foreign ship, and not 
 entitled, as such, to a British register, yet, inasmuch as 
 she was the property of a British subject, a merchant 
 residing in England, she was to be considered (if not 
 within the letter, within the policy, of the statute) as be- 
 longing to a state in amity with His Majesty : and the case 
 of Pearce v. Cowie {e) was cited, in which Gibbs, L. C.J. 
 was reported to have ruled that a foreign-built ship, the 
 property of a British subject, belonging to a state in amity 
 with His Majesty, was within themeaningofthe43Geo. III. 
 c. 163. s. 13 ; the defendant's counsel added that this deci- 
 sion had been followed up by a similar one of Lord Ellen- 
 borough in a subsequent case on the same policy, (/") who 
 was reported to have said on the point being raised, " It 
 will be difficult to make me believe that a British subject 
 is not a subject of a state in amity with His Majesty." 
 They further pressed the improbability of its being the in- 
 tention of the Legislature to afford a commercial advan- 
 tage to a neutral state which it denied to its ov»n subjects. 
 They submitted, therefore, that in a case on the construc- 
 tion of a beneficial statute, passed in relaxation of a more 
 rigorous law, for the purpose of granting privileges of 
 commercial advantage to neutral ships ; not for the benefit 
 of the neutral, but of the British nation ; the Court must, 
 in a case of doubt, decide in favour of the British trade, — 
 That an alien ship, belonging to a British owner, was en- 
 titled to all the privileges conferred upon subjects of states 
 in amity with His Majesty. 
 
 On the other hand, the Counsel for the Crown objected 
 to the case of Pearce v. Cowie, as a hasty dictum thrown 
 
 (e) 4 Camp, N. P. 364, (/) Pearce v. Glover.
 
 ^'^2 Navigation Laws. [part i. 
 
 Attorney Gen. q^^ a^. ^^[gj Prius, without haring: undergone discussion, 
 
 t>. Wilson. . ' & o J 
 
 as it afterwards went off on another ground, (g-) To shew 
 
 that the Legislature had on many occasions observed a 
 material distinction between the state itself and any other 
 state in amity with it, (independently of the obvious and 
 natural difference of the terms) they adverted to the vari- 
 ous sections of the navigation act, and of the present sta- 
 tute, wherein that distinction was recognized, particularly 
 in the fifth section of the latter, which gives a privilege to 
 import in ships built in, or belonging to Great Britain, or 
 belonging to any state, &c. in amity with His Majesty. 
 They contended, that a state in amity with His Majesty 
 could not, by any construction, be made to mean any part 
 of His Majesty's dominions; nor could a subject of His 
 Majesty be the subject of a state in amity with His Ma- 
 jesty. The main object of a distinction taken between a 
 British registered ship, and a ship foreign built, British- 
 owned^ is to encourage the former to the disadvantage of 
 the latter, according to just notions of policy. The Lord 
 Chief Baron, in giving judgment, observed, that the terms 
 * ship or vessel, belonging to a kingdom or state in amity 
 with His Majesty,' in their plain acceptation, necessarily 
 referred to some kingdom or state whilst in a friendly 
 relation to this country, and such a state as might hereafter 
 become hostile to this kingdom, and not to the ships of 
 individuals who compose part of the body of the subjects 
 of this kingdom. Upon the whole, the Court was of 
 opinion, that a privilege given by act of Parliament to 
 ships belonging to any state in amity with His Majesty, 
 and manned with foreigners, to import merchandize other- 
 wise prohibited, did not extend to foreign-built ships 
 belonging to British subjects; the privilege being one 
 siriclissimi juris, (h) 
 
 Indeed, it is the obvious policy of the navigation laws, 
 
 (g) Holt's Nisi Prius Cases, p. (h) Attorney General v. Wilson, 
 
 09. S Price's Ex. Rep. 481.
 
 CHAP, VII.] The Registri/ Ads. 273 
 
 and more especially of our registry acts, to encourage Of foreign 
 British ship-building, and British ownership, as the two owned. 
 chief instruments of maintaining and advancing our mari- 
 time interests. Having this object always in view, the 
 Legislature, as far as it is possible, discourages and pre- 
 vents the employment of British capital in all foreign 
 shipping, and almost effectually compels our merchants to 
 carry on both the export and import trade in ships of Bri- 
 tish built. The statute of 7 & 8 Will, excluded foreign 
 built ships altogether from the plantation trade, and the 
 26 Geo. III. c. 60„ as we have before observed, almost 
 put an end to foreign ships, British-owned, by taking from 
 them the privileges of a British ship ; so that the trade of 
 Great Britain after that act, with very few exceptions, 
 was to be carried on in British-built ships equally with 
 the plantation trade. The 34 Geo. III. c. 68., com- 
 pleted what the previous statutes had begun. Hitherto 
 the navigation system had confined all its restrictions upon 
 shipping, whether British or foreign, to the importing of 
 goods only, except in the plantation trade ; but this latter 
 statute enacts that no ship, registered or required to be 
 registered as a British ship, shall be permitted to export 
 any articles whatsoever, unless manned with and navigated 
 by a master, with three-fourths at least of the mariners 
 British subjects. By this act, the exportation to foreign 
 places in Asia, Africa, and America, must be made by the 
 same sort of shipping and navigation as the importation 
 hitherto had been, (i) And, as respects the European 
 trade, the registry nets have imposed the like restrictions. 
 All articles of European trade, previous to these acts, 
 such at least as were not included in the eighth section of 
 the 12 Car. II., might be imported in any ships, British 
 or foreign, howsoever manned and navigated; but the 34 
 Geo. III. c. 68., by enacting that no ship registered, or 
 required to be registered as a British ship, shall import or 
 export any articles whatsoever, unless navigated by a 
 
 (/) See ante, page 134. 
 T
 
 ^74 Navigation Laws. [part i. 
 
 Of foreigu master, and three-fourths at least, of the mariners, British 
 owaed. subjects, has put all imports in British ships under the 
 
 same restrictions with those included in the eighth section 
 of the navigation act, and has created a restriction as to 
 exports which before was unknown, except in the planta- 
 tion trade, where the whole trade, export as well as 
 import, was confined to British-built ships, manned and 
 navigated in this manner. (J) 
 
 During the war, and the extensive system of licences 
 to which it gave rise, foreign ships, under the protection 
 of acts of Parliament, were frequently employed as Bri- 
 Sewell V. The tish ships ; and a question once arose, on a policy of insur- 
 chan?e Com- ^^^^) *° what extent British subjects might employ such 
 pany. vessels. The Court of Common Pleas determined, that a 
 
 British subject, purchasing by the King's licence a hostile- 
 built vessel, not entitled or required to be registered, 
 chartering her on a voyage out to the Aiiores and home, 
 and sending her to sea with a crew in which there was not 
 the proper proportion of British mariners required by the 
 navigation act, did not thereby avoid a policy on the out- 
 ward voyage, because he might obtain the proper number 
 of British seamen before her return : — And that it was no 
 objection to the policy that the ship was foreign-built, for 
 that the statute 49 Geo. III. c. 60., authorized the ships 
 of any country in amity, by the King's licence, to bring 
 foreign produce to England, though the ship was not 
 English-built or registered, contrary to the navigation act; 
 and that a ship, purchased by a British subject from an 
 enemy, by the King's licence, was to be deemed a ship of 
 a country in amity, (k) 
 
 This case, however, is obviously different from the case 
 
 (j) See ante, page 162; and European slates, p, 50, 51., flwfe. 
 
 Reeves, 311.; sec likewise the (k) ScwcU v. Royal Exchange 
 
 Free Port Acts, and the trade per- Cf)mpany, 4 Taunt. 856. and th« 
 
 wilted to the colonies in America, Reporter's note, 
 tinder the dumiaioa of foreign
 
 CHAP. VII.] The Registry Acts. 275 
 
 of the Attorney General v. Wilson, before cited. The Of foreign 
 object of the act of Parliament on which it turned was to owued. 
 elude the continental system, and to empower His Majesty 
 to license ships to trade directly contrary to the naviga- 
 tion act. The statute enacts, that during hostilities it 
 may be lawful, by order of council, to import into the 
 United Kingdom, from any port of Europe or Africa in 
 British or friendbj ships, however navigated, any goods or 
 commodities which might be lawfully imported, being the 
 growth or produce of any country, upon the payment of 
 the same duties, and subject to the same restrictions, as if 
 imported directly from the place of the growth or produce 
 of such goods or commodities in the same ships or vessels 
 respeciivel?/. It is clear, therefore, that a British subject 
 might import such commodities in a foreign-built ship, 
 however navigated ; for the act speaks indifferently/ of im- 
 portations made by British or friendly ships, and gives 
 permission to its subjects to import in either. But the 
 clause of the 43 Geo. III. c. 153. s. 4., only gives permis- 
 sion to import the goods therein mentioned in vessels he- 
 longing io states in amity with His Majesty; a privilege, 
 stricti juris, which did not extend to such ships, British 
 owned. 
 
 So foreign-built ships, British owned, may still be Offorelgn- 
 iiiT-iTi-/-^ 1- 1 • built ships, 
 
 employed by the liiast India Company, during the continu- Britishowned^ 
 
 ance of their charter: such ships, however, must be built m the Bast la- 
 
 • 1 • n , • • n \ /-^ • ^^^ trade, 
 
 within some of the territories of the Company, or in parts 
 
 under the immediate protection of the British flag in the 
 
 East Indies. These vessels must likewise be registered 
 
 according to the forms prescribed by the 55 Geo. III. 
 
 c. 116., and are not suffered to trade beyond the limits of 
 
 the Company's charter. (/) 
 
 When the statutes speak of the built of a vessel, they 
 
 (l) 35 Geo. III. c. 115., 42 Geo. and 141, ante, as to the employ- 
 Ill, c. 20. See likewise page 95, ment of Asiatic sailors and lascars, 
 
 T 2
 
 ^76 Navigation Laws. [part i. 
 
 What is meant are to be Understood as using the term in its plain and 
 inff of the natural sense. It was therefore determined by Lord 
 
 binltofafo- Ellenborouffh, that a ship was not to be deemed of the 
 reign country. ,., ^t». ... .. 
 
 built of Russia, within the meaning of the navigation 
 
 act, which, having been originally constructed in another 
 country, was wrecked on the coast of Russia, and repaired 
 there at an expense of more than two-thirds of her value ; 
 although by the law of Russia, she was, under these circum- 
 stances, treated as a Russian ship, had a Russian register, 
 was owned by a Russian subject, and was navigated under 
 the Russian flag. " Repair," says his Lordship, " is not 
 built. A ship must be of the built of the place where she 
 was originally constructed ; and while her identity conti- 
 nues, it is impossible, in the nature of things, that the 
 place of her built should ever be altered. The law of 
 Russia cannot be of force to control the navigation act of 
 Great Britain." (m) 
 
 Who maybe No person, we have seen, («) is entitled to be the owner, 
 British ship ^" whole or in part, of a British ship, required to be regis- 
 tered, who has not his usual residence in Great Britain, 
 or in the dominions belonging to the Crown. It has, 
 therefore, been holden upon this clause of the act of 
 26 Geo. III., that a person Avho is continually shifting his 
 residence, so as not to have, under any extension, what 
 can be deemed an usual residence here^ does not come with- 
 in this description of the statute. He must bo, unless 
 in the cases which are specified, usually resident in this 
 country, (o) 
 
 Cases and dc- The most numerous, and perhaps the most embarrassed 
 cisions upon , i • • i • .i • • r. 
 
 ihetninsfer cases, are those which have arisen upon the provisions ot 
 
 of property in |},g rcffistrv acts relatin«ir to the transfer of property in 
 
 ships, whether . . . 
 
 in wliole or ships. We shall proceed to examine the leading cases, 
 
 the^' ."' J "^ and to arrange them, as far as possible, into some classifica- 
 
 acta. 
 
 (m) Redhead v. Cater, 4 Camp. (n) 26 Geo. III. c. 60, s. 8. 
 
 1S8. (o) 1 Edw. 148.
 
 CHAP. vn.J The Regutry Acts. ^11 
 
 tion and order. The three great provisions of these acta Ca^sand de- 
 
 ^ , - ,111 , 'J • cisions upon 
 
 are, first, that the party should have such a residence in ^1,^ transfci of 
 the British dominions as would entitle him to a British i;"^perty m 
 register. He must not, as we have above said, be a person 
 coining occasionally, and for the purpose of obtaining a 
 colourable domicile : secondly, that the ship shall not 
 only be built, but, unless under circumstances of great 
 emergency, repaired in the British dominions ; and, thirdly, 
 that there should always be a clear constat of the real 
 ownership ; and therefore, if any transfer of the property 
 take place, it must be declared, and the transfer indorsed 
 on the register. But a bill of sale from the original 
 builder to the first purchaser of a new ship need n6t con- 
 tain a recital of the certificate of registry; nor can pro- 
 perly do so, because the ship does not require to be regis- 
 tered till she is out of the hands of the builder, though the 
 owners must cause her to be registered before the com- 
 mencement of a voyage, (p} 
 
 Through most of the forms of registry and transfer 
 which are required by the statutes, there are two acting 
 parties ; the one, the parties in the registry, or contract ; 
 the other, the public officers. The equity of the Legisla- 
 ture does not hold the one responsible for the acts of the 
 other. If the parties in the registry or contract have 
 omitted any of the regular forms, the act is incomplete, 
 and the contract is annulled as the penalty of their act 
 of omission. But if the public officers have made such 
 omission, the contract is not thereby vacated. The distinc- 
 tion is, that as respects the contracting parties, the statutes 
 are imperative, but are directory only as respects the pub- 
 lic officers. It has been holden, therefore, that the omis- 
 sion of the officer at the out-port to transmit a copy of 
 the indorsement upon the certificate of registration to the 
 custom-house in London does not invalidate a trans- 
 fer, (q) 
 
 if) Abbott, 54, {q) Undemood v. Miller, 1 Taunt. 18T.
 
 >278 Navigation Laws. [part i. 
 
 Cases and de- The 34 Geo. III. c. 68. s. 15., which gives the form of 
 the transfer an indorsement upon the alteration of property in a ves- 
 of property in ggj^ ^ses the expression " all my, or our, right, share and 
 interest." It would seem, therefore, as if by some over- 
 sight, the framers of the act had neglected to provide for 
 the case of a sale of a part. A question once arose upon 
 this section ; and it was contended that a transfer of any 
 interest in a vessel would be defective, unless it stated that 
 the interest transferred was the whole interest of the vendor. 
 But the Court of Common Pleas decided, that upon the 
 sale of any share, it was not necessary that the indorse- 
 ment upon the certificate of registration should express 
 the share to be all the vendor's interest ; and that a person 
 possessing a share in a vessel might sell, or divest himself 
 of any part, and still remain master of the residue, (r) 
 The provisions of these statutes are not confined to the 
 transfer of property to a stranger, but apply also to a 
 transfer by one part-owner to another. And where such a 
 transfer was made whilst a ship was at sea, and the provi- 
 sions were not complied with in the limited time after her 
 return, the assignees of the party making it, who had 
 become a bankrupt, were held entitled in a Court of 
 equity to liave an account of the voyage from the other 
 part-owner, (s) 
 
 Rollestonr. The first case decided on the 26 Geo. III., was RoUes- 
 
 Hibbert. ^^j^ ^^ Hibbert, (t) in which it was determined, that an 
 
 absolute bill of sale of a ship then at sea, was void by 
 26 Geo. III. c. 60. s. 17., unless the certificate of the 
 registry were recited therein : therefore, although the 
 vendee gave at the same time an undertaking to restore 
 the ship on a future day on payment of a certain sum 
 advanced by him on the credit of the security of the ship : 
 and although the vendee had also the grand bill of sale, 
 and had taken possession of the ship immediately on her 
 
 (r) Underwood v. Miller, 1 Jun. 588. and Abb. 55. 
 Taunt. 387. (0 3 T. R. 406. 
 
 (») Speldt V. Lcchincrc, 13 Vcz.
 
 CHAP. VII.] The RegistrT/ Acts. 279 
 
 arrival, it was, notwithstanding, held that he could not Cases and de- 
 retain the ship, as having a lien on her, against the as- thc*trans^rof 
 signees of the vendor who became a bankrupt after the property in 
 transfer. Previous to this statute, the delivery of the 
 grand bill of sale of a ship at sea had been repeatedly held 
 to be equivalent to the delivery of the ship itself, without 
 any other superadded forms, (u) 
 
 In the case of Rolleston v. Hibbert, Lord Kenyon said, Rplleston v. 
 that it was not necessary that the property in a ship should 
 pass by a written instrument; but that if the parties chose 
 to convey by a written instrument, they should not be per- 
 mitted afterwards to refer to any other agreement. This 
 opinion, so expressed, was the occasion of the clause in the 
 34 Geo. III. c. 68. s. 14., that no transfer of property in 
 any vessel should be valid unless made agreeably to the 
 26 Geo. III. c. 60., and unless the transfer should be made 
 by bill of sale, or instrument in writing. 
 
 But 'notwithstanding the seventeenth section of the 26 Clerical mis- 
 Geo. III. c. 60. enacts that a bill of sale of a ship shall be *,^UatetbiUd- 
 absolutely void, unless the certificate of the registry be truly sale. 
 and accurately inserted therein, it has been determined, upon 
 manifest principles of equity, that a mere clerical mistake 
 shall not vitiate the bill of sale, (x) But the indorsements 
 on the certificate of registry are not required to be recited 
 in the deed of assignment of a ship; for the Legislature 
 looks principally to the public interests in these acts, and 
 not, in the first instance, to the purchaser. Now, as the cer- 
 tificate of registry must be registered at the custom-house, 
 with the indorsements thereon, the ship's owner cannot 
 fail to be known ; and as the purcliaser must have the cer- 
 tificate of registry recited in the bill of sale, he will be 
 directed thereby to resort to the custom-house for any in- 
 formation which he may want. As the public, therefore, 
 
 (m) Atkinson v. Mailing, 2 T. R. (x) Rolleston v. Smith, 4 T. R. 
 462. 161. 
 
 2
 
 280 Navigation Laws. £part i. 
 
 Cases and dc- are sufficiently protected without any recital of the indorse- 
 the tmnsFer of ments, it has been holden no good objection to a bill of 
 property ia gale of a ship that it did not recite them. It will, however, 
 ' says a learned author, be always prudent, though it be not 
 
 essentially necessary, to recite in a second, and every sub- 
 sequent bill of sale, the indorsement made in pursuance of 
 every previous transfer, (i/) So, where the parties by 
 mistake misrecited in a bill of sale the certificate of re- 
 gistry, by stating Guernsey as the port where the certifi- 
 cate was granted, instead of Weymouth, (which mistake 
 was rectified when discovered, by consent of all parties, 
 and the deed delivered de novo,) the Court of King's 
 Bench held that no new stamp was necessary upon such 
 re-execution ; the deed taking no effect from its first deli- 
 very, and the defect arising not from intention but from 
 mistake, and the alteration merely making the contract 
 The bill of what it was originally intended to have been, (s) But 
 Ht^wlf ""th where A. and B. were joint owners of a ship, and A. con- 
 certificate of veyed his moiety to B., but in the bill of sale the cer- 
 accuSe!y"re- tificate of registry was not accurately and truly recited, 
 cited therein, the word oath being used instead of affirmation; sworn, 
 instead of affirmed; the allegation that another part- 
 owner was not resident within twenty miles being omitted, 
 and the name of the master changed : under these cir- 
 cumstances, although B. took possession, and afterwards 
 mortgaged the whole ship to A., (who did not take pos- 
 session) and B. afterwards ordered C. to repair the ship, 
 and then conveyed one half of the ship to A. and the 
 other to D. ; it was held that the first bill of sale was an 
 absolute nullity, and that as the certificate of registry 
 was not truly and accurately recited therein, (a) there 
 was no legal transfer of the ship. 
 
 We have seen that the 34 Ceo, III. c. 68. s. 16. requires 
 
 (y) Capadose v. Codnor, 1 B. & Rep. 471. 
 
 P. 483, and Abbott, B8. (a) Westerdell v. Dale, 7 T. R. 
 
 {%) Cole V. Parkin, 12 EaiVs 30«. 
 1
 
 CHAP. VII.] - The Registry Acts. 281 
 
 that if a vessel be absent from the port to which she be- Cases and de- 
 longs when an alteration takes place in the property, the t^e transfer «f 
 sale must be made as directed by the 26 Geo. III. c. 60. ; property in 
 and within ten days after such ship sliall return to the port 
 to which she belongs, an indorsement must be made and 
 signed by the owner, or some person legally authorized, 
 and a copy of such indorsements be delivered to the officer 
 of the custom-house authorized to make registries and 
 grant certificates, otherwise the bill of sale, or contract, 
 or agreement for sale, is to be utterly null and void. The 
 intent of this clause is to prevent an interest passing in 
 ships from one British owner to another, until the public 
 have that information which is so essential to its commer- 
 cial welfare. The conditions of the act, therefore, must 
 be strictly complied with, and where a bill of sale has 
 been executed, and the requisites of the registry acts, un- 
 der certain circumstances, are not completed until the 
 rights of third persons intervene, no relation will hold 
 good so as to make the conveyance effectual from any 
 antecedent time. For it is obvious, that if the act were 
 to be considered as giving an indefinite time for the com- 
 pliance with its requisites, it would enable a transfer of 
 property to be made to foreigners, who might remain 
 concealed owners, and thereby defeat the material provi- 
 sions of the acts. This was decided in Moss v. Char- 
 nock, (6) which, being a case that has excited much dis- 
 cussion, it will be necessary to state fully. 
 
 It was an action of trover brought by the plaintiffs, 
 assignees of Kirkpatrick, a bankrupt, against the defend- 
 ant, who claimed two third parts of a ship, as the vendee 
 of Kirkpatrick, before his bankruptcy. The facts of the 
 case were shortly these: Kirkpatrick being indebted to Case of Moss 
 the defendant in more than the value of his share of the 
 ship, in August, 1800, made a bill of sale to the defend- 
 ant, and sent it to him ; but the defendant declined accept- 
 ing it till the 15th of November, 1800 ; and on the 19th 
 
 (ft) 2 East. 400.
 
 -^82 Navigation Laws. [part i. 
 
 Cases and de- of that month Kirkpatrick became a bankrupt. On the 
 cisions upon '■ r " '"^ 
 
 the transferof l^>th of December, and not before, the requisites of the 
 pm^perty in o^ q^^ m ^ Qg ^ jg^ .^^ respect to the transfer of 
 ships not in port, were complied with; and within ten 
 days after the return of the ship to port, an indorsement 
 was regularly made on the certificate of the registry, and 
 the other requisites of the act complied with. On the 
 part of the plaintiffs it was contended, that the requisites; 
 of the o4 Geo. III. not having been satisfied before the 
 bankruptcy, the sale was not complete at that time ; in 
 answer to which the defendant's counsel insisted, that as 
 Moss r. Char- ^l^Q requisites of the statute were complied with within a 
 reasonable time after the execution of the bill of sale, that 
 would by relation make the sale complete from the 15th of 
 November, a period before the bankruptcy. The Court 
 of King's Bench decided that the plaintiffs were entitled 
 to recover, upon the ground that Kirkpatrick having be- 
 come a bankrupt between the time of executing the bill 
 of sale to the defendant, and the time of the defendant's 
 complying with the requisites of the registry acts, the 
 property did not pass to him, notwithstanding such requi- 
 sites were completed after the act of bankruptcy. Upon 
 this case it is suggested, in a very learned treatise, that 
 Mr. Justice Lawrence, who delivered the judgment of 
 the Court of King's Bench, must be understood to speak, 
 (with reference to the facts of the case before the Court,) 
 of such requisites only as mat/, according to the circum- 
 stances of the transaction, be immediately complied with; 
 and did not mean to intimate, that if Charnock had deli- 
 vered a copy of his bill of sale to the officers before 
 the bankruptcy of Kirkpatrick, so as to have enabled 
 them to make the proper indorsement on the affidavit, 
 he would not thereby have acquired an inchoate title, 
 which might have been perfected by the indorsement 
 made on the certificate within ten days after the ship s 
 return. (c) 
 
 (e) Abbott 60.
 
 CHAP. VII.] The Registry Acts. 283 
 
 The case of Moss v. Charnock has, indeed, been ques- ^^?^' ^"d ^^' 
 1-1 f -xn r^-11 cisions upon 
 
 tioned by some learned judges. In Mestaer v. (jriiles- the transfer of 
 
 pie, (rf) the Lord Chancellor observed, that the gene- J'^J'P^^'^ '"^ 
 rality of the proposition stated by a very able judge, in 
 Moss V. Charnock, excited a doubt in his mind, whether 
 what was there laid down must not be qualified. — " The 
 proposition (he says) as stated in that judgment, goes to 
 this extent, that if a man sold a ship at sea, the vendee 
 having done every thing required by the act which could 
 be done; but afterwards, before the arrival of the ship in 
 port, an act of bankruptcy was committed by the vendor, 
 the assignee under a commission of bankruptcy, and not 
 the vendee, would take the ship. The proposition is not 
 so stated in terms, but the language in which the judg- 
 ment is expressed covers that case. I cannot concur in 
 that ; and I apprehend the proposition that the grant of 
 an annuity is good for nothing, if a bankruptcy takes 
 place before enrolment, would have been a considerable 
 surprize upon Lord Thurlow. But my observation does 
 not apply to the actual decision in that case." Mr. Baron Authority of 
 Wood, likewise, in another case expressly (e) dissented ^^"f V: ^^'^'^' 
 from the doctrine laid down in Moss v. Charnock ; and, puted. 
 speaking of the provision in the 26 Geo. III. c. QQ. sect. 16. 
 said — " No time is here limited within which the copy of 
 the indorsement shall be delivered ; and, therefore, I take 
 it the inference of law is, that it shall be done within a 
 reasonable time ; and until that time is elapsed, I hold the 
 bill of sale remains good, and the property legally trans- 
 ferred to the vendee." And, again, " It has been con- 
 tended, that no property passes from the vendor to the 
 vendee till all these things have been done ; and the case 
 of Moss V. Charnock has been cited to prove that posi- 
 tion ; and it has been said, that if an act of bankruptcy 
 intervenes before the delivery, although the delivery be 
 within a reasonable time afterwards, the vendee loses the 
 ship. With great deference to that authority, I cannot 
 
 (d) 1 1 Vesey, jun. 637 ; see this (e) Hubbard ». Johnstone, 3 
 czsQ,p0st. Taunt 207.
 
 284 Navigation Laws. [part i. 
 
 Cases and de- agree to It ; I think that the property passes instantly by the 
 cisionsupon r-n j- i ji li^i c/ c/ 
 
 the transfer btU of sale, and that the subsequent acts to be done are 
 
 Thi^r^^'^*^ '° "®* necessary to transfer the property, but that the grant 
 is defeasible by subsequent omissions, in cases where it is 
 so e^cpressly provided, but not otherwise." 
 
 So, in a subsequent case, Palmer v. Moxon, (/) Lord 
 
 Ellenborough, in commenting on the case of Moss tr. 
 
 Principle of Charnock, says — " I think the case of Moss v. Charnock 
 
 the case of •iii-iii 
 
 Moss V. Char- was rightly decided ; though, perhaps, there may be some 
 
 nock limited expressions found in it, (as has been observed by the 
 in Palmer v. '^ ' "^ 
 
 Moxon, 2 M. Lord Chancellor,) which go farther than the case re- 
 quired, or the law warranted. I confess that I have al- 
 ways thought that the things required to be done by the 
 act were in their nature conditions subsequent. What is 
 required to be done within ten days must undoubtedly be 
 done within ten days ; but where no time is limited, the act 
 must be done within a reasonable time." — Le Blanc, J. 
 observed, that he concurred in the decision in Moss v. 
 Charnock ; but added, that he thought the observations 
 of the Lord Chancellor, in Mestaer v. Gillespie, as well 
 as what fell from the Court, in Hubbard v, Johnstone, 
 had put a limit to some of the terms in which the judg- 
 ment was conceived in that case. Bayley, J. said — 
 " I think the case of Moss v. Charnock was rightly de- 
 cided under the circumstances; for there the bill of sale 
 was executed on the 23d of August, and the requisites of 
 the statute were not complied with until the 5th of De- 
 cember, so that there was gross delay. Expressions used 
 in that case have been pressed upon us ; but those ex- 
 pressions appear, upon consideration, to have gone far- 
 ther than what was necessary, or than the law warrants. 
 The tru(? construction of these acts seems to be this, that 
 the bill of sale shall be holden to transfer the property 
 from the time of its execution, but shall be liable to be- 
 come void, ex post facto ; that is, if the party does not, 
 
 (/)2M.&S.43, *
 
 CHAP. Til.] The Registry Ads. 285 
 
 comply with the requisitions of the statute within a reason- Cases and dc- 
 able time ; upon the failure of which, the statute makes the transfer of 
 
 the sale null and void. Dampier, J. said, that the case Fppertyia 
 
 ships, 
 of Moss V. Charnock was, in his judgment, properly de- 
 cided ; because the requisites of the statute, considering 
 them as conditions subsequent, were not complied with 
 within a reasonable time. When, therefore, those ex- 
 pressions again fell under the consideration of the Court, 
 the judges thought they ought to be restricted. " It 
 seems to me (he added) that these are conditions sub- 
 sequent (the conditions prescribed by the statute,) there 
 are no words in the act to shew that they ought to be 
 taken as conditions precedent. The efficient act is the 
 bill of sale, which is to be void, if the requisites of the 
 statute are not complied with afterwards. That falls pre- 
 cisely within the definition of a condition subsequent. 
 It must be left to a court and jury to say, whether there 
 has been a compliance within a rea^;onable time, and in 
 what manner the condition has been performed." 
 
 The case of Palmer tj. Moxon, from which the above Palmer r. 
 judgments are cited, has been introduced somewhat out ^*^^^"' 
 of its place : but as Moss v. Charnock was so fully con- 
 sidered by the Court in their judgment, we have taken 
 it out of its order on that account. 
 
 The case of Palmer v. Moxon was as follows : — The 
 plaintiffs had recovered a judgment against one Moody 
 for 237/. and a writ was delivered to the defendant, Sheriff 
 of the town and county of Kingston-upon-Hull, (in- 
 dorsed to levy the above sum) on the 11th of June, 1812, 
 at a quarter past twelve o'clock in the afternoon. The 
 Sheriff's officer, about half-past three o'clock in the same 
 afternoon, took possession of one-fourth part of the brig 
 Thirsk, then lying in the port of Hull, being the port to 
 which she belonged, and in which she was registered. 
 It appeared that on the 10th of June, the day previous to 
 the levy, Moody, being owner of one-fourth. Duckies of
 
 i286 
 
 Navigation Laws. 
 
 [part I, 
 
 Cases and de- another fourth, and Matthias Moody and Thomas Duckies 
 cisions upon » , - i -n ^ i ,. i 
 
 the transfer of ^i another tourth part, by a bill ot sale of that day, in 
 property ia 
 
 ships. 
 
 Palmer v. 
 Moxon. 
 
 consideration of the sum of 910/. paid to them in their re- 
 spective proportions, sold to A.,B.,and C, &c., three full, 
 equal, and undivided fourth parts of the said brig. A 
 copy of the certificate of the registry was set forth in the 
 bill of sale, which was executed on the day of its date by 
 J. and M. Moody and T. Duckies, about five o'clock in 
 the afternoon ; and at the same time a memorandum of 
 the transfer by all the^bwr was indorsed on the certificate 
 of the registry, and was signed by the three ; but neither 
 the bill of sale nor the memorandum of transfer was signed 
 or executed by R. Duckies, until the 15th of June follow- 
 ing. On the 11th of June, at a quarter before two in the 
 afternoon, a true copy of the memorandum so indorsed on 
 the certificate of registry, and signed by the three as afore- 
 said, was left with the proper officer of the custom-house, 
 at Hull, to be entered ; and on the 15th of June, another 
 copy of the memorandum, with the signatures of the four, 
 was also left with the proper officer for the same purpose. 
 The Sherift^'s officer, as above stated, made his levy at 
 half-past three in the afternoon of the 11th of June ; but 
 the Sheriff*, on being ruled, returned nulla bona, and an 
 action being brought against him for a false return, the 
 Court of King's Bench were of opinion that he acted 
 properly in abandoning the brig ; and that the requisites of 
 the registry of the act were complied with within a rea- 
 sonable time. Lord Ellenborougii in this case ob- 
 served — " That a reasonable time was capable of being 
 ascertained by evidence; and, when ascertained, is as fixed 
 and certain as if fixed by act of parliament. In this case, 
 all that was required to be done by the parties to the trans- 
 fer was done by three of the four, one of them being 
 the person whose share was in question ; and what was 
 done by them was done, as near as may be, instanter ; a 
 copy of the indorsement was left with the officer the next 
 day after executing the bill of sale and signing the in- 
 doraement ; but it appears that one of the parties did not
 
 CHAP. VII.] The Registry Acts. 287 
 
 execute until afterwards, but still, when he executed, he Cases and de- 
 did it within a reasonable time, and all was perfected be- ^\^^, transferor 
 
 fore the return of the writ." (£•) property ia 
 
 ships. 
 
 Though the judges, in delivering their opinion in 
 Palmer v. Moxon, have anxiously guarded the case of 
 Moss V. Charnock from being considered as overruled, it 
 must be confessed that the principle on which that case 
 was decided can no longer be deemed tenable to the ex- 
 tent in which some of the propositions are laid down. 
 Moss V, Charnock, therefore, must be considered as stand- Examinatioit 
 
 ing upon its peculiar circumstances ; it must be viewed as ^, the case of 
 ° ' * ' Moss V. Char- 
 
 a case of gross negligence on the part of the defendant, nock. 
 
 the vendee of the ship, who not only did not comply with 
 
 the requisites of the registry act within a reasonable time, 
 
 but suffered several months to elapse after the execution 
 
 of the bill of sale without satisfying ani/ one of the forms 
 
 of the statutes ; and did not comply with them, in point of 
 
 fact, till sixteen days after the bankruptcy of the vendor. 
 
 There was likewise this additional circumstance in that 
 
 case expressly dwelt upon by Mr. Justice Lawrence ; 
 
 that, at the time when the vendor executed the bill of sale 
 
 of his share in the ship to the defendant, he did not deliver 
 
 up possession of the original bill of sale of the same shares 
 
 to himself; but that it continued in his custody till after 
 
 the bankruptcy, when it was found in his chest by the 
 
 assignees under the commission. In looking at the case, 
 
 it will be observed that the plaintiff relied on the 21st of 
 
 Jac. I. as well as on the non-observance of the registry 
 
 acts; and Lawrence, J. addressing himself to this part of 
 
 the case, says — " That if we look at the prevention of 
 
 fraud, the necessity of the quickest compliance with the 
 
 requisites of the statute 34 Geo. III. c. 68. is obvious ; 
 
 for if they were delayed, and the grand bill of sale, or 
 
 other document, should remain with the vendor (as it did 
 
 many months in this case,) a door would be open to the 
 
 greatest fraud, from the reliance men would place on the 
 
 (jj) S Maule & Selwyn, 50.
 
 2S8 Navigation Laws. [part i. 
 
 Cases and dc- possession of such bill of sale, when no evidence of any 
 cisions upon * j j 
 
 the transfer of transfer from the possessor could be found on searching 
 ships^'^ ^ °" ^^^^ registry." (h) Upon the whole, therefore, the case of 
 Moss V. Charnock, rightly limited, is not at variance with 
 Palmer v. Moxon ; at the same time, as regards the obli- 
 gation to comply with the requisites of the registry act, 
 the rule seems to be that which has been laid down by 
 Mr. Baron Wood, in Hubbard v. Johnstone, with some 
 slight addition from the late judgment in Palmer v. 
 Moxon ; namely, that the forms of the registry acts, which 
 the law requires to constitute a perfect title to a ship, are 
 in their nature conditions subsequent ; that the property 
 of a ship vests in the purchaser from the time of the exe- 
 cution of the bill of sale, not from the time of compli- 
 ance with the registry act ; but that the transfer is liable 
 Forms oflhe to become void, es: post facto, if the forms of the registry 
 are in the na- acts, as prescribed by law, are not observed within a rea- 
 
 ture ot a con- sonable time, or, where a fixed time is expressly limited, 
 dition subse- ..... ^i i 
 
 quent. (for example, ten days) within that time. In other words, 
 
 that the efficient act is the bill of sale ; but that the sta- 
 tutes make the sale absolutely null and void, unless the 
 requisites are complied with' within such a time as the 
 act express/j/ requires, where it makes time a constituent 
 of title; or within such period as the court and jury may 
 deem reasonable under the circumstances of the case, 
 where the time is left indefinite. 
 
 It is quite clear, indeed, that the bill of sale must bo 
 the first act; and the very form of indorsement which the 
 statute prescribes upon an alteration in the property of 
 the vessel (Be it remembered that I have this daij sold and 
 transferred) assumes that a transfer has already taken 
 place by the bill of sale; and it further enacts, (that a 
 copy of the indorsement shall be delivered, &c., other- 
 wise such sale shall be void.) It, therefore, falls precisely 
 within the meaning of a condition subsequent, which is 
 defined to be, such a condition as defeats an estate by 
 
 (ft) 2 East. 403.
 
 CHAP. VII.] The Registry Acts. 289 
 
 some subsequent act.O') It is quite clear that the subse- Cases and do- 
 quent acts cannot be done instanter, for they are in their the transfer of 
 
 nature consecutive acts ; a certain time, therefore, must property in 
 
 ships. 
 be allowed for doing them ; and where the statutes have 
 
 not limited the time, it will be sufficient if they be done 
 
 within a reasonable time. 
 
 But an indorsement on the transfer of a ship in the same 
 port, made upon the cei'tificate of registry, and bearing 
 date at the time of the transfer, but not signed by the 
 vendor till three years after the certificate had been deli- 
 vered up and cancelled, and had remained dormant all the 
 intermediate time, was held not to convey a title under 
 the 15 sect, of 34 Geo. HI, c. 68. ; For the object of Mosst>. Mills, 
 tlie register acts in requiring an indorsement on the cer- 
 tificate, is in order to notify the change of property to the 
 public ; and therefore such indorsement must be made upon 
 an existing acknowledged certificate in use at the time. (^) 
 
 Upon the sale of a ship at sea, it has been much ques- 
 tioned whether the purchaser, having omitted to comply 
 with some of the forms of the acts, cannot make a title to 
 the ship per saltum^ by getting her registered de noxo in 
 another port where he resided at the time of the pur- 
 chase, pursuant to the 7 & 8 Will. III. This point was first 
 raised in Heath n. Hubbard, which gave occasion to several 
 other cases, and produced a very elaborate investigation of 
 the registry acts by all the judges in Westminster Hall. (/) 
 The case was this : — Ward was sole owner of the Fishburn, 
 belonging to the port of Newcastle-upon-Tyne, (w?) On 
 her outward voyage she was embargoed by the Emperor of 
 Russia, in the spring of 1801. By bill of sale dated 
 March 7, 1801, but executed on the 11th of April, Ward 
 
 (i) Com. Dig. Condition C. reciting the cancellation of the 
 
 (&) Moss V. Mills, 6 East. 144. former certificate. 
 
 In this case the certificate had been (/) 4 East. 110. 
 
 cancelled and delivered up on the (/n) There were other points ia 
 
 vendee's obtaining a register de the case which will be considered 
 
 novo, (issued without authority) in another part of this work.
 
 290 Navigation Laws. [part i. 
 
 Cases and de- assigned to the plaintiff Heath twenty sixtieth parts of the 
 cisions upon ... . . r~% i i * j n 
 
 the transfer of ship, m trust tor certain underwriters. On the 14th or 
 
 property in September following-. Heath transmitted to the custom- 
 house at Newcastle a copy of his bill of sale ; and the 
 Heathy. Hub- officer caused an entry to be indorsed upon the affidavit 
 
 bard, 4 East, q^ which the original certificate of resistry had been ob- 
 110. . ^ o J 
 
 tained, and made the usual memorandum in the book of 
 
 registers in that port ; but no notice was given to the 
 commissioners of customs till the 21th of January follow- 
 ing. On the 9th of November, 1801, Ward, by a regular 
 bill of sale, assigned the whole of the ship to the defend- 
 ant Hubbard, who then resided in London ; and on the 
 second of January, 1802, registered the same ship de novo 
 in the port of London. At the time of the assignment by 
 Ward to the defendant, the grand bill of sale of the whole 
 ship was delivered to him, and on the 19th of February 
 he sold the whole of the ship by public auction. It ap- 
 peared that the ship had never been in the port of New- 
 castle since she cleared outwards ; but the embargo being- 
 taken off, she returned to Plymouth after the execution of 
 the bill of sale by Ward to the plaintiff. But before the 
 execution of the bill of sale by Ward to the defendant 
 she sailed again, and was absent at the time of its execu- 
 tion. It was not till her return, of Avhich the plaintifl'had 
 no knowledge, that the defendant obtained the new re- 
 gister ; but no transfer of property appeared in any docu- 
 ment at the custom-house at Newcastle subsequent to the 
 entry on the 14th of September, 1801, and no indorse- 
 ment of the transfer of one-third of the ship to the plain- 
 ♦ tiff was ever made on the original certificate of the ship's 
 
 registry. Heath brought an action of trover against 
 Hubbard, to recover one-third part of the ship, and the 
 Court of King's Bench gave judgment for the plaintiff; 
 being of opinion that he had complied with all the requi- 
 sites of the statute, the ship not having returned to New- 
 castle, and had acquired a property under the bill of sale. 
 They likewise thought that the bill of sale to Hubbard 
 was void, on the ground of his omission to scud a copy 
 to the custom-house, at Newcastle.
 
 CHAP. VII.] The Registry Acts. 291 
 
 The next action connected with the above case, was Cnscs and de- 
 an action of trover brought by the asssignees of Ward t|,*'(!t"a'nstcr of 
 aoainst the same defendant, to recover the remaining property lu 
 three-fourths of the same ship. All the facts of the case 
 were again considered by the Court; and they determined 
 that, under all the register acts, 7 & 8 Will. III. c. 22. 
 s. 21. ; 2() Geo. III. c. 60. s. 3, 4, 5, 16; and 34 Geo. III. 
 c. 68. s. 15, 16, in order to nialce a title to a ship sold at 
 sea, whether in whole or in part, such sale must be ac- 
 knowledged by indorsement of the certiiicate of registry 
 in the manner therein described; and a copy of such in- 
 dorsement be delivered by the vendee to the persons 
 authorized to make registry (which officers are directed to 
 make an entry thereof, to be indorsed on the affidavit 
 upon which the original certificate of registry was ob- 
 tained, and to make a memorandum in the book of re- 
 gisters, and to give notice to the commissioners of cus- 
 toms,) and that it was not sufficient for the vendee to 
 
 reo-ister such ship de novo in another port where he ?'"?',"? ^■• 
 ^ ' . . Hubbard, 5 
 
 resided, though he had removed the ship thither, and East. 407. 
 
 though she had never returned to her original port after 
 
 the sale, (w) 
 
 By reason, however, of some defect in their own title, 
 as assignees, (o) the plaintiffs did not recover the v. hole 
 property in the ship which they claimed. Another action 
 was therefore brought against Hubbard, and the Court of 
 King's Bench again gave judgment for the plaintiff. The 
 facts of the case were, upon this occasion, put into a spe- 
 cial verdict, and the cause was carried to the Exchequer 
 Chamber by writ of error, and in that Court \hQ judgment Hubbard r. 
 oj ihe Tilings hencn icas reversed by tne opinion ot live jj xauut. 177. 
 Judges against two. The majority of the Judges decided, 
 that if a ship, registered at one port, be transferred, 
 whilst at sea, io a purchaser residijig at another port in ^ 
 
 this kingdom, the proper mode of perfecting a transfer 
 within the requisitions of the registiy acts was by a regis- 
 tration de novo in her 7ieru: port ; and that it was not neces- 
 
 (n) Eloxham v. Hubbard, 5 East. 407. (o) Abbott. 6.?. 
 
 T' 2
 
 992 
 
 Navigation Laws. 
 
 [part I. 
 
 Cases and de- sa^v for the ship to return to her former port in order to 
 
 cisions upon , 
 
 the transfer of have a memorandum of the transfer indorsed on her certi- 
 
 property in 
 ships. 
 
 ficate of registration ; nor was it necessary for the pur- 
 chaser to send a copy of the bill of sale to the ship's 
 former port : nor to indorse a memorandum of the transfer 
 on her certificate of registry within ten days after the 
 ship's return to England, (jo) They likewise decided, that 
 the 34 Geo. III. c. 68. s. 16. applied to the sale of an entire 
 ship in the same port, as well as to the sale of a share or 
 shares therein ; and Mr. J. Heath and Mr. Baron Wood 
 were likewise of opinion, that the register acts, so far as 
 they applied to defeat titles, and to create forfeitures, 
 were to be construed strictly, as penal, and not liberally, 
 as remedial laws, (q) 
 
 Policy of I he 
 decision of 
 Hubbard i-. 
 Johnstone, 
 in the Exche- 
 quer Cham- 
 ber. 
 
 As the judgment of the Court of Exchequer Chamber 
 was removed by writ of error to the House of Lords, 
 (where the case is yet pending for judgment) it might 
 seem presumptuous to review the grounds upon which it 
 was given : a few words, however, may be necessary to 
 shew that their judgment is, in every respect, conform- 
 able to the spirit of the registry acts, and framed upon 
 such a construction of the system as is eminently con- 
 ducive to accomplish its ends, both in a commercial and 
 political point of view. In considering the propriety 
 of this judgment, all the registry acts must be looked at 
 as if consolidated in one system, and directed to one ob- 
 ject ; not to the imposition of forms, or the superinduction 
 of unmeaning ceremonials upon contracts, but to secure 
 to the state an immediate and direct knowledge of all the 
 owners of British ships, and of all the transfers of pro- 
 
 (p) This was decided by (iVe 
 Judges against two. 
 
 (q) Hubbard r. Johnstone, 3 
 Taunt. 177. Pending this proceed- 
 ing in the Exchequer Chamber, the 
 cflcct of anew register obtained in 
 a port to which a ship had been 
 transferred, was again brought un- 
 
 der the consideration of the K. D., 
 and it was again decided, that sudi 
 new register alone was not a suffi- 
 cient compliance with the statutes 
 of registry; the Court thereby con- 
 firming their former judgment in 
 Bloxham v. Hubbard. Hayton v. 
 Jackson, 8 East. b\i.
 
 CHAP. VII.] The Registry Acts. 293 
 
 perty afiecting them ; thereby excluding foreigners from Cases and dc- 
 all interest in them, and making a title to sliipping a part, ji,g trausfer"of 
 as it were, of our national muniments and records. The property hi 
 
 ..,.,.^,. slims. 
 
 proposition, therefore, to be maintained, is, that if a ship, 
 registered at one port, be transferred whilst at sea to a 
 purchaser residing at another port, he may perfect the 
 transfer by a registration de novo in her new port ; and it 
 is not necessary for tlie purchaser to send a copy of the 
 bill of sale to her former port, in order to have a memo- 
 randum of the transfer indorsed on her certificate of regis- 
 try. Now, the statute of 8 & 9 Will. III. directs the s & 9 W. III. 
 new registration of a vessel on a change of port, and in 
 that case requires the old certificate to he delivered up ; 
 but when the property is changed in the same port, then 
 the change is to be indorsed on the registry. This statute 
 is the foundation of all the registry acts ; and the distinc- 
 tion which it makes upon a new registration on a change 
 of port, and an indorsement on the original certificate of 
 registry, when the change takes place in the same port, is 
 not repealed by any subsequent statute. 
 
 The 26 Geo. III. makes no alteration in this respect; 26 Geo. III. & 
 but the 34 Geo. IIL c. 68. adds new provisions for the bet- 
 ter effectuating the purposes of the act of William. The 
 fifteenth section directs what is to be done on any altera- 
 tion of property in the same port ; and the sixteenth sec- 
 tion refers to alterations of property when the ship is at sea. 
 It directs, that if vessels be absent from the port to which 
 they belong, when any transfer takes place in their property, 
 the sale is to be made by bill of sale, or other instrument in 
 writing, as before directed by the 26 Geo. III. c. 60., and 34 
 Geo. III. c. 68. s. 14 & 15., and a copy of such bill of sale is 
 to be delivered, and entry thereof indorsed on the affidavit, 
 and a memorandum made in the book of registers ; and no- 
 tice given to the commissioners of the customs ; and within 
 ten days after such ship shall return to the port to which 
 she belongs an indorsement is to be made on her certificate 
 of registry, and a memorandum to be made as is before 
 directed. Now it should seem that the fifteenth and six-
 
 294 J^avigation Laws. \ part i. 
 
 C^ses and de- teenth section^ must be construed together, and that the 
 the transfer of letter section is dependent on the former; the fifteenth 
 property ia section regulating the mode of transfer when the ship is in 
 the same port, and the sixteenth section prescribing the 
 same forms, but (inasmuch as the indorsement on account 
 of the ship's absence could not then be niade on the certi- 
 ficate) requiring that it should be made within- t('7i days 
 after the ship's return to the port to which she belonged. 
 Now, if the Legislature had intended that the 16lh sec- 
 tion should extend to all cases of transfer, and should 
 repeal the provisions of 7 & 8 William, which nofonly 
 permits, but requires, the new registration of a ves&el on 
 a change of port, it would have used explicit words. The 
 sixteenth section can only fairly be construed to relate to 
 the case of a ship being at sea or absent from her port, 
 and meaning to return to such port ; " because, according 
 " to the interpretation of this clause by Mr. Baron Wood, 
 Hubbard v. " in his admirable judgment in Hubbard t-. Johnstone, (r) 
 " all the requisitions are put in the conjunctive, and the 
 ^' last of them is an act to be done Avitliin ten days after 
 " the ship's return. It is evident, therefore, that the 
 *' Legislature only contemplated a case where all the re- 
 " quisitions could be complied with. But it has even been 
 *' argued that the sale of a ship at sea cannot be made 
 '* good unless the ship actually puts herself into a situa- 
 " tion to comply Avith every one of these requisites, by 
 " returning to her registered port. Such an interpreta- 
 '' tion of the statute would be attended w ith monstrous 
 '' inconveniences to the public without any one benefit. 
 " In that case, if a ship be registered abroad, in the East 
 *' or AVest Indies, and is sold in Great Britain, she must 
 '^ be obliged to go back again to the East or West Indies, 
 " to make an indorsement on her certificate, deliver a 
 " copy of the indorsement, and then bring her certificate 
 '' to Great Britain, to be registered de novo ; and forwhat 
 " purpose ; in order that her certificate may be cancelled 
 *' and destroyed, and a new one granted here when she is 
 " registered dc novo. Is it possible that any such thing 
 
 (r) 3 Taunt. 210.
 
 CHAP. VII.] The Registri/ Acts. S95 
 
 " could ever be intended ? On the contrary, look at the Cases and de- 
 ,. , . 1 • • ■!• . ^1 i ^1 T • cisioiis upon 
 
 " twenty-second section, and it is manirest that the JLcgis- ^jj^. transfer of 
 
 " lature meant otherwise, for it is expressly provided that i>i'|>pt-"rty in 
 
 . , ,• , ships. 
 
 ^' a ship, sold at sea, may either return directly to the 
 
 *' port to which she belongs, or to any otlier port, where 
 
 " she may be legally registered, by virtue of the 26 
 
 '' Geo. III. c. 60.; and that as soon as she returns she 
 
 '' may be registered de novo.'''' 
 
 And again, in another part of his judgment he add?, 
 " This case is the case of a ship transferred to another port, 
 ^' in order to be there registered de novo^ and where her 
 '' former certificate must be delivered up to be cancelled, 
 " according to ,the 7 & 8 Will. III. c. 22. Here is no- Hubbard v. 
 " thing to prohibit the owner of a ship from changing her 
 *' domicile from one port to another, and registering her 
 *' for trade there; a transfer of property to another port 
 " means a sale to a person living at another port, who 
 " removes her to that other port, and registers her there 
 " de 720VO, as the port from and to which she is in future 
 " to trade. This is conformable to the fourth and fifth 
 " sections of the 26 Geo. III. c. 60. This is a ship, (the 
 " Fishburn) whilst out at sea, sold to a person residing in 
 " London, who takes her to that port, and there registers 
 "■ her de novo. Here she gains a new settlement or domi- 
 " cile ; and the port of Newcastle (her former registered 
 " port) has nothing further to do with her. The instant 
 " a bill of sale is executed, transferring her to another 
 " port, the officers of her former port have no further 
 " account to keep of her. Neither do I see any public 
 *' utility to be derived from delivering a copy of the bill 
 " of sale to the officers of the port she had quitted. Her 
 " identity and ownership (which are the objects of these 
 *' regulations) are fully ascertained to the officer of her 
 *^ new port by the production of the bill of sale (which 
 " must always recite her certificate of registry) and by 
 " the delivering up of her old certificate, with all the 
 " transfers of property indorsed upon it to the officer who 
 3
 
 296 
 
 Navigation Laws. 
 
 [part I. 
 
 Cases and de- 
 cisions upon 
 the transfer of 
 property in 
 ships. 
 
 ^' grants a new certificate. The object of the registry of 
 " shipping, and of granting certificates, and making in- 
 *' dorsements, was not to register titles for the security of 
 " purchasers, but to guard (as the first statute expresses 
 '' it) against colouring foreign ships under English names, 
 '^ and to furnish evidence to the officers of Government 
 ^' that they were really English ships. Is not this suffi- 
 '' ciently guarded by the provision contained in the twenty- 
 *^ second section of the 34 Geo. III. ? which requires, 
 *' when a ship is at sea when sold, that she shall perform 
 *' her voyage and return without delay either to the port 
 *' to which she belonged, or to some other, to be regis- 
 *' tered ; otherwise she should be treated as a foreign ship, 
 '' and be subject to confiscation. Are not her identity 
 *' and ownership sufficiently ascertained to the officer who 
 *' registers her de novo in consequence of a sale, by pro- 
 *' ducing to him the bill of sale, and delivering up her 
 " former certificate with all the indorsements of transfers 
 '' of property upon it ? Is she not by these means traced 
 " from port to port from her birth, with sufficient certainty 
 " to prevent foreigners from having the benefit of her 
 *' navigation ? And I cannot see how the sending of a 
 " copy of the bill of sale to the port she has quitted can 
 " be of any public utility." 
 
 Ho equitable 
 interest in 
 British ships. 
 
 Rolleston v. 
 Hihbert. 
 
 In the construction of the registry acts, it was decided 
 in the very first cases which came before the Court, that 
 the obvious policy of these statutes, as well as their plain 
 and natural meaning, precluded all equitable titles or 
 beneficial ownership in British ships, and regarded no 
 other property than such as was strictly legal according 
 to the requisites of the acts. Thus, in Rolleston v, 
 Ilibbert, already cited, the Court of Chancery concurred 
 with the Court of King's Bench in deciding, that a bill 
 of sale of a ship at sea, (void by the omission to recite 
 the certificate of registry thereitO intended as security for 
 the payment of a note, could not be enforced by the 
 vendee's retaining the ship, as having a lien on her, against
 
 CHAP. VII.] The Registri/ Jets. 297 
 
 the assignees of the vendor, who became a bankrupt after No equitable 
 
 ips. 
 
 the transfer ; and the Lord Chancellor thought that the British shi 
 
 register acts were equally binding in a court of equity as 
 in a court of law, and refused to compel the vendor to 
 make a legal conveyance to the purchaser, (s) 
 
 No inchoate title, therefore, can be sustained in oppo- 
 sition to the words of the statute, which expressly declare, 
 that no contract or agreement foF an interest in ships shall 
 be of any avail for any purpose whatever, either in law or 
 equitj/, unless a bill of sale, &c. is executed according to 
 the prescribed regulations. Therefore, in the case of 
 the New Draper, the learned Judge of the Admiralty 
 Court, in a cause of possession, decreed that the master 
 should be dispossessed of a ship, who set up a virtual title 
 to a majority of interest, on the ground of an agreement. 
 In giving judgment Sir W. Scott observed : " Independ- Ti,i.i^Tg^ 
 ent of any other objection, I do not think that under the Draper, 
 act of Parliament it would be possible for the Court to 
 recognise such a transaction ; for the words of the act are 
 as strong as they can be."(0 And in another case, where 
 the legal title remained in A., who was in possession of a 
 bill of sale, the Court sustained that title in opposition to 
 an asserted equitable interest ; " for this Court," said the 
 same learned Judge, "is boujid down to decide on the The Sister*, 
 legal title, without taking notice of equitable claims." («) 
 So, likewise, in the very recent case of Brewster v. Clarke, 
 in the Court of Chancery, a bill was filed for a specific per- 
 formance of an agreement to purchase a ship, of which the 
 plaintiffs were joint owners. The ship had been put up 
 to sale by public auction, at which the defendant, Clarke, 
 bavins; agreed to become the purchaser, paid the deposit, 
 and '^'xecuted a memorandum of sale, reciting that the r[*lk,ef'^*' 
 ship had been duly registered, and a copy of the certificate 
 of registry was actually aruiexed to the memorandum. The 
 
 (s) Rolleston v. Hibbcrt, 3 T.R. (f) 4 Hob. 291. 
 
 406. and 3 Bro. Ch. Ca. 571. (w) Sisters, 5 Rob. 155. 
 
 1
 
 298 Navigation Laws. [part r. 
 
 Cases and de- answer, (admitting- that the defendant was in possession 
 tbe^ransfei"of "»der this agreement,) raised objections to his title under 
 propertj in the registry acts, viz. that the certificate of registry was 
 " '^''' not duly recited in the memorandum, or instrument of 
 
 sale, according to the 26 Geo. III. and S4 Geo. III. The 
 Lord Chancellor refused the motion, stating that the po- 
 licy of these acts prevented a Court from looking on any 
 one who had not strictti/ complied with their provisions in 
 the light of a purchaser, {w) 
 
 Indeed, if an equitable interest could prevail, in contra- 
 distinction to a legal interest, it would tend to defeat all the 
 salutary policy of these acts ; (.r) and though an equitable 
 interest may, in many instances, be protected by an insur- 
 ance, the Court of King's Bench refused to sustain such 
 an interest in a ship, though in an action upon a policy on 
 
 No equitable freight. Therefore, where two partners purchased a shin 
 
 interest in Bri- f ' ^ , i • , , • 
 
 tish ships. under a bul of sale, conioimably with the registry act, 
 
 and afterwards took in two others partners, but there was 
 
 no transfer of the ship to them jointly with the others, 
 
 they held that the four partners had not any insurable 
 
 interest in the freight. For they considered the right 
 
 to freight as resulting from the right of ownership, and 
 
 that these partners had neither a legal nor an equita- 
 
 Camdenv. jjjg jj^]^ ^^ ^j^g yessel. ( ?/) But it is clear, that if, previ- 
 Aaderson. . . 
 
 ously to these acts of Parliament, a partnership of four 
 
 had bought a ship in the name of one or two of them, or 
 
 in that of a stranger advancing them money, they would 
 
 in equity have been the owners of that ship, and might 
 
 have recovered in a policy of insurance upon her ; for a 
 
 court of law, in actions on a policy of insurance, will take 
 
 notice of the doctrine of trusts, Iiolding that the trustee 
 
 has, in respect of the legal interest, an insurable interest, 
 
 as it Avas always held that the cestui que trust has in respect 
 
 of the equitable interest, 
 
 (ui) Brewster and Others, v. (j/) Camden r. Anderson, 5 T. R. 
 
 Clarke and Others, 2 Mcrivale, 75. 709. Sec likewise Stringer u. Mur^ 
 
 (ft;) 4 Ilobinsou, 291. ray, 2 Baro. & Aid. 248. Post. 311.
 
 CHAP. VII ] The Registry Acts. 299 
 
 It is not, however, to be inferred from the above case, Cases and de- 
 
 that the properly in the ship and the property in the the transfer* 
 
 freight are convertible terms ; the properly in the freight «♦ property in 
 
 may be distinct from that in the ship, and the interest in 
 
 the sliip may be in one, and the freight in another. An 
 
 assignment of the freight alone is not within the registry 
 
 acts, and does not require any of its forms, {z) But 
 
 where A., B., and C, agreed to purchase a ship, and that 
 
 it should be registered in the names of A. and B. only, 
 
 but the profits of the ship to be divided amongst the three; 
 
 and C. filed a bill against A. and B., for an account of the 
 
 freight and earnings of the ship, on a general demurrer, 
 
 the Vice-Chancellor hold that agreement to be illegal. 
 
 " No doubt," he said, " a title to freight may be acquired Assi^^nmcntof 
 
 by assignment : but this is an agreement that three shall not"within the 
 
 buy a ship, and that it shall be registered in the name of registry acts. 
 , ' ^ o X. Scei»4i, 318. 
 
 two only, and that the three shall share the profits of the i 
 
 ship. The case is new. My opinion is, that, on grounds 
 
 of public policy, such an agreement cannot be permitted. 
 
 It is a stipulation contrived for the purpose of escaping 
 
 from the provisions of the registry acts." (a) 
 
 A case under very similar circumstances to Camden r. 
 Anderson came before the Lord Chancellor in a case of 
 bankruptcy, when his Lordship, reviewing and confirm- 
 ing the previous cases in courts of law, decided, that ships 
 purchased by one partner in the name of the one partner 
 only, who became a bankrupt, and was the sole regis- 
 tered owner, were to be considered separate property as 
 between the joint creditors of the bankrupt and his de- 
 ceased partner in trade. In this case his Lordship ob- 
 served, that where the interest in a ship is derived under 
 a party's own act and contract, not executed according to 
 the registry acts, it cannot be reformed in equity, any more 
 than an annuity deed, not pursuing the forms of the annuity 
 
 (2) Mestaer r. Gillespie, 11 Ves. (a) Battcrsby f. Smith, 3 Madd. 
 
 636. 114.
 
 300 Navigation Laws. [part i. 
 
 Cases and de- act. " The case," he said, " requires this ; that if a man 
 thrtraiSTof enters into a partnership, where one of the articles is a 
 
 property in ship, there must be a new registry. "(i) 
 «hips. 
 
 About six years after the decision in the above case, the 
 registry acts, and their operation upon property, both 
 equitable and legal, were again brought before the atten- 
 tion of Lord Eldon. Their general effects, and commer- 
 cial results, had now been fully felt by the country. If 
 they had required any alteration in important points, 
 / the legislature, always vigilant over the extensive in- 
 terests which they embraced, would, doubtless, have 
 amended them ; but they were suffered to continue with- 
 out any qualification or repeal ; a plain proof, that 
 the able statesmen of that time considered the construc- 
 tion which had been put upon them in courts of law and 
 equity to be a sound and rational one. The case before 
 fix parte Yal- Lord Eldon was this : — Henry Cooke and John Herbert, 
 ^^P* partners and merchants in London, contracted to purchase 
 
 the ship Euphrates, for 20,000/.; and, accordingly, in 
 , May and June, 1805, they accepted bills of exchange, 
 
 drawn on Messrs. Clay, owners of the ship, for that 
 amount ; and, as a collateral security, Cooke and Her- 
 bert being each possessed of five sixteenth shares of the 
 ship Devonshire, by bill of sale, dated the 22d of June, 
 1805, severally assigned their shares of that ship and the 
 policies of insurance, effected by them on such shares, by 
 a defeasance of the same date, reciting the purchase of 
 the Euphrates, as made by Cooke and Herbert, and de- 
 claring those policies to be for further securing the 
 20,000/. Philip Herbert, the brother of John, agreed 
 with his brother and Cooke, to purchase one-fourth of 
 the ship ; and, accordingly, a bill of sale of one-fourth 
 was made to Philip Herbert, who gave security to Cooke 
 and Herbert for the price of one-fourth of the ship and 
 her outfit. A bill of sale of the remaining three-fourths 
 
 (i) Curtis V. Perry, 6 Vcsey, Jun. 746.
 
 CHAP. VII.] The Registry Acls. 201 
 
 was made to Cooke alone ; and the usual indorsements Tasos and de- 
 
 I xi i-i> i. o • I J 4.1 cisions upon 
 
 were made on the certilicate or registry under the re- the trmsfcr of 
 
 ffister acts : declarinff that Messrs. Clay had sold three- pioperty in 
 
 . . ships, 
 fourths of the ship to Cooke, and one-fourth to Philip 
 
 Herbert. The sliip was taken up by the East India Ex parte Yal- 
 Company, and her outfit, amounting to 16721. , wtis fur- "P* 
 nished by Cooke and Herbert, jointly ; and insurance was 
 made by them jointly, on three-fourths of the ship, as 
 their joint property ; the shares were treated in their 
 partnership books as their partnership property ; their 
 commission, as managing owners, was debited to the ship 
 in their partnership books ; and every act was done, short 
 of an actual conveyance and registration in their name?, 
 which could mark those three-fourths of the ship as the 
 joint property of Cooke and Herbert. On the 8th of 
 July, 1805, a new register was taken out by Cooke and 
 Philip Herbert ; and they were declared to be the owners, 
 and Philip Herbert the master. Cooke, after the de- 
 parture of the ship, made over by bill of sale several small 
 shares, as security for separate debts of himself, and joint 
 debts of Cooke and Herbert. In December, 1805, a joint 
 commission of bankruptcy issued against Cooke and John 
 Herbert. Their acceptances on account of the purchase- 
 money of the ship had been paid, to the extent of 7500/. 
 The sum of 12,500/. remaining due to Messrs. Clay, was 
 claimed as a debt against the joint estate of Cooke and 
 Herbert. The assignees sold the three-fourths of the ship 
 for 7175/. The petition was presented by a joint creditor 
 of Cooke and Herbert, praying an application of the 
 three-fourths of the ship, and the produce, as their joint 
 property. The Lord Chancellor, in giving judgment, ob- 
 served, that a decision that their interest in a ship should 
 be taken as joint property, if the question arose in a contest 
 between the partners themselves, would destroy the whole 
 effects of the registry acts. " These acts," he added, 'Svere 
 drawn upon the policy, that it was for the public interest 
 to receive evidence of the title to a ship from her origin 
 to the moment in which you look back to her history;
 
 502 Na-cigation Laws. [part i. 
 
 Cases and de- liow far throughout her existence she has been British- 
 the^r"an"fe^"of ^^"^^^^ ^nd British-owned; and it is obvious, that if, where 
 property in the title arises by act of the parties, the doctrine of implied 
 * ^^^' trust in this Court is to be supported, the whole policy 
 
 Ex parte Yal- of these acts may be defeated ; as neutrals may have in- 
 ^^^I'* terests in a ship, partly British-owned ; and the means of 
 
 enforcing the navigation laws depend upon knowing from 
 time to time who are the owners, and whether the ship is 
 British-owned and British-built. Upon that the legisla- 
 ture will not be content with any other evidence than the 
 registry ; and requires the great variety of things pre- 
 scribed by these acts. They go so far as to declare, that 
 nolzDithsiand'mg any transfer, any sale, or any contract, if 
 the purpose is not executed in the mode and form prescribed 
 hy the act, it shall be void to all intents and purposes. The 
 consequence, established by positive and repeated deci- 
 sions, is, that upon a contract for the purchase of a slrip, 
 which it may be supposed miglit have been executed 
 without public mischief, though by force of that contract, 
 and by operation of law , the purchaser would be the ow ner 
 in equity from the moment of the purchase, and the vendor 
 from that moment w ould be divested from all interest,-^— yet 
 it is decided, that these acts are so imperative that if they 
 rest upon the contractj it cannot be said of a ship, as of an 
 estate, that by operation of law, and by force of the con- 
 tract, the ownership is changed ; and if the money had 
 been paid, the decision would be upon the same prin- 
 ciple ; and it must be recovered by another form of pro- 
 ceeding." 
 
 "nifTercnceljc- j^^jt his Lordship, in another place, observed, that there 
 to a ship hy ^^ •' >vide diifcrence between the title set up under the con- 
 contract ot 1-,.^.^ ^jC ^},p parties, and under the operation of law, or the 
 j)arlics, and ' • i r- • • c 
 
 operation of act of God ; and that is authorized by a fair construction ot 
 
 the act of parliament. Speaking of transfersj his Lordship 
 said ; " The act could not be intended to apply to transfers 
 tliat could not be cnrried through in the mode and l)y the 
 means ))rcscriucd : the transfer, for instance, from a tcsta» 
 
 law.
 
 CHAP, vii.] The Rei^istiy Acts. 303 
 
 tor to his executors ; or the transfer to assignees, in bank- Cnses and de- 
 
 r,-,, r. , • -1 1 X ill- cisions upon 
 
 ruptcy. The next of km, or residuary legatees, take by the transfer of 
 
 operation of law, not under a contract for transfer, capable Fppt-rty in 
 
 • • 1 1 -1 I A ships. 
 
 of being earned into execution in the modes prescribed. A 
 
 transfer of that description, therefore, is not that species of p^ parte Yal- 
 transfer, the regulation of which was in the contemplation l«l>. 
 of the legislature ; but if the transfer is of that species 
 which Avas the subject of regulation, tJie legislature ex- 
 pects obedience from all parties contending for interests 
 and title under such acts of transfer. The argument of 
 the joint creditors must go to this extent, that if these 
 partners had not purchased this interest in the ship in the 
 name of one of themselves, a circumstance not material, 
 but a stranger had made the purchase, advancing the mo- 
 ney of the partners, and they had permitted the bill of sale 
 to be made in his name, he swearing that he was the sole 
 owner, and the registry being made by him as such, — as the 
 partnership advanced the money, therefore, notAvithstand- 
 ing all this parliamentary regulation, upon principles of 
 public policy, Avith regard to the mode in Avhich, for the be- 
 nefit of the public, that property was to be acquired, they 
 are to be considered the oAvners ; as if the subject of the 
 contract had been an estate. That is directly inconsistent 
 with the act of parliament ; that, if it could prevail, in- 
 stead of securing the evidence Avhich the public Avas in- 
 tended to have, Iioav far the ship, through every period of 
 her existence, Avas British-OAvned and British-built, it 
 AAOuld be the easiest thing to cover the ownership of neu- 
 trals and enemies, Avithout a possibility of detection by 
 means of the act ; Avhich Avas intended to furnish decisive 
 and incontrovertible evidence of those facts." 
 
 His Lordship concluded by stating, — ^- Upon the first 
 question made by this petition, Avhether by the manner in 
 Avhich this ship Avas dealt Avitli, it is partnership property ? 
 My opinion is, that no such dealing in the partnership 
 could possibly make it partnership property, as between 
 the partners ; as that would be a direct infringement of
 
 S04 Navigation Laws. [part i. 
 
 Cases and de- the act of parliament. A distinct question is, whptTier, 
 the^ransfer of though it cannot be so taken as between the partners 
 property in themselves, the ship, if dealt with in that manner, ought 
 not, upon the statute of King James, to be considered 
 Ex parte Yal- as partnership property ; whether it was so held, that the 
 P* joint creditors can say it was partnership property before 
 
 the bankruptcy : or, on the other hand, the title being of a 
 public registered nature, that public registry must not 
 decide, as among all mankind, where the property is. 
 My opinion is, that the registry is the evidence of the pro- 
 perty ; and must be taken to be the evidence of it, even 
 among the creditors. \Jpon every ground, therefore, this 
 petition must be dismissed.'' (c) 
 
 The bankruptcy of these two persons gave rise also to 
 another case before his Lordship, respecting certain shares 
 ExparteGrib- of the ship Devonshire. At the time of the bankruptcy 
 ®* five sixteenth^ were registered in the name of Cooke, and 
 
 five others in the name of Herbert ; the dispute regarded 
 the latter. The joint creditors claimed them, on a sugges- 
 tion that the whole ten were originally purchased on the 
 joint account, though taken in the name of Cooke alone, 
 and that five had been transferred to Herbert, on his re- 
 monstrance ; but it was admitted that this claim could 
 not be distinguished from tlie case last quoted. The 
 separate creditors of Herbert relied on that case as de- 
 cisive in their favour. The separate creditors of Cooke 
 suggested that he was the original purchaser, and had 
 been prevailed upon by Herbert to execute a bill of 
 sale to him of these shares for a nominal considera- 
 tion, of which no part was paid ; and contended, that 
 the interest in them still continued, on that account, 
 to be the separate property of Cooke. The matter came 
 before his Lordship upon petitions and afiidavits, which 
 were contradictory to each otlier. At the hearing his 
 Lordship said, " There is no doubt that previously to the 
 
 (c) Ex parte Yallop, 15 Vcsey, 60.
 
 ciMP. vji.] The Registry Ads. 305 
 
 registry acts if Cooke had purchased this ship in the C.isps and de- 
 names of himself and Herbert, Cooke paying the whole ii',e transfci'of 
 money, and no partnership existing between them, he who properiv ia 
 paid the money would have been held the equitable 
 owner, {d) But, consistently with the decision of Camden 
 V. Anderson 1 do not see how it can be represented 
 that the property in this ship stood otherwise than in one 
 of these partners, as to five sixteeenths, and the same 
 proportion in the ether." On a subsequent day his Lord- 
 ship observed — -'• The ground of the petition by the sepa- 
 rate creditors of Cooke is, that the assignment to Herbert 
 was made for a nominal consideration ; but it was made 
 in fact, and the ship was registered accordingly." And 
 then, again adverting to the case of Camden r. Anderson, 
 he added, " If, therefore, Cooke, having tlie entire in- 
 terest in himself, registered in his name, by his ov/n act 
 made Herbert the owner of this proportion of the ship, 
 permitting the registry to be made in Her'i)ert's name, 
 it is impossible to maintain that Herbert's estate is ac- 
 countable to the estate of Cooke for the produce of that 
 property." His Lordjhip then said, " I will give an 
 inquiry, if those who represent Cooke desire it, xchen the 
 bill of sale was made to Herbert, and whose money was 
 advanced ; hut let the result be what it ma!/^ I do not con- 
 ceive that the title of Herbert could be dislodged by the 
 nature of those advances "{e) It does not appear that the 
 creditors of Cooke pursued their claim any further. 
 
 The cases on this head are very numerous both in law 
 and equity, but the construction of the acts has uniformly 
 been the same. And it being the obvious intent of the 
 registry acts, that no one should have the use and employ- 
 ment of the ship, whose name might not be discovered by 
 reference to some public document, the courts will not 
 
 {d) Ex parte Yallop, 1.) Vcsey, ex parte, 17 Vofiey, Jiin. 251 ; and ^ 
 GO. i\})bott on Shipping, 73. 
 
 (e) Houghton, ex parte, Gdbblc, 
 
 X
 
 306 
 
 JVavigation Laws. 
 
 [part I. 
 
 Cases and de- 
 cisions upon 
 the transfer of 
 property in 
 ships. 
 
 Wilson V. 
 
 Heather, 
 
 5 Taunt. 642. 
 
 A mortgage 
 of a ship is 
 valid, if the 
 forms of the 
 registry acts 
 be complied 
 with. 
 
 suffer a trust or mortgage of a ship to prevail under any 
 colour whatever, whether in the nature of lien or deposit. 
 Therefore, where the owner of a vessel, upon receiving 
 a loan of 200/., deposited her in the hands of a broker, 
 and executed a bill of sale to him, wherein was an in- 
 dorsement, that the assignment was made as a lien or se- 
 curity for the loan on the vessel, and that the broker should 
 immediately sell and execute a lawful bill of sale of her to the 
 purchaser, and, after retaining the loan, commission, and 
 charges, -pay the surplus to the owner, but the requisites of 
 the registry acts were not pursued; the Court of Common 
 Pleas held, that this did not constitute a lien, but a mort- 
 gage, and was therefore void under the registry acts ; and 
 that the broker could not retain the vessel until the pay- 
 ment of the loan. (/) Notwithstanding the above cases, 
 it is not to be concluded that there can be no valid mort- 
 gage of a ship, and that the owner cannot make any trans- 
 fer of property without passing entirely and irredeemably 
 with all his interest. The mortgage of a ship, like the 
 mortgage of any other chattel, may take place, subject to 
 the restrictions laid down in courts of law and equity 
 relative to such mortgages. The main and fundamental 
 principle as respects property in shipping is this, — that 
 there can be no valid mortgage without complying with all 
 the forms of the register acts. But if these forms are 
 complied with, the mortgage of a ship, whether at sea or 
 in port, will be sustained as a valid security. Before 
 the registry acts, ships were constantly mortgaged; and 
 the free transfer of property in shipping, as in other sub- 
 jects of trade and commerce, encouraged. These acts 
 were intended for the benefit of commerce, and not meant 
 to operate so as to deprivethe owners of their former right 
 of raising moui-y by mortgage. 
 
 In the case of Thompson v. Smith, (g-) the Vice Chan- 
 
 (/) VVilsunr. Heather, 5 Taunt. (g) 1 Madd. 399. 
 
 « ly.
 
 CHAP, vii.] The Registry Acts. o07 
 
 cellor, Sir T. Plumer, commenting upon an observation Whenmort- 
 which had been thrown out at the bar, that since the are valid, &c. 
 registry acts an agreement to reconvey a vessel, pledged 
 for a debt, was merely honorary, and that there could be 
 no mortgage of a ship, is reported to have said, "• Such a 
 proposition, publicly stated, calls for immediate reproba- 
 tion ; and is totally without foundation. The acts only 
 meant to confine the ownership of ships to British sub- 
 jects, and were not intended to have any effect upon the 
 right of mortgaging. A transfer by mortgage, made known 
 to the public^ and conjimd lo British suhjects^ is within the 
 spirit of the acts ; nor is there any thing in the letter to 
 confine the transfer to an absolute sale. Ever since the Thompson v. 
 
 passing of the 7ih and 8th William, and the more recent ^?'',''?' ^ 
 
 . . . Madd. 399. 
 
 statutes, it appears, from many cases in law and equity, 
 
 to have been admitted that a ship may be mortgaged, and 
 no doubt has ever been suggested on the subject. (//) In 
 Hibbert v. Rollestone, and Mestaer v. Gillespie, there 
 were mortgages of the ship and no objection made on 
 that account. In the late case of Wilson v. Heather, (?) 
 in the Common Pleas^ the court considered the mort- 
 gage of a ship as valid, provided the forms required by 
 the registry acts are attended to. Indeed, the terms of 
 the statute plainly shew that there may be an equitable 
 title in a ship, for the terms ^ conlract and agreement'' will 
 obviously embrace such a title. The act says, (A) ' No 
 transfer, contract, or agreement for transfer, of any pro- 
 perty in a ship, shall be valid and effectual, either in law or 
 equity, unless such transfer, contract, or agreement, &c. 
 shall be made by bill of sale or instrument in writing..' 
 containing such recitals as the clause prescibres. To say, 
 therefore, that there cannot bo an equitable title in a ship 
 is to contradict the words of the act." 
 
 {h ) In King v. King, 3 P. W. 360, mortgagor were decreed to pay the 
 mention is made of a decree of money for which the ship was 
 Lord Harcourt, on the mortgage mortgaged, 
 of a ship at sea, which ship was (*) See ante. 
 
 taken, and the executors of the {k) 34 Geo. 111. c. 6S. sect. 14. 
 
 x2
 
 308 
 
 Navigation Laws. 
 
 [part I. 
 
 Indorsement 
 adapted only 
 to a total 
 transfer. 
 
 Of the mode 
 by which the 
 mortgage of a 
 ship may be 
 effected. 
 
 It must be admitted, however, that the form of in- 
 dorsement on the chang^e of property in a vessel is a lanfed 
 only to a total and absolute sale, and will not app'y o a 
 transfer by mortgage ; the mortgagor not being properly 
 within the term "seller," nor can he truly declare (as 
 the form of sale requires,) that he has sold all his in- 
 terest, &c. in the ship ; nor is the mortgagee properly a 
 purchaser. (/) At the Custom House, the officers will not 
 permit any entry but according to this prescribed form; 
 the statute not having provided for a deviation from it in 
 any case, nor allowing any sale to be valid without a 
 strict observance of it. The consequence is, that where a 
 ship is mortgaged, the practice has usually been to have 
 two instruments ; one, an absolute conveyance of the ship; 
 the other, a deed of defeasance ; the former only being 
 registered at the Custom House. Consequently, in such 
 a case, a difficulty arises in enforcing in a court of justice 
 the mortgagor's right of redemption, by setting up the un- 
 registered deed in opposition to the registered title ; and 
 from this circumstance has arisen the notion, that, since 
 the register acts, no transfer of property in a ship could 
 be made, except by way of absolute sale ; and, conse- 
 quently, that no valid mortgage could be made since these 
 acts. But this course of reasoning is founded on mistake. 
 In the case of Thompson t. Smith, just cited, this ob- 
 jection is very learnedly combated by the present Master 
 of the Rolls, (w) " If the fact," he says, " were esta- 
 blished, that the form of registry prescribed by the acts 
 were applicable only to the case of an absolute sale of a 
 ship, and could in no way be suited to a transfer by way of 
 mortgage, still it would not follow, as a consequence, that 
 no other than an absolute sale was intended to be al- 
 lowed, but merely that the provisions of the act should be 
 deemed to apply only to an absolute sale, leaving all 
 other transfers of property untouched by the acts, and to 
 
 (/) Sec the very Iranied judg- 
 ment of the Master of the Rolls on 
 
 this subject, 1 Madd. 399. 
 {in) 1 Madd. 411.
 
 CHAP. VII.] The liegistiy Acts. S09 
 
 be ffoverned by the same rules and forms which prevailed Thompson v. 
 in, , , , . 1 • • , • Smith, 1 
 
 beior" riie acts were passed; there being nothing either in Madd. 399. 
 
 the rtier or ppirit of the ^^cts unfavourable to the con- 
 tiniiance of the mortgage of ships ; and it being utterly 
 unreasonable that such mortgage should be considered in- 
 valid merely from the non-compliance with a form of re- 
 gister, which, according to the hypothesis, could in no 
 way be adapted to it. It is impossible not to see that the 
 greatest inconveniences would arise if either of these al- 
 ternatives prevailed, if any prohibition or restraint were 
 imposed on the right of mortgaging shi|i?, or if the guards 
 provided by the register acts against foreigners acquiring 
 an interest in British ships did not extend to this mode of 
 transfer of property. It is, therefore, of great import- 
 ance to have it clf^arly understood, that for neither of 
 these positions is there any foundation. The contrary of 
 both is assumed in the late case of Wilson v. Heather, 
 decided by the unanimous opinion of the Court of Com- Power of 
 mon Pleas, without any doubt on either point; and in ^i'LooT"^ 
 that opinion 1 entirely concur. I have no doubt that the taken away 
 power of mortgaging a ship exists as fully since the re- try acts, 
 gister acts as it did before, provided the requisites pre- 
 scribed by the register acts are observed. I think there is 
 no difficulty in effectuating this. The mortgage will be 
 made by the usual bill of sale of the ship, containing in 
 the same instrument a defeasance, or condition of re- 
 transfer or payment of the mortgage money. This bill of 
 salamust contain the recital of the certificate, as the act 
 directs; and must be fully indorsed on the certificate of 
 registry, if the ship be in port ; or if at sea, a full copy 
 of it must be transmitted to the Custom House. The 
 form of indorsement will be the one prescribed by the act, 
 but with the addition of the defeasance, to express the 
 true nature of the contract between the parties, whenever 
 it becomes material to resort to evidence of it. There is 
 nothing in the act to prevent such an addition being made 
 to meet the exigency of the case. A greater deviation 
 from the form prescribed by the act w as sanctioned by the
 
 310 Navigation Laws. [part r. 
 
 Thompson v. Court of Common Plea«, in the case ofa partial transfer of 
 
 Fmiih, I . . , ' .... 
 
 Madd. 399. the interest in a ship; (>?) and an ingenious living writer (o) 
 
 has well ob>5erved, that the act seems to require a similar de- 
 viation in the case ofa mere contract for the sale ofa ship, 
 which the act directs to be registered, but which cannot be 
 in the exact words of the form prescribed. A liberal inter- 
 pretation of the act must be adopted to make the forms give 
 way to substance. In the subsequent forms to be observed 
 at the Custom House, the defeasance will probably not be 
 noticed either in the entry indorsed, or the oath, or in the 
 memorandum made in the book of registers : but, adhering 
 simply to the form prescribed by the act, it will be regi- 
 stered as an absolute bill of sale. But neither the mort- 
 Neglectofthe gagor nor mortgagee can suffer by that omission. The 
 
 public officers statutes invalidate the transfer only in the event of a neg- 
 oi the pre- -^ ^ 
 
 scribed {"orms lect of the prescribed requisites bjy the parties, not for any 
 
 try acts will mistake or neglect by the public officers. And in the event 
 not invalidate of any dispute of the title in a court of justice, the 
 o-age. proper evidence of title will be the original docu- 
 
 ments themselves, not any imperfect abstract made of 
 them at the Custom House. By that abstract, the mort- 
 gagee will, it is true, appear the sole and absolute owner, 
 and so he is, pro tempore, till redemption ; but the mort- 
 gagor's right to call for a re-transfer will appear from the 
 bill of sale fully indorsed on the certificate, if the ship be 
 in port ; or if at sea, by a full copy transmitted to the 
 Custom House ; and I see no ground on which that right 
 can be resisted." In the above case, therefore, the 
 mortgage was deemed to be valid, and an injunction 
 granted in order to prevent an improper indorsement on 
 the certificate of the registry of the ship. 
 
 The decision in this case is of the utmost importance, 
 and seems in perfect conformity with the letter and spirit 
 of the acts. It would, undoubtedly, be a hardship, and a 
 
 (n) Underwood v. Miller, 1 (o) Abbott on Shipping, p. 44. 
 
 Taunt. 387.
 
 CHAP vii.] The Registry Acts. 311 
 
 great pract'cal inconvenience to ship-owners, if the small- Policy of ad- 
 
 II 11 1 1 111 niittiiis luort- 
 
 est sum couid not be borrowed upon the most valuable g-;,gesof^»ips 
 
 vessels without a total alienation of all interest in them. 
 All that public policy requires is, that the trust and use of 
 the ship should not be in one, and the property in another; 
 and that no one should have a title <o Britisii shipping; 
 unless his name be reo;istered according to the forms of 
 the act, and the proi erty conveyed to liim by bill of 
 sale or other instrument and writiuj^, with such super- 
 added forms as the statute requires, according to the par- 
 ticular circumstances of the contract. This security being 
 taken, the public demands no more. As between the 
 public and the mortgagee there is no concealment. He 
 must appear (or his title is wholly inoperative) as the ab- 
 solute owner ; and so he is, legally : but, as between him 
 and the mortgagor, there may be an obligation to re- 
 convey the ship upon the satisfaction of the debt. If the 
 covenant to re-transfer be by a separate deed, a court of 
 equity will not decree a re-conveyance unless the forms of 
 the registry acts have been strictly complied with. Again, 
 if the defeasance, or covenant to reconvey, be contained in 
 the original instrument, whether it be a bill of sale, or 
 otherwise, the whole transaction must appear by the in- 
 dorsement on the ship's certificate of register, the memo- 
 randum made in the book of registers, and the notice 
 which is required to be given to the commissioners of 
 customs. The condition to reconvey, so long as it is only 
 between persons equallj/ entitled to be sole and absolute 
 owners of British ships, cannot interfere with the public 
 policy of these acts. He that has a right to alienate the 
 whole, has a right to stipulate for an alienation modified 
 by the condition of a privilege of re-purchase. A ship 
 may be taken in execution by a judgment creditor; and 
 whilst in the hands of the sheriff, the owner, upon the 
 payment of the amount of the levy, may have it delivered up 
 to him. There is no better reason for prohibiting a mort- 
 gage than for prohibiting an execution. In a word, all 
 the statute requires is publicity, — a knowledge of the
 
 312 Navigation Laws. [part i. 
 
 Policy of ad- real transaction, and a regii?tration of all the modes of 
 caWsof ships' ti'^^sfer, and of all the contracts and agreements touching 
 the property in British shipping. After all, however, the 
 objection seems rather in the terms used than in the con- 
 tract itself. In strictness, when a ship is conveyed as a se- 
 curity for a sum of money, with a condition to reconvey 
 upon re-payment, such transaction is not properly a mort- 
 gage. It is an absolute conveyance, liable to be defeated 
 by a condition subsequent ; and the borrower cannot avail 
 himself of this condition of re-transfer but through the 
 medium of a court of equity ; inasmuch as the forms of 
 the registry acts require the lender to stand forth to the 
 public as the legal and absolute owner, and to be regarded 
 as such. Courts of equity, which always consider the real 
 nature of a contract, whether it be a sale or a mort- 
 gage, will doubtless decree a re-transfer upon the satis- 
 faction of the debt ; but, then, they will guard the public 
 policy of the register acts by refusing to entertain any 
 suit for a re-conveyance, where any of the material re- 
 quisites of the statutes have been wanting. But the 
 lender, who has taken, and must take, an absolute convey- 
 ance, and be registered as the owner, has all the legal 
 title to the ship in the mean time, until compelled by a 
 court of equity to re-convey her to the borrower. The 
 transaction, therefore, as we have above said, though it 
 have many of the properties of mortgage, and must be dealt 
 with in equity as a mortgage, is in strictness an absolute 
 sale, with a covenant either by another deed, or in the 
 same deed, to re-sell or re-convey upon certain terms; 
 but the public, having the security of the register acts, 
 cannot suffer in any of the interests which the policy of 
 those acts protects by the subordinate contract ; which, as 
 respects them, must be a matter of perfect indifference. 
 
 In all cases which have come before them, the courts of 
 equity have jealously watched over the execution of these 
 acts, and have invariably refused relief, on the alleged 
 ground of accident and fraud, where the forms of registra-
 
 CHAP. VII.] The Registry Acts. 313 
 
 tion have either been evaded or omitted. Thus, in two Where the 
 cases before the late Master of the Rolls ; (/)) Nevvnham rt-^istry acts 
 
 tJ. Graves, and Barken'. Chapman. In the f()rn;er case, are not tom- 
 
 I>lied with, no 
 the circumstances were as follows: (q) — On the 23d of relief in 
 
 April, 1808, Dawson and his partner, for a valuable con- ^""r"-" ^^ 
 
 , . . equity, on the 
 
 sideration. assigned to Bland and his partner a ship, ground of ac* 
 
 called the Venus, by a proper bill of sale. The vessel fraud. 
 was then at sea. A copy of the bill of sale, with notice, 
 ivas duly sent to the commissioners of the customs, ac- 
 cording to the act 34 Geo. III. c. 68. In May, 1808, 
 Bland and Co. became bankrupts, and the plaintiffs were 
 appointed assignees. In the same month Dawson and Co. 
 became bankrupts, and Graves and another were chosen Newnhara v. 
 assignees. On the 31st of July, 1808, the vessel arrived ^^^^^V „qo 
 in London, to which port she belonged. The plaintiffs 
 immediately took actual possession, and applied to the 
 captain for the certificate of the registry, to get it in- 
 dorsed within the ten days after the arrival of the ship, as 
 required by the act : but the captain, in collusion with the 
 assignees of Dawson, delivered it to them ; and it was 
 admitted that application had been made to the assignees 
 of Dawson to direct the captain to deliver the certificate 
 within ten days, and that they refused to do so, conceiving 
 that they were not bound to do any act to assist the plain- 
 tiffs in making perfect their title. The Master of the Rolls 
 was of opinion, that the registry act precluded the court 
 from giving any relief, and dismissed the bill, but without 
 costs. 
 
 In Barker v. Chapman and others, assignees of Robson, Barker v. 
 it appeared that on the 3d of March, 1812, the bankrupt ^X™399* 
 Robson had executed a bill of sale of the ship Bacchus 
 to the plaintiff, and made an indorsement on the registry 
 in the presence of two witnesses, and sent the instrument 
 
 (p) Sir William Grant. Graves and another, assignees 
 
 {q) Newnham and others, as- of Dawson and anotber, 1 Madd. 
 signees of Bland and others, v, 399, in notei.
 
 314 
 
 Navigation Laws. 
 
 [part I. 
 
 Barker v. 
 Chapman, 1 
 Madd. 399. 
 
 to the broker ; but, from inadvertence or design, the wit- 
 nesses had not signed the attestation, and it was sent 
 back to Robson to get the proper attestation, but he de- 
 tained the same till he became bankrupt, and the as- 
 signees refused to deliver up the bill of sale. The Master 
 of the Rolls dismissed the bill, so far as related to the 
 ship Bacchus, but without costs. 
 
 Thompson v. 
 
 Leake, 
 
 1 Madd. 39. 
 
 So, likewise, in another case, the Vice-Chancellor, Sir 
 Thomas Plumer, decided in conformity with the above 
 cases, that if on the sale of a ship there was no bill of 
 sale or indorsement on the certificate, no relief could be 
 given in equity on the ground of accident and fraud. In 
 this case, that learned Judge observed, that in Barker v. 
 Chapman, just cited, there was gross fraud in preventing 
 the ship's register from being indorsed, within the time 
 prescribed by the act, after the ship's return to her port. 
 " And yet," he adds, " the Master of the Roils, Sir 
 William Grant, with much reluctance, and after a year's 
 delay of his judgment, in hopes that the parties would 
 compromise, decided that he could not relieve. In that 
 case there was no appeal. It is, therefore, an express de- 
 termination that fraud is not relievable in these cases." (r) 
 
 Dixon V. 
 F.wart, S 
 Merivalc,322. 
 
 The Courts, however, have not so rigidly insisted upon 
 these requisites, as to suffer them to supersede plain and 
 obvious rights which wanted something of their formal 
 completion : therefore, where a power of attorney w as 
 given to sign an indorsement on a certificate, the Lord 
 Chancellor decided, that it was not revoked by the bank- 
 ruptcy of the vendor, subsequent to the execution of the 
 power, but previous to the indorsement. His Lordship 
 considered it as a power to execute only a mere formal 
 act, which the bankrupt himself might have been com- 
 pelled to execute, notwithstanding his bankruptcy ; and 
 he decided, that an indorsement on the certificate, made 
 
 (r) Tbompson v. Leake and others, 1 Madd. 39. 
 2
 
 CHAP. VII. ] The Registry Acts. 315 
 
 witliin ten days, by virtue of such a power of attorney, 
 (the grantor of which had since become a bankrupt) was a 
 sufficient compliance with the registry acts, (s) 
 
 The case to which we have referred is more important ^^^^ o^ P^l- 
 
 1 T 1 /-ii 11 1 • nier r. Moxon 
 
 upon another consideration, as the Lord Chancellor therein reviewed, and 
 
 confirms the judgment of the Court of King's Bench in the principle 
 •^ ^ ^ ^ _ _ coniirmed by 
 
 Palmer v. Moxon ; (/) and, in conformity with that decision the Lord 
 
 and the previous one of Hubbard v. Johnstone, (m) de- ^j^g^r'iv.^'sS' ^ 
 cided, that a bill of sale passed the absolute property of a 
 ship at sea, subject only to be divested in case the indorse- 
 ment on the certificate of registry were not made within 
 ten days after the ship's return to port. The Lord Chan- 
 cellor's judgment in this case cannot, with any propriety, 
 be omitted. The facts of the case are not important ; but, 
 in adverting to the arguments at the bar, his Lordship 
 says, " I am glad to have been referred to the case of Pal- 
 mer V. Moxon ; for I thought something had been said on 
 this subject in the courts of law, since Moss v. Charnock, 
 upon which I formerly observed in Mestaer v. Gillespie, {x) 
 It strikes me very forcibly that the principle must be simi- 
 lar to that of the cases under the annuity act, {)/) by which 
 it has been decided that the grant of the annuity passes 
 the ownership instantly, subject to be divested in case of 
 noncompliance with the provisions of the act by inrol- 
 ment within the twenty days thereby limited ; and this ap- 
 pears to be Lord Ellenborough's opinion in Palmer v. 
 Moxon ; for I cannot think that the decision of the Court 
 of King's Bench in that case can be satisfactorily ac- 
 counted for by the doctrine of relation. The ship might 
 have been taken in execution within the ten days ; but the 
 property must be in actual possession when execution is exe- 
 cuted ; and, therefore, if the property were not passed by 
 the bill of sale, there could be no valid execution. There 
 
 {s) DixoD V. Ewart, 3 Merivale, (m) See ante, p. 283. 
 
 322. {x) 1 1 Vez. 637. 
 
 (0 See ante, p. 284. {y) 17 Geo. III. c. 26.
 
 3 1 6 Navigation Laws. [part i. 
 
 Dixon V. is no doubt that there can be no such thing as an equitable 
 
 Ewart. li^ie ^Q ^ gjjjp . 3„(i ii^g (.gse before the Vice-Chancel- 
 
 lor (2) is, as to this, also very material. When the former 
 act (o) passed, there was not sufficient attention paid in 
 framing its enactments to what might be its effect upon 
 the principles adopted in Courts of Equity; and it was to 
 compel the remedy that deficiency that the last act was introduced, (&) 
 
 execution of j^y which it is now completely established, that there can 
 an indorse- *^ , , . , . , i i • /. i • t 
 
 mentona be no such thing as the equitable ownership oi a ship. 1 
 
 ship's certifi- ^^^^^ hiow that a bill does not lie to compel the execution of 
 cate of regis- -■ "f 
 
 try after the the indorsement after the ten days are expired: but, if it 
 
 thTsfaVut'l.''^ "^^^^'^ possible for the plaintiff to bring his case before the 
 
 But semWe, Court, within the time limited; Would the Court refuse 
 
 wiU affor/re- t® entertain it ? Or, if the Legislature had given twelve 
 
 lief by com- months instead of ten days, would the Court refuse to aid 
 pelling the . .„...,.. 
 
 execution of the party in such a case by the exercise ot its jurisdiction, 
 
 the formali- ^^ compel the specific performance of an agreement ? I 
 
 ties of the re- ^ *^ *^ , ^ 
 
 gister acts, cannot imagine that the Legislature meant to declare, that 
 
 T^^here there is t}^g,,g jj^^y |jg ^^ g^^j^ ^f ^ g|^jp ^^ gg^ |j„|. ^jj^t there shall 
 
 an inchoate •' ^ ' 
 
 title in the be no means, either at law or in equity, of compelling the 
 
 aoDlv^witkin*^ execution of those formalities which it has directed to 
 the proper accompraiy the transfer, (c) The Legislature could not 
 the time is have meant to deny to the suitor, in such a case, the ad- 
 fixed by law) vantaffc of equitable relief. Its meaning; must have been, 
 or, within a . , . , . i f , . / 
 
 reasonable to give the party an inchoate right to the property which 
 
 time, where -g ^j^g subject of the assignment." His Lordship subse- 
 
 it is left mde- •' ^ _ * 
 
 finite. quently observed, — " When this case was before me, I 
 
 considered that there are some important points of law 
 which will be involved in its decision ; and resolved, before 
 I did any thing further, to have the opinion of some oiher 
 Judges upon these questions. I have since received frotn 
 Mr. Justice Abbott, now on the Circuit, a note, con- 
 taining the opinion of himself and the Lord Chief Justice 
 
 (s) Thompson ». Smith, 1 Madd, (r) Sec the case of Mestaer v. 
 
 395. Gillespie, 11 Vez. Jun. 621, and 
 
 (a) 26 Geo. III. c. 60. the cases commented upon in Ab- 
 
 (&) 34 Geo. III. c. 68. bott, p. 77.
 
 CHA.P. VII.] The Registry Acts. 317 
 
 of the Common Pleas, (Sir Vicary Gibbs) which is, in Dixon d. 
 substance, — That the transfer of a ship at sea, if all the 
 requisites of the registry acts have been duly complied 
 with at the time of the transfer, vests the property in the 
 vendee, subject only to be divested, upon the neglect of 
 the vendor to make the indorsement on the certificate of 
 registry within the ten days after the return of the ship 
 into port. That, if a bankruptcy intervene before the 
 arrlvcil of the s!iip, the indorsement being only an act of 
 duty on the part of the vendor: and passing no interest, 
 may be performed by the bankrupt himself. And that, (as 
 in this case) if the vendor have given a power of attorney 
 to perform this act of duty previous to the bankruptcy, his 
 attorney may carry it into effect, notwithstanding the act of 
 bankruptcy has intermediately occurred. This is the 
 opinion which these Judges have given ; and on the autho- 
 rity of their communication I shall act as if it were the 
 settled law of the case, which, indeed, upon looking into 
 the acts of Parliament, and considering the opinion deli- 
 vered to me, I think that it is. But, if any of the parties 
 should think otherwise, and should choose, after this, to 
 have a case for the decision of a court of law, I Avill give 
 it them." 
 
 But as the law, as we have before observed, requires 
 the registration of ships as an object of national policy, 
 it considers all contracts and trusts for them void, if the 
 forms of registration be not complied with, however pecu- 
 liar the circumstances of the case may be as between the 
 parties themselves. Therefore, where A., having con- 
 tracted for a ship to be built for him in the East Indies, 
 agreed, during the time of its building, to sell a share to 
 B. ; and B. paid a part of the price in pursuance of the 
 agreement ; and afterwards, on the ship's arrival in Eng- 
 land, A. caused her to be registered, and accounted with 
 B. as part owner; but B.'s share was never on tlie re- jvj""^^^'^*' 
 gister as part owner ; the Court of King's Bench decreed Barn. & Aid. 
 that B. had no legal interest in the ship.
 
 318 Navigation Laws. [part i. 
 
 The Registry But it will be necessary, in all cases on the registry acts, 
 Acts are ira- , , , . . . , • i • i 
 
 perativeonly *-^ Observe the distinction, that trusts implied, or arising 
 
 upou the vo- }jy operation of law, are not within the meaning of the 
 
 luntary trans- "^ * _ , . ^ 
 
 far of parties, statute. The registry acts are imperative upon voluntary 
 
 no ou 1 les contracts between party and party only ; but are not so 
 operation of upon transfers which are made by the act of the law, or 
 by causes independent of the immediate will of the parties. 
 Thus, assignments by commissioners of bankrupts to as- 
 signees under the bankrupt laws, and titles passing to 
 executors and administrators, in case of death, are not 
 that species of transfer, the regulation of which was in 
 the contemplation of the Legislature, (c?) With respect 
 to executors, administrators, or next of kin, the imme- 
 "diate point has never, we believe, come before the Court j 
 but in the case of Bloxhara v. Hubbard, the Court of 
 King's Bench had no difficulty in deciding, that these acts 
 had no application to cases' of transfer by operation of law, 
 such as from the commissioners to the assignees of a bank- 
 rupt trader, (e) 
 
 We have already had occasion to observe, that an as- 
 signment of freight was not within the provision of these 
 statutes, and that although the bill of sale of a ship might 
 be void by a neglect of the proper forms of these acts, a 
 contract for freight, or an assignment of freight, might be 
 valid, and capable of being enforced in law or equity. 
 And it would, we apprehend, make no difference whether 
 the assignment of freight were contained in the same in- 
 strument, which was void as to the ship, or in a different 
 Notwithstand- instrument. (/) A point, which resembles in substance 
 ine the bill of ^^ above put, has been decided in the Court of King's 
 
 sale ol a ship ' ' "=• 
 
 may be void, Bench. The decision of the Court was, that though a bill 
 
 ha'vea^reme- of ^i^lc for transferring the property in a ship, by way of 
 dy oil a colla- mortgage, might be void as such, for the omission of recit- 
 
 teral covenant ' . . ,, . , . ^ , 
 
 contained in uig the certihcate of registry therein, yet the mortgagor 
 
 the same in- 
 strument (d) G Vez. Juu. 739. 15 Vcz. (/) Sccantc, p. 299. and Splcdt 
 
 Jun. 68. V. Lcchracrc, 13 V^ez- Juu. 5S8. 
 
 (tf) 5 East. 407.
 
 CHAP. VII.] The Registry Acts, 319 
 
 might be sued upon his personal covenant, contained in ^*^"'*"'L*'- 
 the same instrument, for the re- payment oi the money c;3i. 
 lent. C^) In giving judgment in this case, Lawrence, J. 
 observes, " That the object of the act will be very suffi- 
 ciently answered, if we hold it to make void so much only 
 of the instrument as is meant to convey the property in the 
 ships. The object of the Legislature was, that it should 
 be made appear who were the real owners of British ships, 
 in order to prevent any transfer of them to foreigners, 
 who might navigate them under the privileges of the Bri- 
 tish flag. That will etfectually be done by saying that the 
 transfer shall be void if the requisites be not complied 
 with, without avoiding a collateral covenant for the pay- 
 ment of money contained in the same deed by which the 
 ships were intended to be mortgaged. And this construc- 
 tion is according to the rule of the common law, as laid 
 down by Ilutton^ J., in Ley's Rep. 79. that when a good 
 thing and a void thing are put together in the same grant, 
 the common law makes sucli a construction that the grant 
 shall be good for that which is good, and void for that 
 which is void." So, likewise, it has been determined that 
 
 the ship-resistry acts do not prevent a person having a lien 
 
 . . . Mestaer v. At- 
 
 upon papers deposited with him, belonging to a ship which j^i^^^ 5 Taunt. 
 
 he is commissioned to sell, (/i) . ^^^• 
 
 Many cases have arisen in questions upon property in The registry 
 ships, as to the operation of the statutes of bankruptcy, j^j^gj.^ the sta- 
 where the possession, order, and disposition of the ship, tutes of bank- 
 have been left with the vendor, but the vendee has complied reputed own- 
 with all the requisites of the acts, and become the regis- ership. 
 tered owner. The cases upon this head, which are very 
 important, will be considered in the second part of this 
 treatise. It is manifest, however, from all the cases, that 
 
 (g) Kerrlsou t). Cole, 8 East. 231. party detaining lliein no power 
 
 {h) Mestjier ». Atkins, 5 Taunt. over the ship. He could not send 
 
 381. In this case it is clear that her to sea, or sell her, by the pos- 
 
 the custody of the papers gave the session of the papers alone.
 
 320 
 
 Navigation Laws. 
 
 [part I. 
 
 The registry 
 acts do nut af- 
 fect the sta- 
 tutes of bank- 
 ruptcy as to 
 reputed own- 
 ership. 
 
 where the title of a ship conies strictly and properly in 
 question, no claim can be received in opposition to the 
 modes of conveyance required by the law. The statutes 
 of bankruptcy, particularly the 21 Jac, which are directed 
 against the false appearances of property, and which are 
 meant to punish those who enable the trader to procure 
 for himself a delusive credit by a reputed ownership, 
 (which is to be inferred from his havinj^ the order and dis- 
 position of goods and chattels by the consent of the true 
 owner) are not at all affected by the registry acts. The 
 registry acts relate only to the formalities of title as be- 
 tween the parties contracting and the public, but they do 
 not interfere with the operation of any other statutes 
 which are enacted to prevent false credit, and which, by 
 assuming the possession, order, and controul of property, 
 as the indicia of right, deal with it as belonging to the 
 bankrupt in whose disposition they find it, though the 
 legal ownership and title may, in fact, be in another. In 
 the cases under the act of 21 Jac. there are always two 
 parties ; the 7'eal owner and the apparent owner ; and the 
 real owner is punished for the fictitious semblance of pro- 
 perty which he enables the apparent owner to hold out. 
 This branch of our subject does not fall under our present 
 enquiry. 
 
 Robertson v. 
 French, 4 
 East. 130. 
 
 There are cases, hoAvever, independent of the bankrupt 
 laws, in which the possession of a ship has been deemed 
 sufficient evidence to maintain an action, though the legal 
 title may be in another. Thus, in Robertson v. French, (?) 
 which was an action on a policy of insurance, the Court 
 of King's Bench determined, that th(> property of a ship 
 might be proved by parol evidence of the possession of the 
 assured, unless di^^provcd by the production of the written 
 documents of the ship under the register acts: they like- 
 wise held, that such parol evidence of ownership, arising 
 from possession at a particular period, was not disproved 
 
 (/) 4 East. 130.
 
 CHAP. VII.] The Registry Acts. 321 
 
 by shewing a prior register in the name of anothe*-, and a 
 subsequent register to the same person. And in a,u»ther 
 ease, in the Court of Common Pleas, (A) it was decided, 
 that where the plaintiff bought and paid for a ship stranded 
 on the English coast, but had no regular conveyance of 
 her, and the defendant possessed himself of parts of the 
 wreck, which drifted on his farm, that the plaintiff^ pos- 
 session enabled him to recover for them in an action of 
 
 tort. The Court beina; of opinion, that the possession of ^"tto" v. 
 
 . . Buck, 2 
 
 a ship under a transfer, void for non-compliance with the Taunt. 302. 
 
 register acts, was a sufficient title in trover against a 
 stranger for parts of a ship being wrecked. Lawrence, J. 
 in this case observed, " That there was enough of property 
 in the plaintiff to enable him to maintain trover against a 
 wrong-doer ; and although it has been urged that the con- 
 tract is void with respect to the rights of third persons, as 
 well as betvv'een the parties, yet, as far as regards the pos- 
 sfession, it is good as against all but the vendor himself." 
 
 It was formerly the practice to produce, at trials at Nisi Of theevi- 
 
 Prius, the reeister-book of shipping", from the custom- ,^^ afford- 
 ' o ^ 1 r 05 ed by the re- 
 
 house, as evidence of the title, both to establish an owner- gistry acts. 
 
 ship on the part of the plaintiff, and to charge the defend- 
 ant, if a ship-owner, with the property in the vessel. 
 This evidence was, for a long time, received without dis- 
 cussion or objection. But in the case of Frazer v. Hop- 
 kins, (/) when this question was brought before the Court 
 of Common Pleas, they held, that the register alone did 
 not furnish even prima facie evidence to charge a person as 
 owner of a ship in a suit between private individuals. 
 rSuch a use of the register was certainly not in the contem- 
 plation of the Legislature; and it is perhaps possible, 
 though not likely to occur, that the name of a person 
 may be introduced into the book of registers without his 
 assent. Therefore, in a subsequent case, the Court of 
 King's Bench determined, that proof of the execution of 
 
 (A) Sutton r. Buck, 2 Tauat. -{02. (/) 2 Taunt, 5.
 
 322 Navigation Laws. [part i. 
 
 Of the eyi- a bill of sale of a ship to the defendant was not evidence 
 ed by the re- to charge him, as an owner, with stores furnished to the 
 gistry acts, gj^jp^ without shewing his assent to such sale. And they 
 likewise determined, that the register of a ship, naming a 
 person as a part owner, made by, and upon the oaths of 
 others, was not even prima facie evidence to charge him 
 as owner, without his assent or adoption, (w) " For not- 
 
 Tmkleru. withstanding," said Lord Ellenborough, " the practice 
 
 Walpole, 14 =" . ... 
 
 East. 220. may have prevailed for a long time, to receive ship's re- 
 gisters as evidence of the property being in the persons 
 therein named ; yet, when we are brought to consider the 
 admissibility of such evidence against the defendant, in a 
 case where he has done no act to adopt the register as hav- 
 ing been made by his authority, we cannot give effect to 
 
 , it, without saying that a party may have a burthensome 
 
 charge thrown upon him by the act of a third person, with- 
 out his own assent or privity. If it had appeared that the 
 defendant, by any act of his own, had recognized the re- 
 o-ister, he would have been liable to all the consequences 
 as a part-owner, which it describes him to be ; but here 
 lie has done no act to adopt it. His partner has, indeed, 
 dealt with the property as if the defendant were a part- 
 owner, by registering the ship in his name ; but the act of 
 a third person, without some act of the defendant to re- 
 cognize it, cannot throw upon him a burthen, without 
 violating the plain rule of law." 
 
 Mr Justice Bay LEV said, — "Before the first register 
 act passed, there must have been other media of proof to 
 charge a party as owner of a ship ; and the object of that 
 act was not to create evidence to charge any person named 
 as owner, but that no person should have the benefit of the 
 British navigation without registering his ship in the 
 manner prescribed. It would be very unjust, in many 
 cases, if a person could be charged as a part-owner, with 
 tlic expcnces of the ship, by having his name inserted in 
 
 (wi) Tinkler f. Walpole, U East. 226.
 
 CHAP, VII.] The Registry Acts. 323 
 
 the register, without his knowledge. It would ofton be Of the ctI- 
 converted into an engine of fraud; for if the owners were edbv t'h*- ''rV 
 not in good circumstances, it would be easy to introduce gi^iiy '»''''• 
 another name of a solvent man into the register, in order 
 to procure credit; and then, if that were evidence against 
 him, he would be liable to be sued ; — and how could he be 
 prepared to negative the evidence if he knew nothing of 
 the fact of such a register ? The other owners named 
 would be made parties to the action, so that he could not 
 call them to disprove the fact." 
 
 Upon the same principle, a register is not of itself evi- 
 dence of a joint ownership, in support of the defendant's 
 plea, that other persons there named are jointly liable 
 with him ; (w) nor is it evidence that the ship is British 
 built, as there described, (o) So, in an action brought by 
 the plaintiff, as agent, on a policy of insurance, the regis- 
 ter is not evidence to prove an averment, that the interest 
 in the ship is in the persons there described, (p) The Le- 
 gislature has made the registration necessary to perfect 
 a title, but this does not make it of itself proof of the 
 title. Property in a ship is to be proved now as it was 
 proved before the acts of Parliament relating to registers ; 
 as, for example, by proving actual possession in the party, 
 or in those to whom he has committed it, or in those from 
 whom he has himself derived his title. Any one of these 
 media of proof, (accompanied by the evidence of the re- 
 gistry, in order to make the other evidence admissible,) 
 will be sufficient. But the register and certificate of re- Reo-ister and 
 
 gistry are conclusive evidence of want of title against ceruiicate of 
 
 i*(^»o*istrv coil- 
 those who are not named in the register. Thus, in an elusive evi- 
 
 action on a policy of insurance on freight, where thtj in- ^^"^^ ^* ^'^^^ 
 
 . , ot title against 
 
 terest in a ship and its earnings were alleged to be in four those not 
 persons, who were partners in trade, two only of whom "^"'*^^ there- 
 
 («) Flower w. Young, 3 Campb. 475. 
 240. (p) Pirie i>. Anderson; 4 Taunt 
 
 (o) Reusse v, Meyers, S Campb. 652, 
 
 y2
 
 324 
 
 Namgation Laws. 
 
 [part 1. 
 
 Of the evi- 
 dence afFard- 
 ed by the re- 
 gistry acts. 
 
 wferfe named as o\VT)ers in the register, it was decided that 
 the action could not be maintained, although it was proved 
 as a fact, that the ship had been paid for by the four 
 partners; for, as the plaintiffs claimed the freight only 
 in right of ownership, they could not recover without 
 proving that right; and it appeared conclusively from 
 the register that all the four partners had not a legal title 
 to the ship, (q) 
 
 Mac Iver v. 
 Humble, 16 
 East. 169. 
 
 But where the party sued as a partner for the value of 
 goods furnished for the owners of a ship was neither a 
 partner in fact at the time, (having parted with his share 
 sometime bafore,) nor held himself out as such, having 
 previously withdrawn his name from the firm at ihe count- 
 ing-house, and sent circular letters to the correspondents 
 of the house, notifying the change, the Court of King's 
 Bench held, that he could not be charged, merely be- 
 cause having defectively conveyed his tvliole share in the 
 ship before that time, he had subsequently joined with the 
 assignees of the bankrupt partners in the ship in making 
 a good title to it to a purchaser from the assignees. (r) 
 In the above case, the defendant's name was on the regis- 
 ter of the ship, with his own consent, until after the 
 goods, for which the action was brought, were furnished ; 
 the court, however, considered it as a question to whom 
 iredit was given, and held that the evidence of the register 
 was not of itself sufficient to charsre him. 
 
 In this case it is observed by Mr. Justice Baylev, 
 •' That the object of the registry acts was to inform the 
 government whether the owners were British^ and to pre- 
 vent sliips belonging to foreigners from being navigated 
 under the British flag ; and the object was not to inform 
 the tradesmen to whom they should give credit. The 
 
 (q) Camden ©.Anderson, 5 T. R. 
 709. See likewise this case, anlt, 
 p.89H. 
 
 (r) Mac I\cr v. Humble, 16 East. 
 169.
 
 CHAP. VII.] The RegistrT/ Acts. 325 
 
 cases of Youiiff v. Brandpr,(^> and Frazer i'. Marsh, (0 9^ t'»e evi- 
 
 , ,1.1 1 deuce afloni- 
 
 both shew that a person may be deceived as to the true ed hy the re- 
 owner by looking- merely at the registers ; and that, there- S'^iry a<iU. 
 fore, before trust is given, it is proper for the tradesman 
 to inquire further." 
 
 There is a case, the authority of which seems doubtful, 
 that in trover for a ship, if ^he plaintilF produce the ori- 
 ginal register, and attempt, unsuccessfully, to deduce title 
 under it, he cannot afterwards rely upon his possession. 
 On the contrary, it should seem that the plaintiff's pos- 
 session of the ship would be the very best prima facie 
 evidence of title he could give, and that the ship's re- 
 gister, though necessary to perfect a title, is no evidence 
 per se of ownership, {u) There is another case, like- 
 wise, which seems questionable, in which it is stated, 
 that where a ship is purchased by a British subject from 
 a foreigner, the production of the copy pf the regis- 
 ter from the custom house, in which the vendee is 
 stated to be the owner, is evidence of property without 
 producing the bill of sale. (.2:) It should seem, from re- 
 cent decisions, tliat more evidence woidd be required ; 
 that it would be necessary to prove either the transfer in 
 fact, or some acts of ownership and possession, indicating- 
 property. It has been held, however, sufficient to prove 
 the transfer of a ship in France, (where it is usual to 
 lodge the bill of sale with an officer, and to obtain a copy 
 from a notary,) to produce such copy in evidence without 
 proof of its having been examined with the original. 
 The reason seems to be this ; that the court will give cre- 
 dit to a public instrument delivered out by the proper 
 officer in a foreign country, though there may be an ori- 
 
 (s) 8 East. 10. necessaries furnished to a sliip ; 
 
 (Jt) 13 East. 23. Tnese eases will — repairs, seamen's; wages, &c. 
 
 be cited in another Chapter, togc- (m) Sheriff w. Cadell, 2 Esp. 617. 
 
 ther with such cases as have oc- (.r) Woodward v. Larking, 3 Esp. 
 
 curred between mortgagor and 287. 
 mortgagee, as to the Uability for
 
 3^6 Navigation Laws. [part i. 
 
 Of the e^^-^^ glial, of higher authority, capable of production, (y) 
 ed by the re- An affidavit of register, made by A. and B., stating that 
 gis ry . j^ g ^^j Q ^^^ ^1^^ owners, will not be evidence to af- 
 fect C. Such evidence, as we have above shewn, was for- 
 merly deemed sufficient prima facie proof of ownership : (2) 
 but the late cases, to which we have adverted, have 
 decided otherwise. But in an action against the owners 
 ' of a ship it is sufficient prima facie evidence of ownership, 
 
 to put in an undertaking to appear for them, given before 
 the commencement of the action by the person who subse- 
 quently acted as their attorney in defending it, in which 
 he describes thera as owners ; without further proof of 
 agency, (a) 
 
 Ofthe general But in actions of this kind, where there is a difficulty in 
 nature of the • ^ ^ n ^ , • -n 1 " » 
 
 evidence in an proving the defendants to be owners, it will always be 
 
 action against pj-u^gnt to obtain from the custom-house, by a proper 
 subpoena and notice, the original affidavit upon which the 
 ship's certificate of registry has been granted. The proof 
 of the subscription of the parties to this affidavit will, of 
 course, be the strongest evidence against them, upon the 
 principle, that it is their admission upon oath that they are 
 owners. But as there are cases under the registry acts, in 
 which some of the owners are excused from making the 
 affidavit required by the 26 Geo. III. c. 60. s. 10., the fact 
 of their ownership must, of course, (as we have above 
 shewn) be proved by other evidence than that of the re- 
 gister ; such, for example, as by some act of ownership ; 
 by some adoption, or recognition of the register, or some 
 quality or adjunct of possession, as, by contracting for 
 freight, ordering repairs, or necessaries, concurring with 
 other owners in a joint appointment of the officers of 
 the ship, assuming a disposal of the ship or cargo, or hav- 
 ing the accounts rendered to them. Any, or all of these 
 
 (y) Woodward w. Larking, 3 Esp. Esp. SI; and Stokes v. Came, 2 
 S87. Camp. 69. 
 
 (a) Ditchburn v. Spracklin, 5 (a) Marshallr.Chff, 4Camp.lSJ.
 
 CHAP. VII.] The l^egistry Acts. 321 
 
 acts, constitute a presumptive evidence of ownership, which. Of the general 
 of Course, may be rebutted by a proof of the contrary, in evidence in an 
 
 which the Court and Jury will have to decide upon the action against 
 
 . ship-owners, 
 
 probability of opposite statements. It is the practice to 
 
 produce at the trial the original book of registers from the 
 custom-house ; but this is not necessary ; for as this book is 
 a public document, an examined copy of an entry therein 
 will be sufficient. With regard to the proof of entries in 
 public books, it is now clearly settled, that wherever an ori- 
 ginal is of a public nature, and admissible in evidence, an 
 examined copy will equally be admitted. It is not neces- 
 sary to cite cases to confirm this position, as it stands upon 
 two strong public reasons; the first, the security of the pub- 
 lic document, which would, of course, be endangered by 
 frequent carriages backwards and forwards ; and, secondly, 
 for the convenience of Courts and public business. 
 
 We have already shewn that if, upon the production- Sale of a ship 
 of the register, the requisites of the acts have not been or title deera- 
 
 complied with, and the omission appear to be with the ^^ defective, 
 , * * . tor the orais- 
 public officers soleli/, and not with the contracting par- sion of the re- 
 ties, it is no objection to the vesting of a title in the qu'S'tcsofthe 
 ' J ^ registry acts, 
 vendee. Several cases have decided;, that where every or mistakes 
 
 thing required to be done by the owners, in order to trans- officers*'" '*^ 
 fer their interest, is regularly performed, the neglect of 
 the Custom-house officers, whether in London or else- 
 where, will not avoid the sale, or render them liable as 
 owners to third persons, {b) 
 
 We have before seen that by the registry acts a trust 
 cannot be raised in favour of persons not named in the 
 register, (c) and that a ship purchased by one partner, 
 
 (6) Ratchford v. Meadows, 3 Ewart, 3 Merivale, 325. Thomp- 
 
 Esp. 69. Heath v. Hubbard, 4 son v. Leak, 1 Madd. 39 ; and 
 
 East. 110. Bloxham V. Hubbard, Thompson r. Smith, 1 Madd. 399 ; 
 
 5 East. 507. Underwood i'. Miller, and see aH<e, p. 277. 
 
 1 Taunt. 3S7. Hubbard v. Johu- (c) Heath v. Hubbard, 4 East, 
 
 stone, 3 Taunt. 177. Dixon v. 110.
 
 328 
 
 Navigation Laws. 
 
 [part I. 
 
 The registry 
 acts are not of 
 themselves 
 evidence of, 
 and need not 
 state, the par- 
 ticular pro- 
 portions in 
 which part 
 owners are 
 interested in 
 a ship. 
 
 Ex parte 
 Jones, 4 
 Maule & Sel- 
 wyn, 450. 
 
 Dixon V. 
 Hammond, 2 
 Barn. & Aid. 
 310. 
 
 and registered in his name only, shall enure as the sepa- 
 rate property of that partner, although the purchase and 
 outfit should be taken from the partnership funds, and the 
 earnings placed to the partnership account. ((/) There- 
 fore, whether any one be an owner or part owner must be 
 determined by the evidence of the register, and by no- 
 thing else : but these acts do not require that the nature 
 or proportion of the interest of the parties should be 
 stated therein : nor does it concern the public to know in 
 what particular union or division of interests part owners 
 stand related towards each other. The statutes provide 
 for the transfer of property in a ship from one subject to 
 another ; but they make no mention of the variation of 
 interest between part owners themselves. Therefore, in a 
 case sent by the Lord Chancellor to the Court of King's 
 Bench, where the names of two partners in trade appeared 
 (amongst others) on the certificate of registry as owners 
 of a ship, that court determined, that the registry acts did 
 not prevent the shewing how, and in what proportions, 
 the several owners were respectively entitled ; and, though 
 the partners might derive title under different convey- 
 ances, yet, if their shares were purchased with the part- 
 nership funds, and treated by them as partnership property, 
 and the partners became bankrupts, these shares were to 
 be considered as joint property, (e) So, likewise, upon the 
 rule that an agent cannot dispute the title of his principal, 
 it has been decided that where a ship originally belonged 
 to one of two partners, and had been conveyed to B. 
 for securing a debt, and B. became the sole registered 
 owner of the ship, and afterwards, as agent for both partners^ 
 insured the ship and freight, and charged them with the 
 premiums, and, on a loss happening, received the money 
 from the underwriters; the Court of King's Bench held, 
 that he was accountable to the assignees of the surviving 
 partner for the surplus, after payment of his own debt. 
 
 (d) Curtis v. Perry, 6 Vesey, 739 ; 
 and ex parte Yallop, 15 Vcsey, 60. 
 
 (f) Ex parte Jones, 4 Maule and 
 Selvvyn, 450.
 
 CHAP. VII.] The Registry Acts. 329 
 
 and not to the executors of the deceased partner, to whom 
 the ship originally belonged, {f) 
 
 Havine; shewn that the reffistry of itself (thoujih neces- ^ ".*'" * "^^ 
 
 o o ^ ^ V o registry may 
 
 ssary to complete a title,) is not evidence of property, un- be obtained. 
 less it can be confirmed by some collateral circumstance, 
 which ascertains that such registry has been made by the 
 authority or adoption of the persons sought to be charged 
 as owners, it merely remains to add, that the statutes 
 of registration have not omitted to provide for acci- 
 dents and incidents, to which the certificate of registry 
 is peculiarly exposed. Ofiicers, therefore, are permitted 
 to make a registry de novo, under the five following cir- 
 cumstances : — 1. Where the old certificate has been lost 
 or mislaid, (g-) 2. Where the certificate is wilfully de- 
 tained by the master. (^) 3. Where, after a transfer of 
 part of the property in the same port, the owners of the part 
 not transferred desire a new registry. (<) 4. Where the ship 
 is altered in form or burthen. (A) 5. Upon any transfer 
 of property to another port. (/) It may be necessary here 
 to add, that in order to take away all possible evasion, it 
 is expressly prohibited to change the name of a ship, (m) 
 
 We shall conclude this chapter by repeating what, in What vpssels, 
 substance at least, we have before stated, that these acts be rc^istcrfu! 
 apply to merchant ships only ; that is, to vessels tra- 
 versing the sea, or trafficking upon the sea-coast. Vessels 
 of war, and vessels of whatever built or character, be- 
 longing to His Majesty and the Royal Family, are not re- 
 quired to be registered. And lighters, barges, boats, and 
 vessels of ani/ built or description whatever, used solely in 
 inland navigation, or in rivers, are not within the compass 
 of these acts. («) 
 
 (/) 2 Barn, and Aid. 310. (/) 7 & 8 Will. III. c.22. sect. 21, 
 
 (g) 26 Geo. III. c. 60. sect. 22. (m) 26 Geo. III. c. 60. sect. 19. 
 
 (h) 28 Geo. III. c. 34. sect. U. 34 Geo. III. c. 68. sect. 22. 
 
 & 34 Geo. III. c. 6S. sect. 19. (n) 26 Geo. III. c. 60. sect. 6.— 
 
 (0 34 Geo. III. c. 68. sect. 21. See likewise Laroche v. Wakeman, 
 
 (fc) 26 Geo. III. c. 60. sect. 24. Peake's N.P. p. 140.
 
 330 
 
 CHAPTER Vlil. 
 
 OF SEIZURES AND FORFEITURES FOR THE BREACH OF 
 THE NAVIGATION LAWS, REGISTRY ACTS, &C. &C. 
 
 -fl. HE severe penalties which have been enacted from 
 time to time against persons guilty of violations of the 
 navigation and registry acts have already been brought 
 before the notice of the reader in the detail of the several 
 statutes themselves. It will be seen that the forfeiture of 
 the vessel, and sometimes of the cargo, is the ordinary 
 penalty for a breach of these laws. Unquestionably these 
 penalties are severe ; and if they were exacted with a 
 rigorous justice, which did not relax according to the par- 
 ticular circumstances of the alleged case of forfeiture and 
 seizure, they would deserve the character of harshness. 
 Discretionary The legislature, however, notwithstanding its jealousy 
 ^'th^^L*^^r and suspicion lest these salutary laws, framed for so many 
 offheTrea- important interests, should be evaded or violated, has in- 
 Board'of Cus- Produced an equity and discretion, established by several 
 toms in the acts of parliament, to controul their application ; thereby 
 ilic re"-istry accommodating them to those accidents, and sojnetimes to 
 arts, relating those mixed cases where an innocent intention is not alto- 
 
 \<> siiipnin'T, i . i i • • 
 
 trade, and gether apparent, winch are constantly occurring in a 
 roiuMierce. course of exteusivc trade and commerce. In furtherance 
 of this principle, and with a view to relieve merchants 
 and ship-owners, the Lords of the Treasury and the 
 Commissioners of Customs are empowered by an act of 
 parliament, to which we shall presently advert, to restore 
 sliips and goods seized for a violation of these laws ; such 
 power to be limited to those cases where there is no proof 
 of fraudulent intention.
 
 CHAP. VIII.] Seizures and Forfeitures, Sjc. '^31 
 
 One of the most able decisions in this class of cases of J^\hcart?' 
 equitable constructions is that by Sir William Scott, i Rob. 220. 
 in the case of the Betty, Cathcart. It was the case of a 
 British vessel, sailing without a register from circum- 
 stances of necessity. That learned Judge decreed her 
 not to be forfeited under the navigation acts. " The re- 
 venue and navigation laws," he says, " are certainly to be 
 construed and applied with great exactness : they are 
 framed for the security of great national interests ; and 
 the effect of such law s, founded on great purposes of pub- 
 lic policy, must not be weakened by a minute tenderness 
 to particular hardships. At the same time, it is not to be 
 said that they are not subject to all considerations of ra- 
 tional equity ; cases of unavoidable accident, invincible 
 necessity, or the like, where the party could not act other- 
 wise than he did, or has acted at least, for the best, must 
 be considered in this system of laws, just as in other 
 systems ; — laws that would not admit an equitable con- 
 struction to be applied to the unavoidable misfortunes or 
 necessities of men, or to the exercise of a fair discretion 
 under difficulties, could not be laws framed for human 
 societies. The Court, therefore, will not deem it a de- 
 parture from the duty of legal interpretation in such 
 cases, to give a fair attention to considerations of this 
 nature. The present case, (adverting to the case before 
 him) is, in its general appearance, of a favourable as- 
 pect ; it has no symptom of fraud ; there is no attempt 
 to impose ; this alone, it is true, would not be sufficient ; 
 for it certainly may happen, that a bono fide case may 
 incur the penalty of the law, and may become the vic- 
 tim of a general policy, anxious to prevent the possi- 
 bilities of fraud, and therefore active in prohibiting 
 modes of dealing w hich are grossly liable to abuses of 
 that kind, though the particular transaction may no* be 
 directly impeachable." (c) The ship was directed to be 
 restored. 
 
 (a) 1 Rob. 240,
 
 332 
 
 Navis^aiion Laws, 
 
 [part h 
 
 27 Geo. 
 
 c. 32. 
 
 III. 
 
 51 Geo. III. 
 c. 96. 
 
 Powers of 
 
 commission- 
 ers of customs 
 to re. core 
 seizures, &c. 
 
 One of the leading" acts, with respect to the vesting of a 
 discretionary power in the commissioners of the customs 
 to restore vessels and goods seized and forfeited for a vio- 
 lation of the revenue laws, was the 27 Geo. III. c. 32. 
 This most equitable and beneficial law, originally confined 
 in its application to revenue seizures, is extended by a 
 subsequent statute, (6) which authorizes the commissioners 
 of customs in England and Scotland, according to their 
 respective jurisdictions, to order any goods whatever, or 
 any vessels, boats, &c. that shall be seized as forfeited, 
 either by any officer of customs, or by any other person 
 whatsoever, b?/ virtue of any act of Parliament made for 
 the protection of trade^ the benefit of commerce, or the en- 
 courogement and ina easing of shipping and navigation, or 
 in pursuance of any other act of Parliament in any respect 
 relating to the department of customs, to be restored to 
 the proprietor, whether such goods, &c. shall have been 
 seized as forfeited in Great Britain, or on the high seas, 
 or in any other of His Majesty's dominions, settlements, 
 or plantations. This discretion, however, is not to be 
 exercised except evidence shall be given to the satisfaction 
 of the commissioners, according to their respective juris- 
 dictions, that the forfeiture arose without any design of 
 fraud in the proprietor of such goods. And in case the 
 seizure shall have been made by any officer, in any of His 
 Majesty's settlements or plantations, or on the high seas, 
 it must be made to appear to the satisfaction of the 
 commissioners of customs in England, that the seizure 
 was occasioned by the proprietor of such goods having 
 acted in conformity with the orders or directions which the 
 governor or chief officer of any settlement or plantation 
 may have deemed it expedient, on any particular emer- 
 gency, to issue. 
 
 Terms on 
 whiclircslora- 
 tionis 1o be 
 m:ide, 51 Geo. 
 III. c. 96, 
 
 But in any case wherein the commissioners shall exer- 
 cise the powers vested in them, such goods, &c. shall be 
 
 (ft) 51 Geo. III. c. 96. s. 1. 
 1
 
 CHAP. VIII.] Seizures and Forfeitures, S^c 333 
 
 restored to the proprietor, in sucli manner, and on such 
 terms and conditions, as, under the circumstances of the 
 cas?, shall appear to the commissioners to be reasonable, 
 and as they shall think fit to direct ; and, if the proprietor 
 shall comply with the terms and conditions prescribed by <;omp7yinJ 
 them, it shall not be lawful for the officer of customs, or 
 any other person who shall have seized such goods, &c. or ^^ ^^^' ^^^- *^" 
 any other person whatever on his behalf, to proceed in any 
 manner for their condemnation; but, if sucli proprietor Proprietor not 
 shall not comply with the terms and conditions, such officer ^^"^^ ^'""* 
 or person is to be at liberty to proceed for the condemna- 
 tion of such goods, &c. ; provided always, that if such 
 proprietor shall accept the terms and conditions prescribed 
 by the commissioners of customs, such proprietor shall not 
 have, or be entitled to any recompence or damage on ac- 
 count of the seizure or detention of such goods, &c., or 
 maintain any action whatever for the same. 
 
 This act was followed by other statutes, framed upon ^* ^^o. III. 
 views of the same equity and liberal policy. Thus, the How comniis- 
 54 Geo. III. c. 171. makes it lawful for the commissioners '"''"''" "^' ^'^ 
 
 treasury may 
 of the treasury, by any order made for that purpose, under restore seiz- 
 
 their hands, to direct any ships or goods whatever, seized "'^^'^' 
 as forfeited, by virtue of any act relating to the revenue of 
 customs or excise, or ani/ act for the regulation of the trade 
 and navigation of this kingdom, to be restored to the pro- 
 prietor on the terms which shall be mentioned in any such 
 order. The commissioners are likewise empowered to 
 mitigate or remit any penalty or forfeiture which shall 
 have been incurred under any law relating to His Ma- 
 jesty's revenue of customs or excise, or any act relating to 
 the trade ^nd i.avlo^aticn of this kingdom. 
 
 'b' 
 
 The act, however, with proper precaution, provides Terms to be 
 
 that, in any case wherein the commissioners shall exercise <^*''^P''*^'^ 
 
 , . , with, sect. 2. 
 
 the powers '^ ested in them, such goods shall be restored to 
 
 the proprietors, or sdch fines, penalties, or forfeitures, re- 
 mitted or mitigated, in such manner, and upon such terms
 
 334 Navigation Laws. [part i. 
 
 as to costs or otherwise, as, under the circumstances of the 
 individual case, shall appear to the commissioners to be 
 reasonable, and as they shall think fit to direct. And no 
 person is to be entitled to the benefit of any such order, 
 unless the terms therein contained shall be complied with. 
 
 56 Geo. III. In order, however, that lenity might not relax vie^ilance, 
 
 Reward to in- nor too much discourage that inspection and supervision 
 formers. Jn subordinate officers and agents, by which the interests 
 
 of the revenue can alone be maintained, and encroach- 
 ments and frauds repelled and punished, the same act 
 makes it lawful for the lords commissioners of the treasury, 
 or for the commissioners of customs or excise, under their 
 direction, to order so much of the reward, part, or share 
 of any seizure, or of the value thereof, as is by this act 
 given or granted to the officers making any such seizure as 
 they may deem proper, to be paid to the persons by whose 
 information, or through whose means and assistance such 
 seizure may be so made ; and that every such reward, or 
 share of any such seizure, or of the value thereof, as shall, 
 under this or any other act be payable to any officers, non- 
 commissioned officers, petty officers, seamen or privates of 
 His Majesty's army, navy, or marines, or acting under 
 the orders of the commissioners of the admiralty of Great 
 Britain and Ireland, shall be divided and distributed in 
 such proportions, and according to such regulations and 
 orders as His Majesty shall, by his order or orders in 
 council, or by his royal proclamation in that behalf, be 
 pleased to direct or appoint, (c) 
 
 (c) By order of the Board of them by the owner, or any per- 
 
 Customs, dated Nov. 29, 1817, in son duly authorized by him. And 
 
 cases of seizure of goods or ves- by order of the Board of Cus- 
 
 sels, when the proprietors are de- toms, dated June 23rd, 1818, in- 
 
 jiirous of beiiig acquainted with formers arc not to have more than 
 
 the cause of such seizure, the col- the reward of one third part of the 
 
 lector and controller, and tlie seiz- seizirif; officer's share, without pre- 
 
 ing officers, are not to wilhl)old vious communication with, and 
 
 any proper information, on ap- special direclioos from the board, 
 plication being made to either of
 
 CHAP. VIII.] Sekures and Forfeitures, ^c. S33 
 
 The fourteenth section of this act contains a clause Ky whom ac- 
 
 , . , . . . . „ . , tioiis to be 
 
 which IS meant to restrain vexatious inionnations and jirou<'^ht, sect. 
 suits for forfeiture. It enacts, that it shall not be lawful l^- 
 for any person whatsoever to commence, prosecute, enter, 
 or tile, or cause to be commenced, &c. any action, bill, 
 plaint or information against any person for the recovery 
 of any tine, penalty, or forfeiture, incurred under any act 
 now in force, or which shall hereafter be made, relating- 
 to His Majesty's revenue of customs or excise, or to issue, 
 or cause to be issued, any writ of appraisement for the 
 condemnation of any boat or other vessel, or any goods 
 seized as forfeited, by virtue of any such act, unless the 
 same be commenced, &c. by order of the commissioners of 
 customs or excise, or by or in the name of His Majesty's 
 Attorney General ; and if any action, &c. is commenced, 
 &c. by or in the name of any person whatsoever, except 
 upon such order, or by or in the name of His Majesty's 
 Attorney General, the same, and all proceedings there- 
 upon had, shall be null and void; and the Court, or justices 
 of the peace, where, or before whom, such action, &:c. 
 shall be so commenced, &c., shall not permit any proceed- 
 ing to be had thereupon, {d) 
 
 (d) A rule had been obtained owners. Cause was shewn on be- 
 calling on the collector of customs half of the seizing officer, and con- 
 for the port of Falmouth to shew tra — Thomson, Chief Baron, deli- 
 cause why the writ of appraisement vered the judgment of the Court, 
 of certain vessels and their cargoes, "This application," he said, "is 
 sued out of this Court by the seiz- made to the Court on the part of 
 ing officer, should not be quashed, the commissioners of customs, on 
 and all further proceedings thereon the ground of their order, made 
 stayed. The application was made in pursuance of the powers vested 
 on the part of the commissioners inthemby 51 Geo.III. c, 96., which 
 of customs, in aid of an order is founded on the twenty-seventh 
 made by them, under the authority of the same reign, c. 32. The 
 of 51 Geo. III. c. 96., for restora- twenty-seventh confines that power 
 tion of the subject of seizure, to ships seized for breach of the 
 founded on their certificate that revenue laws. The fifty-first ex- 
 the forfeiture had been incurred tends it to all seizures made for 
 without fraud on the part of the any cause of forfeiture whatever
 
 336 
 
 Navigation Laws. 
 
 [part I. 
 
 In pursuance of this power, so 
 vested in thera, the commissioners 
 have made an order, stating that 
 they are satisfied that no fraud was 
 intended on the part of the masters 
 or proprietors of the vessels seized, 
 and that they have therefore or- 
 dered a restoration of the goods. 
 For the seizing officer it is con- 
 tended, that the commissioners 
 have no power under the act to 
 make such an order, without di- 
 recting compensation to be made 
 to him, and imposing terms on the 
 proprietors for his indemnity and 
 protection. But it appears to the 
 Court, that though, if any terms 
 had been imposed, they must have 
 
 been complied with, yet that it is 
 not necessarily incumbent on the 
 commissioners to ingraft terms on 
 their order for restoration. It is 
 as a preliminary step to the en- 
 forcing of that order, that the pre- 
 sent application is made on the 
 part of the Crown, Perhaps we 
 should go too far, to order the 
 writ of appraisement to be quashed, 
 and therefore our order will be, 
 that all further proceedings on the 
 writ of appraisement and indenture 
 of seizure be stayed. Rule abso- 
 lute. In the matter of the ship 
 Jil aria, and other vessels. 1 Price's 
 Exch. Rep. p. 4.
 
 LAW OF NAVIGATION, 
 
 AND 
 
 MARITIME CONTRACTS. 
 
 PART II. 
 
 OF MERCHANT SHIPPING AND SEAMEN. 
 
 CHAPTER I. 
 
 OF OWNERS AND PART OWNERS. 
 
 XN the former part of this treatise we have been occu- 
 pied in developing and explaining the general navigation 
 system of the country. We have sheAvn the origin and policy 
 of this system, as well with respect to our whole trade, as 
 through all its subdivisions and details. We have^ we 
 trust, made it manifest, that the same reasons and the 
 •same principles, varying only according to circumstances, 
 which occasionally throw them, in practice, into diflPerent 
 shapes, are pursued by our navigation laws, both in our 
 home, colonial, foreign, and European trade. 
 
 It must be obvious to every one, that it is a matter of 
 indispensable necessity to the English merchant to be in-
 
 33S Merchant Shipping, ^c. [part it. 
 
 stiucted in a systen^ in which the law comprehends his in- 
 terests and duties. Under these circumstances, we have 
 deemed it necessary to enter with some minuteness into 
 the details of the several provisions of the acts of parlia- 
 ment respecting our colonies; and for the sake of better 
 explaining them, to give the reason and principle upon 
 which they proceed. In our chapter on this trade we have 
 been the more particular in this explanation, on account 
 of the importance of the subject, and the complexity of 
 some of the regulations. We have been equally full 
 upon the subject of the trade with Asia, Africa, and Ame- 
 rica, which involves the charters of some of our great 
 public companies, and more especially, of the East India 
 Company. The slave trade acts, being all of very recent 
 origin, and untouched in any treatise on commercial law, 
 have necessarily occupied an equal portion of our at- 
 tention, together with the new regulations of the Ameri- 
 can navigation laws. In the chapter on the European 
 trade, we have been necessarily led into a review of 
 the late treaties of commerce : but have dispatched them 
 with as much brevity as was consistent with clearness and 
 utility ; insisting upon nothing but what is necessary to 
 the practical merchant, and what may operate in cases 
 brought before our own courts of law. A cursory review 
 of the late extensive system of /licences was likewise 
 necessary, being, as it were, the law merchant of war, 
 and having been administered and explained in the most 
 complicate and diflicult cases by a Judge so enlightened 
 as Sir William Scott. As respects the fisheries, we have 
 likewise been obliged to examine the several acts which 
 regulate them in much detail. This trade, indeed, within 
 the last few years, has been nearly wliolly recast, and 
 • here is sti4l a prevalent disposition to get rid entirely of 
 the system of bounties. It is, therefore, of the first 
 consequence to merchants, not only to understand the pre- 
 sent regulations, but to be enabled to maintain and defend 
 their own interests, by urging the reasons of the ancient 
 fiolicy. In the chapter on the registry acts, the most
 
 CHAP. I.] Owners and Part Owners. 339 
 
 important branch of our navigation law, and in which 
 it is to be lamented, that much complexity still exists, 
 (rendering transfers diflicult, and property in ships, in 
 some cases, uncertain,) we have deemed it our duty to 
 examine all the decisions in full, and to deduce such 
 principles from them as may be safely applied, in practice, 
 to analogous cases. We now proceed to the second part 
 of our subject, the law of merchant ships, and seamen ; 
 and we shall commence with explaining the rights and 
 duties of owners and part owners. 
 
 The property of ships is acquired, as Uiat of other Of property in 
 chattels, either by being the fabricator of the thing, or by jiowVctmired 
 purchasing it of another; and ships, being personal chat- 
 tels, devolve as assets to the representatives of the owners, 
 his executors, or administrators. There is, however, this 
 main difference in ships as distinguishable from other per- 
 sonal chattels, namely, that not being subjects of market 
 overt, and being moreover property of great value, and 
 always moving from place to place, the law will not vest 
 the property in the buyer, unless it shall appear that the 
 seller had authority to sell. Hence property in ships, like 
 real property, has in almost all times, and more parti- 
 cularly at present, been transferred by written docu- 
 ments, in which the seller exhibits his power to sell, and 
 by which the buyer may ascertain the safety of his pur- 
 chase. Previous to the 34 Geo. III. c. 68., it was matter 
 of doubt whether a ship might not be transferred from Transfer of 
 
 hand to hand, like other property, notwithstandino- the *^"P* ^^ be m 
 
 .. . * writiii<^. 
 
 previous act of the 26th of the King. But this act re- ° 
 
 quires all transfers of ships to be by bill of sale or other 
 instrument in writing (a) This provision is partly on ac- 
 count of the great value of this species of property, and 
 the frequent occasions on which it is absent at very remote 
 places from the supervision of the owner ; and, in part, as 
 an additional security to the objects of the registry acts, 
 
 (a) Sect. 14. and see ante, p. 249. 
 z2
 
 310 Merchant Shipping, §-c. [part ii. 
 
 These written documents thus constitute a kind of title, 
 by means of which the transfer of vessels is greatly facili- 
 tated, and in most cases are the only means by which such 
 transfer can be made. When any ship is to be sold, she is, 
 of course, either absent upon the seas, or in her home 
 port. If absent upon the seas, there are necessarily no 
 means of transfer but by assignment of the grand bill of 
 sale; and such bill of sale, together with the delivery of 
 any other documents which may relate to the ship, is a 
 perfect transfer of the property at common law (6) It is 
 true, indeed, that upon the return of the vessel to her 
 home port, the buyer should confirm his purchase by ac- 
 tual possession ; but this seems to follow more of course, 
 and as matter of prudential caution against claims under 
 reputed ownership in bankruptcy, than to be essential in 
 point of law. 
 
 Possession It is the same with respect to the purchase of a vessel 
 
 prude^ntiaf ^^ ^^^ home port. It is always usual, and, indeed, matter 
 
 precaution, of prudence, for the purchaser to take actual possession of 
 though not ,1 1 . , • n • 1 
 
 actually re- ^"6 ship : but it seems necessary as an act or caution rather 
 
 quired by law. than as a requisite of law. For the title to personal chat- 
 tels by the common law vests in the owner all possessory 
 rights, and he is entitled to maintain actions of trespass 
 or trover without a manual possession of the chattel itself. 
 If a part only of a vessel be sold, it is manifestly impos- 
 sible that such actual delivery should be made ; and, in 
 any case, where such possession is necessary, the posses- 
 sion of the other part owners will enure to the benefit 
 of a purchaser of a part. The necessity of completing 
 the title to a vessel purchased at sea, by taking actual 
 possession of her upon lier arrival, is strongly enforced by 
 
 Mair t>. Glen- *hc c^se of Mair t). Glennie. The plaintiffs were assignees 
 
 nie, iMaule of T. Mair, a bankrupt; the defendants were assignees 
 
 And Sclwvn 
 
 240. ' of Sharp and Co. T. Mair, the bankrupt, had transferred 
 
 (b) For the forms which the of complying with them, see ante, 
 registry acts require, and the mode p. 248. and Chap. vii. patsim.
 
 CHAP. I.] Owners and Part Owners, 341 
 
 a ship and cargo, at sea, to Sharp and Co., the other bank- 
 rupts, as a security for money borrowed ; but, upon the 
 arrival of the vessel in her home port, Sharp and Co. 
 neglected to take possession, or to do any act to notify the 
 transfer of the property to them. Upon these circum- 
 stances the Court of King's Bench determined that the 
 property should pass to the assignees of Mair, as being in 
 the possession, order, and disposition of Mair, at the time 
 when he became a bankrupt. It was likewise a collateral 
 determination in this case, that an agreement between 
 Mair and the captain, that the captain should have one- 
 fifth share of the profit or loss on the voyage of the ship 
 and cargo, did not prevent Sharp and Co. from taking 
 possession, it not being such a part ownership as to amount 
 to a constructive possession for himself and others. 
 
 The case of Robinson v. Macdonell shews likewise the Robinson v. 
 danger of deferring the actual possession of a vessel pur- ^^^^ ""^g' 
 chased whilst at sea by bill of sale. This case principally 
 proceeded upon the authority of Mair v. Glennie. It was 
 an action of trover for a ship : B. being the registered 
 owner, executed a bill of sale of the ship to S., as a secu- 
 rity for advances, which had been made by S. to B. At 
 the time of the execution of the bill of sale the ship was 
 at sea ; she returned the latter end of the year 1811. S. 
 did not take possession ; but, in May, 1812, the ship was 
 registered in the name of S. Notwithstanding this altera- 
 tion, the ship continued under the controul of B., who 
 ordered her out for the whale fishery, appointed the cap- 
 tain, and exercised all the ordinary acts of ownership. 
 S. became a bankrupt ; the ship returned ; and shortly af- 
 ter B. became a bankrupt. The question was, whether B. 
 was the ostensible owner, under the statute 21 Jac. 1. 
 c. 19. so as to give his assignees a claim to the ship. The 
 court were of opinion that B. iras the ostensible owner ; 
 and Lord Ellenborough, in delivering the judgment of 
 the court, said, " The register acts w ere passed for pur- 
 poses of public policy, and the means adopted for effect-
 
 342 Merchant Shipping, SfC. [part ii. 
 
 ing that object are such, tliat every person claiming title 
 through the medium of a conveyance, as the act of parties, 
 must shew a conveyance of the form and character pre- 
 scribed by those statutes. Tlie plaintiffs did shew an ori- 
 ginal title in the bankrupt, whom they represented, 
 grounded upon such conveyances. Has that title been di- 
 vesteJ, as against them (they being the representatives 
 also of the general body of creditors,) by any other con- 
 veyance ? it is admitted that deeds alone, in the case of an 
 unregistered siiip, would not have that effect, and we 
 think the registration and new certificate cannot pro- 
 duce it. These statutes do not affect titles passing by 
 operation of law, as to executors or administrators in 
 case of death ; or to assignees generally in case of 
 bankruptcy. In these cases a title may be transmitted 
 without any of the forms required by the statutes ; 
 and if a title may be transmitted without these forms in 
 cases of bankruptcy generally, we see no reason why it 
 may not be so done in a particular case, falling within the 
 scope and operation of the statute of James, though these 
 forms have been complied with in a conveyance to others, 
 i. e. the Sharps ; such conveyance being fraught with all 
 the mischief that statute was meant to prevent. The re- 
 gister acts make certain forms necessary to the validity of 
 transfers and conveyances, which antecedently would have 
 been good and valid without them : but it was never in- 
 tended by the legislature that a compliance with these 
 forms should give validity to a transfer and conveyance 
 which antecedently would have been bad and invalid, and 
 we think such an effect ought not to be attributed to 
 them."(c) 
 
 Hay f. Fair- A point nearly similar was again brought before tke 
 
 andAld vyj t'oml in Hoy and others, assignees of Matthews, against 
 
 Fa!rburn.(r/) Matthews, thr bankrupt, the registered 
 
 owner of the ship Dolphin, a^^^signed her, then being at 
 
 (r) 2 Barn, and Aid. p. 1!)6, (</) 2 Barn, and Aid. p. 193. 
 
 where this judjjincnt is cited.
 
 CHAP. I.] Owners and Pari Owners. SiS 
 
 sea, as a security for his debt to the defendant Fairburn. 
 The deed contained a covenant by Fairburn to reassign 
 upon payment of the debt, and the more iinportant con- 
 dition, that, until the sale of the ship, Matihezos was to be 
 permitted to have, hold, and enjo?/ t//e same, and to receive 
 the ship's earnings for his own benelit. Ail the requisites 
 of the registry acts were complied with so as to vest the 
 legal interest in Fairburn. At the time of the execution 
 of the assignment Matthews had possession of the vessel, 
 and continued in possession, and in the apparent exercise 
 of ownership, until his bankruptcy. The defendant never 
 interfered in any way Avith the conduct or management 
 until the 1st of June, 1816, when he took possession, dis- 
 placed the master, and appointed one under himself. The 
 commission against Matthews issued on the lith of May, 
 1816, under which he was duly declared a bankrupt. 
 Fairburn's demand upon the ship had been reduced by 
 payments to about 595/. ; he sold the ship, and the pro- 
 ceeds remained in his hands. The question for the opinion 
 of the Court of King's Bench was, whether the bankrupt 
 was not to be considered the ostensible owner under the 
 21 Jac. 1. c. 19. The court gave judgment for the plain- 
 tiffs, on the authority of the case of Robinson v. Macdon- 
 nell ; but, on account of its importance, they permitted it 
 to be turned into a special verdict. 
 
 These two cases illustrate, very strongly, tlio expe- 
 diency, not to say the prudential necessity, of confirming a 
 purchase of ships by an actual possession as soon as pos- 
 sible ; not, as we have above said, that such possession is 
 necessary to complete a title in law, but as a caution to 
 remove such contracts from the operation of the bankrupt 
 acts, and from the presumptions of courts upon cases 
 where an execution may issue against an apparent owner. 
 
 With respect, therefore, to the alienation of a ship, it How the 
 may be summarily observed, that there may be tVvo con- ^hole or part 
 ditions of the ship, and two of the seller. The ship may should com-
 
 344 
 
 Merchant Shippirig, S^c. [part ii. 
 
 plete his pur= 
 chase by an 
 actual pos- 
 session. 
 
 be absent, or in her port; the seller may be owner in 
 whole or part. If the ship be absent, whether the seller 
 be a whole or part owner, the transfer can only be by bill 
 of sale or instrument in writing, and a compliance with 
 the other forms of the registry acts, (e) but to be followed 
 up (if the purchase be of the whole ship,) as previously ob- 
 served, by actual possession on the ship's arrival in her 
 port. If the purchase be of part only, the vendee, in or- 
 der to prevent the operation of the statute of 1 Jac. 1. 
 ought to exercise some act of part ownership, or, at least, 
 to make some public declaration to the joint owners, 
 captain, crew, or others concerned in the vessel. This is 
 material, and should not be overlooked by purchasers in 
 the circumstance of part ownership. But if the vessel be 
 in her port at the time of the sale, the contract should be 
 followed by an immediate actual possession in one of the 
 ways above-mentioned; namely, if of the whole vessel, by 
 the purchaser's going on board and taking possession, or 
 employing an agent for that purpose ; if of part of the 
 vessel, by some act or declaration of part ownership as 
 above-mentioned. It seems necessary to add, that from 
 the large and equitable interpretation given to the bank- 
 rupt laws, no other mode of contract for shipping can be 
 regarded as entirely safe. 
 
 Of property 
 in ships taken 
 as prize. 
 
 The two most usual ways of acquiring property in ships 
 are, by building the vessel, or purchasing it from another. 
 A third mode is by capture from an enemy in time of 
 war, the captor having a legal title to make the prize, and 
 the vessel being afterwards condemned in a suitable court. 
 Such capture must necessarily be made by a King's ship, a 
 private vessel having letters of marque, or a merchant 
 vessel fighting i;i its own defence. But in almost all these 
 cases, the cupture, in practice, almost immediately resolves 
 itself into a sale; the prize being taken into a suitable 
 port, upon condemnation sold, and the proceeds divided 
 
 [ (e) See ante p. 248, and Chap, on the registry acts, passim.
 
 CHAP. I.] Owners and Part Owners. 345 
 
 amongst the captors. This immediate sale is so much 
 indeed the natural course, that the acts of parliament, 
 by which prizes are permitted to be registered as British 
 ships, always presume their sale. The purchasers of cap- 
 tured vessels, therefore, may apply for their register in the 
 same manner as if such vessels were British built ; except 
 that, in order to prevent frauds, they must produce to 
 the proper officer of the customs a certificate of condemn- 
 ation under the hand and seal of the judge of (he court 
 in which the ship has been condemned, together with an 
 oath of the vessel's identity, (f) 
 
 As pirates are robbers, and as a sale by them is, of Of property in 
 course, only a sale by robbers, a third party, though a jlnpsacquired 
 bond fide purchaser, cannot claim against an owner upon from pirates, 
 the allegation of a capture by such pirates, and a sale to 
 himself. Such a taking is not a capture, but a robbery, and 
 does not divest the property of the owner. But an eminent 
 distinction must be taken here with respect to captures made 
 by Algerines, Tunisians, and other of the Barbary States. 
 Such states, at least before the last treaty, were consi- 
 dered to be in perpetual hostility with Christian com- 
 munities, and captures made by them were deemed to be 
 captures by an enemy. No case has arisen since the 
 treaty made after the late expedition by Lord Exmoutli2 
 As respects the Algerines and their dependencies, the only 
 African power comprehended in the treaty, a doubt might 
 reasonably arise in a court whether captures made sub- 
 sequent to this treaty were to be deemed as acts of piracy, 
 or as captures made by an enemy. But this question can 
 only arise with respect to the vessels of Algiers and Tunis, 
 But before this treaty, all captures by these powers were 
 deemed sufficient to give a title to a third party being a 
 hondjide purchaser. In the Helena, Heslop, (g) it wan 
 decided by Sir William Scott, that the capture and sale of 
 an English ship, by a vessel belonging to the Dey of 
 
 (/) See ante, p. 255. (g-) 4 Rob. 3. '
 
 346 Merchant Shipping, ^c. [part ii. 
 
 Alg^iers, was not such a piratical seizure as to affect the 
 the conversion. 
 
 Of properly But in all cases of lej^al capture a sentence of con- 
 
 in ships sold , ,• • , , • i « , 
 
 under a sen- clemnation IS necessary to complete the title of the pur- 
 
 tence of con- chaser; and he should accordinelv not neelect to demand 
 
 deranation in . * . ° ^ 
 
 the Admiralty it as one of the muniments of the ship. In the Flad 
 
 Courts, Oyen,(A) the Kierlighett,(0 and the Prosperous, (^) the 
 
 vessels, after capture, were restored by the Court of Ad- 
 miralty to their original owners upon two principles : 
 1. That such sentence of condemnation was necessary to 
 complete a legal alienation of the ship ; and, 2. That in 
 the case of those vessels, such sentence had been pro- 
 nounced by an insufficient jurisdiction ; namely, by a con- 
 sul or minister of a belligerent power in the country of a 
 neutral state. Indeed, the courts of this country are so 
 careful not to infringe upon the rights of neutral nations, 
 that in the Herstelder(/) a decree, which had been passed 
 upon a vessel, described as lying at Plymouth, was re- 
 scinded, on its appearing that she was in fact in a port of 
 Norway at the time of adjudication : the court refusing to 
 condemn a vessel lying in a neutral port. 
 
 Under these decisions, two important points seem fully 
 established with respect to the property in ships acquired 
 by capture, and purchases under them. The first, that con- 
 demnation is always necessary ; and, secondly, that such 
 condemnation must be by a sufficient court. In the case 
 The Flad of the Flad Oyen, (m) above cited. Sir William Scott gave 
 a decision so strongly illustrative of this mode of Admi- 
 ralty law, and of the reasons upon which it rests, that, 
 with some condensation, we shall here cite if. He ob- 
 served, that it has been deemed peculiar to the law of 
 England to require a sentence of coudcnjnation, as neces- 
 sary to transfer the property of prize, whilst with other 
 
 (70 1 Rob. 135. (0 1 Ho''- H9- 
 
 (i) 3 Rob. 96. ' (jn) See supra. 
 
 (Ar) Abbott. 15,
 
 t HAP. I.] doners and Part Oimers. -^^T 
 
 nations, the simple act of koepine- possession of such prize Of property 
 ' * , • ^ J- 111 ships sold 
 
 for twenty-four hours, and bringing her infra prcBSidia^ u„j(.r a sen- 
 was a sufficient conversion. But this notion is not cor- ^^'''"' ""l-^^^'^r 
 
 tlemiiation in 
 
 rect, the more general practice amongst European na- thcAJrairalty 
 tions being, to require a sentence of condemnation ; °"'" ** 
 and in the cases of sale by the captors to deliver over 
 such sentence of condeauiation as one of the titles of 
 the ship. And this is the law of England: but it is 
 not sufiicient that there should be a sentence of con- 
 demnation ; it must likewise be by a sufficient juris- 
 diction. It is entirely contrary to the usage and 
 practice of nations, that such sentence should proceed 
 from a tribunal not existing in the belligerent country. 
 A court of such jurisdiction can only exist within some 
 part of the belligerent country itself. 
 
 In the Christopher Slyboom(w) it was decided by the TheSlyboora. 
 same Judge, that a sentence of condemnation, passed in 
 the country of the enemy upon a British prize ship, lying- 
 in the port of an ally of the enemy, was valid. This is 
 manifest ; such ally being, of course, a member of the bel- 
 ligerent power. And where vessels have been legally con- 
 demned, that is to say, condemned by a sufficient tribunal, 
 and transferred to neutral purchasers, the legality of 
 such conveyance, whether as respects vessels formerly 
 enemy's property, or of our own country, cannot be dis- 
 puted here. In the Nostra Signora de los Angelos, (o) the The Nostra 
 circumstances were of great nicety, the point of a previous *'»"'*'^''- 
 insufficient condenniation being implicated in the question 
 of a second seizure by the King. This vessel had been 
 taken by a French privateer, carried into a Spanish port, 
 and sold to a Spaniard, prior to the war between England 
 and Spain. Being seized in the port of London on the 
 breaking out of Spanish hostilities, and proceedings com- 
 menced in the Instance court on the part of the former 
 owner against the ship, as not having been legally con- 
 verted by a condemnation to the French captor, she was 
 
 («) 2 Rob. 209. (o) 3 Rob. 287.
 
 Maria. 
 
 348 Merchant Shipping, 5fc. [part ii. 
 
 Of property decreed to be restored to the former owner ; the Crown, 
 under a sen- standing in the place of the Spanish purchaser, not being 
 tenceofcon- g|j]g ^^ shew that anv legal sentence of condemnation and 
 deranation in i ^ i i * i • i /-i 
 
 the Admiralty sale had taken place. But, though the Admiralty Courts 
 
 Courts. have always maintained the principle that a ship, lying in 
 
 a neutral port, shall not be condemned by any agent or 
 jurisdiction whatever acting in such neutral port or coun- 
 try, and have generally extended the rule so far as not 
 
 Henrickand even to admit the condemnation of a prize in a neutral 
 port by the nearest tribunal in a belligerent country, it 
 was nevertheless decided by Sir William Scott, in the 
 Henrick and Maria, {p) that there might exist a state of 
 circumstances under which a condemnation in the court of 
 the enemy of a prize ship, lying in a neutral port, might 
 be sufficient to warrant a sale to a neutral merchant, on 
 the principles of reciprocity, arising out of the modern 
 practice of our own prize courts, which exercise a power 
 of adjudication over vessels of the enemy carried into fo- 
 reign neutral ports. Sir William Scott, in this case, said, 
 that the court was bound, against the true principle, by 
 the practice which it has not only admitted, but applied ; 
 for that in the conduct of war you must hold that to be 
 lawful to your enemy which you practise yourself. But 
 that the true and better principles was, that the belligerent 
 should have, at the time, a safe and certain possession 
 of the prize, and, therefore, that it should not be con- 
 demned whilst lying in a neutral port.(5') In conformity 
 with the principle of these decisions in the Admiralty, the 
 courts of common law have almost invariably regulated 
 their practice, holding that if the prize courts condemn 
 captured vessels, the sentence, whilst unappealed from, 
 is conclusive in the common law courts, and to all the 
 world, (r) The common law courts, indeed, cannot enter- 
 tain jurisdiction of the question whether prize or no prize, 
 
 (p) 4 Rob. 43, (r) Duckworth v. Tucker, 2 
 
 (q) See likewise 5 Rob. 285; the Taunt. 7 ; and Park on Insurance, 
 
 Comet. 490. 
 1
 
 CHAP. I.] Onmei'S and Part Owners. 349 
 
 or by whom taken. So, likewise, if it can be discerned on Of property 
 the face of the sentence of a foreign court of prize, that u^nje'ra sen- 
 such court has condemned a ship on any sufficient ground, teiiceofcon- 
 , . 1 • • 1 •* 1 denination ia 
 
 the sentence is conclusive evidence in the courts here the Admiralty 
 
 of the fads of such ground of condemnation. (5) But ^*^"'"^- 
 the same distinction is to be taken in this case, as in the 
 case of our own superior courts reviewing the judgments of 
 subordinate tribunals. Such superior courts will not enter 
 again into facts already decided by a sufficient jurisdic- 
 tion. But if it appear upon the very face of the case, 
 that such judgment has been manifestly given, either 
 against the evidence of such facts, or to a greater extent 
 than is warranted by the facts ; if there be a manifest 
 error of judgment, or excess of jurisdiction ; in all such 
 cases our own courts will wholly disregard the deci- 
 sion of the foreign tribunal. It will only not re-try the 
 same facts. (0 But in all these cases the mere pro- 
 duction of the foreign sentence of condemnation is a 
 prima facie and presumptive evidence that its judgment 
 is just, and therein conclusive upon our own courts. 
 But in the case of Bernardi z\ Motteux, (w) where there 
 was some ambiguity in the sentence, so that the precise 
 ground of the determination could not be collected, the 
 Court of King's Bench considered themselves at liberty 
 to examine whether the ground on which the sentence 
 proceeded, but which was not stated, actually falsified 
 the warranty contained in the policy of insurance which 
 was then before the court, and on which an action was 
 brought. Hence, it follows, that it does not lie on the 
 party, who produces the sentence, to shew that it has 
 proceeded on the ground of enemy's property ; but it is 
 incumbent on the party who objects to the sentence, to 
 
 (s) Boltoa V. Gladstone, 2 Taunt. lock v. Rockwood, 8 T. R. 268. 
 
 85. (u) 2 Dougl. 574. 3 B. and P. 
 
 (0 Pollard t>. Bell, 8 T. R. 444. 215.; and Phillips on Evidence, 
 
 Baring r. Claggett, 3 B. and P. 215. 269. 
 Oddy 1-. Bovil, 2 East. 473. Have-
 
 350 Merchant Shipping, ^c. [part ii. 
 
 make out that it has proceeded on some other ground. 
 But where the sentence professes to be made on particular 
 grounds, which are set forth in the sentence, but which 
 manifestly appear not to warrant the condemnation, the 
 sentence will not be conclusive as to such facts, (w) 
 *■ 
 
 So much property has been derived to British mer- 
 chants from captures; and, (though happily the country is 
 at present enjoying a state of peace,) so many causes of 
 future war are inherent in the very greatness of our 
 empire and its commerce, that the commercial law of 
 war is scarcely of less importance to the merchant than the 
 system of the same law during a period of peace. Cap- 
 ture being one of the legitimate modes of acquiring pro- 
 perty in merchant ships, it was manifestly expedient to de- 
 tail and examine the leading cases upon this head. 
 
 Of the title to Three modes of title to this species of property have 
 "■a'ie a^n™*the ^^^" above examined, namely, building, purchase, and cap- 
 rights and lia- ture : a compliance with the forms of the registry acts in all 
 morto-a"-cc. ^^ them is presumed, without which no title can exist to Bri- 
 tish ships : there remains a fourth, no less frequent, and 
 equally important with the above, viz. title by mortgage. 
 AVe have shewn, in the seventh chapter, that British ships 
 may be mortgaged, and in what manner, (x) It only 
 remains to shew to what liabilities the qualified ownership 
 of a mortgagee, not in possession, subjects him, as re- 
 pects repairs, stores, seamen's wage.-*, and other appoint- 
 ments of the vessel. As the law of this relation, and all 
 the decisions upon it, depend upon the manifest circum- 
 stances of such a state of ownership, it is necessary to 
 remember, that such mortgagee, not being in possession, 
 is in the precise relation of a mortgagee in real property 
 of houses and lands ; and, of course, like such mortgagee, 
 cannot uj)on the general principle be bound by contracts 
 to which he has given no consent, and to which he has. 
 
 (a) Calvert v. Uovil, 7 T. R. {x) Sec ante, cliap. 7. p. 306. 
 
 623. and following pages.
 
 CHAP. I.] Owners and Part Owners. 351 
 
 been no party. The obligation will, of course, follow the 
 party to whom the credit is jTJven, and with whom is the 
 privity of contract. In this, as in other cases, the registry 
 acts do not alter the nature of the title of the mortgagee ; 
 he is still only an owner not in possession ; the registry 
 acts merely evidence his actual relation to the ship for 
 their own objects of national policy. The credit given by 
 a tradesman in any of the reciuisites of the vessel, stores, WeslerdcU v. 
 repairs, sailors' wages, &c. attaches no obligation upon ^ ^' 
 the mortgagee merely/ as such. He derives no profit until 
 the ship comes into his possession ; and is, therefore, no 
 partner. The ship is merely his security, and no more. 
 In Westerdell v. Dale, (^) Lord Kenyon made it a matter 
 of doubt whether a mortgagee of a ship, though not in 
 possession, was not liable to repairs. His Lordship con- Jackson «. 
 sidered him, whether in or out of possession, as the legal ^t-'^non- 
 owner by virtue of the register acts, notwithstanding his 
 title was subject to equitable interests. The decision of 
 that case, however, turned upon another point. But, in 
 Jackson tJ. Vernon, (s) where the case of a mortgagee came 
 immediately before the court, it was decided that such 
 mortgagee was not liable for necessaries provided for the 
 ship before he took possession. This case was so much 
 the stronger, as the mortgagee approached very near to 
 the character of an absolute owner. The owner of the 
 vessel had executed an absolute bill of sale to Jackson, 
 and by another deed of the same date assigned other pro- 
 perty to him, which deed of assignment (reciting that the bill 
 of sale was for the better securing a sum of money ^ lent by 
 Jackson, and also reciting a bond and warrant of attorney 
 to secure lite same sum,-) declared that those several, deeds 
 and instruments were made to enable Jackson, by sale of 
 all the things comprised in them, to raise the sum lent, 
 without his concurrence, at anj/ time before the money 
 should be paid off. But in this deed there was a covenant 
 
 (^) 7 T. R. 306. Black. 1 17. in notis ; and Frazer v. 
 
 (a) 1 Hen. Black. 114. ; and see Marsh, 13 East. 288 
 Chinery v. Blackburne, 1 Hen
 
 352 
 
 Merchant Shipping, 5fc. [part ii. 
 
 that, upon re-payment of the money, Jackson should re- 
 con-cey to him, but so as not to prevent Jackson from 
 sellings &^c. at any time before the full payment, SfC. Under 
 these conveyances, the Court of Common Pleas decided, 
 that Jackson was not absolute owner of the ship, but 
 only mortgagee, and, therefore, not liable for necessaries 
 provided for the ship before he took possession. So, likewise, 
 in Twentyman v. Hart, (a) Lord Ellenborough expressly 
 decided, that the mere mortgagee of a ship, who had not 
 taken possession, was not liable for necessaries supplied 
 for the use of the ship, previous to a retrausfer. The re- 
 pairs, in this case, were ordered by the captain, without 
 the privity or knowledge of the mortgagee. 
 
 Young r. 
 Brander. 
 
 Trewhella v. 
 Rowe. 
 
 The title of a ship may furnish evidence that repairs 
 are made, or stores furnished, under the authority, and 
 for the benefit of the legal owner ; as in fact they gene- 
 rally are, but it does no more ; and, therefore, if it ap- 
 pear that they were made or furnished under the authority 
 and for the benefit of another, the legal owner will not 
 be answerable. (6) Thus, m here the legal title to a ship 
 remained for a month after the sale in the vendors on the 
 face of the register, by reason of the vendee having omit- 
 ted for so long a time to deliver a copy of the indorsement 
 of the transfer on the original certificate of registry to 
 the proper officer, authorized to make registry, &c., pur- 
 suant to the statute 34 Geo. III. c. 68. sect. 15. ; yet the 
 vendors were held not liable, during that interval, for re- 
 pairs, ordered by the captain, under the direction of the 
 vendee (whom the court, for this purpose, considered as a 
 stranger to the legal owners,) and, consequently, having 
 no authority, express or implied, to bind them, (c) And 
 in another case which occurred not long afterwards, (rf) 
 where the sole registered owner of a ship gave orders for 
 
 (a) 1 Stark. 366. 
 
 {b) Abbott, 21. 
 
 (c) Young V. Brander, 8 East. 
 
 10. 
 
 (d) Trewhella v. Rowe, 1 1 East. 
 435.
 
 CHAP. I. J Owners and Part Owners. 353 
 
 materials to be furnished, and work to be done for the re- 
 pairs of it ; but, before all the articles were delivered on 
 board, he conveyed the vessel with all its furniture to 
 another by a bill of sale, which was duly registered : the 
 Court of King's Bench determined, that the vendee was 
 not liable for any of the goods furnished before the legal 
 title was conveyed to him, and registered in the manner 
 prescribed by the registry acts ; nor was the vendee even 
 liable for any of the goods delivered on board, after the 
 sale to him, by virtue of the previous orders of the vendor, 
 to whom the credit was personally given ; but the vendee 
 was held liable for articles whicli were ordered by the 
 captain for the use of the vessel after the legal title was 
 transferred to him, and upon the difendanCs credit. {d) 
 So, likewise, in the case of Mac Iver v. Humble, before Mac Tver w. 
 cited, (e) though the defendant's name was on the certifi- H^nifjle. 
 cate of registry after the goods were furnished, and the 
 legal title so far continued in him jointly with others, 
 the Court of King's Bench held him not to be liable for 
 goods furnished to the ship on that account, the credit, in 
 fact, not having been given to him. And in a late case 
 at Nisi Prius, Lord Chief Justice Abbott ruled, that the Martin w. 
 mortgagees of a ship, who were the registered owners, Paxtoa,^5. 
 were not liable to a claim for wages made by a sailor, 
 though they accrued upon a voyage which was so far pro- 
 secuted for the benefit of the mortgagees, that the ship's 
 freight and earnings, during such voyage, were made 
 over to them by the same deed which conveyed the ship 
 as a security for advances. In this case the plaintiflf 
 had signed articles, in the usual way, with the captain 
 (who was the mortgagor,) for the voyage in question, 
 
 (d) The marginal note in this ceed upon the ground that the de- 
 
 c^se is an imperfect abridg- fendant was liable on account of 
 
 ment of the decision. The plain- the legal title of the vessel having 
 
 tiff recovered a verdict only for been transferred to him. 
 
 the stores supplied upon the de- (e) 16 East. 169; and see ante^ 
 
 fendanVs credit by the captain's page 324, and Tinkler v. Walpole, 
 
 ©rder. The verdict did not pro- 14 East. 226. 
 
 2 A
 
 354 Merchant Shipping, ^c. [part ii. 
 
 about a month before the mortgage to the defendants; 
 but it appeared that the ship had not left the river Thames 
 before the mortgage, when she sailed for South America, 
 where she was sold to the inhabitants of that country, 
 and the proceeds of the sale remitted, upon a general 
 account, to the defendants' house. The plaintiff brought 
 his action for wages; and contended, that as the freight 
 and earnings of the ship were conveyed as well as the 
 vessel herself, and as the defendants were the registered 
 owners during almost all the time of his service, he was 
 entitled to recover either the >vhole of his wages, or 
 pro tanlo ; that his services w ere beneficially rendered to 
 the defendants, if not under an actual agreement ; and that, 
 as the defendants received the proceeds of the sale of 
 the ship, and had likewise stipulated for the freight and 
 earnings, they could not discharge themselves from the 
 obligation to pay the seamen their Avages. But the Lord 
 Chief Justice ruled, that the case was to be determined 
 upon the privity of contract ; that the plaintiff had made 
 the contract, on which he sued, with the mortgagor, 
 and had given credit to him ; he, therefore, and not 
 the mortgagees, were liable. That the registered owners, 
 indeed, were prima facie liable, but that they might shew 
 that the credit was not given to them, and that they had 
 no participation in the contract ; that, to hold a mort- 
 gagee liable in such a case, would be to put an end to the 
 mortgages of ships. In this case the defendants had never 
 taken possession, {g) 
 
 How far an As vessels are often chartered and laden, either wholly 
 
 tinucs liable, o^ i" part, with goods belonging to different persons, in 
 
 when he clur- guch cases the registered owner is not responsible to sucli 
 
 ters his vessel 
 
 to another, persons, but the charterer is to be considered as owner of 
 
 the ship with respect to them. It must be confess6cl^ 
 
 however, that eome ambiguily arises from the cases on 
 
 (j?) Martin v.Paxton and others, 1819. 
 iiillings at Guildhall, N. V. E. T.
 
 CHAP. I.] Owners and Part Owners. .555 
 
 this subject. In Parish v. Crawford, ])efore Lord Chief Parish v. 
 Justice Leo, (//) wliere the defendant, the owner of a 
 ship, had chartered lier to one Fletcher for a voyage for a 
 specific sum; but the freight of passengers was reserv^ed to 
 the defendant, who likewise appointed the master, and 
 covenanted with Fletcher for the condition of the ship, 
 and the behaviour of the master; he was, notwithstanding, 
 held liable to the owner of goods, taken on board by the 
 charterer, who received the freight, but did not deliver 
 the goods. In a subsequent case(0 the decision of Lord 
 Kenyon was different. It was an action brought against James v. 
 the defendants, as owners of the Sea Flower, for a *'*^'^^*- 
 loss of some goods on a voyage from Faro to London. 
 One Thomas, the master of the ship, had in his own 
 name as master, and in the absence of the owners, char- 
 tered the ship to Reed and Parkinson, on her voyage 
 from Falmouth to Faro, and back to London ; and Reed 
 and Parkinson engaged by the charter-party to provide a 
 full lading from Faro, and to pay a stipulated price per 
 ton. The goods were shipped at ^''aro, by the consent of 
 the agent of Reed and Parkinson at that place ; and Tho- 
 mas, the master, signed a bill of lading, engaging to de- 
 liver them to the plaintiff, he paying freight per charter- 
 party. These facts appearing at the trial of the cause be- 
 fore Lord Kenyon, his Lordship was of opinion, that 
 Reed and Parkinson were, with respect to the plaintiff, 
 owners of the ship pro hdc vice ; that the defendants, 
 Jones and others, were not responsible to him ; and, con- 
 sequently, that the plaintiff could not maintain his action. * 
 So, likewise, in the case of Mackenzie v. Rowe and 
 others. (A) This was an action for the non-delivery of Mackenzie p. 
 fifty casks of oats, shipped on board the Trafalgar, to be I^*''"^^- 
 carried from London to Surinam. The facts relied upon 
 by the plaintiff were, that the defendants were registered 
 owners of the ship in question; that the oats had been. 
 
 (/j) 2 Str. 1231 ; more fully re- 3 Esp. 27. and Abbott, 24. 
 ported in Abbott, 22. Qi) g Gamp. 482. 
 
 (0 James i<, Jones and others, 
 
 2a2
 
 356 
 
 Merchant Shipping, Sgc. [part ii. 
 
 How far an 
 owaer con- 
 tiaues,l'able 
 when he char- 
 ters his vessel 
 to another. 
 
 Frazer v. 
 Marsh. 
 
 put on board in the port of London, for the purpose of 
 being carried to Surinam, to which place she was then 
 bound ; and that afterwards, the ship not being able to 
 make Demarara, the captain improperly sold the oats. 
 There was, however, no evidence that the oats had been 
 received on board the ship by any person appointed by the 
 defendants ; and it was proved that they had chartered 
 her for this voyage to Surinam to a person of the name of 
 De Beur, who had put her up as a general ship. Lord 
 Ellenborough held, that the registered owners of the ship 
 were not, under these circumstances, liable for the non- 
 delivery of the oats, and directed a nonsuit. The same 
 principle was adopted by the Court of King's Bench in 
 the subsequent case of Frazer r. Marsh. (/) The case 
 was this: — The defendant became thf^ purchaser of a ship 
 under a sale by the sheriff, in October, 1805 ; and an as- 
 signment of it to the defendant was prepared in the same 
 month, but the sheriff would not execute it till the whole 
 of the purchase money was paid, which was not till 1810. 
 The defendant, however, was put into possession of the 
 ship immediately after the sale, and got her registered in 
 his own name. Afterwards, by a charter-party, he let the 
 ship for a gi'cen number of voyages^ and at a certain rent^ 
 to one Walker, who Avas then the captain, and who after- 
 wards ordered stores for the use of the ship, which were 
 supplied by the plaintiff. For the value of these stores 
 this action was brought against the defendant, as regis- 
 tered owner. But Lord Ellenborough, C. J., before whom 
 the cause was tried, at Guildhall, nonsuited the plaintiff; 
 being of opinion, that during the existence of the lease 
 the relation of master and owner ceased to subsist be- 
 tween Walker and the defendant, and that the stores must 
 be taken to be ordered on Walker's own account. The 
 plaintifTs counsel applied to set aside the nonsuit: but the 
 whole court concurred in the decision of the learned 
 Judge at nisi prius. *' The register acts (said Lord 
 EkLenborougii,) were passed diverso intuitu; but to say 
 
 (0 Frazer v. Marsh, 13 East. 2S8,
 
 CHAP. I.]) Owners and Part Owners. 357 
 
 that the registered owner, who divests himself, by the ^^^ ^^^ *" 
 ■=• ' _ •' owner con- 
 
 charter-party, of all controul and possession of the vessel tinues liable 
 
 for the time bein^, in favour of another, who has all the J^r,"^!',^''^*,^^! 
 
 use and benefit of it, is still liable for stores furni?;hed to to another. 
 
 the vessel by the order of the captain during the time, 
 
 would be pushing the effect of those acts much too far. 
 
 The question is, whether the captain in this instance, 
 
 who ordered the stores, were or were not the servant of 
 
 the defendant, who is sued as owner. And as they did 
 
 not stand at the time in the relation of owner and master 
 
 to each other, the captain was not the defendant's servant; 
 
 and, therefore, the latter is not liable for his act." 
 
 We now come to the consideration of part ownership, Part owners, 
 a relation of shipping- which brings it, though a personal 
 chattel, a good deal within the analogy of joint tenancy, 
 and tenancy in common in real property. It will be im- 
 mediately seen, indeed, notwithstanding an authority Not joint te- 
 
 hereafter to be mentioned, that part owners of a vessel oants,buite- 
 
 ' * nants m com 
 
 are not joint tenants, but, in all cases, tenants in common, mon. 
 The distinction of these two modes of tenure is substan- 
 tially in the circumstance, that joint tenants have not 
 only an unity of title, but an unity of interest, an unity 
 of titne, and unity of possession ; they have a con- 
 current right to the whole ; they have the same right 
 in the smallest particle or division of the whole as in 
 the whole itself; that is to say, joint tenants have no- 
 thing several and distinct. But tenants in common, on the 
 other hand, have a right to some certain and distinct por- 
 tion ; only that such part is not yet marked out and ascer- 
 tained, but all occupy promiscuously. This latter is al- 
 ways the relationship of part owners in a ship. Each has 
 a proportion of the vessel according to his quota of the 
 capital concerned, or of the whole purchase. But from 
 the nature of the thing such portion cannot be marked out 
 in re ; and, ther'^fore, like the profit of the owners of a 
 water mill, of a fishery, &c. must be assigned in the pro- 
 portion of the ship's earnings.
 
 358 
 
 Merchant Shipping, <^c. 
 
 [part II. 
 
 Hallelt. 
 
 Part owners. We have said that part owners in ships are not joint 
 tenants, but tenants in common, a distinction from which 
 many important properties arise. Tn the first place, there is 
 nojus accrescendi, or right of survivorship, a quality, which 
 being appended to a possession per my et per tout, at com- 
 mon law, always accompanies joint tenancy. In the second 
 place, part owners have no specific lien upon the common 
 
 Dod(iingtouv. property in respect to advances and balances. In Dod- 
 dington v. Hallctt,(w/) an early case decided by Lord 
 Hardwicke, it was holden that part OAvners of a ship had 
 a specific lien on the shares of each other for the balances 
 due to them. The case was this : — It appeared that the 
 plaintiffs had covenanted with one T. Hall, who died 
 intestate, to take certain shares subscribed for by them, 
 aiid which amounted togetlter to eleven sixteenths of a ship, 
 to be built and fitted out under his directions, for the ser- 
 vice of the East India Company ; that the ship was ac- 
 cordingly built and equipped, and was then at sea, and 
 the builder had executed a general bill of sale of the 
 whole to him, and he had not executed any bill of sale to 
 them for their respective shares. The defendant, by his 
 answer, admitted that he was a trustee for the plaintiff as 
 to the eleven sixteenths, but submitted that they were not 
 liable to the tradesmen, because the debts were contracted 
 by the intestate ; and further insisted, that they had no 
 specific lien on the shares, which not being- subscribed for, 
 belonged to him. The Lord Chancellor decreed a re- 
 ference to the master to take the accounts, and directed 
 allowance to be made to the plaintiffs for all such sums as 
 they had paid, or were liable to pay to the tradesmen or 
 workmen for building, equipping, or victualling the ship, 
 or for seamen's wages, and declared that if any balance 
 should appear due to them, thei/ had a specific lien on the 
 remaining shares for such balance, and tliose shares were to 
 be sold before the master, and the money applied in the 
 first place to the discharge of such balance. The case of 
 
 (m) 1 V'csey, 497 ; and sec Abbott, 99.
 
 CHAP. I.] Owners and Part Ozoners, 359 
 
 Doddington 1). Hallett is, however, a single case, never Part owners. 
 
 acted upon ; and has been expressly over-ruled by a 
 
 recent decision of Lord Eldon, in ex parte Young. (;?) ^^P^r^e 
 
 7 I o V ' Young. 
 
 The petitioners were part owners of a ship, called the 
 Grenville Bay, with other persons ; two of whom, Wil- 
 liam Lushington, senior and junior, became bankrupts on 
 the 6'th of January, 1812. The bankrupts were also the 
 managing owners ; and in that character were indebted to 
 the petitioners and the other owners 287/. on balance of 
 accounts for the freight and earnings of the ship, after 
 taking credit for the outfit, amounting to 2234/. ; which 
 sum the bankrupts had not paid; and after the bankruptcy 
 the other owners were obliged to pay it. The assignees 
 sold the share of the bankrupts for 780/. The petition 
 prayed an application of the proceeds of the share of Part owners 
 the bankrupts in the ship, freight, &c. towards satisfaction ^.1^^ Uen^ou 
 of the sums so due to the petitioners and the other the ship in re- 
 
 SDGCt to fl.tl"' 
 
 owners. The Lord Chancellor observed, " The diffi- vances made 
 
 culty in this case arises upon the decision of Doddington J>y them for 
 
 •' r ..... the use of the 
 
 V. Hallet, by Lord Hardwicke ; which is directly in point, ship, or lor 
 
 That case is questioned by Mr. Abbott, (o) who doubts J^t';"g^,;;'j^",^, 
 what would be done Avith it at this day ; and I adopt the other part 
 doubt. The case, which is given by Mr. Abbott from counter th«^* 
 the register's book, is a clear decision by Lord Hard- ship, 
 wicke, that part owners of a ship, being tenants in com- 
 mon, and not joint tenants, have a right, notwithstanding, 
 to consider that as a chattel, used in partnership, and 
 liable, as partnership effects, to pay all debts whatever, 
 to which any of them are liable on account of the ship. 
 His opinion went the length, that the tenant in common 
 had a right to a sale. There is great difficulty upon that 
 case; and the inclination of my judgment is against it: 
 but it would be a very strong act for me, by an order 
 in bankruptcy, from which there is no appeal, to reverse 
 a decree made by Lord Hadwicke in a cause. From a 
 
 (w) Vesey and Beames's Reports, (o) Abbott, p. 99. 
 
 Vol. II. p. 242.
 
 360 Merchant Shippwg, ^c. [part ii. 
 
 Part owners, manuscript note, I know it was his most solemn and de- 
 liberate opinion, after great consideration, that the con- 
 trary could not be maintained ; and there is no decision 
 in equity contradicting that." Upon a subsequent day, 
 the Lord Chancellor said that, after great considera- 
 tion, he must decide against the case of Doddington v. 
 Hallett. 
 
 Another important property, resulting fi-om this rela- 
 tion of part owners being tenants in common, is, that upon 
 the death of any one of them, his share goes, as his per- 
 sonal assets, to his representatives, his executors, or ad- 
 ministrators ; in short, that his partners, as such, can have 
 no claim on it in the way of lien, nor can derive any right 
 from his death which they did not possess in his lifetime. 
 Part owners of ships are necessarily in one or the other of 
 two conditions with respect to the management of the 
 common concern ; either they have made the management 
 of the ship a subject of an express agreement, or they 
 have left it open to their will, according to the occasion, 
 and as they may agree amongst themselves upon each 
 particular venture. In the one case, the express contract 
 and agreement regulates the rights and duties of the par- 
 ties, and the law has only to enforce it according to its 
 legal and equitable construction. But, in the other case, 
 which frequently occurs where new part owners are intro- 
 duced by death, or sale, it becomes necessary for the law to 
 interfere to prevent the wilfulness of one party from in- 
 Of the era- juring the interest of all the others. The rule of law, in 
 fht'VhiD'vvhcn ^^^^ of dissensions amongst part owners, is this : — that the 
 p;irt owners majority, in value, may employ the ship, but shall give a 
 stipulation, in a sum equal to the value of the shares of 
 the di' en. lent partners, that they will bring back and re- 
 st')re the ship, or will pay them the value of their 
 shaves, (p) Upon such stipulation being given in the proper 
 form, and in the due Admiralty office, the dissentient part 
 
 (p) Oustou V. Hebdeii, 1 Wilson, 101.
 
 CHAP. I.] Owners and Part Owners. 361 
 
 owners are relieved from all expences of the voyac^e and Part owners, 
 outfit on the one part ; and, on the other part, are not en- 
 titled to a share in the profits of the undertaking ; the 
 ship sailing at the charges, risk, and for the profit of the 
 others. But, in order to entitle themselves to this in- 
 demnity, the dissentient part owners must either arrest the 
 ship, in which case the Admiralty detains it, until the sti- 
 pulation be entered into and delivered ; or they must give 
 a formal notice to the other part owners of their dissent, 
 and then sue upon the equity of the case. For without 
 tlie arrest of the vessel, or this formal notification of dis- 
 sent, the other part owners will be considered by the law 
 as being within the rule with respect to tenants in com- 
 mon; that as all and each have a rigiit to possession, so 
 one of them cannot have an action against the other for 
 any exercise, use, and possession, which does not destroy 
 the common property. But if by any act of a tenant in 
 common, or part owner of a ship, the common property 
 be destroyed, such part owner, being a wrongdoer, is 
 liable, like any stranger, to an action oftort. (<jr) 
 
 Thus, in Barnardiston v. Chapman, which was trover Bamardiston 
 for a ship, the main question was, whether the plaintiff, ^^^^^apman, 
 who was tenant in common of one moiety of a ship, could 
 maintain an action of trover against the other tenants in 
 common for taking the ship out of his possession by force, 
 and carrying it away. Upon hearing this case, on a point 
 reserved, Lord King says, in his MSS., " We held, that 
 if one tenant in common of a personal indivisible chattel 
 bring i rover against a stranger, if the stranger do not 
 plead the tenancy in common in abatement, he can have 
 no benefit of it in evidence upon the general issue ; and 
 that if one tenant in common destroy the said thing in 
 common, the other tenant in common may bring trespass 
 or trover against him ; and, therefore, in this case, if the 
 defendants had burnt or destroyed the ship, this action 
 
 (q) 4 East. 121, and Horn v. Gilpin, Amb. 251.
 
 S62 Merchant Shipping, ^c. [part ii. 
 
 Part owners, would have been maintainable against them; but where 
 one tenant in common does not dtstroi/ the tiling in com- 
 mon,, but only takes it out of the possession of the others, 
 and carries it away, there no aclion lies by the other 
 tenant in common ; which being the case, we held this 
 action would not lie." Afterwards, he says, the cause 
 was tried again at the Sittings in London, when the facts 
 were more distinctly brought forward. It then appeared 
 that the plaintiff was tenant in common of one moiety of 
 
 Ifapartowner the ship called the Triton, and the defendants tenants in 
 
 destroy tLe common of the other moiety ; and the ship being: in the 
 ship, he IS . . . 
 
 sul)ject to an possession of the plaintiff, the defendants forcibly took it 
 
 ver'or t" es-'^*' out of the plaintiff's possession, secreted it from him, so 
 pass. that he knew not where it was carried; changed the name 
 
 of the ship, which afterwards came into the possession of 
 one Dean, who sent it to Antigua, where the ship sunk, 
 and was entirely lost. And the plaintiff's counsel insisted 
 that the thing in common being thus destroyed, the de- 
 fendants were to answer for it to the plaintiff. But the 
 defendants' counsel insisted, that one tenant in common is 
 only answerable to the other tenant in common for an ac- 
 tual destruction, to which King, C. J., agreed; but left it 
 to the Jury, upon the whole circumstances of the case, 
 whether, by the defendants' force, the ship was actually 
 taken from the plaintiff, and secreted, and carried out of 
 his power to preserve the ship ; and a destruction hap- 
 pening in those circumstances, whether it should not be 
 found to be a destruction by the defendants' means ; 
 which the Jury accordingly found, and gave the plaintiff 
 110/. damages; which being afterwards moved in court, 
 in Michaelmas term following, the court unanimously 
 agreed to the Chief Justice's direction, and would not 
 grant a new trial. (r) 
 
 But upon the principle, that as every part owner has a 
 
 (r) See 1 East. 123, 124, which Sec, likewise, flw/f, p. 224. 
 contiiins !i full note of this case. —
 
 CHAP. I.] Oicners and Part Owners. 363 
 
 right to a possession and use of the chattel, a court of law Part owners, 
 or equity can give no redress to one part owner for any 
 consequence merely resulting from the ordinary use of the 
 vessel. This was decided in the case of Strelly v. Winson. Strelly r.Wia- 
 The circumstances of this case were as follows. (5) There 
 were three part owners of a ship : one of them refused to 
 fit out the ship for sea ; the others sent her out upon a 
 a voyage without his consent, and she was lost. Upon 
 a bill filed in the Court of Chancery, it was decreed that 
 in this case the loss of the ship should be equally borne by 
 all three ; for though one of the partners did not consent 
 to the fitting out of the ship, yet he would have been in- 
 titled to one-third part of the freight, and in this court 
 should have had an account of the third part of the profits 
 of that voyage. And so, where one tenant in common 
 receives all the profits, he shall account in this court as 
 bailiff* to the other two for two-thirds. But, in case the 
 other two part owners had applied to the court of Admi- 
 ralty, as regularly they ought to have done, that court 
 would have made an order, that upon one part owner's 
 refusing to navigate the ship, the other two should have 
 liberty to do it alone, and should not have been accountable 
 to the part owner that refused to join for any part of the 
 profits; and then, in case the ship had been lost, the whole 
 loss must have rested on those two that sent out the ship. 
 But, in the present case, in regard the third person, who 
 refused to join with the other two, would have been 
 entitled to a share of the profits of the voyage, if any 
 had been made by the ship, he ought to bear his propor- 
 tion of the loss. Qui sentit commodum sentire debet et 
 onus. 
 
 But although, where there are several part owners of a The Court of 
 ship, the owners of the less shares may arrest the ship in authority to 
 
 the Court of Admiralty, and compel a security to be given arrest a ship, 
 11 in 1 • 1 • upon the ai»- 
 
 by the others beiore they shall be permitted to navigate plication of 
 
 a part owner, 
 until security 
 (») 1 Vernon, 297. Skinner, 230, be given bj
 
 364: 
 
 Merchant Shipping, Sgc. [part ii. 
 
 the other the ship out of port, yet the Court of Admiralty can do 
 but not "rdi- nothing more than detain the ship till a reasonable security 
 
 rect a sale of |,g cri^^n and has no authority to direct a sale. This was 
 the ship. o 7 J 
 
 determined in the case of Ouston'W. Hebden,(0 which was 
 
 S"hrf*" "* ^" application to the Court of King's Bench for a prohi- 
 bition ; the defendant, who was a part owner of the ship 
 Scarborough, having procured a warrant from the Admi- 
 ralty, and arrested her, in port, it appeared that the ship 
 was built at Scarborough ; that the builder sold one-third 
 part of her in sixteen parts, retaining the other two- 
 thirds of her to himself; that the whole ship was worth 
 about 500/. ; that the builder mortgaged his two-thirds, 
 and died ; and that his widow and representative sold the 
 same absolutely to Ouston, who was now the master as 
 well as owner of two-thirds ; that this sale to Ouston was 
 made without the consent of the other part owners, and 
 without any security given to them by Ouston ; that he, 
 being master and chief part owner, insisted upon going a 
 voyage against the will of the other part owners ; that he 
 refused to pay them for their shares, (they desiring not to 
 continue any longer part owners with him,) or to sell the 
 ship, and distribute the money among them in proportion ; 
 and the libel in the Admiralty concluded by praying that 
 the ship might be sold, or that they might have such other 
 remedy as the court thought proper. Ouston, in his an- 
 swer to the libel, alleged that Hebden's share was not 
 worth more than 30Z. ; that the remaining parts were worth 
 450/. ; that the other part owners agreed to his (Ouston's) 
 purchase, and did not insist upon his giving security before 
 the institution of the suit in the Admiralty. He further 
 alleged, that there was no such usage, as set forth in the 
 libel, for the Court of Admiralty to sell the ship ; and he 
 insisted that the ship should go the voyage ; and sug- 
 gested, for a prohibition, that the Admiral had no juris- 
 diction in ships in port. Lee, C. J., " Generally speak- 
 ing, the Court of Admiralty has no jurisdiction of matters 
 
 (0 1 Wilson, 101.
 
 CHAP. I.] Owners and Part Onners. 
 
 365 
 
 or contracts done or made at land; but this particular Part owners, 
 case must be determined upon the whole case as it appears 
 upon the pleadings. Now, the libel concludes with pray- 
 ing that the ship may be sold, &c. or that the parti/ libelling 
 may have such other remedy as that court shall think proper. 
 I have no doubt that the Admiralty has a power in this 
 case to compel a security ; for this is a proceeding- in rem, 
 and not in personam ; and this jurisdiction has been al- 
 lowed to that court for the public geod, as is confirmed by 
 the case cited from Fitzgibbon, where it is said that courts 
 of law have allowed it. Indeed, the admiralty has no juris- 
 diction to compel a sale ; and if they should do that, you 
 might have a prohibition after sentence, or we may grant 
 a prohibition against selling, or compelling the party to 
 sell, or to buy the shares of the others, Avhich was agreed 
 to, per totam curiam; and the rule as to that was made ab- 
 solute, but as to compelling a security to be given the 
 rule was discharged." (m) 
 
 This case is considered as having finally settled the law 
 upon the point, that a part owner may arrest the ship to 
 compel a security, but that the Court of Admiralty has 
 no power to order a sale. This court, indeed, is open all The Court of 
 the year round to applications by part owners to restrain '"' t •'^t 
 the sailing of ships, without their consent, until security fere where 
 given to the amount of their respective shares ; but ^^^ ^n^vt^ ^ 
 where the shares are not ascertained, the Court of Ad- owners are 
 miralty has no jurisdiction; and, in such case, the Court tained. 
 of Chancery will exercise a concurrent jurisdiction by in- 
 junction, restraining the sailing of the ship until the share 
 of the party complaining be ascertained, and security 
 given to the amount of it. And, in such cases, the court Concurrent 
 will refer it to the master to make an inquiry, and settle {)ftheCourt 
 the security accordingly, (z^j) But in all such cases the of Chancery. 
 
 (u) 1 Wilson, 103 See, like- (w) Haly w. Goodsoa and Ano- 
 
 wtse, Roll. Abr. 530. i Lord Ray- ther, 2 Merivale, 77. 
 raoad, 223. Fitz. 192. 
 1
 
 366 Merchant Shipping, S^c. [part ii. 
 
 Part owners, application to the Court of Chancery must be as expedi- 
 tious as possible ; and an injunction was lately refused to 
 restrain the sailing of a ship upon the application of a 
 part owner, where the ship was in preparation for sailing 
 the following day, and there were no circumstances to ac- 
 count for the delay in the application, (x) 
 
 Part owners It seems scarcely necessary to say, that a part owner of 
 "mes^Henate ^ ^^'P "^^Y P^^'^ with his interest to another person at any 
 
 their inte- time. " A rule (says an excellent writer,) better adapted 
 rests. 
 
 to the present state of commerce than that which formerly 
 
 prevailed amongst some of the nations of the continent, 
 and which did not permit the sale of a ship until after a 
 possession of three or more years ; or, at least not till 
 after the performance of one voyage, at the charge and 
 risk of the part owners, (7/) The old rule appears to 
 have been framed with a view to the interest of the master, 
 who, in former times, was a principal owner, and was the 
 person who, with the pecuniary assistance of the other 
 owners, generally caused the ship to be built in the "fexpec- 
 tation of being employed in the command ; an expectation 
 that might be defeated, if others could sell their shares to 
 strangers who, acquiring a majority of interests, might ap- 
 point a friend of their own." 
 
 Part owners We have already shewn that there is no such thing as an 
 their names equitable title to ships ; that the registry acts are un- 
 
 inserled iuthe yielding forms, from which the law never departs ; deeming: 
 ship's regis- \ , , . ,. , , 1- , 
 
 try. always that the paramount interest 01 the public good re- 
 
 quires such certificates, and that the most effectual means 
 of securing compliance with these acts is the penalty of 
 invalidating all purchases and contracts in which they are 
 not observed. The registry acts are always a neces- 
 sary part of every title to a vessel. A part owner, there- 
 fore, being a proprietor, must be registered as such, or the 
 
 (x) Christie v. Craig, 2 Mcrivale, (y) Abbott, 97 ; and Molloy, 
 
 ^ 137. B. ii. c. 1. sect. 3.
 
 CHAP. I.] Owners and Part Owners. 
 
 367 
 
 law does not recognize him ;as a proprietor. Unless lie be Part owners. 
 a registered owner, he can have no title to the ship or her 
 earnings ; and if he brings any action, or files any bill for 
 accounts or profits, it will be a sufficient answer on the 
 part of the defendant, that his name is not included in the 
 ship's register, (fl) 
 
 Part owners have an interest in the ship in common, 
 
 and a dominion for each of their distinct parts. Upon the Wright f. 
 
 „ , . . . 1 .^ ^ 1 Hunter, 
 
 first part of this principle, if a part owner order any ne- 
 cessary repairs of a ship, or provide her with necessaries, Oue part 
 his partners are thereby liable, in common with himself, ^^^^^Jf^^^ 
 to an action for the price of them. (6) The case was this : for things 
 The plaintiff, together with several others, were partners tj^^^hrn? *** 
 in a ship, the plaintiff having a certain share to himself, 
 and the defendants, and the other partners, holding the 
 remaining shares in conjunction. Debts were incurred on 
 the partnership account ; a balance was struck, and the 
 plaintiff paid his adjusted proportion of such debts into 
 the hands of the defendant and the other partners, who 
 were the managing owners, in order that it might be by 
 them paid over to the ship's creditors. They did not do 
 so, and the plaintiff had accordingly to pay the money 
 over again to those creditors. Upon this he brought his 
 action against the defendant, one of his former part- 
 ners and part owners in the ship. An objection was 
 started, that the defendant was at most liable only for a 
 proportion of the sum. But Lord Kenyon said, " that 
 there was no foundation for it. That between a creditor 
 and the partners (and the plaintiff having paid the debt 
 was a creditor,) all are liable for the wh le debt ; though, 
 as between the partners themselves, each is only answer^ 
 able for his respective share ; and the plaintiff was here 
 
 (a) Camden «. Anderson, 5 T. R. to the end of Chap, VII. on the 
 709. Ex parte Yallop, 15 Vesey, registry acts. 
 60. Stringer v. Murray, 2 Barn. (i) Wright v. Hunter, 1 East, 
 
 and Aid. 248. See, likewise, ante, 20. 
 pag. 298, aad the following page»
 
 368 Merchant Shipping, 5fc, [part ii. 
 
 Part owners, in the relation of a creditor to the other three partners, 
 because he had paid tha defendant after the bankruptcy, 
 and the severance of the partnership." 
 
 One part Upon the second part of the principle above stated, 
 
 bind another namely, that each part owner has a dominion as to his dis- 
 
 for things not tinct part, one part owner cannot bind another for things not 
 
 necessary tor , 
 
 the ship. necessary/ for the ship. Thus, for example, one part owner 
 
 cannot oblige another to pay any part of a premium of in- 
 surance, ordered without his privity, (c) But if such part 
 owners have a relation of actual partnership superinduced 
 over their other relation as part owners of the vessel, they 
 manifestly come under the rule of partnership ; and, of 
 course, the act of one binds all the others, not indeed as 
 part owners, but as partners. The case of Hooper v. 
 Hooper v. Lusby is here an important case in point as recognizing, 
 very explicitly, the distinction between part owners and 
 partners. (//) This was an action by insurance-brokers, in 
 London, to recover the premiums and commission upon 
 the effecting of several policies of insurance for the de- 
 fendants, merchants, at Great Grimsby. It was proved 
 that the defendants were members of a commercial com- 
 pany, which carried on business under the firm of Garniss, 
 Corden, Burringham, and Co. ; and that the policies in 
 question were effected in consequence of a letter written 
 by one of the defendants, in the name of the firm, order- 
 ing- insurance to be done " on account of the company," 
 on two ships called the Commerce and the Christiana. 
 On the part of the defendant it was insisted, on the autho- 
 rity of French v. Backhouse, 5 Burr. 2727. that this action 
 could not be maintained. The defendants were part 
 owners of the ships insured, having separate shares in 
 them. Therefore, one had no authority to insure for the 
 others. Lord Ellenborough said, that one part owner, 
 even if he be ship's husband, has -no implied authority to 
 insure for the others. The distinction was between part 
 
 (c) French v. Backhouse, 2727. (0 4 Camp. 66.
 
 CHAP. I.] Owners and Part Owners. 369 
 
 owners and partners. "According to the evidence, the Part owners, 
 
 defendants carried on business together in partnership, 
 
 under the firm of Garniss, Cordon, Burringham, and Co. 
 
 and the insurances were ordered in the name, and on 
 
 account of, the firm. Had there been any case holding- 
 
 that the defendants, under these circumstances, were not 
 
 jointly liable, I should have been very much inclined to 
 
 over rule it; but tl;e authority referred to is not in point." 
 
 A verdict was given for the plaintiff, (e) 
 
 Another principle is, that as part owners are very fre- 
 quently in the relationship of dormant partners ; so, if a 
 person giving credit to one of them for necessaries for 
 the vessel, does not know at the time that there are 
 other part owners, he 7na^ sue him alone from whom 
 he receives the orders, (y) If one part owner become 
 a bankrupt, and the other part owners have previously 
 paid the expence of the outfit of a vessel at that time 
 on her voyage, they may deduct such expence from his 
 share of the profits payable to the assignees. The case of Smith v. De 
 Smith t>. De Silva, (g-) was taken out of their principle, by 
 the circumstance of the agent, employed by the three part- 
 ners to provide the vessel, having taken from the bank- 
 rupt a promissory note to himself for his share of the out- 
 fit. Upon the principle of his having made tlie debt his 
 own by taking- such note, it was determined that the full 
 share of the profits should be paid to the assignees of the 
 bankrupt, and that the other partners (who had paid two- 
 thirds of the amount of the bankrupt's notes to the ship's 
 
 (e) See the case of Bell v. Hum- the ship ; hut a share in a ship was 
 
 phries, 2 Starkie, 345, in which the distinct property of each indi- 
 
 Lord Ellenhorou^h held, that a vidual part owner, whose husiness 
 
 managing owner, and a part owner, it was to protect it hy insurance; 
 
 could not bind another part owner and the insurance of another could 
 
 by effecting an insurance on the not be binding upon such proprie- 
 
 shlp without his authority. " Ma- tors without some evidence im- 
 
 naging owners, (said his Lordship,) porting an authority by them," 
 
 had a right to order every thing to (J') Abbott, 97. 
 
 He done which was necessary for (g) Cowpcr, 469, 
 
 5 B
 
 370 Merchant Shipping, ^c. [part ii. 
 
 Part owners, husband,) could not deduct it from the bankrupt's share 
 of the profit. 
 
 If any difficulty or dispute, as to the ship's accounts, 
 arise amongst part owners, the ordinary remedy is by ap- 
 plication to a court of equity. In Robinson v. Thom- 
 son, (^) it was decided by the Court of Chancery, that an 
 account of the profits of a voyage settled by the major 
 part of the part owners should conclude the remaining 
 minority. But if they have entered into a written agree- 
 ment amongst each other, by which one of them is ap- 
 pointed to manage the ship, as the husband, and to render 
 an account, upon the conclusion of every voyage, of the 
 profit and expence ; such husband is bound to one and all 
 of them to produce such an account within a reason- 
 able time ; and each may have his action against him at 
 common law for a breach of the agreement. (0 
 
 Part owners In the dealing of part owners with strangers for the 
 
 should join in concern of the ship, they make in law, like ioint tenants, 
 actions re- r^ j y j 7 
 
 lating to the but one owner ; and, therefore, in the case of any injury to 
 Concerns' the ship, they should join in one action at law. But if 
 any single part owner should bring an action for a damage 
 to the vessel, the defendant must plead this circumstance of 
 a tenancy in common in abatement; otherwise the plain- 
 tiff may recover damages proportionable to his interest in 
 the vessel, (k) But in an action on the case in the form of 
 tort against one of several joint owners of a ship, for not 
 safely conveying goods which had been delivered to him 
 by the plaintiff for that purpose, it has been deter- 
 mined in the Court of Common Pleas, (contrary to a 
 decision in K. B.) that the defendant may plead in abate- 
 ment that the goods were delivered to him and his 
 partners jointly, and that his partners are not sued.(0 
 
 (fe) 1 Vcrn. 465. 766. 
 
 (t) Owston V. Ogle, 13 East. (/) Powell v. Lay ton, 2 N. R. 
 
 !>38. 365. sed quxre ; and see post, 
 
 (*) Addison c. Oterend, 6 T. R. p. 372.
 
 CHAP. I.] Oicners and Part Oivners. 371 
 
 So, if one of two part owners of a chattel sue alone for a Part owners. 
 tort, and the defendant do not plead in abatement, the 
 other part owner may afterwards sue alone, and the de- 
 fendant cannot plead in abatement in such action. (77?) 
 But in an action for the freight of a vessel, shared in 
 parts, such freight being in every respect a partnership 
 property, all the part owners ought to join; or the defend- 
 ant may avail himself of the objection, as ground of non- 
 suit, at the trial. The distinction is hore between torts 
 and contracts ; all contracts with such parties necessarily 
 being entire, and, therefore, with respect to all and 
 each, constituting but one claim and right of action. 
 With respect to part owners, indeed, it should be con- 
 stantly remembered, that, as regards the vessel and its 
 concerns, they are for the most purposes partners ; and 
 upon this principle it was determined by Lord Eldon in 
 ex parte Christie, («) that the master of a ship having 
 become bankrupt, the owners being indebted to him for 
 the concerns of the ship, whilst he also w^as indebted to 
 some of them generally on distinct concerns, that the 
 latter should not set off their several demands against the 
 claim of his assignees for their shares of the general 
 debt. 
 
 But though part owners want some of the artificial Of actions 
 constituents of joint tenantcy, or in other words, of part- or'a^^inst' ' 
 nership, (such as holding their respective shares by several p^irt owners, 
 titles, and not by one,) the law, follow ing the equity and 
 manifest analogy of their character with partners in the 
 greater number of cases, considers them in most instances as 
 partners, and under this view generally both gives them 
 the rights, and exacts from them the duties. Upon this 
 principle, an action upon any contract relating to the ship 
 should regularly be brought against all jointly, as partners 
 in the ship. But if all are not sued, the defendants can 
 only avail themselves of the objection by plea in abate- 
 
 (m) Sedgworth v. Overend, 7 T.R. 279. (n) 10 Vcsey, 105. 
 
 2 B 2
 
 372 
 
 Merchant Slupping, ^c. 
 
 [part II 
 
 Part owners. 
 
 Of actions 
 brought by, 
 or against 
 part owners. 
 
 inent ; and if they omit to plead such a plea, the plaiiitiff 
 will recover his whole demand, and the defendants must 
 afterwards call upon the others for contribution. Where 
 the declaration, assuming- the form of an action ex delicto, 
 alleges a breach of duty, and not a breach of promise, it 
 has been much questioned, whether one part owner, who 
 is sued alone, can avail himself of this plea, and also 
 whether, if the action be brought against more persons 
 than appear at the trial to be part owners, the plaintiff 
 can sustain his suit against those who appear to be so, 
 or must fail altogether. In a case of this nature, the 
 Court of King's Bench decided some time ago that the 
 plea was not admissible ; (o) but, in another case, the 
 Court of Common Pleas afterwards held it to be admis- 
 sible; {p) and following up its own judgment, decided in a 
 third case, that the plaintiff, who had failed in proving 
 all the defendants to be part owners, must fail alto- 
 gether. (^/) A writ of error was brought on this latter 
 judgment; which was argued before the twelve judges, and 
 it was understood that much difference of opinion existed 
 among them : but the cause was decided on a different 
 ground. (7) In a fourth case, of a similar nature, wherein 
 the declaration expressly alleged a bargain, and com- 
 plained of a deceitful warranty in the nature of a wrong, 
 the action being against two persons, and the plaintiff 
 proving a sale by one alone ; the Court of King's Bench 
 held (hat he could not succeed against that one, but 
 must wholly fail.(^) But this case is not to be considered 
 as weakening the authority of Govett v. Radnidge, or 
 as adopting that of Powell v. Layton. For the case of 
 Weal V. King was matter of contract merely, and was only 
 formalin turned into a tort. The question, therefore, still 
 remains undecided. 
 
 (0) Govett V. Radnidge, 3 East. 
 52. 
 
 (p) Powell V. Layton, 2 N. 11. 
 365. ; see anie^ p. ;J7(). 
 
 (9) Max V. Roberts, 2 N. R. 
 
 454. 
 
 (r) Ihld. in Error, 12 East. 89. 
 
 ($) Weal V. King, 12 East. 452. 
 Abbott, 104.
 
 CHAP. I.] Owners and Part Owners. 373 
 
 If a tradesman, who has repaired a ship, take from Papt owners, 
 some of the part owners sums equivalent to their shares, 
 they still remain responsible for the residue, if not paid 
 by tlie others, unless at tlie time of the payment the trades- 
 man specially agree to discharge them from all further 
 demand, upon some good consideration inducing him so to 
 do, such as payment before the expiration of the usual 
 credit ; or release them by deed. (/) But where 'a person, 
 who has furnished a vessel with cordage, takes a bill for 
 the amount from tlic managing owner,' and renews that 
 bill upon its being dishonoured, the other part owners are 
 discharged. This case proceeds upon the principle that 
 the creditor has made an election, and preferred the single 
 credit of the managing owner to that of the joint part- 
 nership. So, likewise, where the party, sued as a partner, 
 for the value of goods furnished for the owners of a ship, 
 was neither a partner, in fact, at the time, (having 
 pai'ted with his share some time before,) nor held himself 
 out as such, having before withdrawn his name from the 
 description of the firm at the counting-house, and sent 
 circular letters to the correspondents of the house, notify- 
 ing the change ; he cannot be charged merely because, 
 having defectively conveyed his whole share in the ship 
 before that time, he had subsequently joined with the as- 
 signees of the bankrupt partners in the ship in making a 
 good title to it to a purchaser from the assignees, (u) We 
 have already shewn that if the names of two partners in 
 trade appear (amongst others) in the certificate of registry, 
 as part owners of a ship, the registry acts do not prevent 
 the shewing how, and in what proportions, the several 
 owners are respectively entitled ; and though such part 
 owners may derive title under different conveyances, yet 
 
 (0 Teed and another «. Baring upon parlicufar circumstances; and 
 
 and others, before Lord Ellenbo- must not be considered as^esta- 
 
 rough, G. J,, at Guildhall, 1806. blishing any general rule of law. 
 See likewise Reed v. White, 5 Esp. (u) M'lver v. Humble, 16 E. R. 
 
 122; and Abbott, 105. The case 169 ; and see anfe. p. 324. 
 of Read v. White seems to depend
 
 374 Merchant Shippingy ^c. [part ii. 
 
 Part owners, if their shares were purchased with the partnership funds, 
 and treated by them as partnership property, and the 
 partners become bankrupt, these shares will be considered 
 as the joint property, (w) 
 
 It has been seen by previous cases that partners in a 
 ship are, like partners in trade, tenants in common, and 
 not joint tenants, between whom there is no survivorship : 
 but the share of each of them shall go to his executor, 
 and the executor shall join in a writ with them who sur- 
 vive. It has likewise been shewn that, though they have 
 separate interests, all should sue during their joint lives 
 for any cause of action which concerns the ship, as for 
 running it down ; and if they do not, it may be pleaded 
 in abatement, (.r) So, they are all bound to join in 
 an action for any contract concerning the ship, as for 
 freight, &c. But whether any one be part owner of a ship 
 must be determined by the register ; for since these acts, 
 as we have before shewn, they, whose names appear upon 
 the register, can alone have a legal or equitable title to 
 the vessel. (^) Thus, as it has been adjudged by previous 
 cases, if four partners in trade jointly purchase and pay 
 for a ship, but cause her to be registered in the names of 
 two only, the interest cannot be averred in the four in 
 order to maintain an action on a policy of insurance on 
 freight ; yet, in general, an equitable interest is sufficient 
 to maintain such an action. So, if a ship be purchased 
 by one partner, and registered in his name only, it will 
 be deemed, in point of law, and even in a court of equity, 
 by reason of the registry acts, as the separate property of 
 that partner, although the purchase and outfit be taken 
 out of the partnership funds, and the earnings placed to 
 the partnership account. (2) But if the names of the part- 
 
 (wy Ex parte Jones and others, (^) Camden w. Anderson, 5 T. R. 
 
 4 Maule and Selwyn, 450 ; and sec 709 : and see ante, pag. 298. 
 
 anlr, p. 298. (2,) Curtis v. Perry, 6 Vcsey, 759 ; 
 
 (x) See Addison v. Ovcrond, and ex parte Yallop, 13 Vesey, 60. 
 ante.
 
 CHAP, h] Owners and Part Owners, 375 
 
 owners appear on the certificate of registry, the provisions 
 of the act of parliament are satisfied ; and it may be shewn 
 by evidence aliunde how, and in what proportion, such 
 partners are interested. But where A.,B., and C. agreed 
 to purchase a ship, and contracted that it should be re-* 
 gistered in the name of A. and B. only, but that tho pro- 
 fits of the ship should be divided by the three; C. fiUd a 
 bill against A. and B. for an account of the profits of the 
 vessel ; a general demurrer was put in on the ground of 
 public policy : the Vice-Chancellor held, that such an 
 agreement could not be assisted by a court of equity, being 
 in manifest contravention of the express enactments of 
 law, and a design to evade the publicity required by the 
 registry acts, (a) 
 
 (a) Battersby v. Smith, 3 Wilson, the registry acts, page 314, 
 110; aud see ante, Chap. vii. on
 
 376 
 
 CHAPTER IL 
 
 OF THE MASTER. 
 
 A HE master of a vessel is the person commissioned to 
 navigate and manage her. In considering this relation, 
 there are three points to which the attention of the reader 
 must chiefly be directed : — 1. The qualification of the 
 master, and his authority with respect to the employment 
 of the ship. 2. His authority with respect to repairs, and 
 other necessaries furnished to the ship. 3. His duties and 
 responsibility to the owners. The two first heads will 
 constitute the subject of the present chapter. 
 
 Of the qualifi- 
 cation of the 
 master and 
 mariners. 
 
 First, as respects the qualifications of the master and 
 seamen, they fall under the navigation laws, and have 
 been previously stated and explained in a former part of 
 this work, (a) It will be sufficient, therefore, to repeat, 
 summarily, in this place, that these qualifications are al- 
 most wholly contained in the 34 Geo. III. c. 68. It is en- 
 acted in this statute, (repeating the general provisions of 
 the former navigation laws, and with a view of removing 
 all doubt as to the various terms employed with respect 
 to persons qualified to be masters of British ships or 
 British sailors,) that every vessel employed as a British 
 vessel, in the trade of Great Britain, shall be navigated by 
 a master, and three-fourths of the mariners at least, Bri- 
 tish subjects. This statute, however, as is stated in the 
 preceding part of this treatise, (6) contains a proviso, bj 
 
 (a) Sec ante, pag. 72, 73, and (*) Sec <?«<<?, peg. 75. 
 
 74.
 
 CHAP. II.] Of the Master. 377 
 
 which the King is enabled to issue his proclamation during of the master, 
 war, permitting merchant ships and privateers to be 
 manned with foreign mariners, in the proportion of three- 
 fourths of the proper quota for navigating such vessels. 
 The cases, therefore, under this act generally^ require the Exceptions to 
 
 master and mariners to be British subjects, except in the tlicusualqua- 
 /• /» 11 • • IT. 1 • 1 • lificatioaof 
 
 live following instances : — 1. By proclamation during war master and 
 
 time. 2. In the case of negroes and lascars, employed in "^^.rmers. 
 the navigation of the seas of America and the West 
 Indies ; or in the seas to the eastward of the Cape of 
 Good Hope, (c) 3. East India ships, manned with lascars, 
 are deemed legally navigated, if there be seven British 
 seamen to every hundred tons, (c?) 4. If a sufficient num- 
 ber of British seamen cannot be procured by the East 
 India Company in the East Indies, or by any ship sailing 
 under their licence, or legally trading by the late act, (e) 
 for their voyage to Europe, the governments there are em- 
 powered to grant licences to such ships to sail with a less 
 proportion of British seamen than is required by law. (/") 
 5. And in the case of any ships employed in trade only 
 between the ports and places within the limits of the 
 Company's charter, including the Cape of Good Hope, 
 such ships may be manned and navigated wholly by lascars, 
 or any Asiatic sailors. It may, perhaps, be termed a sixth 
 exception, that foreign sailors and mariners, serving three 
 years on board British ships of war, are to be deemed 
 British subjects ; and, upon due certificates of good beha- 
 viour from the commanding officer on board the vessel in 
 which they have served, may be employed as masters or 
 mariners of British ships, and are holden within the 
 meaning of the navigation laws as British seamen. But 
 any merchant who employs them must be careful of two 
 points : in the first place, that they have such certificate ; 
 and, secondly, that they have taken the oath of allegiance 
 
 (c) 34 Geo. III. c. 68. and 42 (e) See anle, pag. 93. 
 
 Geo. III. c. 61. {/) 55 Geo. III. c. 116.-, and see 
 
 (d) 55 Geo. III. c. 116. ante, pag. 96, and follov/ing pages.
 
 378 Merchant Shipping, S^c. [part u. 
 
 Of the mas- to his Majesty, before some justice of the peace, or officer 
 ter, &c. of his Majesty's customs, in any of the ports of the King's 
 
 dominions, (g) 
 
 It should, likewise, be particularly noted under this 
 head of the qualification of the masters and seamen, that 
 any person, whether British or alien, who shall take an 
 oath of allegiance to a foreign state, thereby loses his qua- 
 lification of being regarded as a British subject, by birth 
 or service, unless such oath, in the case of an alien, have 
 been taken before his qualification by service to be a Bri- 
 tish master or seaman, or, unless being a British subject, 
 he shall have taken it under the terms of some capitula- 
 tion, upon the conquest of any of the dominions of his 
 Majesty by the enemy, and for the purpose of obtaining 
 the benefit of such capitulation only. But as owners in 
 many cases may be ignorant of their masters and mariners 
 having taken such oath, it is provided that a ship shall 
 not be forfeited, if the owners can make it appear that 
 they were ignorant of such disqualifying circumstance. (^) 
 
 Such, therefore, are the qualifications required by law, 
 as respects the master and mariners of British ships. 
 
 The authority of the master, with regard to the em- 
 ployment of the ship, is a more ample head, and requires a 
 fuller explanation. 
 
 Of the aulho- The master of a ship is necessarily in one or other of 
 
 ^^^^ ." ^^„ two relations ; he is either a part owner, to whom his co- 
 master, as re- ' r 7 
 
 gards the em- partners have trusted the government and management of 
 
 ployment of ^, . , u • ^u ^ • • 
 
 the shii). their common property ; or he is the mere captain, m 
 
 which case he is the confidential servant or agent of the 
 
 owners at large. In both cases, the general rule is, that 
 
 (g) 34 Geo. III. c. 68. ; and 42 (A) 34 Geo. III. c. 68. ; and 42 
 
 Geo. 111. c. 61 . ; and see ante, pag. Geo. III. c. 61 . ; and see ante, pag. 
 73. 72, 73, and 74.
 
 CHAP. II.] Of the Master. 379 
 
 the owners are bound to the performance of every lawful Of the mas- 
 contract made by him relative to the usual employment of ^^^' 
 the ship. Being, however, not only the representative of 
 the owners, but being himself, when in foreign and remote 
 parts, the only person visible and known, the law, acting 
 upon this circumstance, makes hira responsible, not only 
 as agent, but answerable as for his own contract. The 
 principle of this rule is manifest. It would be of incon- 
 ceivable mischief and impediment in commercial dealing, 
 if a foreign merchant, making a contract of freight with 
 the master, should be compelled for any consequential in- 
 jury to seek out the owners. The law, therefore, in order 
 to avoid this inconvenience, gives all who deal or contract 
 with the master the two-fold remedy, that they may pro- 
 ceed against either or both. (0 
 
 The master and owner, therefore, being to each other 
 in the relation of master and servant, or principal and 
 agent, if goods be lost, injured, &c. by the wilfulness or 
 negligence of the master, the owners are liable ; being ne- 
 cessarily in a better condition of knowing the skill, ho- 
 nesty, and trust-worthiness of their servants, than those 
 who only casually employ them ; and having, moreover, 
 the profit and price of the freight of the ship. 
 
 But the owners are liable only for such contracts of the 
 master as he shall make in the necessary and usual employ- 
 ment of the ship, or for such acts as he shall do belonging 
 to his character as master within this limit. And, there- 
 fore, in the case of Boucher v. Lawson,(Z:) it was decided Boucher v. 
 by Lord Hardwicke and the Court of King's Bench, that 
 the owner was not liable for the act of the master, such 
 act not belonging to his character of master ; and, there- 
 fore, not to be presumed within their express or implied 
 consent. The case was this : — The master had received 
 
 (») 1 Boson V. Sandford, Carthew, 238. ; and Ahhott, 115. 
 63. Morse v. Sluce, 1 Ventris. 190. (A) Rep. temp. Hardwicke, 85. 
 
 1 
 
 Lawsun.
 
 380 
 
 Merchant Shipping, 5fc. [part ii. 
 
 Of the mas- 
 ter, &c. 
 
 some Portugal coin, to convey from Lisbon to London ; 
 and, according to custom in these cases, the price of such 
 conveyance was his own perquisite. He embezzled the 
 coin, and an action was brought by the proprietor against 
 the owners to recover the value. The court decided, 
 that if the vessel had been carrying goods upon hire, the 
 circumstance of the price of carrying coin being a per- 
 quisite of the captain, would not vary the liability of the 
 owners, as it would make no difference in the equity of 
 the case, whether the master received such price under 
 the name of wages or perquisite. But in the case before 
 them it did not appear that the vessel was so employed ; 
 it was, therefore, a mere private act of the captain, and, 
 therefore, not within the ordinary presumption of the law, 
 so as to make the owners responsible. 
 
 In explanation of this principle. Lord Kenyon said, in 
 another case, (/) "The defendants (owners) are respon- 
 sible for the acts of their servant in those things that 
 respect his duty under them, though they are not answer- 
 able for his conduct in those things that do not respect 
 his duty to them ; as if he were to commit an assault upon 
 a third person in the course of his voyage." 
 
 Of the autho. 
 ritj' of the 
 master as re- 
 gards the em- 
 ployment of 
 the ship. 
 
 Burgon v. 
 ?harpc. 
 
 But as the owners are bound by the act of the master, 
 under the presumption of law that he is their agent 
 and authorized servant; so if the owners appear in their 
 own persons, and make a special contract for the employ- 
 ment of their ship, the master, of course, cannot annul 
 such a contract, and substitute another for it. The prin- 
 cipal here is, that expressum facit cessare taciturn ; and the 
 appearance of tlie principals in their own person super- 
 sedes the discretionary act of their agent. In Burgon v. 
 Sharpeand others, (m) where this was the precise point be- 
 fore the court. Lord Ellenrorough said, that the captain 
 was captain for the voyage originally agreed upon by the 
 
 (/) Ellis V. Turner, 8 T. R. 631. 
 
 (m) 2 Campb. 529.
 
 eHAP. II.] Of the Master. S81 
 
 owners ; and, being employed only upon that express of the mas- 
 voyage, every thing beyond the voyage was beyond the *^'"' ^*^- 
 scope of his authority as captain. As such, he had no 
 power to change that voyage for another. His Lordship 
 however added, " The person who is entrusted with the 
 command of a ship inai/ be vested with a complete con- 
 troul as to her employment and destination ; but this is 
 superinduced upon his authority as captain." 
 
 In all such cases, how^ever, the court will give parti- 
 cular attention, not only to the general authority of 
 masters by the practice of merchants; but, still more 
 strongly, to any express and particular contract, which 
 may have been made between the master and his owners. 
 So in Devvell v. Moxon and another, (w) one of the ques- Dewell v. 
 tions before the court being, whether the captain of a 
 vessel, sent to earn freight, had authority to carry a cargo, 
 freight free ; it was collaterally decided, that he had no 
 such authority. 
 
 The two contracts under which merchant ships are or- 
 dinarily employed are charter-parties, and contracts for 
 freight with one or more persons unconnected with each 
 other. These contracts will be the subject of the third 
 part of this treatise. In charter-parties, the whole vessel 
 is ordinarily let out for a determinate voyage to one or 
 more places, and the instrument by Avhich it is so let is 
 termed the charter-party. This is most commonly the 
 sole act of the owners themselves. In contracts for 
 freight, the master and owners, or the master singly, 
 take goods on board to convey them to the place of the 
 ship's destination. Both of these contracts may be 
 made singly by the master himself. In freight, this 
 often happens. In charter-parties, when the vessel is 
 in a foreign port, it sometimes occurs. As respects such 
 charter-parties, the law of England will not hold the 
 
 (n) Dewell v. Moxon, 1 Taunt. 392,
 
 382 
 
 Merchant Shipping, ^c. 
 
 [part II. 
 
 Gf the mas- 
 ter, &c. 
 
 owner to be bound by the instnnnent itself, if he be no 
 party to it ; but if it be made by the master in a foreign 
 port, in the usual course of the ship's employment, the 
 ship and freight are bound, in their full value, to the per- 
 formance of such covenant. And it is stated in a learned 
 work, and we think very justly, that the owners maybe 
 made responsible, either by a special action on the case at 
 the common law, or by a suit in equity, for the faithful 
 performance of the stipulations of a charter-party 
 made by the master, under the circumstances before- 
 mentioned, (o) 
 
 Such, therefore, is the authority of the master, with re- 
 spect to the employment of the ship ; and within such 
 limits may he undertake to employ the vessel upon his 
 own discretion, and may bind the owners to execute his 
 contracts. 
 
 Oftheautho- Second!^, The authority of the master, as regards the 
 
 ntyotthe victualling, repairing, and providing the ship with all ne- 
 
 der repairs cessaries, has a still larger extent and more important 
 and neoessa- t^. ±\. i* • x j 
 
 riesforthe consequences. It, therefore, requires a more exact and 
 
 ship- detailed exposition and statement. 
 
 As the master is the agent and servant of the owners, 
 and a ship is manifestly a chattel of such a nature as to 
 require repairs and necessaries in places remote from the 
 re-^^idence of the owners, and by persons to whom they are 
 totally unknown, it is a natural, and indeed, a necessary 
 presumption of law, that the master has their implied 
 consent to order such repairs, and to provide such neces- 
 saries. Under his relation of being a^ent and servant to 
 the owners in all that is necessary for the ship, the law 
 authorizes him to do such necessary acts, and to enter 
 into sucli necessary contracts, and holds the owners to be 
 bound by such acts and contracts of the master. Under 
 
 {o) Abbott, p. 119.
 
 CHAP. II.3 Of the Master. 383 
 
 his relation of being the only ostensible person, with re- of the mas- 
 gard to those whom he employs, the law makes him like- *<^'"' ^'^• 
 wise liable in his own person for such necessaries and re- 
 pairs, and sends him (if a part owner as well as master,) to 
 his copartners for contribution; or if only an agent, to his 
 principal for repayment. 
 
 With regard to such repairs and necessaries, tlierefore, 
 the general rule is, that, in all necessary provisioning and 
 repairs made by order of the master, he is himself, in the 
 first place, personally liable; and, secondly, that the owners 
 are liable with him. All who deal with him for such ne- 
 cessaries have their election of three remedies,— ^r*?. To 
 sue the master,— ^ecowt//^, To sue the owners, — and, 
 thirdly^ (in the case of hypothecation by the master of the 
 ship for necessary repairs, when in the course of a foreign 
 voyage,) a process against the ship in s'pecie in the Courts 
 of Admiralty. 
 
 But as the master is liable only as the ostensible servant 
 and agent of the owners; so where the owners appear in 
 their own persons, and the credit is manifestly given to 
 them only, the master is not liable, such case not being 
 within the reason of the rule. In the case of Farmer v. 
 Davis (j9) the goods were ordered by the owners before 
 the captain was appointed to the ship. Some of the goods 
 were delivered before he was commissioned ; but others 
 of the parcel were delivered afterwards. The question, 
 therefore, for the court was, whether the master was liable 
 for all the goods provided, — or so much of them as was 
 delivered after his appointment, or was liable at all. — 
 Lord Mansfield said, "Where a captain contracts for 
 the use of the ship, the credit is given to him in respect of Of the autho- 
 his contract. It is given to the owner, because the con- 1^/,^"^ to^or- 
 tract is on their account ; and the tradesman has likewise der repairs 
 
 and necessa- 
 ries for the 
 (/?) 1 T. R. 108. sh»P-
 
 38i Merchant Shipping, 8sc. [part ir. 
 
 a specific lien (q) on the ship itself. Therefore, in general, 
 the tradesman who gives that credit, debits both the 
 captain and the owners. Now, what is this case ? The 
 captain made no contract personally. The owners con- 
 tracted for their ship ; the credit was given to them only ; 
 and there is not a shadow of colour to charge the captain 
 for any part of these goods." 
 
 But where the master is in the exercise of his actual 
 appointment, the law regards him as so completely the 
 agent and confidential servant of the owners, that if he 
 buy necessaries for the ship, and do not pay for them, the 
 owners are responsible to the vendor, though the owners 
 may have expressly given the master money for the vic- 
 tualling of the ship. This is upon the ordinary principle 
 of the law of master and servants, (r) 
 
 Liability of In Yates v. Hall, (to which we shall have to refer 
 
 the owner to ' . 
 
 the master's more fully for another point,) the court said, "If tlic 
 
 fined^o*^^" master borrow money to repair or victual the ship, (or 
 tracts for ne- of course, order such provisioning and repairs) when 
 ° ^' there is no occasion for it, he alone is debtor, and not the 
 owners." The owner's liability to the master's contracts 
 is, therefore, confined to the case of necessary repairs, 
 provisioning, and appointments. If any one trust him for 
 a thing not necessary, he trusts him beyond his commis- 
 sion and authority, and consequently cannot charge his 
 owner. He cannot take up money for his own use, or 
 pledge the ship, or his owner's credit, for his own 
 debt. (5) This doctrine is upheld by a scries of deci- 
 sions in our courts of equity and law from very early 
 times. In Speering and others v. Degrave and others, (/) 
 the master having bought provisions upon credit, and 
 
 (q) Sec this cxiilalncd after- (r) 2 Vern. 643 ; and Cora. Dig. 
 
 wards, it not being generally true, title Navigation, 119. 
 
 but true only for repairs and no- (s) 1 T. R. 73. 
 
 ccssarics in a foreign port. (0 2 Vera. 643.
 
 CHAP. II.] Of the Master. S85 
 
 failed, and the tradesmen suing in consequence the part 
 owners, the Court of Chancery he d them liable, and de- 
 creed that they should pay in the proportion of their 
 shares. The master, the court said, was but the servant 
 of the owners ; and it was nothing that they liad paid the 
 money to him, if he had not paid it over to the creditors. 
 And in Garnam v. Bennet,(M) the court repeated, in sub- 
 stance, the same rule ; saying, that the repairer of a ship 
 has his election to sue the master, who employs him, or 
 the owners; but if he undertakes the repairs on a special 
 promise from either, the other is discharged. This rule, 
 indeed, that the owners are liable for all necessary repairs 
 and provisioning ordered by the master, is now so esta- 
 blished by repeated decisions, that it is unnecessary to con- 
 firm it by any additional cases. 
 
 Nor does the rule suffer any alteration, whether the Master may 
 master shall liave ordered such necessaries, or borrowed necessaries 
 
 the money to provide them, at home or abroad, provided abroad, as 
 ., . , , -..ri 1 • • 1 VicW as at 
 
 the necessity be proved. W here the amount is consider- home, and 
 
 able, and the place of the contract abroad, the more usual thereby 
 
 . , . equally In.d 
 
 mode, indeed, is to borrow the money on the ship. But if his owners 
 
 the master find it more convenient to do it by personal P^"**'^*"J- 
 
 contract, he may adopt this method, and the court will 
 
 hold his owners liable. Thus, in Evans z). Williams, (y) 
 
 where the master had borrowed the money for the neces- faster mav 
 
 saries of the ship abroad, on his own contract, and gave borrow mo- 
 
 • 1 ^11 1 X 1 1 fi^y ^^ ^ fo- 
 
 il! evidence, (though not necessary to the case,) that he reio-n port, 
 
 could not have obtained the money on the security of the ^"^ make his 
 
 •^ •' owners liable, 
 
 ship, Lord Kenyon held, that the owners were, of provided the 
 
 course, liable ; and that the lender might recover from ™?"^5, ^^ *^* 
 ' ' => solulely ne- 
 
 them. cessary for 
 
 the use of the 
 
 Tet^el. 
 
 As the master has this right to bind the owners by his 
 
 contracts for necessaries with others, a fortiori, if he pay for 
 
 (u) 2Str. 816. Cary v. White, 1 Br. Pari, Cases, 
 
 (i) Abbott, 128. See, likewise, 284. 
 
 2c
 
 3S^ Merchant Shipping, 5fc. [part ii. 
 
 ^uch necessaries himself, he may call upon them to repay 
 him. But as the law enter^tains a very just jealousy of 
 this species of contracts, in which the same person at 
 once incurs and admits his own account, those who are in 
 such circumstances should be prepared to prove by the 
 most 'direct evidence the absolute necessity of such vic- 
 tualling or repairs. 
 
 In Rocher v. Busher, (?;;) the plaintiff, a merchant at 
 Oporto, claimed the amount of goods and money supplied 
 to the master of the defendant's vessel, at Oporto, for the 
 use of the ship. The counsel for the defendant admitted 
 the liability of the master for necessaries supplied for the 
 use of the ship ; but contended that he was not equally 
 liable for monies supplied to the captain, to be subse- 
 quently appropriated by him ; and denied that the monies 
 had been expended in the use of the ship. But the 
 master being himself called, and giving evidence that 
 certain sums had been so applied, Lord Ellenborough 
 said, " In strictness, a claim of this kind is limited to 
 articles supplied through necessity. But where the same 
 necessity exists, money may be supplied as well as goods, 
 and the amount recovered. This, however, must not be 
 understood of an indefinite supply of cash, which the mas- 
 ter may dissipate, but only such as is warranted by the 
 exigency of the case, as for the pai/ment of duties, and other 
 necessany purposes. I once held, that proof of the strict 
 application of the money to the purposes of the ship was 
 necessary; and Mr. Justice Heath, sitting for the Chief 
 Justice of the Common Pleas, did the same. But I can- 
 not advise the Jury to find more than they may deem 
 absolutely necessary for the use of the vessel." (a) And 
 
 (w) 1 Stark. 27. n. The captain, indeed, is an ad- 
 
 (x) In tliis case it wan held that missible witness, not on the ground 
 
 the captain was a competent wit- of necessity, but on the ground 
 
 ncss to prove the money advanced, that he stands indifferent between 
 
 and tlic necessity of the supply. — the parlies. 
 
 See Evans v. Williams, 7 T. R. 48 1 .
 
 CHAP. II.] Of the Master. 587 
 
 in Palmer v. Gooch, Abbott, L. C. J., ruled, that in an. 
 action against the owner of a ship for money supplied to 
 the captain in a foreign port, it was not sufficient to prove 
 the advance of a much lar^^er sum than was necessary for 
 the use of the ship, and an application of part of that sum 
 to such uses, the residue being placed to the private ac- 
 count of the captain, but that it was essential to prove the 
 advance of a specific sum ; and that such sum was neces- 
 sary for the use of the ship, and was so applied in fact.(^) 
 
 But though the ownerr, be liable for necessaries furnished 
 to the ship, and money advanced to the master to purchase 
 such necessaries, so far, and to such an amount, as the 
 strict appropriation of the money supplied can be proved, 
 the obligation is not so specific and ascertained as to su- 
 persede the right of the owners to examine the accounts, 
 and to enquire into the necessity ; and it has, therefore, 
 been decided upon this principle, that the owner is not 
 bound to honour a bill of exchange drawn by the master 
 in a foreign port for money so supplied to him. In Har- Harder i;. 
 dert). Brotherstone, (2) the first count in the declaration 
 stated, that the plaintiff carried on business as a merchant, 
 at Pernau, in Russia ; that the defendant's ship being at 
 that place, a sum of money was necessarily wanted for 
 her use ; that thereupon, in consideration that the plain- 
 tiff would advance this money, the defendant undertook 
 that a bill of exchange, to be drawn as a security for the 
 amount by the master of the ship on one William 
 Sharpies, at Liverpool, should be duly honoured ; that the 
 plaintiff did accordingly advance the amount, but Sharpies 
 refused to accept or pay the bill. Gibbs, C. J., stated, 
 " That he was clearly of opinion that there was no im- 
 plied undertaking on the part of the owner of a ship, 
 that a bill of exchange, drawn by the master on a third 
 person, for money advanced for the ship's use abroad, 
 should be duly honoured." So, if the master draw upon 
 
 (ji) 2 Slarkie, 428. (a) 4 Canipb, 234. 
 
 2c2 
 
 Brotherstone.
 
 ^8 Merchant Shipping, ^c. [part ii- 
 
 his owners for such necessaries, it should seem they would 
 be under no obligation to accept the bill. They would, 
 indeed, be liable to the debt the moment it is contracted: 
 but in collateral obligations of this kind, as between 
 master and servant, principal and agent, &c. it is totally 
 a different thing to be liable to an account, after examina- 
 tion and proof, and to be subject to the instant acceptance 
 of a bill of exchange before such account is ascertained 
 and approved. As sometimes the owners of a vessel em- 
 ploy a supercargo, the contracts which are made by an 
 agent of this description are equally binding with those 
 which the master makes within the scope of his authority. 
 Therefore, in Mitchell v. Glennie, it was ruled by Lord 
 Ellenborough, that the owner of a ship was liable for 
 stores and necessaries supplied by the order of a super- 
 cargo, after the detention and liberation of the vessel by a 
 foreign power, although the supplies were furnished after 
 an abandonment by the owner to the underwriters. (a) 
 So, likewise, the owner of a packet-boat, employed by 
 government, but of which such owner receives the earn- 
 ings, is liable for the amount of stores furnished for the 
 vessel by the orders of a captain appointed by the post- 
 Exceptioasto master general. (6) But the owner of a vessel let to 
 rule^th^tth ^""^'S^* ^^^ ^ particular voyage is not liable on the con- 
 owner is tract of the master for the non-delivery of goods ; for 
 contrac/of ^ ^^^^ master, under such circumstances, though originally 
 the master. appointed by the owner, must be taken, pro hdc vice, to be 
 the agent of the freighter only.(t) So, likewise, where 
 the defendant bought a ship taken in execution under a 
 fieri facias, in 1805 ; but not having paid the whole of 
 the purchase-money, the sheriff did not execute a regular 
 assignment till 1810. The defendant, however, was im- 
 mediately put into possession, and got the vessel re- 
 
 (a) Mitchell v. Gleniiie, I SUirk. fully reported, Abbott, 22. 5. 
 
 SS')- {c) James v. Jones and another, 
 
 (ft) Stokes V. Carnc and others, 3 Esp. 27. S, C. More fully re- 
 
 « Campb. 339. And see Parish v. ported, Abbott, 23. 
 Crawford, 2 Stra. 1251. More
 
 CHAP. II.] Of the Master. 389 
 
 gistered in his own name. In 1806, he chartered her to 
 the captain for three years, and interfered no more in the 
 business. Lord Ellenborough held, that the defendant 
 was not liable for stores ordered by an agent of the 
 captain during the three years, (rf) And the Court of 
 King's Bench refused a rule nisi for a new trial, on the 
 ground that the relation of master and owner did not 
 subsist between the captain and the defendant, and that 
 the case of a ship hired for a definite period differed from 
 that of a vessel chartered for a particular voyage, where 
 the master is always appointed by the owner, (e) And, 
 in another case, where the ship was chartered for a par- 
 ticular voyage only, and was put up by the freighter as 
 a general ship, the registered owners were held not to 
 be liable for a tortious conversion of the plaintiff's goods 
 by the master, in the absence of proof that they were 
 received on board by some person appointed by them, if) 
 
 {d) Frazer v. Marsh, 2 Campb. others, 2 Carapb. 489. ; and see 
 
 517; and see flwife, page 356. auie, page 355. Parish v. Craw- 
 
 (e) 13 East 238. S. C. rather in- ford, 2 Stra. 1256.— More fully 
 
 differently reported. reported, Abbott, S2. 
 
 (/) Mackenzie %\ Rowe aad
 
 390 
 
 CHAPTER III. 
 
 OF THE POWER OF THE MASTER OVER THE SHIP ANU 
 CARGO, AS TO PLEDGE, OR ALIENATION IN PART OR 
 , WHOLE; AND OF BOTTOMRY AND RESPONDENTIA. 
 
 AN the preceding chapter we have considered the autho- 
 rity of the master to bind the persons of his owners for 
 the necessaries of the ship. The subject of the present 
 chapter will be, the manner in which the ship may be bound, 
 and the authority of the master to give such an obligation 
 upon the ship itself; or, in other words, to hypothecate or 
 alienate the vessel or cargo in part or whole. We shall 
 consider the title unJer the three heads; first, Whether a 
 ship can be the subject of a specific lien. Secondli/, Under 
 what circumstances the master may hypothecate the ship ; 
 and, thirdly, How far he may sell or alienate the ship and 
 cargo, in part, or altogether. In this chapter we shall 
 likewise consider shortly the nature of the contract of bot- 
 tomry and respondentia. 
 
 Of aliennpon And, first, with respect to the point, how far a ship may 
 be the subject of a lien, ' 
 
 It has already been said in a previous chapter, that ships 
 cannot be the subjects of a specific lien to the creditors who 
 may supply them with necessaries. There is a two-fold reason 
 for this; in the first place, because lien always presumes the 
 possession of the article by the creditor ; and, therein, his 
 power of holding it till his demands are satisfied ; — but in 
 the case of a ship, such possession by those who supply it 
 with necessaries cannot occur. For, as regards the mas- 
 ter, he is possessed only as the agent and servant of his 
 owners. And as regards those whom he may employ 
 to repair the ship, they have manifestly no other 
 possession, than his workmen ; no other possession,
 
 CHAP. III.] Merchant Ships, ^c. 391 
 
 for example, than a builder or carpenter employed to of lien oa 
 build or repair a house. The other reason why ships *^'ps- 
 are not the subjects of such specific liens is, that it would 
 open the door to the manifest nuschief of commerce, and 
 would be an impediment to t'le most valuable article of 
 public and private property, if either the master for any 
 stores supplied by himself, or any of the dealers with the 
 ship, could arrest the departure of the vessel for accounts 
 afterwards litigated, or of small amount. \j nder these prin- 
 ciples, therefore, the law of England rejects almost 
 wholly the doctrine of lien as regards ships, if a ship- 
 wright, indeed, take a vessel within his own docks, or en- 
 tirely within his own possession, to repair it, he may of 
 course detain it till his demand be satisfied, provided 
 there be no special contract for credit, or custom of 
 trade postponing payment ; in the same manner as any 
 other artificer may detain the subject of his own trade 
 under the same circumstance. But if he be not in 
 actual possession of the vessel ; if it should have 
 quitted his dock, or if he shall have made his repairs 
 without taking the ship into his own mastership and 
 dominion, such shipwright is not preferred by the law of 
 England before other creditors, nor has any lien upon the 
 vessel merely as its repairer, nor even as its builder. 
 
 Thus, in two early cases Rich v. Coe, {a) and Farmer 
 V. Davis, (6) Lord Mansfield having expressed himself in 
 the general terms, "■ that a perso!i, who supplies a ship 
 with necessaries, has not only t'je personal secun<y of the 
 master and owners, but ai;u the secuiiiy of the specific 
 ship," Lord Kenyon, in the case of Westeidell v. Bale, (r) 
 took occasion to restrict the g-^neral application of this 
 opinion; and it will be seen by the following authoiity, 
 that such right as a specific lion on ships for repairs and 
 necessaries is not recognized by the iaw of Eiigiand. 
 
 (a) Cowp. 636. (c) 7 T. R, 312. 
 
 (&) 1 T. R. 109.
 
 ^92 Merchant Ships, ^c. [part ii. 
 
 Of Hen on ^" Westerdell v. Dale, LiorA Kent/on observed, "In 
 
 ships. Rich V. Coe, it was said, that the person supplying a ship 
 
 with necessaries has a treble security; the person of the 
 master, the ship, and the personal security of the owners : 
 but I doubt whether that doctrine is not too generally laid 
 down. Sir J. Jekyll held, in a case before him, that the 
 master could not subject the ship if in England; and that 
 was afterwards confirmed by Lord Hardwicke." 
 
 This doctrine, indeed, had been previously affirmed by 
 the courts in the two cases of Hoare v. Clement, (c?) and 
 Justin V. Ballam. (e) In the first of these cases, Clement 
 having supplied the ship with necessaries in an English 
 port, and the ship being afterwards sold to Hoare before 
 his bill was paid, he instituted a suit in the Court of Ad- 
 miralty against the persons, who were master and owner 
 at the time of the supply, and also against the ship, and 
 Hoare himself. Under these circumstances, Hoare ap- 
 plied to the Court of King's Bench for a prohibition 
 against the Court of Admiralty, to stay the proceedings 
 against him and the ship, which was granted. In Justin 
 r. Ballam, Ballam had instituted a similar suit in the Ad- 
 miralty against a Norwegian ship, for payment of the 
 price of a cable and anchor delivered on board the ship to 
 the master, in the River Thames, upon which Justin ap- 
 plied to the Court of King's Bench for a prohibition. The 
 court decided, that the ship was not liable to the suit ; 
 firsts Because it did not appear that the ship was in her 
 voyage, nhen she became in distress for want of a cable 
 and anchor, atid at the time of the contract ; second!}/^ Be- 
 cause there was no actual hypothecation ; and they said, 
 that although, by the maritime law, every contract with the 
 master of a ship implied an hypothecation, yet it was 
 otherwise by the law of England, unless expressly so 
 agreed. And again, in Watkinson v. Bernardiston, (/) 
 where the proceeds of a ship sold had been brought into 
 
 (rf) 2 Show. 338. (/) 2 P. Wms. 367. and Abbott, 
 
 (e)Salk. 34. 2 Lord Raym.805. 133.
 
 CHAP. III.] Of the Power of the Master, ^c. 393 
 
 Chancery, and the plaintiff, who was the master, claimed of lieaoa 
 money paid by him for the accounts of several tradesmen ships. 
 in London, employed upon his order, to make repairs, 
 and find necessaries, SirJ.Jekyll decreed, that this de- 
 mand was not a lien on the ship. Sir J. Jekyll, indeed, 
 added in the same decree, that if the demand of the mas- 
 ter had been for wages paid by him to the mariners, and 
 for money disbursed by him on the ship's account in the 
 course of a foreign voyage, it would have been a lien on 
 the ship. But this part of his opinion has been expressly 
 over-ruled, in the case of Hussey v. Christie, and Hussejr. 
 others, (g) In this case, Hussey, the master of a ship, had C""**'*'' 
 employed several persons to provide her in necessaries 
 abroad; and given his own promissory notes for their ac- 
 counts. Upon returning to England, and finding his 
 owners bankrupts, he endeavoured to retain possession of 
 the ship as his lien and security. Being forcibly deprived 
 of her by the assignees, he instituted this suit in the Court 
 of Chancery to restrain them from selling the ship till his 
 demands should be paid. The Lord Chancellor sent the 
 case to the Court of King's Bench, where the Judges all 
 concurred in opinion, that the master had not a lien on 
 the ship. (//) 
 
 And in two cases before Lord Hardwicke, namely, in 
 Buxton V, Snee, (/) and Ex parte Shank and others, (A) 
 Lord Hardwicke made his decrees upon the same prin- 
 ciple. In the first case he said, " I know no case where 
 the repairs, &c. whether they were by part-owners, or sole 
 owner, master or husbands, have been held a charge or 
 lien on the body of the ship." In the latter case, he said, 
 that although the law of Holland gave a person, who re- 
 paired a house, or ship, a specific lien, there was no such 
 law in England. The last case, indeed, was particularly 
 
 {g) 13 Vez. jun. 394.— See like- {h) 9 East. 486. 
 
 •wise Ex parte Halkelt, 3 Vtzeyaud (i) 1 Vez. 134. 
 
 Bearaes, 135. {jk) 1 Atk. 234.
 
 394 Merchant Ships, ^c. [part ir. 
 
 Of lien OR strong ; the person wlio claimed the specific lien, as hav- 
 ships. jj^g repaired the ship, having obtained possession of the 
 
 money upon the bankruptcy of the owner. And in the 
 case of Wilkins v. Carmichael, (0 where, upon the bank- 
 ruptcy of the owners, the master claimed to retain the 
 ship as a lien for his wages and repairs, &c. for which he 
 made himself answerable. Lord Mansfield himself said, 
 " As to the stores and repairs, it is a strong answer to the 
 claim, that, when the demand was made by the assignees, 
 the master had not paid. But if there were any lien ori- 
 ginally, it was in the carpenter; the master could not by 
 paying him be in a better situation than his, and he had 
 parted with the possession, so that he had given up his 
 lien, if he ever had one. The other creditors had none. 
 Work done for a ship in England is supposed to be on 
 the personal credit of the employer. In foreign parts the 
 master may hypothecate the ship."(m) 
 
 Upon all these cases, it may now be considered as an 
 established rule of law, that neither the master, nor any 
 of those dealing with a ship for repairs and necessarieSj 
 can have any specific lien on the ship ; except in the case 
 of a shipwright or other artificer having actual and entire 
 possession of the vessel, in dock, in performing his work, 
 and retaining possession till payment. 
 
 And even in the circumstance of a shipwright having 
 the vessel in his own dock, the existence of a custom in 
 the port or country, that such shipw right shall only look 
 personally to the owners, Avill take a ship out of tlie ordi- 
 nary rule of goods in the actual possession of the work- 
 man claiming a lien ; and will prevent such shipAvright from 
 having, even in this strong case, any lien upon the 
 vessel. 
 
 (f) Dong. 101. 170!), reported in substance, Ab- 
 
 (m) Sec likewise Wood and bott, 140. 
 Ollicrs V. Hamilton, in Dom. I'rac.
 
 CHAP. III.] Of the Power of the Master, S^c. 395 
 
 This is, indeed, the custom in the river Thames, and of Raitt v. 
 course applies to all ships repaired in the docks in this ^'tchell. 
 river. Thus in Raitt v. Mitchell, (w) In this case, the 
 defendants were shipwrights, and had a dock in the River 
 Thames. The plaintiff having purchased an East India' 
 man called the Ocean, delivered her to the defendants to 
 be repaired; and she was placed in their dock for that pur- 
 pose. Nothing whatever passed between the parties with 
 respect to the time or manner in which the repairs were to 
 be paid for, until two months afterwards, Avhen they were 
 completed. The plaintiff having then required that the 
 ship should be delivered back, that she might proceed on 
 her voyage to the East Indies^ the defendants insisted, that 
 she should not leave their dock till security was given for 
 the repairs, which amounted to about 3000/. The plain- 
 tiff protesting against the defendant's right to detain the 
 ship, brought this action which was in case, with a count 
 in trover. On the part of the plaintiff it was proved, that Custom as to 
 
 by the usage of trade in the River Thames, where there *^!*? ""T''''* *** 
 J ® ' ships in the 
 
 was no express agreement as to the time of payment, the River 
 shipwright invariably gave credit for repairs to the owner 
 of the ship repaired ; and that the credit varied in dif- 
 ferent trades. That it was generally fifteen months ; and 
 with respect to East India ships, eighteen months ; but 
 that, without a previous stipulation for that purpose, 
 neither ready money payment, nor security, was ever 
 required. On the part of the plaintiff, it was contended, 
 that under no circumstances did there exist a lien for 
 ships, even when there was to be a payment in ready 
 money. The defendants, contra^ insisted, that it was an 
 established principle, that an artificer had a lien on any 
 chattel upon which he bestowed his labour in the course of 
 his trade ; and that there was no reason why this right of 
 lien should not extend to a ship in the dock of a ship- 
 wright. It was admitted, that if he did any little job to 
 her whilst lying in the open river, he could not be consi- 
 
 («) 4 Canipb, 146.
 
 395 Merchant Ships, ^c. [part ii. 
 
 Of lien on dered as having her in his possession ; and that, consequent- 
 ships, ly^ without the physical power of detention, no lien could 
 exist ; but that there appeared to be no real difference 
 between a ship in the dock of a ship carpenter, and a coat 
 Raitt V. in the workshop of a tailor. Lord Ellenborough, "I 
 Mitchell. gj^ Qf opinion that, in this case, the defendants had no 
 right to detain the plaintiff's ship. It is distinctly proved 
 that where there is no express stipulation for a ready 
 money payment, credit is invariably given by shipwrights 
 in the River Thames. The period of credit varies in the 
 different trades in which ships are employed : but in each 
 trade it appears to be uniform, and for the repairs of an 
 Indiaman, we are told it is eighteen months; at the ex- 
 piration of which time it is expected they shall have re- 
 turned from their voyages, and put funds into the hands of 
 their owners by the freight they have earned. This being 
 the invariable usage, I must consider it as the basis of the 
 contract between these parties ; and their respective rigiits 
 and liabilities are precisely the same as if, without any 
 usage, they had entered into a special agreement to the 
 like effect. In that case, it seems to be admitted, that no 
 lien could be claimed. To be sure, a lien is wholly in- 
 consistent with a dealing on credit ; and can only subsist 
 where payment is to be made in ready money, or there is 
 a bargain that security shall be given the moment the 
 work is completed. I do not say that a shipwright has not 
 a lien on a ship in his dock, where he is to be paid in ready 
 money as soon as the repairs are finished. On the con- 
 trary, I am inclined to think that he has a lien like other 
 artificers. But there can be no lien without an immediate 
 right of action for the debt, and that does not accrue till 
 the period of credit has expired." A verdict was given 
 for the plaintiff. 
 
 Upon a review, therefore, of all these cases, the law of 
 lien, as respects ships, may be briefly comprehended in the 
 three points : —
 
 CHAP. III.] Of the Power of the Master, S^c. 897 
 
 1. Tliat, in no case whatever, has the master of a ship of lien oq 
 any lien on the vessel for his wages, or for any money paid ships. 
 
 by him for necessaries or repairs. 
 
 2. That none of those who deal witli the ship, whether 
 at home or abroad, for repairs and necessaries, have any 
 lien on the ship, unless a shipwright who shall have the 
 ship in his actual and entire possession, and shall manually/ 
 detain it till his debt be paid. 
 
 3. And that even in this latter case, unless the contract 
 be for a ready money payment, or if there be a custom 
 of the port or country, that such repairs shall be a per- 
 sonal credit, and not a lien, such custom takes away the 
 right of lien; and the shipwright must deliver up the ship, 
 though actually in his dock, (o) 
 
 Secondly/, As to the power of the master to hypothecate Power of the 
 the ship, a power which, from the necessity of the case, hypothecate 
 the master possesses by the maritime code of all com- ^^e ship. 
 mercial countries, and which our own laws have adopted 
 from the earliest period. 
 
 (o) In the John, Jackson, master, ment of their demand. The Jud<^e, 
 
 3 Rob. 288, there was a deter- Sir William Scott, granted it; and 
 
 mination of the Court of Ad- added, that upon looking- into the 
 
 miralty, which at first view ap- cases, he found it had been the 
 
 pears to conflict with this doctrine practice of the Admiralty Court to 
 
 of lien. Some English merchants allow creditors of this kind to sue 
 
 had supplied an American vessel against proceeds remaining in the 
 
 with stores, &;c. for a voyage to registry, notwithstanding that pro- 
 
 the Mediterranean, the ship went hibitions have been obtained on 
 
 and returned to England, and the original suits instituted by them, 
 
 master being dead, and the owner That in particular, in the year 
 
 in America being a bankrupt, was 1763, h found such a suit was al- 
 
 sold in the Admiralty Court in lowed to be prosecuted in the Au- 
 
 England, under a suit by the sea- venture. Clap. But it is justly 
 
 men for their wages. A surplus observed by a learned writer upon 
 
 remaining after the payment of the this case, that there was no person 
 
 wages, the merchants who had sup- to represent the owner, and object 
 
 plied the vessel, applied for pay- to the application.
 
 398 
 
 Merchant Ships, Sgc. 
 
 [part II. 
 
 Menetone v. 
 Gibbons. 
 
 As this power of the master amounts almost to a power 
 of the absolute disposal of the ship, the custom of all 
 countries, and of our country amon^j^st them, limits this 
 hypothecation by the master to the circumstance of the 
 vessel being in a foreign country^ or in the course of 
 her voyage, and not in the place of her owner's residence. 
 But this term place of residence has received a large in- 
 terpretation by some of the decisions, both in the courts 
 of law and Admiralty. In Menetone v. Gibbons, (/j) where 
 the hypothecation was made in Ireland, Ireland was held 
 to be a foreign country so far as to justify the master in 
 hypothecating the ship. And in the Barbara Chegwin,((7) 
 the Admiralty court held, upon the same principles, that 
 Jersey, for the purpose of sustaining hypothecation bonds, 
 might be considered as a foreign possession, to an owner 
 of London. It may be necessary to observe here, that 
 a bond given by the master for money advanced un- 
 nature of bot- der circumstances of extreme distress, as an hypothecation 
 omrce. ^^ ^^ ^j^jp ^^^ freight, is to be considered in the nature 
 
 of bottomree. Such bonds have always been held within 
 the jurisdiction of the Admiralty Court, and receive a 
 very favourable consideration. They are, however, con- 
 sidered valid on the ground of necessity only. And, 
 upon the same principle only, a later bond is entitled to a 
 priority of payment over a former. But the same privi- 
 lege is not to be extended to every species of security 
 which may affect the ship.(r) And, with respect to bonds, 
 a priority has been allowed, even when the difference in 
 date was very small, and the bonds Avere executed at the 
 same place, (s) It is usually required as a condition neces- 
 sary to the validity of an hypothecation bond, that they 
 should be executed in ^foreign port ; but the law does not 
 look to the mere locality of the transaction. The validity 
 or invalidity of the bond does not rest on that circumstance 
 
 Of hypothe- 
 cation, and 
 bonds in the 
 
 (p) 3 Ter. Rep. 267. 
 
 {q) \ Rob. p. 1. 
 
 (rj Rhadai^niaiithe, Dodson, 204; 
 
 and the Alexander, 278. 
 (s) Betsey, Dodson, 289.
 
 CHAP. III.] Of the Power of the Master, S;c. 399 
 
 only, but upon the extreme difticulty of communication be- ofhvnothe- 
 
 tween the master and his owners ; and the master, it is said, <"''^i<»n; :'"(! 
 •II 1 -11 11- 1 11 Ijoiulsin the 
 
 Will liave a rightto liypotnecate the snip and car£,o, tnouf^h mtnre of bot- 
 
 lying in a port of the same country in which the owners t""i''ee. 
 reside, provided he has no means of communicatins^ with 
 them.(0 But if the master can correspond witli the 
 owners, it is not such a case of extreme necessity as to 
 give him the power of hypothecation. The Courts of 
 Admiralty, looking; always to the equity of the circum- 
 stances in such case, have determined, that it is not an 
 obligation of univ< rsal necessity that the master should 
 send to the consignee of the cargo, previous to his giving 
 the bond, and take his directions; nor will they decree 
 such bond to be invalid upon the circumstance of the 
 money having- been advanced before the bond be given, if 
 it were the understanding that the money was to be se- 
 cured by means of bottomree ; nor will the high rate of 
 interest affect these bonds, w hen the casualties and risks to 
 be provided against are very great. («) Such a bond, more- 
 over, is not invalid, for want of a particular description of 
 the voyage ; but the master may describe the voyage, cy 
 pres, as n^ar as he can. (to) We have already said that the 
 master ought not to hypothecate the ship, or to give a 
 bottomree bond, unless in case of necessity. Therefore, 
 when another species of security, entirely personal, as a bill * 
 
 of exchange, was resorted to, at the time, it cannot be said 
 that the master had no personal credit, or other resource 
 for procuring supplies, except on bottomree; and, under 
 these circumstances, Sir William Scott decreed a bot- 
 tomree bond to be invalid. But it appearing that some 
 part of the money borrowed had reference to a security by 
 bottomree, he permitted the bond to stand for that ; for in 
 the Court of Admiralty it is not necessary that a bond 
 should be either good or bad in toto.(3o) But when nio- 
 
 (0 The Isabel, Dodson, 273. The foreign enemy, 
 
 court in this case alluded to the (u) Ibid. 
 
 ports of Spain, some of which were, (w) Dodson, 463. 
 
 at the time, ia the possessioa of a (x) Augusta, Dod. 28S.
 
 400 JMerchant Ships, ^e. [part ii. 
 
 Of hypothe- ney has been well advanced upon such bottomree security, 
 cation, and ,. ... . ... ,, , 
 
 bonds in the there IS nothing inconsistent in taking- a collateral security 
 
 nature of bot- as bills of exchange ; nor does such transaction exclude 
 tomree, .... 
 
 the bond, or diminish its solidity. (^) And where the 
 
 master is well authorized to raise money on such bonds, 
 the party lending is not obliged to look to the appli- 
 cation of the money ; and though there may be some dis- 
 lionesty in the master, the merchant, if he does not par- 
 ticipate, cannot be affected by it.(s) A hired transport 
 in the government service is not incapacitated from being 
 the subject of hypothecation by a bottomree bond;(«) and 
 the Court of Admiralty will not reject a claim justly 
 founded, by a minute criticism of the language of the bond, 
 but will look to the substantial justice of the case. Where, 
 therefore, the consignee, upon the direction of the master, 
 appointed another, who was in some degree recognized by 
 the owner, describing him as master. Sir William Scott 
 decided that he was competent to hypothecate the ship, 
 and a bottomree-bond made to secure advances by such 
 consignees was held to be valid. And the warrant of the 
 court will extend to the sails and rigging, though de- 
 tached and on shore, if so detached only for the purpose 
 of safe custody, (b). 
 
 A bottomree bond is a negotiable instrument, which 
 may be put in suit by the person to whom it is transferred ; 
 and it is almost unnecessary to add, that if the money be 
 Hot paid within the time conditioned in the hypothecation 
 bond, the ordinary course of practice is, for the agent of 
 the lei\der to apply to the Court of Admiralty to issue its 
 warrant for the arrest of the ship, and for trial of the de- 
 mand claimed upon the contract, under which circum- 
 stances, if the bond be not satisfied by the parties, the 
 court will decree a sale, and distribute the proceeds ac- 
 cording to the justice of the case, (c) 
 
 (y) Jane, Dod. 466. {b) Alexander, Dod. 278. 
 
 (x) Ibid. 465. (c) 1 Vesey, 443. ; and see post. 
 
 (a) Ibid, 463.
 
 CHAP. III.] Of the Power of the JMaster, ^c. 401 
 
 According to the nature of hypothecation, the owners 
 are never personally responsible ; but the remedy of the 
 lender is against the master and the ship only. But 
 though it be not the ordinary practice for the master to 
 give a supplementary security upon his owners beyond the 
 hypothecation bond, there appears no good objection 
 against it, so long as the lender doe-, not confound two dis- 
 tinct obligations, by claiming maritime interest upon a se- 
 curity without risk. Therefore in Samson r. Bragington, {d) 
 where a Jamaica merchant had taken both an hypothe- 
 cation bond and bills upon the owner for money advanced 
 to refit the ship, and tlie ship being lost, sued upon his 
 bills of exchange, the Court of Chancery decreed that he 
 should recover the money, but without the maritime in- 
 terest. 
 
 Nor has the master the power to hypothecate the ship 
 and freight only, but in case of necessity, as for example, 
 when the value of the ship is an insuflicient security for 
 the amount of the repairs, he may hypothecate ship, 
 freight, and cargo. Thus, in Parmenter v. Todhunter,(e) 
 a case of capture and re-capture, when money was wanted 
 in the instant to pay the salvage to the re-captors, and the 
 mate procured it by hypothecating the ship and selling a 
 part of the cargo. Lord Ellenborough held, that in the Ofthe hypo- 
 absence of the master he was justified in so doing. But the c;ir"-o by 
 the whole question came before the Court of Admiralty the master. 
 in the case of the Gratitudine,(/) upon which occasion it 
 was deliberately decided that the master might hypothe- 
 cate the cargo as well as the ship. As this is one of the 
 most important cases of late years, and contains a more 
 ample illustration of the law of hypothecation, it deserves 
 the peculiar attention of the reader. 
 
 The circumstances of this case Avere as follows : — The 
 Imperial ship the Gratitudine, bound from Trieste to Lon- 
 
 (d) 1 Ve9ey,44,'9. (e) 1 Campb. 511. (/) 3 Rob. 246. 
 
 2 D
 
 402 Merchant Ships, ^c. [part ii. 
 
 The Gratitu don with a cargo of fruit, suffered so much from tempestu- 
 ous weather, as to be compelled to go into Lisbon to refit. 
 The master, seeing that the vessel itself was not of value 
 sufficient to pay for the repairs, applied for advice and 
 assistance to one of the Portuguese correspondents of the 
 consignees in England; this Portuguese wrote to the con- 
 signee, and received an answer from them, that it be- 
 longed to the master exclusively to adopt every necessary 
 measure for the preservation of the cargo ; and if it was 
 necessary to unlade, the master alone was to judge of the 
 ])ropriety of such a measure. Accordingly, the master, be- 
 ing in want of money to defray the charges of repairing the 
 vessel and of unlading the cargo, he borrowed the neces- 
 sary sum on a bottomry bond, binding the ship, cargo, and 
 freight, to pay the said sum w ithin twenty-four hours after 
 her arrival in the port of London. The master, however, 
 refusing to discharge the bond, the holder instituted this 
 suit in the Admiralty against the ship, freight, and cargo. 
 The inasior and prayed the court to decree accordingly. The court 
 cate ihe^ ordered the bond to be enforced against the cargo as w ell 
 
 caro-o, and as the ship. Sir William Scott said, in substance, that 
 
 sell a part, hut • i- i i • i- rf • 
 
 he has no an- t"G security ot the ship not betng sumcient, and the mas- 
 
 thoniY to sell ^^^ j^^t being able (o raise money on that alone, he was 
 the whole. ., , , . 
 
 necessarily obliged to resort to the cargo ; that it could 
 
 not be said, that the master is in all cases to wait till he 
 hears from a distant country. That the necessity of such 
 u case, therefore, compelled a choice of one two things, to 
 sell apart of the cargo, for the purpose of applying the pro- 
 ceeds to the prosecution of the voyage by the repair of 
 the ship ; or to hi/pollircalc the whole, for the same pr.r- 
 pose. With respect to the former, (the sale of a part of 
 tlie cargo,) the books overflowed witli authorities. With 
 respect to the cargo, indeed, the power of selling could 
 not extend to the whole, because it never can be for the 
 benefit of the cargo, that the whole should be sold to 
 repair a ship which is to proceed empty to her des- 
 tination. But that hypothecation might be of the 
 wholcy because it may be; for the benefit of the wliole,
 
 CHAP. III.] Of the Power of the Master, %c. 403 
 
 that the whole slioiild be conveyed to its proper mar- The Grailtu- 
 ket ; the presumption being-, that this hi/pothccation of 
 tlie zsshole, if it aiVects the cargo at all, will finally 
 operate to the sale of a part, and this in the best mar- 
 ket, at tlie phice of its destination, and in the hands of 
 its proper consignees. The advocates on the opposite 
 side having- suggested that the master might have sent the 
 cargo by another ship, the same learned Judge added, 
 that there were no authorities to bind thq master to such 
 transhipment ; and tiiat upon all these principles he should 
 decree the hypothecation to be valid. 
 
 The Court of Admiralty, regarding these hypotheca- 
 cation bonds with a peculiar favour, has, upon some oc- 
 casions, administered justice to them with a very large 
 equity; and in the case of the Jacob, Baer,(g-) extended Jacob, Bacr. 
 the pledgf» of the freight of a vessel from a particular 
 voyage to a subsequent one. The master had pledged 
 the vessel and tVeight to a merchant at Baltimore, to be 
 discharged upon the vessel's arrival at Cork. Instead of 
 going to Cork the ship went to Dublin, and the Baltimore 
 merchant did not receive the freight. The ship after- 
 wards sailed to America, and thence to London, where 
 she was arrested and sold, at the suit of the lender. The 
 proceeds not being sufficient to pay the amount lent, 
 and the freight of the last voyage being in the hands of 
 the agent of the owner, the lender applied to the court 
 to have this freight paid over to him. The court, under 
 the peculiar circumstances of the case, granted the prayer 
 of the petition, the Judge observing, that as there 
 were no third persons concerned, but the freight was ' 
 in the hands of the agents of the owner, he should decide 
 according to the equity of the case. Accordingly, the 
 lender in this case having an hypothecation on the freight 
 to Cork, was paid by the freight from America, no 
 third party, as the Judge observed, being interested, and 
 
 i^) 4 Rob. St5, 
 2d 2
 
 ^^ Merchant Sliips, ^c. [part ii. 
 
 there being the most manifest justice tluit (lie owners 
 should pay what they did not deny that they owed. 
 
 Hypolheca- As an hypothecation, by the very nature of the contract, 
 
 aUerthe'nro ^^ ^" obligation upon the ship executory only in the case 
 pertj of tbe of default of payment, it is manifest that such an hypo- 
 ^' thecation does not alter the property of the ship, nor 
 
 transfer it to the lender. The master, therefore, exceeds 
 his authority, if he not only pledge the ship and cargo, 
 but engage to deliver it to any agent of the lender in the 
 first instance. In Johnson v. Greaves, (h) ^^ here (he ship 
 was arrested by the Prize Court in Jamaica, and the 
 master, in order to procure her liberty, gave bills of 
 lading of the cargo to one who be came bail for the ship 
 and cargo there ; it was held by the Court of Common 
 Pleas, that the master had no authority to contract (hat the 
 cargo should be sold in London, and the proceeds remitted 
 back to Jamaica, the owners beinj;- ready to give a suffi- 
 cient security to indemnify the bail in London. 
 
 It is totally unnecessary to add, that the niaster cannot 
 take up money by hypotliecation, except for the necessary 
 repairs, or victualling of the ship, or for forwarding the ad- 
 venture ; and that, in order to prevent any fraud, the law 
 always presumes that the lender advanced the money upon 
 seeing and Icnowiiig the necessity of the ship: and under 
 this principle admits the owners to prove, if they can, that 
 there was no such necessity. Lpon this evidence, the 
 court will exercise its discretion, whether the money has 
 been fairly advanced for the purposes of the ship, and for 
 the benefits of the owner ; or w hetlier there have been a 
 collusive fraud between the master and the lender. But 
 if the necessity, or great and manifest utility to the ship 
 and adventure, be made to appear, or rather if the owners 
 ^ cannot shew the contrary, the owners are bound by the 
 
 hypothecation, however the master may ha\ e misapplied 
 
 [li) 2 Taunt. 311.
 
 CHAP. III.] Of the Power of the Master, ^c. 405 
 
 the money. But «is the law will not presume fraud, the 
 lender, upon demanding; the satisfaction of the bond of 
 hypothecation, is not bound himself to prove this state of 
 the ship's necessity, but the owner must shew the con- 
 trary. 
 
 We have before observed, that if the master shall have 
 given more than one of these hypothecation bonds at dif- 
 ferent periods of the voyage, the last is entitled to priority 
 of payment; the principle of which rule is, that the vessel 
 was saved by means of the last. (?) 
 
 SucIj, therefore, are the powers of the master to hypo- 
 thecate, and to give bonds in the nature of bottomree in 
 a foreign port; and such are the I'mits within which he 
 may exercise it. Upon a review of all the above cases, 
 and others of a similar nature, which we have not deemed 
 it necessary to state, the law and rule of such hypotheca- 
 tion may be summarily comprehended in the three follow- 
 ing points : — 
 
 First, If a ship be in a state of necessity, and in the 
 course of her voyage, whether she be in a foreign port, or 
 in a port of one British island, (the owners living in 
 another,) or even in a remote port of the same kingdom, 
 the master may hypothecate ship, freight, and cargo for 
 her repairs and necessaries. 
 
 Secondlj/, But two circumstances must always exist in 
 the condition of the ship at the time of hypothecation. ■ 
 1. The state of necessity of the ship for repairs or vic- 
 tualling. Such a remoteness f'om the owners as not to 
 admit of awaiting their own advice or act. 2. The impos- 
 sibility, or difficulty, of obtaining supplies on the personal 
 credit of the master or owners. 
 
 (i) Dodson 204, and-278. and see ante, p. 398, 399.
 
 40^ 
 
 Merchant Ships, S^c. 
 
 [part II. 
 
 The authority 
 of the master 
 to sell the 
 ship or cargo. 
 
 Thirdly, The law will presume such a remoteness, if the 
 ship be in a foreign port, or in one British island or colony 
 whilst the owners are in another. But in the latter case 
 there must be strong evidence of the extreme necessity of 
 the ship. 
 
 Next, As to the power of the master to sell the ship 
 and cargo, or alienate it in part or whole. 
 
 It has been before observed, that irom a just jealousy 
 of the relation of the master to the vessel, and the facility 
 it would afford him to commit frauds whilst in remote 
 countries, the law will not allow him, except in an ex- 
 treme necessity, to sell the ship ; and we shall here add, 
 that the necessity must be so extreme, that in no case 
 whatever can the sliip be safely purchased of the master. 
 Thus in Tremenhere r. Tresilian, (/) and in Johnson r. 
 Shippen.(wi) Sir Matthew Hale and Lord Holt both de- 
 cided, that the master had no authority to sell the ship or 
 any part of it, and that his sale would transfer no pro- 
 perty. The case before Sir Matthew Hale was, indeed, 
 particularly strong, the sale having been made in a foreign 
 country, in a case of inevitable danger, the ship and tackle 
 being beaten and broken, and no hope of saving any part 
 of them. But all this. Sir Mathew Hale, at that time 
 Chief Baron of the Exchequer, thought, could not warrant 
 the sale of the ship by the master, nor could such a sale 
 convey the property to the buyer. It is stated, indeed, by 
 an English reporter of very early date, that the master may 
 in some cases sell the ship, as in the case of famine. («) It 
 is said, however, by an author of the first authority, that 
 the exception of extreme necessity rather fortifies than 
 weakens the general rule, and that no person can safely 
 purchase a ship of the master in any case which does not 
 clearly fall within the principle upon which the exception 
 is founded ; and such a case will rarely hapjien. And al- 
 
 (l) 1 Sid. 4r>2. 
 
 (w) 2LordRayin. 984 
 
 (w) ./c'lik. Cent. 165.
 
 CHAP. III.] Of the Power of the Master, 5fc. 407 
 
 though the master be himself a part owner of the ship, 
 yet will not his sale of the ship be good for more than his 
 own part ; for the interest of part owners is so far distinct, 
 that one of them cannot dispose of the share of another ; 
 whereas, in articles of ordinary sale, one partner may in 
 general transfer the whole property, if the transaction be 
 without fraud, (o) 
 
 But this principle, its limits, and the reason upon which 
 it rests, have been so strongly illustrated by some very 
 recent cases, and particularly by Reid v. Darby, Hunter 
 V. Prinsep and Others, (p) and the Fanny and Elmira {q) 
 in the Admiralty Court, that a compressed view of these 
 cases will be the best exposition of the law upon the 
 subject. 
 
 In Reid v. Darby, the Glamorgan, a British ship, having The case of 
 
 sprung a leak at Tortola, the master applied to the Ad- ^^*^ ^'^' 
 i 3 ' , morgan. 
 
 miralty Court to order a survey. The court accordingly 
 ordered such survey to be made ; and the surveyors gave in 
 their report that the vessel was not seaworthy, nor re- 
 pairable so as to carry the cargo to its place of destination, 
 but at an expence exceeding the value of the ship when 
 repaired. Upon this report the Vice-Admiralty Court 
 decreedj that the said ship being totally unfit to proceed 
 with her cargo to London, and the repairs being estimated 
 to amount to more than her value when such repairs 
 should be completed, the ship should be sold, and the 
 proceeds paid to the master. The vessel was accord- 
 ingly sold ; and, after a further intermediate voyage from 
 Tortola to Nevis, Avas sent to London. When tliis suit 
 was instituted by the owners to recover the ship from the 
 purchasers, two questions were beibre the Court of 
 King's Bench; the fust, whether the sale could be sus- 
 tained under the authority of the Vice-Admiralty Court: 
 
 (o) Abbott, 3. (g) Edw. 117. 
 
 (p) 10 East. 143, and 378.
 
 408 
 
 Merchant Ships, Sfc. 
 
 [part II. 
 
 Of the aiiiho- and, sccondlj/^ whether it could stand on the authority of 
 master to sell the master. The first question was at once determined in 
 ship or cargo, ^ijg negative ; and with respect to the second, Lord Ellen- 
 borough expressed his inclination to abide by the rule laid 
 down by Lord Holt in Johnson v. Shippen, (r) that the 
 master has no authority to sell any part of the ship, and 
 that his sale could transfer no property. The sale, how- 
 ever, was determined to be invalid upon another ground, 
 namely, that the forms of the registry acts had not been 
 complied with. 
 
 Hunter v. 
 Prinsep. 
 
 In Hunter v. Prinsep and Others, (s) though the sub- 
 stance of the case went upon other circumstances, the same 
 question incidentally arose before the court, aiid the prin- 
 ciple of Raid V. Darby was re-affirmed by Lord Ellen- 
 borough. 
 
 The Fanny 
 and Elmira. 
 
 In the Fanny and Elmira, a former owner of an Ameri- 
 can vessel applied to the Court of Admiralty for the re- 
 storation of the ship under the following circumstances. 
 The master stated in an affidavit, that in consequence of 
 damage which the vessel had sustained by getting upon 
 the rocks in Sligo Bay, he deemed it right to cause a sur- 
 vey, which was accordingly made by competent persons, 
 who reported that it would require 1,500/. to repair the 
 vessel, a sum far exceeding her value ; and that it would 
 be for the interest of the parties concerned to Ijave her 
 sold. That, in consequence of this advice, the ship was 
 advertised for sale, and was accordingly sold, upon which 
 he (the master) executed the bill of sale, and delivered it 
 into the hands of the agent of the purchaser. The pur- 
 chaser soon afterwards made him an offer of a fourth of 
 the vessel at the price which he had given, provided he 
 would consent to navigate her again as master ; to which 
 he acceded. After the vessel was repaired, she proceeded 
 on a voyage to Riga, from whence she was returning to 
 
 (r) 2 Lord Rayni. 984. 
 
 (s) 10 East. 143.
 
 CHAP. Ill] Of the Power of the Master, ^c, 409 
 
 the port of London, when she was captured by the Danes, Of the autho- 
 and recaptured by the Hound sloop of war. nmter to sell 
 
 ship or cargo. 
 
 Sir William Scott, in his judgment on this case, which 
 has been justly celebrated, delivered his decree in the fol- 
 lowing terms : — " This is the sale of a vessel made in 
 Ireland by the master without the authority of his own- 
 ers; and it is contended that such a sale, being made under 
 the pressure of necessity, will convey a valid title to the 
 purchaser. But, in the first place, it must be shewn that 
 there was a necessity; and (hen it remains to be considered 
 whether it was such as by law would give the master a 
 right to sell. That such a case may arise, I am not pre- The Fanny 
 pared to deny ; suppose, for instance, a ship in a foreign "^"^*" 
 
 country, where there is no correspondent of the owners, 
 and no money to be had on hypothecation to put her into 
 repair. Under these circumstances, what is to be done ? 
 The ship may rot before the master can hear from his 
 owners ; and, therefore, if the necessity were clearly 
 shewn, with full proof that every thing was done optima 
 fide^ and for the real benefit of the ow ners, the court might 
 be disposed to sustain a purchase so made. There is a 
 very convenient practice which obtains in the Courts of 
 Vice- Admiralty in the West Indies, where the fact of dis- 
 tress being proved, the transaction is not left to the master^ 
 but a sale is ordered under the superintendance of the 
 court itself. The legal validity of such transfers has, how- 
 ever, been contested in the courts of this country; and they 
 were not held to be good ; though the learned Lord, who 
 presided in the court where that decision took place, 
 might perhaps incline to consider it as a defect in the law 
 of this country, that a practice so conducive to the public 
 utility could not legally be maintained. In a case of that 
 description, I say, strongly put, where there was no 
 ground for suspicion, although I do not know that such a 
 pov/er is given to the master by the general maritime law ; 
 yet, feeling its expediency, this court would strain hard to 
 support the title of the purchaser. But then there must
 
 410 
 
 Merchant Ships, S^c. 
 
 [part u 
 
 Condemna- 
 tion bj a Vice- 
 Admiralty 
 Court not 
 conclusive 
 against the 
 former owner 
 of a ship sold 
 by the master. 
 
 Case of the 
 ship Grace. 
 
 be the clearest proof of the necessity ; it must be shewn 
 not only that the vessel was in want of repair, but like- 
 wise that it w as impossible to procure the money for that 
 purpose." 
 
 A false opinion seems to prevail amongst masters, and 
 those Avho claim under sales of ships made by them in 
 cases of necessity, that this extreme necessity is sufficiently 
 established, if they procure the order of some Vice-Ad- 
 miralty Court abroad to have their vessel surveyed, a 
 report of the surveyors that she is not seaworthy, and a 
 consequent sentence of condemnation by the Vice-Ad- 
 miralty Court. But we have already she^n in Reid v. 
 Darby, that the courts of this country will not recognize 
 in the Vice-Admiralty Courts abroad such a power to 
 order the sale of the ship. And in Hayman and Others v. 
 Moulton and Others, (0 a condemnation of this kind was 
 set aside. The circumstances of this case were peculiar. 
 The plaintiff Hayman, the owner of the ship Grace, 
 brought his action to recover the value of the ship. The 
 ship had been built in 1799; and two years afterwards had 
 been sent on a voyage to Jamaica, where she discharged 
 her cargo, but immediately afterwards encountered a hur- 
 ricane, and was driven on the shore of that island. The 
 master, under these circumstances, applied to one Cun- 
 ningham, the consignee of the vessel at Jamaica, for ad- 
 vice how to act ; and under his advice made the usual pro- 
 test of the state of his vessel, and applied for a survey. 
 The deputy naval officer of the island accordingly issued 
 his warrant to four masters of ships, desiring them to 
 examine the Grace, and make a return upon oath of her 
 state and condition. They reported that they had been 
 on board, and found the ship settled in a sand-bank four 
 feet, wilh a bank of sand between her and the sea of twice 
 her length, and not more than two feet water on the sand- 
 bank ; and that they were, therefore, unanimously of opi- 
 
 (0 5 Esp. N. P. C. 65, and likewise reported in Abbott, p. 7.
 
 CHAP. III.] Of the Power of the Master, ^c. 41 1 
 
 nion, from the great expence that would be incurred in Of the autho 
 attempting to get her afloat, and the little chance of sue- ^'laster to sell 
 ceeding therein, that it would be most for the advantage sliip or cargo. 
 of the underwriters, and all others concerned, to sell the 
 ship as she then lay, with all her materials, to the best 
 bidder* 
 
 Cunningham advertised the ship for sale by auction as 
 a wreck / he acted as auctioneer, and charged his commis- 
 sion, and she was sold to one Dunn, who sold her to R. 
 Molton, by whom she was sold to the other defendants. 
 
 The plaintiff contended, that no fair transfer of the Hayman v. 
 property had taken place, the transaction being fraudu- Moulton. 
 lent ; that Kirby, one of the defendants, had been one of 
 the persons employed in the survey ; that the ship had not 
 bilged then, though it was so stated in the survey ; but 
 was readily got off", and sailed soon after to England ; and 
 performed that voyage in safety ; that Cunningham acted 
 as auctioneer ; and, without any authority, had under- 
 taken to conduct the sale for the plaintiff; and which 
 sale, with a view to effect a fraudulent transfer, had taken 
 place before the time advertised. This was insisted upon 
 as a strong mark of fraud. Lord Ellenborough, in de- 
 livering his opinion to the Jury, said_, that a captain of a 
 iihip had by law a right to hypothecate her in a foreign 
 country for the purpose of raising money for her neces- 
 sary repairs ; but he had no such general authority by 
 law as to sell. The case of Tremenhere r. Tresilian (zf ) 
 had been cited to that effect; and no doubt the law was . 
 so : but there were circumstances arisijig in consequence 
 of the increase in our commercial transactions, that might 
 admit some extension of that rule of law. Where a case 
 of urgent necessity and extraordinary difficulty occurred, 
 where a ship had received irremediable injury, his Lord- 
 ship said, that the disposition of his mind would be, to 
 
 («) 1 Sid, 452.
 
 412 Merchant Ships, S;c. [part ii. 
 
 In cases of ex- support the principle that the captain mi^ht sell the ship 
 cultv and ^^r the benefit of his owner. But such sale could only be 
 
 urgent neces- justified by extreme necessity, and tlie most pure good 
 sity, semble . x o 
 
 that the mas- faith ; that is, if the vessel were in such a state as to 
 
 ter may sell render it probable that the owners themselves would have 
 
 the ship for ^ . _ 
 
 the benefit of sold the ship, if upon the spot. His Lordship concluded 
 
 the owners. ^^ saying, that he should leave it to the Jury " whether, 
 in this case, there existed such a necessity as called upon 
 the captain, acting for the benefit of his owners, to sell 
 the ship ; and if there did, whether this was a fair sale, 
 or conducted with any fraud? It appears that a survey 
 has been made ; but there is no evidence that the captain 
 ever made any attempt to raise the vessel. He should have 
 applied to the agent for the ship, and have endeavoured 
 to procure money for the purpose. If all means of this 
 sort failed, the necessity of selling would have been more 
 pressing ; and I think the captain should have done so. 
 With respect to fraud in the sale, I observe in this case 
 much that calls for reprehension : a survey has been 
 made ; and some of those who made the survey have 
 become the purchasers. I think such conduct highly im- 
 proper. A Court of Equity Avill not allow a trustee to 
 become a purchaser of property of which he is trustee; 
 such jealousy does a Court of Equity entertain of a man's 
 availing himself of information obtained by means of his 
 situation. It Mould be a useful lesson to persons circum- 
 stanced as they are here ; they should make their election 
 either to be surveyors or purchasers ; but they should not 
 be both, by which they are placed in a situation unfairly 
 to avail themselve:-; of information they have obtained as 
 surveyors." The Jury accordingly found a verdict for 
 the plaintiff, {x) 
 
 So likewise in the case of Andrews r. Glover, (^) 
 
 {x) In the progress of the trial no course, had no jurisdiction on the 
 rcf^ard was paid to the aiithoritj o* subject, 
 the deputy naval officer, who, of {y) Abbott, 9.
 
 CHAP. III.] Of the Poioer of the Master, S^c. 413 
 
 which was an action broui>ht to recover the value of a Andrews v. 
 ship in like manner condeinnoi], and sold at Tobago, as 
 incapable of repair, and in which also the plaintilF suc- 
 coede.l, his Lordship said, that he considered a proceedinji; 
 of this sort, not as a sentence of a court pronounced for 
 the captors of a captured vessel, but rather as the inquisi- 
 tion of a sheriff, for the purpose of information to those 
 who, under certain circumstances, have the power of sell- 
 ing the ship. Such an inquisition is not conclusive upon 
 the party whose property is in question. 
 
 In Underwood 'y. Robertson, (::) the same question came Underwood v. 
 
 • I £. ii , i- ^• c ■ Robertsoii. 
 
 ag^ain betore the court, upon an action on a policy oi in- 
 surance. A ship going from London to Demerara, and 
 insured for that voyage, had been captured by an Ame- 
 rican privateer near to that island, upon which occasion 
 she was plundered of her stores, and all lier crew, except 
 the captain and one boy, taken from her. Being imme- 
 diately afterwards re-captured, and carried into St. 
 Thomas's, the captain made an instant application to 
 the Vice-Admiralty Court of Tortola, (which is the court 
 of all these islands,) for an order and authority (o sell 
 the ship and cargo. The order was accordingly given 
 upon his petition; and the ship and cargo were immediately 
 afterwards sold, and at a loss of 60 per cent, on the cargo. 
 The question before the court was, whether the captain 
 under these circumstances had a right to sell the ship and 
 cargo, and to break up the adventure, so as to entitle the 
 plaintifl's to recover against the underwriters as for a total 
 loss. Lord Ellenborough was of opinion, that the captain 
 under the circumstances of the case had no right to sell the 
 ship and cargo. If the captain could not at first have 
 procured a competent crew to navigate the vessel, he 
 should have waited a reasonable time for the purpose : to 
 have enabled him to pay the captor's eighth, he was bound 
 to have tried, and to have tried seriously and deliberately, 
 
 (s) -iCaoipb. 138,
 
 414 Merchant Ships, %c. [part ii. 
 
 Of the autho- every other expedient to raise money before disposing of 
 rityofthe . o ^ , • i , • x ,- , 
 
 masterto sell any part oi the goods intrusted to his care. It did not 
 
 ship or cargo, satisfactorily appear that he mig'ht not have raised the 
 money by drawing on his owners, or by hypothecating the 
 ship. He had come to the conclusion of selling the vessel 
 and cargo in three days. The cargo was only to be re- 
 sorted to in the last extremity, when every other expedi- 
 ent had failed, and every other resource was hopeless. 
 
 Upon a review of all these cases, it appears that the 
 authority of the master or captain to sell the ship or 
 carg'o may be summarily stated, and limited, as follows : — 
 
 1. That in a case of extreme necessity, and in such case 
 only, can the captain or master resort to the sale of the 
 ship, and in such case he should be provided with the 
 strongest evidences of such necessity, in order to meet and 
 rebut the jealousy and suspicion with which the courts of 
 law always regard such an act of his power. 
 
 2. That a survey of the vessel made by the authority of 
 a Vice-Admiralty Court, and a sentence of condemnation 
 by such court consequent upon the report of their sur- 
 veyors, are not of themselves conclusive evidence, and 
 still less authority, of the extreme necessity of the vessel 
 required by la>v to justify a sale by the master. Upon 
 which principle Lord Ellenborough, in Andrews r. 
 Glover, (a) said that he could consider such a proceeding 
 only in the nature of an inquisition by the sheriff, hav- 
 ing for its object the information of those who claimed, 
 and who under certain circumstances had the power of 
 selling the ship, and was in no degree conclusive upon the 
 owner. 
 
 3. That those, therefore, who purchase of the master, 
 
 (fl) Sitriii<|;s after Trinity Term Ellenborough, C. J. And see Ab- 
 4*) Geo. III. at Guildhall, Lord bott, 9 ; and ante, p. 413.
 
 CHAP. Ill] Of the Power of the Master , &;c. 415 
 
 under such circumstances, should be careful to provide of the autho- 
 
 themselvea, not only with the ordinary titles of a ship, but '"'•^y <*' *"<^ 
 
 I " , ' master to sell 
 
 with the evidences of the state and extreme necessity under ship or cargo 
 
 which the vessel was sold; and when they became the pur- 
 chasers. Such evidences are the petition of the master to 
 the court for a survey, a commission of survey, report of 
 surveyors, decree of the Jud«fe adopting- the report, peti- 
 tion of the master for a sale, and a commission of sale, 
 directed to the marshal of the court. Nor will all these 
 be sufficient, if there be any thin*^ in the biddings, price, 
 or purchase, wh'ch can supply additional matter of sus- 
 picion to that jealousy with whicli the law always regards 
 a transaction of this kind. 
 
 Such, therefore, is the rule of law as regards the sale 
 of the ship by the master, (i) As the value of the ship 
 and freight, from the extent of injury which the vessel 
 may sustain, may sometimes be deemed an insufficient 
 security for the amount of the expences of the repairs, the 
 master, as we have already shewn, may hypothecate the 
 cargo for the repairs of the ship when in distress in a 
 foreign port, and even sell a part, in order to enable hini 
 to convey the residue to its destination. It should seem, 
 however, that he cannot, under any circumstances, sell 
 the whole of the cargo. But as to tiie general doctrine, 
 and the power of the master to hypothecate, or to sell a 
 portion of the cargo for the repairs of the ship in a re- 
 mote country, the reader is again referred to the cele- 
 brated judgment of Sir William Scott in the case of the 
 Gratitudine. (c) 
 
 (b) Some early cases of hjpothe- 252. Noy. 95. Corset v. Husely. 
 
 cation, and some incidental ob- 1 W. & M. Comb. 135. Rep. Ter. 
 
 serrations by the court upon the Holt, 48 and Benzen v. Jeffries, 
 
 power of the disposal of the ship by 8& 9 Will. 3. 1 Lord Rayra. 152 
 
 the master, may be found as follows. Lister v. Baxter, 1 Stra. 695. Mene- 
 
 Bridgman's case, 12 J. 1. Hob. 11. tone «. Gibbons, 3 T. R. 267. 
 
 Moore, 918. iRo.Abr. 530. Scar- (c) 3 Rob. 240. and sec flw/e, p. 
 
 borough u, Lyrus, 3 Car. I. Latch. 402.
 
 416 
 
 MercJiunt Ships, ^c. 
 
 [part II. 
 
 The masfer is 
 dejure the 
 agent of the 
 owner of the 
 ship ; but he 
 is not, unless 
 specially con- 
 stituted, the 
 agent of the 
 owner; but 
 a carrier 
 merely. 
 
 The master, as we have before observed, is dejure the 
 agent of the owner of the vessel, who is, therefore, bound 
 by his acts as to all consequences resulting from the con- 
 duct of the ship. But he has no such extensive relation 
 as to the owner of the cargo; being in that case only a 
 carrier, unless specially constituted an agent, (t^) Unless, 
 therefore, in the case of extreme necessity, which requires 
 the sacrifice or hypothecation, in part or whole, of the 
 cargo as well as the ship, no act of the master can affect the 
 owner of the cargo, (e) As he can only act for the presumed 
 benefit of the owner, and as it can scarcely ever be for 
 the advantage or profit of the owner that the whole cargo 
 should be sacrificed, he cannot, of course, dispose of the 
 Xkhole by sale. It is doubtful even, whethei* he can act to 
 that extent which, in cases of similar circumstances, but 
 of a less valuable trust, the law would allow to an agent 
 or servant, as being the presumable will of his master 
 under the exigent circumstances of the case. Hence, 
 though under an extreme case of difficulty or danger, 
 it would be a reasonable presumption, that the owner him- 
 self, if present, would direct a sale of the cargo, it is held 
 to be still doubtful, in the courts of common law, whether 
 a master should be entrusted with a power so open to 
 abuse. 
 
 fampbdl v. 
 Thompson. 
 
 In Campbell v. Thompson {f) it appeared that the 
 plaintiff had shipped goods on board a vessel, which, by 
 stress of weather, had been driven into the port of Hali- 
 fax. Part of these goods, without any urgent necessity, 
 had been sold there by the captain, in order to defray the 
 expences of rej)airing the ship. Whilst the vessel was 
 engaged in this voyage^ Metcalfe, the owner, made an 
 assigimient of the freight to the defendant. On the ship's 
 arrival in the port of London, the defendant refused to 
 deliver to the plaintiff the residue of his goods, unless he 
 
 {S) 1 Rob. 84. 151. and 155. 
 (r) 2 Rob. 251. 
 
 (/) 1 Starkic, 490.
 
 CHAP. III.] Of the Power of the Master, ^c. 417 
 
 paid freight for the whole. The plaintiff insisting that he 
 had a right to set otf the sum for which the goods had been 
 sold against the demand for freight, an agreement was 
 mutually entered into, by which the plaintiff agreed to pay 
 the freight of the goods, when it should become due, and 
 agreed also to accept a bill for the amount; the defendant 
 engaging to indemnify the plaintiff, in case it should ap' 
 pear, between that time and the time when freight should 
 become due, that the plaintiff had any claim for deduction. 
 The action was founded upon a breach of this under- 
 taking. It was contended, on behalf of the defendant, 
 that the captain had a right to sell a part of the cargo for 
 the purpose of repairs ; but Lord EllEx\boiiough, ad- 
 dressing himself to this part of the case, said, " I desire 
 that it may not go abroad that the master, as has been 
 contended, has any right to dispose of goods on board the 
 ship, except, indeed, in cases of urgent necessity. There 
 is a paucity of authorities on this subject, but this has 
 been so decided in a case Avhich was tried before Lord 
 C. J. Eyre. His Lordship refused to reserve the point, 
 adding, " tliat to save the question would imply that he 
 entertained doubts upon it."(g) 
 
 Having already spoken at length of the master's power Of Bottomry 
 of hypothecating the ship in a foreign port, it remains acntia!*"^"'^' 
 that we should add a few remarks upon bottomry and 
 respondentia. 
 
 The contract of bottomry and respondentia seems to 
 deduce its origin from this necessary authority of the 
 master; and, although this contract has been the subject of 
 very learned investigation in several treatises on the law 
 of maritime insurance, it must not altogether be omitted 
 in the present place. But, previous to this enquiry, it w ill 
 
 (g) A new trial was afterwards the case of the Gratitudine, 3 Rob 
 moved for in the K. B. and refused 240. 
 by the court. — See likewise ante, 
 
 9 X?
 
 418 
 
 Merchant Ships, ^c. 
 
 [part II. 
 
 No settled 
 form of bonds 
 or contracts 
 of hypotheta- 
 tioa 
 
 Summary 
 jurisdiction 
 of the Court 
 of Admiralty. 
 
 be necessary to say a few words on the Joj^m of the in- 
 strument of hypothecation. When the master hypo- 
 thecates the ship abroad, there is no settled form of con- 
 tract in use on these occasions ; sometimes an instrument 
 in the form of a bond, (thence popularly called a bot- 
 tomree bond,) at other times a bill of sale ; at others, in- 
 struments of a different kind, are employed to hypothecate 
 the vessel. But, whatever the nature of the instrument 
 be, it ought to express the occasion of borrowing-, (for 
 example, to repair the ship, to pay customs, duties, &Ci.) 
 the sum, the premium, the ship, the names of the parties, 
 the voyage, the risks to be borne by the lender, and the 
 subjection of the ship itself as security for the payment of 
 the monies advanced. We have already observed, that 
 this security being in re, the lender, by the universal 
 maritime law of Europe, has a right to have recourse to 
 the ship itself for repayment. Upon the arrival, there- 
 fore, of the vessel in her home port, if default be made in 
 payment of the money borrowed, the lender may obtain a 
 warrant from the Court of Admiralty to arrest the ship, 
 upon an affidavit of the facts, and may cite all persons in- 
 terested to appear before the court. This citation is ge- 
 nerally made by posting a copy of the warrant upon some 
 part of the ship. (//) The Court of Admiralty may decree 
 a sale of the ship, and distribute the proceeds to the dif- 
 ferent claimants; and the absence and default of the 
 owners will be no impediment to the proceedings of this 
 court ; for if it were admitted that no decree could be 
 made unless they should appear, a failure of justice would 
 frequently occur. This proceeding in rem against the 
 ship itsell* is the proper and peculiar province of the 
 Court of Admiralty. The courts of law have no such 
 power ; their proceedings are entirely personal, and they 
 have no authority to adjudge a delivery of the ship in 
 specie. 
 
 AVith regardj however, to contracts of bottomry, prO' 
 
 (h) Abbott, 151.
 
 CHAP. lu.] Bottomry and Respondentia. 419 
 
 ^erly so called, made by the owners themselves in this Of bottomry 
 country before the beginning- of a voyage, by the terms of jl^ntia*^^'^* 
 which the ship is pledged as a security, it should be ob- 
 served, that the lender has not the same convenient and 
 prompt remedy by suit in the Admiralty against the ship, 
 as he has in the case of hypothecation for necessaries by 
 the master in a foreign port.(/) And if the contract relate 
 to a British ship, and there be an assignment by way of se- 
 curity, either to take place by some instrument in 'pre-- 
 senti, or infuturo, it should seem that it would be neces- 
 sary for the lender to comply with the forms of the re- 
 gistry acts, in order to make the contract available either 
 in equity or law. 
 
 A few words will, therefore, be necessary to explain the 
 nature of bottomry and respondentia, which must not be 
 confounded with the contract of hypothecation which the 
 master makes in a foreign port. 
 
 The contract of bottomry is in the nature of a mortgage Of the nature 
 of a ship, when the owner of it borrows money to enable ^^act of bot- 
 him to carry on the voyage, and pledges the keel or tomry and 
 
 bottom of the ship, as a security for the repayment: and it 
 is understood, that if the ship be lost, the lender also loses 
 his whole money ; but if it return in safety, then he shall 
 receive back his principal, and also the premium or in- 
 terest stipulated to be paid, however it may exceed the 
 usual or legal rate of interest. When the ship and tackle 
 are brought home, they are liable, as well as the person 
 of the borrower, for the money lent, (k) But when the 
 loan is not made upon the vessel, but upon the goods and 
 merchandizes laden therein, which, from their nature, 
 must be sold or exchanged in the course of the voyage, 
 then the borrower only is personally bound to answer the 
 contract j who, therefore, in this case is said to take up 
 
 (i) Abbott, 146. Insur. 615. 
 
 {Ic) 2 Black. 457, and Park on 
 
 2 E 2 
 
 respondentia.
 
 450 Merchant Ships, ^c. [part h- 
 
 Of bottomry money at respondentia. In this consists the difference be- 
 aadrespoa- , . i ^ ^i • i 
 
 dentia. tvveen ootlomrt/ and respondentia ; that the one is a loan 
 
 upon the ship, the other upon the goods ; in the former, 
 
 the ship and tackle are liable, as well as the person of the 
 
 borrower ; in the latter, for the most part, recourse must 
 
 Inwhatcir- ijg had to the person only of the borrower. Another dis- 
 
 cumstances . . 
 
 contracts of tinction is, that in a loan upon bottomry the lender runs 
 
 hottomry and ^^ ^.j^j^ though the goods should be lost ; and upon re- 
 respondentia ' o & ..... 
 
 are distiu- spondentia the lender must be paid his principal and iu;- 
 
 guis e . terest, though the ship perish, provided the goods are 
 
 safe. But in all other re>;pects the contract of bottomry 
 and respondentia is upon the same footing; and the rules 
 and decisions applicable to one are applicable to both. (/) 
 These terms are also applied to another species of con- 
 tract, which does not exactly fall within the description 
 of either ; namely, to a contract for the repayment of 
 money, not upon the ship and goods only, but upon the 
 mere hazard of the voyage itself; as if a man lend 1000/. 
 to a merchant to be employed in a beneficial trade, with a 
 condition to be repaid with extraordinary interest, in case 
 a specific voyage named in the condition shall be safely 
 performed ; which agreement is sometimes called fcenus 
 
 Molloy, lib. nauticum^ or usura marilima. But as this species of bot- 
 2. c. 1 1. 
 
 tomry opened a door to gaming and usurious contracts, 
 
 especially in long voyages, the legislature, at the time it 
 suppressed insurances upon wagering policies, introduced 
 19 Geo. II. c. a clause, by which it was enacted, " That all sums of mo- 
 • ^" ^' ney lent on bottomry, or at respondentia, upon any ship 
 
 or ships belonging to his majesty's subjects, bound to or 
 from the East Indies^ sliould be lent only on the ship, or on 
 the merchandize or eflects, laden or to be laden, on board 
 of such ship, and should be so expressed in the condition of 
 the said bond; and tlie benefit of salvage should be al- 
 lowed to the lender, his agents or assigns, who alone shall 
 have a riglit to make assurance on the money so lent ; and 
 no borrower of money on bottomry, or at respondentia, 
 
 (I) Park, on lusur. G16.
 
 CHAP. III.] Bottomri/ and Respondentia. 421 
 
 shall recover more on any insurance than the value of his Of bottomry 
 interest in the ship, or in tlie merchandizes and effects jeutia. 
 laden on board thereof, exclusive of the money so bor- 
 rowed ; and in case it should appear that the value of his 
 share in the ship or in the meicliandizes or effects laden 
 on board of such ship, did not amount to the full sum or 
 sums he had borrowed as aforesaid, such borrower should 
 be responsible to the lender for so much of the money 
 borrowed, as he had not laid out on the ship or merchan- 
 dizes laden thereon, with lawful interest for the same, in 
 the proportion the money not laid out should bear to the 
 whole money lent, notwithstanding' the ship and merchan- 
 dizes should be totally lost." 
 
 This statute has entirely put an end to that species of 
 contract which was last mentioned, nameiy, a loan upon 
 the mere vojage itself, as far, at least, as relates to East 
 Indi'a voyages ; but as none other is mentioned, and as 
 eocpre^sio unhis est exclusio allerius, these loans may be 
 made m all oth'^r cases, as at the common law, except in the 
 foil awing- instance, which is another statutory prohibition. 
 The statute 7 Geo. I. c. 21. declares, that all contracts 
 made or entered into by any of his majesty's subjects, or 
 any persons in trust for them, for or upon the loan of any 
 monies by way of bottomry, or any ship or ships in the 
 service of foreigners, and bound or designed to trade in 
 the East Indies or parts aforesaid, shall be null and void, (m) 
 
 This act, it should seem, does not extend to prevent the 
 king's subjects from lending money on bottomry on foreign 
 ships trading from their own country to their settlements 
 in the East Indies. The purpose of the statute was only 
 to prevent the people of this country from trading- to the 
 British settlements in India under foreign commissions, 
 and to encourage the lawful trade to those settlement^. 
 
 (ot) 7 Geo. I. c. 21,8. 2. Park on Insur.GlT.
 
 422 
 
 Merchant Ships, ^c. 
 
 [part II. 
 
 Of bottomry 
 and respon- 
 dentia. 
 
 The priftclpl'c on uhich bottomry is allowed is, the con- 
 venience of trade, and the risk which the lender incurs of 
 losing his principal and interest. It is, therefore, of the 
 Essence of this contract that the lender should incur the 
 risk of the voyage ; and that both principal and interest 
 be put to hazard ; for if the risk only extend to the in- 
 terest or premium, and not to the principal, it is a con- 
 tract against the Statute of usury, and therein void. The 
 cases, which are numerous on this subject, are all uniform 
 in the rule, that, on account of the risk, the interest re- 
 served may exceed the common rate. But as the hazard 
 to be run is the very basis and foundation of this contract, 
 it follows that, if the risk be not run, the lender cannot 
 be entitled to the extraordinary premium. 
 
 The amount of the loan on bottomry or respondentia, 
 a.s before observed, is not restrained by any fixed re- 
 gulations of the law of this country, although many 
 maritime states have express ordinances on this sub- 
 ject, (n) The only restriction in the law of England 
 is upon money lent on ships and goods going to the 
 East Indies, which must not exceed the value of the 
 
 Of the risks property on which the loan is made, (o) With respect 
 
 to which the t" t J . , , . i , 
 
 lender on bot- to the risks to which the lender undertakes to expose 
 
 v"hi'7 *^ himself, they are for the most part mentioned in the 
 
 condition of the bond, and are nearly the same against 
 which the underwriter, in a policy of insurance, under- 
 takes to indemnify the assured. These risks are sea perils, 
 tempests, pirates, fire, capture, and all other misfortunes, 
 except such as arise from the defects of the vessel, as from 
 its being not seawortliy, &c. ; or from the misconduct of the 
 borrower. Bottomry bonds generally express from what 
 time the rif^c is to commence, as that the ship shall sail 
 from London to a certain port abroad. (/?) In such cases, 
 the contingency does not commence till the ship departs ; 
 
 (fi) Park 627. 
 
 (o) 19 Geo. n. c. 37. 
 
 (p) Park 626.
 
 CHAP. III.] Bollomri/ at id Respondentia. 4t2^ 
 
 and, therefore, if she receive an injury before the incep- Of bottomry 
 
 tion of the voyage, it will be the loss of the borrower: dentia*^°' 
 
 but if the condition be, " that if the ship shall not arrive 
 
 at such a place by a certain time, then," &c.; in these in- 
 
 stances, the risk commences from the time of sailing ; and 
 
 a different rule as to the loss will necessarily prevail. (§') 
 
 The lender on bottomry, as we have said, is answerable 
 
 for losses by capture ; or, to speak more accurately, if a 
 
 loss by capture happen, he cannot recover against the 
 
 borrow er ; but, in bottomry and respondentia bonds, cap- Qf ^jj^ ,T,p,jn- 
 
 ture docs not mean a mere temporary taking, but it must insofthe 
 -t ^ ■ " 1 , term capture 
 
 be such a capture as to occasion a total loss ; and, tiiere- i,, botiomry 
 
 fore, if a ship be taken and detained a short time, and yet ^'^"<l*' 
 arrive at the port of her destination within the time 
 limited, (if time be mentioned in the condition,) the bond 
 is not forfeited, and the obligee may recover. (/•) So 
 likewise it has been determined, that an assured in bot- 
 tomry cannot recover against the underwriter, unless 
 there has been an actual and total destruction of the ship; 
 for if the ship exist in specie in the hands of tlie owner, 
 though under circumstances which would justify an aban- 
 donment in a common case, it will not be deemed a total 
 loss within the meaning of a bottomry bond. (>v) A lender 
 on bottomry or respondentia is to be tlistinguished in 
 many things from an ordinary insurer. He is not entitled 
 to the benefit of salvage, nor is he liable to contribute in 
 the case of general average. (/) " By the law of England," 
 says Lord Kenyon, " a lender upon respondentia is not lia- 
 ble to average losses : but is entitled to receive the whole 
 sum advanced, provided ship and cargo arrive at the port 
 of destination." (^^) We have already said, that if the 
 loss of the ship happen by the default of the borrower, or 
 
 (//) Park 626. (/) Joyce v. Williamson, Park 
 
 (r) Ibid. 627; and see the case of 627, 
 
 Joyce V. Williamson, there cited. (w) Walpole v. Ewer, Park. 629- 
 
 (s) Thompson v. Royal Exch. and Power v. Whitraore, 4 Maule 
 
 Assurance Company, 1 Maule and and SpIw. 141. 
 Selw. 30.
 
 42* 
 
 Merchant Ships, ^c. 
 
 [part II. 
 
 Of bottomry of the captain, the lender is not liable, and has a right to 
 dentia!^*""" demand the payment of the bond. If, therefore, the 
 vessel be lost by a wilful deviation from the track of the 
 voyage, the event has not happened upon which the bor- 
 rower was to be discharged from his obligation. This has 
 been decided in several cases, (x) 
 
 19 Geo. II. 
 c. 32. 
 
 There is no restriction by the law of England as to the 
 persons to wliom money may be lent «i bottomry, or at 
 respondentia ; but as it frequently happened, as appears 
 by the preamble to the 19 Geo. II. c. 32. that the bor- 
 rowers on bottomry or at respondentia became bankrupts 
 after the loan of the money, and before the event happened 
 which entitled the lender to repayment, by which means 
 the debt could not be ])roved under the commission, and 
 the lenders Avere left to such redress as they could obtain 
 from the bankrupt, who had previously given up every 
 thing to his other creditors ; and this proving a discourage- 
 ment to trade, it was enacted in aid of such contracts, 
 " That the obligee in any bottomry or respondentia bond, 
 made and entered into upon a good and valuable con- 
 sideration, bond fide, should be admitted to claim, and 
 after the contingenc?/ should have hopprned, to prove his or 
 her debt or demands in respect of such bond, in liJcc manner as 
 if the contingency/ had happened before the time of the issuing 
 of the commission of bankruptcy against such obligor, and 
 should be entitled unto, and should have and receive a 
 proportionable part, share, and dividend of such bank- 
 rupt's estate, in proportion to the other creditors of sucli 
 bankrupt, in like maimer as if such contingency had hap- 
 pened before such comuiission issued ; and that all and 
 every person or persons, against whom any commission of 
 bankruptcy should be awarded, should be discharged of 
 and from the debt or debts owing by him, her, or them, 
 on every such bond as aforesaid, and should liave tlie be- 
 nefit of the several statutes now in force against bank- 
 
 (x) Park. 631. where the cases are collcclcd.
 
 CHAP. III.] Botloinrij and Respondentia. 425 
 
 rupts, in like manner, to all intents and purposes, as if Of bottomry 
 such contingency had happened, and the money due in (jcalia. 
 respect tlieroof had become payable before the time of t!)e 
 issuing of such commission." 
 
 By the statute book it appears, that the masters and 16 Car. I.e. 
 mariners of ships having taken upon bottomry greater 02 "s'car. II. 
 sums of money than the value of thoir adventure had been c- Us- 12- 
 accustomed wilfully to cast away, burn, or otherwise de- 
 stroy the ships under their charge, to the great loss of the 
 merchants and owners ; it was therefore enacted, " That 
 if any captain, master, mariner, or other officer belonging 
 to any ship, should wilfully cast away, burn, or otherwise 
 destroy the ship unto which he belonged, or procure the 
 same to be done, he should suffer death as a felon." The 
 duration of the first act having been limited to three 
 years, it became extinct ; but the necessity of such a pro- 
 vision was so great, that a similar law was made a few 
 years afterwards, and is still in force. 
 
 The contract of bottomry and respondentia is of great utility of the 
 utility in a country where the persons engaged in trade contract of 
 have not a sufficient capital to carry on their foreign com- respondentia. 
 merce, by inducing speculative men to embark their mo- 
 ney in such ventures ; and thus is formed a sort of part- 
 nership between the lender and the borrower, in which 
 the one supplies capital, and the other skill and experi- 
 ence ; the one takes upon himself the perils of the sea, and 
 the other compensates him by a share of the profits of the 
 adventure. But, except in this respect, this contract has 
 no resemblance to a regular partnership, having in it no 
 community of capital, or community of loss, (j/) 
 
 Formerly the practice of borrowing money on bottomry 
 and respondentia was more general in this country than 
 
 {y) Sav. Diet. h. t. Casaregis and Marshall 738. 
 disc. 7, n. 2 ; Emerig, t. 2. p. 394. 
 ' 1
 
 426 
 
 Merchant Ships, ^c. 
 
 [part II, 
 
 Rarely re- at present. The extensive capitals now engag^ed in every 
 Great Britain, branch of commerce render such loans unnecessary ; and 
 money is now seldom borrowed in this manner, but by 
 the masters of foreign ships who put into our ports, and 
 are in want of pecuniary assistance to refit, to pay their 
 men, to purchase provisions, &c. Sometimes officers and 
 others belonging to ships engaged in long voyages, who 
 have the liberty of trading to a certain extent, with the 
 prospect of great profit, but without capitals of their own 
 to employ in an adventure, take up money on respondentia 
 to make their investments : but even this practice has 
 ceased to be frequent, (z) 
 
 Form of the 
 contract. 
 
 This contract, which must always be in writing, is 
 sometimes made in the form of a deed-poll, caled a bill 
 of bottomry, executed by the borrowers, sonietirr.es in the 
 form of a bond or obligation, with a penalty. But what- 
 ever may be its form, it must contain the names of the 
 lender and the borrower, those of the ship and the master ; 
 the sum lent, with the stipulated marine interest ; and 
 -the voyage proposed, with the duration of the risk which 
 the lender is to incur. It must shew whether the money 
 be lent on the ship, or on goods on board, or on both ; 
 and every other stipulation and agreement which the 
 parties may think proper to introduce into the contract. 
 
 The marine 
 interest 
 should be ex- 
 pressly reserv- 
 ed. Semblc, 
 that courts of 
 law and 
 equity will 
 not tiii|)|)ly 
 omissions in 
 this respect. 
 
 It is essential to this contract that the marine interest 
 be expressly reserved in it. Some foreign writers, indeed, 
 hold, and it appears to us very justly, that, without this, 
 the law would look upon the contract only as a simple 
 loan, upon which the lender had gratuitously taken upon 
 himsclfthe perils of the sea. Emerigon, however, thinks(a) 
 that this being a contract founded in good faith, equity 
 will supply the omissions occasioned by mistake or in- 
 advertence. But we apprehend, that in the case of marine 
 interest not being expressly stipulated for in the contract, 
 
 (a) Marsh. 738. 
 
 (a) Tit. S. p. 406.
 
 CHAP, til.] Bottovmj and Respondentia. 427 
 
 the law of England would in no case supply the omission, 
 neither by a large and general interpretation of the nature 
 of the contract, nor by admitting proof of the usage of 
 merchants. The equity of English courts is not that 
 loose general reasoning which foreign writers see in 
 practice in their own. It is, with us, always under the 
 controul of precedents, adjudged cases, and of the long 
 known and established practice of the courts ; and there 
 is no safer principle in the English law, than that written 
 contracts should be deemed to contain the whole of the 
 will of the parties, and that nothing should be added to 
 them, or taken from them, unless in cases of manifest error 
 or omission. What is ambiguous may, indeed, be ex^ 
 plained by evidence out of the contract : but no new ob- 
 ligations must be inferred or reasoned out by a commentary 
 on the contract itself.
 
 4^28 
 
 CHAPTER IV. 
 
 OF THE MARINERS. 
 
 Of the duties Xi A VING treated in a former chapter of the owners, 
 of mariners. , , ., x r i • i x 
 
 part owners, and the masters oi ships, we now proceed to 
 
 the mariners, under which head we shall consider, j^rs/, 
 
 Their general duties ; and, secondlj/^ (but which, from its 
 
 importance, will be the subject of a chapter by itself,) 
 
 what respects their wages. 
 
 In order to regulate the duties of mariners, the legisla- 
 ture has from time to time passed several acts of parlia- 
 ment, the principal of which are the 2 Geo. II. c. oQ. and 
 31 Geo. III. c. 39. Upon a review of these statutes, the 
 duties of mariners as required by law, and of masters in 
 hiring them, may be stated as follows : — 
 
 Contract with The first rule is, that the contract for service must be 
 
 seamen must j^^ade with the master, by a written agreement, signed by 
 be in writmg, . , . 
 
 and signed by him and the mariners ; such agreement to express their 
 
 the master >vaffes, and the voyaoe for Avhich they are hired. The 
 and seamen. o ? j » j 
 
 contract thus signed becomes the articles by which the 
 seamen are bound to the master ; and if a mariner, after 
 having signed them, either refuses to proceed on the 
 voyage, or deserts in the course of it, he forfeits to the 
 owner all wages then due to him; and a Justice of the 
 Peace may, on complaint of the master, owner, or person 
 having charge of the ship, issue a warrant to apprehend 
 him ; and in case he refuses to proceed on the voyage, and 
 does not assign a sufficient reason for his refusal, may 
 commit him to hard labour in the house of correction, for 
 not more than Llurli/, nor less ihiinfourken days. Any ab-
 
 CHAP. IV.] Of the Mariners. 429 
 
 sence from the ship without permission of the master, or 
 other person acting in command, is punishable by the for- 
 feiture of two days' pay to Greenwich Hospital for every 
 such day's absence. And whether the ship be upon a 
 coasting or foreign voyage, if any seaman leave her with- 
 out a written discharge from the master, or any person 
 acting in authority for him, such seaman is to forfeit one 
 month's wages to the chest at Greenwich. In a foreign 
 voyage, the penalty attaches, if the mariner leave the ship 
 at her port of delivery here, without such written dis- 
 charge ; and in a coasting voyage, if he leave her before 
 the voyage is completed, and the cargo delivered. Sea- 
 men, however, entering on board any of his majesty's 
 ships, are exempted from these provisions, (a) 
 
 These articles of agreement between master and mari- Articles of 
 
 . " 1 /» 1 agreementbe- 
 
 ners always contain an express- clause, that every lawful t\veen master 
 
 command which the master shall think necessary to issue and manners, 
 
 ■' justiiy rea- 
 
 for the cffeclual government of the vessel, and for sup- sonable cor- 
 
 pressing immorality and vice of all kinds, be strictly obey- 
 ed, under the penalty of the person disobeying forfeiting 
 his whole wages or hire, together with every thing be- 
 longing to him on board the vessel. Under this clan-;e, 
 added to the manifest necessity of the case, it is adjudged 
 that the master may exercise over his crew the autliorify 
 of a master over his apprentices, and may give them rea- 
 sonable and salutary correction ; the law considering such 
 correction to be a less punishment than the total for- 
 feiture of wages stipulated by the articles. But on the 
 other hand, the law having a due regard to the liberty 
 of the subject, and to the different degree of the pul>lic 
 interest concerned in the merchant and king's services, 
 regards this exertion of authority with the greatest jea- 
 lousy, and most strictly confines it within those limits, 
 which are necessary to the safety of the ship, and the due 
 progress of the voyage. Accordingly in all cases, a sea- 
 
 (a) 2 Geo. II. c, 36. s. 13. ; and 31 Geo. III. c. 39. s. 4. 
 
 reclion.
 
 Christie. 
 
 430 Of the Mariners. [part ir. 
 
 man, who has been beaten or imprisoned by the master, 
 may, upon his return to a British port, bring an action 
 against him, to which the master must plead specially 
 that the seaman had committed some particular fault, (spe- 
 cifying such fault,) and that he had corrected him only 
 Watson r. moderately for it. In Watson v. Christie, (6) it appeared 
 that the defendant was the captain of a ship, and the 
 plaintiff one of his crew; that the plaintiff, whilst under 
 the defendant's command, had been so severely beaten by 
 order of the defendant, that he had ever since that time 
 been in a state of extreme ill health, and was likely to 
 continue so during the rest of his life, which was still in 
 some danger in consequence of the assault. On the other 
 hand, it was offered to be proved, that the beating in 
 question was given by way of punishment for misbe- 
 haviour on board the ship; and it was insisted that, as the 
 conduct of the defendant, at the time of the assault, was 
 necessarily in evidence, such conduct proved misbehaviour, 
 and justified the assault. Lord Eldon, Chief Justice, 
 said, that although the beating in question, however 
 severe, might possibly be justified on the ground of the 
 necessity of maintaining discipline on board the ship, ye^ 
 that such a defence could not be resorted to unless put 
 upon the record in the shape of a special justification. 
 
 Self-defence a 
 jusliticatioii 
 
 Should any mutiny occur on board a merchant vessel, 
 for homicide the captain may resort to every necessary means of self- 
 a"mu?my!*'"^ defence, and of subduing Iiis crew. Should any seaman 
 be killed or wounded in the course of such conflict, it is 
 regarded in law as an act of self-defence. But though the 
 captain may confine or put in irons a mutinous seaman, 
 whether for the purpose of preventing the effects of his 
 mutiny, or for bringing him to trial in England, he must 
 not punish beyond reasonable correction, that is to say, 
 he must not punish in the nature of a penal satisfaction at 
 hiw. By the 39 Geo. III. c. 37., all offences on the high 
 
 (ft) 2 Bos, and Pull. 224. 
 
 2
 
 CHAP. IV.] Of the Mariners. 431 
 
 seas may be tried under the Admiralty commission, and 
 punished as if committed on shore. And by the 43 Geo. 
 III. c. IGO. s. 78,, all justices of the peace may receive in- 
 formation of murder, piracy, or robbery on the sea, and 
 commit the offenders for trial. 
 
 With respect to offences committed by mariners against Three of- 
 
 the ship and cargo, they are of three kinds ; namely, the shj., ^^^ 
 
 offence of wilfully destroying the ship, of running away ci»rgo ; i. e. 
 . , , , . ' . . • in *''^ destroy- 
 
 with the ship or cargo, or exciting a mutiny, and oi not ing the ship, 
 
 resisting; pirates or enemies. *"^' "■"'»""& 
 
 ° ^ away with the 
 
 ship, and vo- 
 The first offence, that of destroying the ship, having v"ieidin/itu 
 originated in the temptation afforded by the practice of t" pirates and 
 insuring, was very early made felony by several successive 
 acts of Charles, Anne, and George the First ; (c) but the 
 verbal description of the offence in these acts having been 
 found insufficient in the case of Eastcrby r. Macfarlane, (c/) 
 they were all repealed, and the statute of 43 Geo. 3. c. 
 113. passed in their place. By this statute it is enacted, Destroying 
 " That if any person or persons shall, from and after the feion^r'''*^^ 
 16th day of July, 1803, wilfully cast away, burn, or other- 43 Geo. III. 
 wise destroy, any ship, or vessel, or in anywise counsel, 
 direct, or procure the same to be done, and the same be 
 accordingly done, with intent or design thereby M'ilfully 
 and maliciously to prejudice any owner or owners of such 
 ship or vessel, or any owner or owners of any goods 
 loaden on board the same, or any person or persons, body 
 politic or corporate, that hath or have underwritten or 
 shall underwrite any policy or policies of insurance upon 
 such ship or vessel, or on the freight thereof, or upon any 
 goods loaden on board the same, tlie person or persons 
 offending therein being thereof lawfully convicted, shall 
 be deemed and adjudged a principal felon or felons, and 
 
 (c) 22 & 23 Car. II. c. 1 1. s. 12 ; G & 7. And see nnle, p. 425. 
 1 Ann. Stat. 2. c. 9. s. 4. ; 4 Geo. I. {d) East. P. C. Addenda, p. 20. 
 
 C. 12. s. 3.; 11 Geo. 1. c. 29. .s. 5,
 
 432 Of the Mariners. [part ti. 
 
 43 Geo. III. shall suffer death, as in cases of felony, without benefit of 
 ^' ■ clergy." It is further enacted by the second section, 
 
 " That if any ship or vessel shall, from and after the 16th 
 day of July, in the year of our Lord 1803, be wilfully 
 cast away, burnt, or otherwise destroyed, within the body 
 of any county of this realm, that then the said several of- 
 fences, as well in wilfully casting away, burning, or other- 
 wise destroying such ship or vessel, as in counselling, di- 
 recting, or procuring the same to be done as aforesaid, 
 shall and may be respectively enquired of, tried, deter- 
 mined, and adjudged in the same courts, and in such man- 
 ner and form, as felonies done within the body of any 
 county, by the laws of this realm now are to be, or by 
 virtue of this act hereafter may be, inquired of, tried, de- 
 termined, and adjudged; and if any such ship or vessel 
 shall be wilfully cast away, burnt, or otherwise destroyed 
 on the high seas, then that the said several offences, as 
 well in wilfully casting away, burning, or otherwise de- 
 stroying any such ship or vessel, as in counselling, direct- 
 ing, and procuring the same to be done as aforesaid, shall 
 and may be respectively enquired of, tried, determined, 
 and adjudged, before such court, and in such manner and 
 form as in and by an act made in the 28th year of the reign 
 of King Henry VIII., instituted /(>r p/ra/e^, is appointed 
 and directed for the enquiring, trying, determining, and 
 adjudging of felonies upon the high seas." 
 
 43 Geo. II. "And whereas it is convenient that accessories to felonies 
 
 ^' '^•^- committed within the body of any county within the realm, 
 
 should be by law liable to be tried, as well in the county 
 wherein the principal felony was committed, as in the 
 county in which they so became accessories, and also that 
 accessories to felonies committed upon the liigh seas 
 should be by law liable to be tried by sucli court, and in 
 such manner as by the act made in the 28th year of the 
 reign of the late King Henry the 8th is directed in respect 
 to felonies done upon the high seas;" it is fiirtlier en- 
 acted, "that from and after the said ICth day of July,
 
 CHAP. IV.] Of the Mariners. 433 
 
 in the said year of our Lord, iSOS, in all cases what- 43 Geo. III. 
 
 •' , ' ' c. 113. 
 
 sotver in which any person or persons shall hereafter 
 
 procure, direct, counsel, or command any other person 
 or persons to commit, or shall abet any other person or 
 per'^ons in committing any felony whatsoever, or shall 
 in any wise whatsoever become an accessory or accessories 
 before the fact to any felony whatsoever, wliether such 
 principal felony be committed within the body of any 
 county within this realm, or upon the high seas, and whe- 
 ther such procuring', directing, counselling, commanding, 
 and abetting, or otherwise becoming accessory or acces- 
 sories before the fact shall have been committed or done 
 within the body of any county within this realm, or upon 
 the high seas, that then, and in all such cases, the offence of 
 the person or persons so procuring, directing, counselling, 
 commanding or abetting such felony, or so in any wise 
 becoming accessory or accessories before the fact to such 
 felony, shall and may be inquired of, tried, determined, 
 and adjudged, in case such principal felony shall have 
 been committed within the body of any county within 
 this realm, by the course of the common law, either 
 within such county wherein the said principal felony shall 
 have been committed, or within the county wherein the 
 said offence in procuring, counselling, commanding, and 
 abetting, or otherwise becoming accessory or accessories 
 before the fact shall have been committed or done ; and in 
 case the said principal felony shall have been committed 
 upon the high seas, then the said offence m procuring, 
 directing, counselling, commanding, or abetting, such fe- 
 lony, or of so becoming an accessory or accessories before 
 the fact to the same, shall and may be inquired of, in and 43 Geo. Ill, 
 by such court, and in such manner and form, as in and by c. 113. 
 the said act made in the 28th year of the reign of King 
 Henry VIII., is appointed and directed for the trying, 
 determining, and adjudging of felonies done upon the 
 the high seas." The act, however, contains a provision 
 that if an offender be tried by one jurisdiction, he shall 
 not be again tried by another. 
 
 2f
 
 434 
 
 Of the Mariners. 
 
 [PIRT II. 
 
 Running The second offence, that of running away with the ship 
 
 ship or caro-o, or cargo, or creating a mutiny, is liliewise a capital felony. 
 
 and making a j^ jg g^ ^^de by an act of William III., and a further 
 
 revolt in the • . 
 
 ship. statute of George I. (e) Avhich enacts, in substance, that 
 
 if any master or seaman shall betray his trust, and turn 
 pirate, and feloniously run away with a ship or merchan- 
 dize, or shall voluntarily yield his vessel up to any pirate, 
 or shall lay hands upon his captain, to prevent him from 
 fighting in his defence, or shall confine his captain, and 
 endeavour to make a revolt in the ship, he shall be 
 
 deemed a pirate, 
 clergy. 
 
 felon, and robber, without benefit of 
 
 Not resisting 
 pirates or 
 enemies. 
 
 The third offence, that of not resisting enemies or pi- 
 rates, is punished by an act of Charles II., (/) which 
 incapacitates any master from having the future charge 
 of any English vessel, who shall not have defended his 
 vessel from pirates, such vessel being not less than 200 
 tons, nor furnished with less than 16 guns. The same 
 act forbids him to yield, without fighting, to any Turkish 
 pirate, not having double his guns. The seamen, who 
 shall refuse to fight, are punished by the same act with 
 the loss of their wages, their own goods on board the 
 ship, and with an imprisonment and hard labour for a 
 space not exceeding six months. 
 
 Encourage- 
 ment to sea- 
 men. 
 
 In order to encourage seamen to discharge their duty 
 upon the occasion of ships being attacked by enemies 
 or pirates, the legislature has passed several acts, and 
 created or enlarged several institutions, by which a provi- 
 sion is made for merchant seamen wounded or disabled in 
 such conflicts, and for the widows and children of such as 
 shall have been killed. By two of these acts, one of 
 King William, and one of King Charlesj {g) it is enacted 
 
 (e) II and 12 Will. III. c. 7. and 
 6 Geo. I. c. 19. 
 (/) 16 Car. II. c. 6., aad 22 and 
 
 23 Car. IT. c. 11. 9.10. 
 
 (g-) 11 and 12 Will. III. c. 7. 
 8. 1 1 . 22 aud 23 Cur. II. c. U, 8. 10«
 
 CHAP. IV.] Of the Mariners. 435 
 
 that when any English vessel, Avliich shall have been so 
 defended against pirates or enemies, and in which conflict 
 some of her crew have been disabled or wounded, shall ar- 
 rive in port, the Judge of the Admiralty, mayor, or other 
 principal magistrate, shall summons four of the chief mer- 
 chants of the town, and by their advice shall levy upon the 
 owners of the ship and goods a reasonable compensation 
 to the captain and crew for such defence ; but such sum 
 not to exceed 2 per cent, on the value of the ship, freight, 
 and cargo. 
 
 These provisions for encouraging merchant seamen in Institutions 
 the performance of their duty, and for relieving and sup- K^jnen^fo^^*^' 
 porting such of them as shall be maimed and disabled ; the relief of 
 and for supporting the widows and children of such as ^^^^^ ^^^ gg^, 
 shall be killed or wounded in the merchant service, have men and their 
 been further extended by three more recent statutes ; (/() 
 the two first of which enact, that such seamen shall be ad- 
 mitted into and provided for in Greenwich Hospital.— 
 The last statute (0 provides another establishment, and a 
 permanent corporation for the more ample accomplish- 
 ment of the same object. The enactments of these statutes, 
 stated in a summary manner, are, that every merchant 
 seaman, except only apprentices, fishermen employed in 
 boats and coasters, pilots, and seamen employed by the 
 East India Company, shall pay sixpence a month out of 
 their wages to this corporation, to be deducted by the 
 master, and by him paid over to the charity. That a cor- 
 poration of merchants, who are named in the act, shall be 
 the managers of the charity, and may purchase land, erect 
 an hospital, and give pensions to all merchant seamen 
 rendered incapable of service by sickness, wounds, or other 
 accidental misfortunes, and may relieve the widows and 
 children of such as are killed or drowned in the merchant 
 service ; such children, however, not to exceed the age of 
 
 (ft) 8 Geo. I. c. 24. 8 Geo. II. c. (») 20 Geo. II. c. 38. 
 «9. 8. 10. 20Geo. II. e. 38. 
 
 Sf2
 
 43d Of the Mariners. [part ii. 
 
 fourteen years, unless rendered objects of charity by blind- 
 ness, lameness, or other infirmity. Nor is any one to be 
 deemed a worn out seaman, who shall not have been five 
 years in the merchant service, and paid the contribution. 
 The master is required always to keep a muster roll of his 
 crew, and to deliver a duplicate of it before sailing to the 
 collector of this contribution at the port from which he 
 is about to sail. The master must likewise keep an ac- 
 count or report of all casualties to any of the crew during 
 the voyage ; and, upon his return, must give a duplicate to 
 the collector. 
 
 Provisions for There arc other statutes for the relief of shipwrecked 
 the subsist- . . ^ . . 
 
 cnce and or abandoned seamen, (A) by which his majesty's ministers 
 
 sending home ^^ consuls abroad, or, if no official character be there re- 
 
 of seamen ^ ' ' _ 
 
 cast away in sident, two or more British merchants, are commanded to 
 
 reiga pa s. gjyg subsistence to any cast away siBaman in foreign parts, 
 at the rate of sixpence a day, and to send them home with 
 the first opportunity by some one of his majesty's ships, 
 or British merchant ships, sailing for England : every 
 master of a British ship to receive, in case of need, four 
 such cast away seamen for every hundred ton burthen of 
 his ship, and to be paid sixpence per diem by the commis- 
 sioners of the navy, for so many of them as he did not 
 require to aid him in working his vessel. And if any mas- 
 ter wilfully leave behind any of his crew, in any foreign 
 part or distant British plantation, such men being in a 
 condition to return with the ship at the time of her de- 
 parture homewards, the master so offending is to suffer 
 three months' imprisonment. 
 
 (ft) 1 Geo. II. 8. «. c. 14. U & 12 Will. m. c. 7,
 
 43^ 
 
 CHAPTER V. 
 
 OF THE WAGES OF MERCHANT SEAMEN. 
 
 Vf 
 
 •*A AVING considered in the preceding chapter the gene- Seamen'* 
 ral duties of the mariners, and of the master in hiring them, wages. 
 we proceed now to the consideration of the more exten- 
 sive head of seamen's wages. Under this head we shall 
 have to explain, first. The mode of hiring a seamen; 
 secondlj/, That of earning their wages ; third/^, To what 
 cases the law has annexed the forfeiture of their wages in 
 whole or part ; and^fourthlj/y By what legal means they 
 are recoverable at law. 
 
 And, first, As to the hiring of the seamen. 
 
 We have before stated, that, by the 2 Geo. II. c, 36 , Written con- 
 hiade perpetual by 2 Geo. III. c. 31., the contract between j^aster and^^' 
 the master and mariners must be in writing, and that such seamen must 
 
 contract must declare " what wages each seaman or wa-^es, and 
 
 mariner is to have respectively, during the whole voyaffe, t^^ contract 
 
 , \ , ,, ,• , mustbe sign- 
 
 er for so long time &s he or they shall ship themselves ed by each 
 
 for : and also must express in the said agreement or con- seaman, but 
 ' ^ _ ^ need not be 
 
 tract the voyage for which such seaman or mariner was sealed. 
 
 shipped to perform the same." («) This contract must be 
 
 signed by each Seaman within three days after he shall 
 
 have entered himself on board the ship. Such contract 
 
 need not be sealed; and in Clement v. Gunhouse,(^) wher^ 
 
 it appeared that a seal was affixed, it was ruled by Mr. 
 
 J. Chambre, at Nisi Prius, that, though sealed, it was 
 
 (a) 2 Geo. II. c. 36. |made per- for not complying with its provi- 
 
 petual by 2 Geo. III. c. 31. This sions, is 5^ from the master, 
 statute does not apply to the mas- (ft) 5 Esp. N. P. C. 83. 
 
 ter's apprentices; and the pcialty
 
 438 
 
 Of the Wages of Merchant Seamen. 
 
 [part II. 
 
 Written con- 
 tract neces- 
 sary in the 
 coasting 
 trade; but 
 need not be 
 stamped. 
 
 Seamen de- 
 serting in the 
 West India 
 trade, out- 
 wards or 
 homewards, 
 to lose all 
 their wages. 
 
 Masters se- 
 ducing Ihe 
 Kcaincn of 
 
 still regarded in law only as an agreement, and not as a 
 deed, and must be sued upon as such. 
 
 The two statutes abovementioned (c) comprehended 
 vessels engaged in the foreign trade beyond seas, and the 
 British plantation trade only. The 31 Geo. III. c. 39. 
 extended their provisions to vessels of the burthen of one 
 hundred tons or upwards, employed in the coasting trade 
 from any port or place in Great Britain.^ to any other port 
 or place in Great Britain, and going to open sea. Accord- 
 ingly, in all the three branches of our trade, the foreign, 
 the colonial, and the coasting, the agreement between the 
 master and the mariners must be by a written contract ; 
 the contract must be signed by the master and each seaman 
 respectively ; but need not be sealed, nor, as respects ves- 
 sels engaged in the coasting trade, need be stamped, (rf) 
 
 In the early part of the late war the masters of ships 
 trading to the West Indies, having suffered great incon- 
 venience from the desertion of their seamen, and from a 
 competition amongst the masters themselves to seduce the 
 crews of each other by the offer of higher wages, the 
 37 Geo. III. c. 73. was passed, by which "every seaman, 
 Avho shall desert at any time during the voyage, either out 
 or home, from any British merchant ship trading to or 
 from his majesty's colonies and plantations in the West 
 Indies, shall, over and above all punishments, penalties, 
 and forfeitures., to which he is now by law subject, forfeit 
 all the wages he may have agreed for, or be entitled to, 
 during the voyage, from the master or owner of the ship, on 
 board of which he shall enter immediately after such de- 
 sertion." (c) And in order to prevent the practice amongst 
 masters of seducing the crews of each other, it is enacted 
 by the second section of the same act, that every " master 
 or commander of any British merchant ship, who shall 
 
 (c) 2 Geo. II. c. 36. 2 Geo. HI. 
 C. 31. 
 
 ((/) 31 Geo. 111. c. 39. s. 10. 
 
 (<?) 37 Geo. III. c. 73. s. I. For 
 the penalties imposed by the act, 
 see the Appendix.
 
 CHAP, v.] Of the Wages of Merchant Seaynen. 439 
 
 hire or engage to serve on board his sliip or vessel, any each other, 
 
 hiriii"" desert- 
 seaman, mariner, or other person, who shall, to the know- ers, or living 
 
 ledge of such master, have deserted from any other ship '"ore tiian 
 
 " _ . doulile wnges 
 
 or vessel, shall forfeit and pay the sum of owe hundred toany seainea 
 
 pounds.'' And by the next following section of the same Wej,^ hldlet 
 statute it is enacted, that no master of a merchant ship to forfeit one 
 shall hire or engage any seamen in the West Indies to ,,ouuds. 
 serve on board his vessel, at greater wages or hire than 
 double the monthly Avages of the seamen hired by him at 
 the time of his last departure from Great Britain ; "un- 
 less the governor, chief magistrate, or collector of such 
 port or place in the said colonies or plantations, shall 
 think that greater or more wages or hire, than double the 
 monthly wages aforesaid, should or ought to be given to 
 such seaman, mariner, or other person as aforesaid, and do 
 and shall accordingly authorize or direct the same to be 
 given by w riting under his hand ; that in such case the 
 master or commander of such ship shall be at liberty to 
 pay, and the seaman to receive, such greater wages as such 
 governor, chief magistrate, or collector, shall direct as 
 aforesaid. '^(y") All such contracts to be void, and the 
 master to forfeit one hundred pounds for any seaman so 
 hired contrary to the provisions of the act. The same act. In case of rer- 
 however, proceeds in a followino- section to make two ex- J'^^'**'? *"'?". 
 
 ' r 3 last ship, that 
 
 ceptions, first, As to mariners producing- a certificate any seiman 
 
 of discharge ftom their last ship ; and, secondly/, In the ^^l^^'^ l^\^y^ 
 case of necessity, hazardous service, or extraordinary <^a*c of ex- 
 duty, proved upon oath, to mariners, who have not de- proved on 
 
 serted from their last ship.(o-) In both of these cases, the oath, auiasier 
 , . , . niiiy hire sea- 
 
 master is authorized to give more than double Avages men in the 
 
 without the authority of the governor or other chief ^^'^"*^ '"^''^s^t 
 
 •' ° more than 
 
 magistrate. double w.iges, 
 
 without a 
 licence from 
 The act then concludes by giving a form of the agree- ttie governor. 
 
 ment between master and mariners, which its previous 
 
 provisions require, and which will be found in our appendix. 
 
 (/) 37 Geo. III. c. 73. 8. 3. (§•) The same act, s. 10.
 
 440 
 
 Of the Wages of Merchant Seamen. ^part ii. 
 
 iOf the autho- 
 rity or licence 
 given by the 
 governor or 
 other raagi - 
 trate, in the 
 West Indies, 
 to hire sea- 
 men at more 
 than double 
 
 The authority or licence, which the governor or other 
 magistrate in the West Indies must give in pursuance of 
 this act, must not only authorize the master to hire such 
 seamen at more than double wages; but must specify the 
 rate of wages, and give the distinct permission of the go- 
 vernor, or other chief officer, to hire the seamen at the 
 sum so expressed = The object of the act is to prevent a 
 competition of the masters amongst each other to seduce 
 the crews ; and, in order to prevent this mischief, the law 
 removes the master from the contract in the first instance, 
 and substitutes the discretion of the governor, or other 
 chief officer, in his place. The governor, therefore, must 
 fix the sura for which such seamen in the West Indies may 
 be hired, and the master may then oblige himself to give 
 it. Accordingly in Rodgers v. Lacey, {h) where a licence 
 had been given by a magistrate in the West Indies, to the 
 master of a ship, " to procure men on such terms as he could, 
 to navigate the ship home^'' it was decided by the court, that 
 this was not a compliance with the terms of the act ; such 
 a licence, so generally expressed, and leaving so much to 
 the master, being in no degree calculated to meet the mis- 
 chief, for the prevention of which the ol Geo. III. c. 73. 
 was passed; and that, therefore, a uiariner could not main- 
 lain an action on a promise made in pursuance of such 
 licence, to pay Avages exceeding the amount of double the 
 wages agreed to be given to a person in the like situation 
 on the out%vard voyage. 
 
 The written contract is not only the agreement {%) be- 
 tween the parties ; but is regarded in law as containing 
 the whole of their obligations with respect to each other ; 
 
 (A) 2 Bos. & Pull. 57. 
 
 if) A verbal aj^reement, however, 
 is not jier se void ; but the master 
 is liable to a penalty of bl. for each 
 manner, if he hire a seaman with- 
 out an agreement in writing ; but 
 *n an acliou brought by a seaman 
 
 to recover his wages, the act pro- 
 vides that he shall not be nonsuited, 
 or fail in his action, for omitting 
 to produce the written articles on 
 the trial ; but that tbe master shall 
 be bound to produce them, 9. Geo. 
 11. c. 30. s. 8.
 
 CHAP, v.] Of the Wages of Merchant Seamen. 441 
 
 and, therefore, a seaman cannot recover any thing verhallj/ 
 agreed to be given him beyond what is specified in the ar- 
 ticles. Thus in White v. Wilson, (A) the mate of a ship 
 was not allowed to recover the average price of a slave at 
 the place of a ship's destination, under the allegation in 
 the declaration, that it had been promised to him, although 
 not specified in his contract for service and wages with 
 the master. And in Elsworth and wife r. Woolraore,(/) 
 it was decided by Lord Alvanley, that a promise to pay to ^ g^jj^^. ^^^^ 
 
 a sailmaker, serving in a ship belonging to the East India not recover 
 d-^ 11 111 x- I • wages, upon 
 
 Company, a monthly snm beyond the wages mentioned in any collateral 
 
 the ship's articles, which had been signed by him as sail- promise, be- 
 
 *■ . . , yoiid the sura 
 
 maker, was not good. And upon the same principle, stipulated in 
 
 namely, that the master by the contract has engaged the *^^ articles. 
 whole of the labour and skill of the seaman, it was de- 
 cided by Lord Kenyon in Harris n. Watson, (w) and by 
 Lord Ellenborough in Stilk v. Meyrick, (w) that any pro- ^ promise to 
 
 mise made by the master to the seamen, when a ship was in V^y ^ sa'lor 
 
 extra wages, 
 distress^ that he would give them a sum above their wages, for exertions 
 
 if thev would exert themselves for the common safety, or ^henaslnpis 
 •' •' ' III distress, 
 
 that he would divide amongst them the wages of two sea- will not be 
 men who had deserted, if he should not be able to supply ^j^" master or 
 their place, was void ; " The seamen, said Lord Ellen- owners. 
 borough in the latter case, having sold all their services 
 till the voyage should be completed ; and being bound by 
 the terms of their original contract to exert themselves to 
 the utmost to bring the ship to her destined port." And 
 in Thompson v. Havelock, (o) Loi'd Ellenborough, in af- 
 firmation of the same rule of law, observed, that it could 
 not be contended, that a servant, who had engaged to de- 
 vote the whole of his time and attention to the concerns of 
 one master, should be permitted to hire out his services, 
 or a part of them, to another. '' No man," continued his 
 
 (k) 2 Bos. & Pull. 116; and 2 (m) Peake's N. P. C. 
 
 Rob. A. R. 241. (The Isabella ) (n) 2Campb. 317. 
 
 (/) 5Esp. N. P. C. p. 84., and (o) 1 Campb. 327, 
 Abbott, 448.
 
 442 
 
 Of the Wages of Merchant Seamen, [part ir. 
 
 Lordship, "^ should be allowed to have an interest against 
 his duty. There would be no security in any department 
 of life or of business, if servants could legally let them- 
 selves out in whole, or in part." 
 
 Case of the 
 Vanguard. 
 
 It seems unnecessary to add, that in these contracts, as ii? 
 all others, any agreement, in evasion, or contravention of 
 the law is void from the beginning, and cannot be sued 
 upon in any court of law or equity. In the Vanguard, (/?) 
 the mate of a slave ship having instituted a suit for his 
 wages as mate and ostensible master of the ship, which 
 was a union of characters contrary to the acts, and the re- 
 gulation of the slave trade. Sir William Scott said, that 
 his agreement with the owners was ex turpi contractu^ and 
 as such could not be sustained in law. That the contract- 
 ing parties, namely, the owners and the mate, were in 
 pari delicto, and that therefore the one w as not at liberty 
 to set up the contract against the other, and to allege that 
 he was induced by the other to enter into such illegal 
 agreement. It was as much the duty of the one not to 
 yield to temptation, as it was of the other not to propose 
 an illegal temptation. In such a case the law refuses to 
 interpose between them, and leaves them to avail them- 
 selves of their dishonest engagements as they can. 
 
 Owners of 
 ships are en- 
 titled to the 
 entire ser- 
 vices, as well 
 of the master 
 and the mates, 
 as of the ordi- 
 nary seamen. 
 
 Upon the principle before mentioned, that the oAvners 
 of the ship are entitled to the whole of the labour of 
 their mariners, whether master, mate, or seaman ; and 
 that if any emergency shall require extraordinary efforts, 
 such necessary exertions are still to be regarded as w ithin 
 the spirit of their contract, a mate who may become mas- 
 ter by some casualty during the voyage, must sue for his 
 wages not as master, but as mate through the whole time* 
 His character of mate is not to be considered as merged 
 in that of master, but the duties of the master are supcr- 
 
 {p) 6 Rob. 207.
 
 CHAP, v.] Of the Wages of Merchant Seamen. 443 
 
 induced by the necessity of the case over his ordinary ser- 
 vice as mate, {q) 
 
 The wages of mariners take precedence of bottomry Wages of sea- 
 bonds, the sailor being entitled against ail other persons precedence of 
 
 to the proceeds as a security for waisres; and the sub'istence bottomry 
 
 . • , , . c bonds. 
 
 of the seamen is considered in many cases to be a part oi 
 
 their wages. 
 
 In the Madonna D'Idra, PapaghicajC?) a Greek shiphav- The Madonna 
 ing taken up money on bottomry bonds, and being arrested 
 in the port of London by the lender, the crew presented a 
 memorial to the Earl of Liverpool, stating that they had 
 been defrauded of their wages by the captain, and were left 
 destitute of support. Upon this representation the king's 
 proctor received directions from the secretary of state's 
 office, to take such steps as might be requisite to recover 
 the wages due to the memorialists, who were, in the mean 
 time, furnished with the means of subsistence, and after- 
 wards sent to their own country by his majesty's govern- 
 ment. In consequence of the directions thus received, the 
 king's proctor intervened in the cau!;e on behalf of the 
 mariners. The holder of the bonds, and consignee of the 
 cargo, consented to pay the wages due to these men, but 
 declined to defray the charges incurred for their subsist- 
 ence. The ship was sold under a decree of the court, and 
 the proceeds brought into the registry ; but the amount Sailors' wages 
 was not sufficient to satisfy the demands of the mariners, other claims 
 and of the bond-holder. Sir William Scott, in hisjudg- upon the ship; 
 ment upon the case, said, that it must be taken as the i^^cs subsist- 
 
 universal law of the Admiralty Court, that mariners' wages ^^^^}^ part of 
 
 a sailor's 
 take precedence of bottomry bonds. " Wages are sacred wa<yes. 
 
 liens; and, as long as a plank remains, the sailor is entitled, 
 
 against all other persons, to the proceeds as a security for 
 
 his wages. This is a principle universally admitted ; and 
 
 whoever enters into a contract, or advances money upon 
 
 (g) Favourite, Nicholas de Jer- (r) Dod. 40, 
 
 sey, 2 Rob. 232,
 
 444 Of the Wages of Merchant Seamen, [part li. 
 
 Subsistence in bottomry, must be presumed to do it with a full knowledge 
 ^rtofafsea- ofthe law upon this point. But, then, is the subsistence 
 man's wages, of these men to be considered as part of their wages ? I 
 think it is so to be considered; it is wages paid in another 
 form, it is part of the compensation for their labour ; and, 
 according to the law of the country to which these men 
 belong, subsistence in the intertnediate time must be pre- 
 sumed to form part of the contract for the payment of 
 wages. The parties must be subsisted till they return to 
 their own country, unless some special reason is shewn to 
 the contrary, such as desertion, or any kind of misconduct, 
 which would work a forfeiture of wages. There is, in- 
 deed, no proof of any special agreement upon this point 
 in the present case ; but it is Tery material that such a 
 covenant should be presumed to subsist between the 
 parties." The claim of the sailors was accordingly al- 
 lowed. 
 
 Ofthe earning Wf^ come now to our second head, the earning of wages, 
 
 of wages. ° 
 
 The general rule, with respect to the seamen having earned 
 their wages, is, that if the voyage be completed, freiight 
 thereby earned, and the labour of the seamen not ren- 
 dered useless by the loss of the vessel by sea of capture, 
 they have earned their full wages, and are entitled to re- 
 !f the vessel ceive them. If the vessel be lost, the seamen must share in 
 
 ' , the calamity with the owners t and the misfortune of the lat- 
 
 searaen lose •' ' 
 
 their wages, ter must not be aggravated by having to bear the whole loss, 
 and to indemnify their fellow-sufferers under a disaster be- 
 longing in common to all of them. Every party must bear 
 that portion ofthe calamity which peculiarly belongs to him ; 
 the owners the loss of their ship, and the seamen the loss 
 of their wages. Therefore, in the event of such loss, the 
 seamen lose their wages, or are legally considered as not 
 having earned them. But on the other hand, if a seaman 
 be disabled in the course of the voyage by sickness, or ac- 
 cident, he is still entitled to his wages; the law humanely 
 considering, that such cases arc within the understood
 
 CHAP, v.] Of the Wages of Merchant Seamen. 445 
 
 conditions of the contract between the master and mari- Freight must 
 
 ^ be earned to 
 
 ners. (*; entitle a sailor 
 
 to wages. 
 The seamen, therefore, have earned their wages upon 
 
 the due completion of the voyage and earning of freight. 
 
 Nor can a master, unless in a very strong case of mutiny, 
 
 or in such an extreme and gross ill conduct as to endanger 
 
 the ship, discharge any seaman during his voyage, so as to 
 
 deprive him of his wages for the whole voyage ; but such 
 
 seaman, so discharged, will be entitled to his full wages 
 
 up to the prosperous determination of the voyage, dedijct- , 
 
 ing, if the case require it, such sum as he may in the mean 
 
 time have earned in another vessel. (0 
 
 But in an action by a seaman for his wages, where the 
 master or owner intends to plead that no freight was 
 earned, the onus of proving such plea lies upon such mas- 
 ter or owner, and not upon the seaman, (m) That the 
 contract of merchant seamen may not interfere with the 
 public service, and that they may not be injured by any 
 
 act of the state, it is expressly provided by the 2 Geo. II. . , 
 
 t^ J t' J ^ Impressed 
 
 c. 36, that a seaman belonging to any merchant ship, who sailor entitled 
 enters into the service of his majesty on board any of his upto^heffme 
 majesty's ships, shall not for such entry forfeit the wages of hisimpress- 
 due to him during the term of his service in the merchant g^ip earn her 
 .ship, nor shall such entry be deemed a desertion. The freight, 
 principle of this provision is, indeed, so manifestly equit- 
 able, that it was acted upon previous to the late statutes 
 in a case before Lord Raymond, where a seaman who 
 was impressed from the merchant into the royal service, 
 was judged to be entitled to receive a proportion of his 
 wages up to the time of impressing, the ship having after- 
 wards arrived in safety at her port of discharge, (x) It is an 
 
 («) Abernethy v. Laudale, Doug. 3 Rob. 92. 
 
 539. Chandler v. Grieves, 2 Hen. (u) Brown v. Milner, 7 Taunt. 
 
 Black. 606. and Paul v. Eden, K. B. 31 9. 
 
 E. T. 25 Geo. III. (x) Wiggins v. Ingleton, 2 Ld. 
 
 (0 Robinet u. The ship Exeter, Raym. 1211. 
 S Rob. 261. The Beaver, Grierson,
 
 446 
 
 Of the Wages of Merchant Seamen. [part ii. 
 
 Impressed 
 mariner is 
 only entitled 
 to wages due 
 up to the time 
 of his im- 
 pressmeat. 
 
 The Jack 
 Park, Little. 
 
 equally manifest equity, that such an impressed mariner 
 shall receive no further wages than what are due at the 
 time of impressment. In the Jack Park, Little, (3^) a 
 seaman, in an action against the master, demanded the 
 whole of his wages, on a suggestion that the master had 
 procured him to be impressed. In delivering his judg- 
 ment upon the case, Sir William Scott observed, that this 
 action was very properly brought against the master, the 
 wages of mariners being of such a high nature, that the 
 master is liable, the ship is liable, and the owner is liable. 
 The mariner is entitled to his option ; and in some re- 
 spects, perhaps, there is less inconvenience occasioned by 
 proceeding against the master, because in that case the 
 ship is not detained. The master's plea in this case was, 
 that the mariner had been impressed into the king's ser- 
 vice ; and, therefore, his contract of service had not been 
 fulfilled. Prima facie^ therefore, the seaman was not en- 
 titled; but if he could shew that his impressment had 
 been by the malicious act of the master, and that he had 
 thereby been prevented from completing his engagement, 
 he would be entitled to recover his wages to the whole 
 amount: but that the proof of this allegation had failed. 
 The claim was accordingly rejected. 
 
 Impressment 
 of a seaman 
 not to be 
 deemed a 
 breach of hii 
 contract. 
 
 We have been the more full in reporting this case, as it 
 is the frequent practice of masters of merchantmen to get 
 rid of any seaman who may give trouble by procuring 
 them to be impressed ; a dangerous exertion of power, 
 unless in a case of actual mutiny. 
 
 The impressment of a seaman, not being his voluntary 
 act, amounts in no case to a breach of his contract, nor to 
 the loss of any advantages to which he is fairly entitled 
 under it. Upon this principle, a seaman on board a pri- 
 vateer being entitled by his agreement to a certain share 
 in every prize taken, provided he served six months j but 
 
 (y) 4 Rob. 308.
 
 CHAP, v.] Of the Wages of Merchant Seamen. 447 
 
 who was impressed before the expiration of that period, 
 was judged not to have lost his share of a prize taken 
 whilst he was in the privateer, (s) But, on the other 
 hand, such an impressment will not place him in a better 
 condition as to such wages, than he would have been, if he 
 had remained on board the ship ; and, therefore, if the ship 
 be afterwards captured, he loses his wages in common with 
 those whom he leaves behind, (a) 
 
 As the wages of a seaman are not due till the completion Wages of a 
 of a voyage, and depend upon its prosperous completion seaman gene- 
 or earning of freight, there was formerly some uncertainty till the com- 
 whether the administrators or executors of a seaman, yoya^g" 
 dying in the course of the voyage, could recover wages for 
 him proportionate to the time of his service, (b). But 
 this doubt seems at present removed by the direct autho- 
 rity of the 37th of the king, c. 73, the fifth section of which 
 enacts, that the master on his arrival out or home shall 
 deliver a list to the collector of the port of all seamen 
 " who have died during the voyage, and also a true ac- 
 count of the wages due to each seaman, mariner, or other 
 person so dying, or the time of his death." And the Case of a sea- 
 seventh section of the same statute proceeds further to en- man dying 
 act, that all such wages of seamen dying in the course of voyage.^ 
 the voyage, shall be paid by the master " to the receiver 
 of the sixpenny duty for the Greenwich Hospital, to the 
 use of the executors or administrators of such deceased 
 seamen ;" and if any master shall neglect or refuse to pay 
 over such wages within three months after his arrival, he 
 
 («) Paul V. Eden, K. B. E. T. 25 prospect of all casualties, namely, 
 ■Geo. III. and ante, 445. that nothing should be paid, if by 
 (fl) 2 Campb, 320. in a note. any casualty he did not complete 
 {b) See Cutter v. Powell, where the voyage. The court, however, 
 the court refused the demand of a observed, that if the plaintifF could 
 mariner's executors, because the have proved an usage to pay a pro- 
 sum agreed for as his wages, if he portional sura in similar cases, their 
 completed the voyage, was so large, decision would have been the other 
 as to have the air of being made io way. 6 T. R. 320.
 
 448 
 
 Of the Wages of Merchant Seamen. [part ii. 
 
 Of the wages 
 due to the re- 
 presentatives 
 of seamen 
 dying upon 
 the voyage: 
 and see post. 
 
 Of the claim 
 for wages 
 where the 
 voyage is 
 divided into 
 parts. 
 
 shall forfeit fifty pounds for each offence, and also " double 
 the amount of the sum of money so due to any seaman, 
 mariner, or other person, for wages, as aforesaid." 
 
 The above terms of the act may, therefore, be considered 
 as an acknowledgment by the legislature that sucL wages 
 may be due and legally demanded, and the courts have 
 acted upon this principle. Thus in Armstrongs. Smith, (c) 
 where a master had paid 9^. to the receiver at Green- 
 wich, for the full wages due to a mate who had died on the 
 voyage, and his adaiinistratrix, insisting that 16^. more 
 was due, brought her action for that sum. Sir James 
 Mansfield acknowledged her right to bring the action, and 
 the Jury gave her the 16/. upon proof of 25/. being due. 
 
 The general rule of law being, that freight is the 
 mother of wages, the seamen are deemed to have earned 
 their waffes in all cases in which the vessel has earned its 
 freight. If a voyage, therefore, consist of parts, such as 
 an outward and a homeward voyage, or several parts 
 successively, the freight for each part being due when it is 
 finished, the wages for that part would likewise be due, 
 unless (as is usually the case) the contract stipulates for 
 all the parts as for one voyage, (d) And if money be ad- 
 vanced by the owners in part of freight, the seamen may 
 recover for their wages in the proportion of the sum ad- 
 vanced to the whole freight, (e) In all cases the question 
 of wages turns upon the same principle, whether the ship 
 have earned her freight or not. And in order to prevent 
 any dispute with respect to dividing any voyage into parts, 
 it is now usual to stipulate in express terms in the agree- 
 ment with the seaman, that no ofiicer or seaman, or per- 
 son belonging to the ship, shall be entitled to his wages, 
 unless the vessel shall return to, and arrive at the port 
 of London, (supposing London to be her home port,) 
 notwithstanding the ship shall at any time have broken 
 
 (r) 1 Bob. & Pull. N. P, 299 ; and 
 sec poat. 
 
 (ff) Ld. Raym. 639. 739. 
 (e) Aaon. 2 Show. 283.
 
 CHAP, v.] Of the Wages of Merchant Seamen. 449 
 
 bulk, or delivered any goods at any place or port what- Whore it is 
 
 ever. This stipulation is intended to meet a dilTiculty ''f'lfl^ted 
 
 , . . "^"''t sfainea 
 
 which arose in the case of B ick v. Rawlinson, and Ed- shall not de- 
 wards V. Child, (/) upon which the Courts of Admiralty ".iTiUed'to^ 
 and Common Law were divided, whether the seamen their wages, 
 
 111 1 .0,1 . ^ *-^^ ii'>Y P'Jrt 
 
 were bound by a charter party of the owners not to thereof, imiil 
 
 demand freight for the outuard carffo, unless the ship ilieshinar- 
 ,., . , , . „ rive al her 
 
 likewise brought back her home vard cargo in safety, portofdis- 
 
 Indeed, in Appleby v. Dods, («) it was determined by ^^^'^rge, they 
 
 ' £1 J 5 v.-r.' J CailDOt, oiia 
 
 the Court of King's Bench, that the ordiiiary terms in loss helorcar- 
 
 a seaman's agreement, namely, that no seaman shall be [veJvjjt ^ "J^ 
 
 entitled to wages until the arrival of the ship at her rata, o\< the 
 1 ,-1 o T 1 11 II* ST'ouiid that 
 
 above mentioned port of discharge, and her cargo cleli- frejoiuhas 
 
 vered, were to be interpreted to mean the return of the beeneariiedat 
 
 •^ an interine- 
 
 ship to her port at home. diuteport. 
 
 Upon the common principles of all contracts, if the sea- if seamen are 
 
 men be hired, and the owners chan"e their i)urposs of """"^"^"'"^ , 
 ' _ t-> 1 r voyage, and 
 
 sending the vessel upon its voyage, the seamen are to be the owners 
 paid for the time during which they are detained, (h) shi\i "they are 
 
 nevertheless 
 
 It has already been stated, that as wages follow the ^.jo^s. 
 earning- of freight, so the loss or capture of the ship, or its 
 being disabled in the course of the voyage, is attended 
 with the loss of wages by the seamen. (?) In Eaken i). 
 Thom,(A) the plaintiff, a seaman, made a claim of his 
 Avages, upon the ground that the ship had been compelled 
 to discontinue her voyage only because she w as not sea- 
 
 (/) Buck V. Rawlinson, 1 Bro. conveyed to another -, she arrived 
 
 V. C. 102. Edwards v. Cliild, 2 at the first phice, but was lost with 
 
 Vern. 727. her cargo in going to the other. 
 
 (g) 8 East. 300. The court decided, that no Ireight 
 
 (/i) Wells r. Osinan, 2 Ld. Raym. had been earned; and, therefore, 
 
 1044, and Beale v. Thompson, S no wages.— See Yates v. Hall, 1 
 
 Bos.&Pnll. 405. T. R. 79. 
 
 (i) In Hernamaa v, Eawden, 3 {k) 5Esp. N. P. 6. See likewise 
 
 Burr. 1844, the ship had sailed to Ab«rncthy v. Lu.ndale, Doug. 339. 
 one place to take iu a cargo to be 
 
 2 c
 
 450 
 
 Of the Wages of Merchant Seamen, [part ii. 
 
 But not if the 
 ship discon- 
 tinue her 
 •voyage on ac- 
 count of her 
 heip.g unsea- 
 vorthy, and 
 HO freight be 
 earned. 
 Seinble, a spe- 
 cial action on 
 the case may 
 be maintain- 
 ed l)y a sailor 
 under these 
 circuin- 
 stauces. 
 
 Bcale t'. 
 Thompson. 
 
 ■worthy at her outset : and that, therefore, it was the fault 
 of the owner, and not any accident of the sea or weather, 
 which caused the failure of the voyage. But Lord Ellen- 
 borough said, that the cases had never made this distinc- 
 tion. The rule of law was general. The ship must per- 
 form her voyage to entitle the seaman to recover his 
 wages ; and if the owner sent her out under such circum- 
 stances as were stated, it should be the oliject of a special 
 action on the case; but he was of opinion, that the sailor 
 could not, on the ground stated, recover his wages. 
 
 In the case of capture and re-capture, if the seaman be 
 not separated from the ship, but continues on board of her, 
 and completes the voyage so that freight is earned, 
 he is entitled to wages under his first agreement. {/) 
 But if the seaman be separated, and afterwards so de- 
 tained, that tlie master upon the re-capture is compelled 
 to hire another to perform his duty, the master of course 
 would not be bound to pay both ; and, therefore, the de- 
 tained seaman must lose his wages. (;??) In the case of the 
 Aquilon, Beale v. Thompson, (;?) one of the vessels em- 
 bargoed by the emperor Paul, but afterwards restored, 
 and tlie crews re-placed on board, the Court of King's 
 Bench decided, that such an embargo was not to be re- 
 garded as an hostile capture ; and, therefore, that the sea- 
 men who had been taken from their vessels, and marched up 
 into the country, but who had been afterw ards replaced 
 on board their vessels, were not to lose their m ages as if 
 the vessel had been hostilely taken. And that the separa- 
 tion of the seamen from their vessels, not being voluntary 
 upon their parts, but an act of violence by the Russian 
 authorities, was not tiiat kind of departure from the ship 
 which was contemplated by the articles, and the acts of 
 parliament upon whicli they are founded, as a case under 
 
 (?) Bcrgstrom w. Mills, 'i lisp. N. 
 V. 30. But sec Chandler r. Mcadc, 
 2 Lord Ilaymond, 1211. 
 
 (m) The Friends, Bell, I Rob. 
 j\. R. 143. 
 
 (n) 3 Bos. & I'ull. 405.
 
 CHAP, v.] Of the Wages of Merchant Seamen. 451 
 
 which the seaman should forfeit his wages. The principle Seamen vio- 
 
 of this decision was further affirmed by the same court in edby anem- 
 
 John^on r. Broderick, (o) another case arisinij out of the bargo andse- 
 
 ^ paratcd from 
 
 same transaction. the ship, but 
 
 afterwards re- 
 
 The time at which the seamen may demand their wages viaatiivg the 
 
 is settled by the express terms of the agreement now in s'»P home, 
 ^ . ' , , ^ . , are entitled 
 
 common use between the master and manners ; the con- to wages dur- 
 
 tract stipulating, that no officer or seaman, or person be- rp-gthewhole 
 
 longing to the ship, shall demand or be entitled to his detention, 
 
 wages, or any part thereof, until the arrival of the iU^Varned*^' 
 
 ship at the port of discharge, and her cargo delivered ; her freight. 
 
 nor in less than twenty days in case the seaman is 
 
 not employed in such delivery. It has been before stated, 
 
 that the terms, the abovomentioned port of discharge, 
 
 mean the port of discharge and delivery at the vessel's 
 
 return to this country. The two statutes so often quoted, 
 
 the 2 Geo. II. c. 3Q, and the 31 Geo. III. c. 39. likewise 
 
 regulate the time at which masters shall pay their seamen; 
 
 the first of these statutes relating to ships engaged in 
 
 foreign vojyages, directs that (he seamen shall be paid in 
 
 thirty dai/s after the ship's entry at the custom house, and 
 
 the latter, as to ships employed in the coasting trade, 
 
 directs that the seamen employed on board coasters shall 
 
 be paid within five days after the ship shall be entered at 
 
 the custom house, or the cargo be delivered, or at the 
 
 time the seamen shall be discharged; which shall first 
 
 happen. 
 
 But where a seaman was restricted by the ship's articles 
 from demanding his wages before the expiration of twenty 
 days ; but the captain before the expiration of that time 
 had admitted a certain sum to be due, and offered to pay 
 
 (o) 4 East. 5G6. These cases were affirmed 1 Dow. P. R. 299. And 
 
 removed to K. B. by writ of error see Pratt d. Cuff, cited in Thomp- 
 
 from the Common Pleas. They af- son i'. Rowcroft, \ East. 43 ; and 
 
 terwards came before the House of Loweth v. Fothergill, and Dela- 
 
 Lords on writ of error from K. B., mainer v. Winteringham, 4 Caropb. 
 
 when the judgment of K. B. was 185, and 1S6. 
 
 2 G 2
 
 Mases. 
 
 ^h% Of the Wages of Merchant Seameti. [part ii. 
 
 it ; it was held, that the articles did not attach upon wages 
 so admitted to be due ; and that the plaintiff's action was 
 well brought, though before the twenty days had ex- 
 pired. (/?). 
 
 A'reeraents But as foreign merchants and masters have different 
 
 between the customs from those of Great Britain, the British courts of 
 
 sailors and , .,, ^ 
 
 rcasters be- law will of course respect these customs, and any cove- 
 
 louging to nants made under them. And, therefore, in Gienar v. 
 
 loreign ves- ' ' 
 
 sels, accord- Meyer, (</) the covenant of the seamen and masters con*- 
 
 custom of taining a clause that none of the seamen should institute 
 
 their respec- any suit against the master in foreign countries, it was 
 
 tries,arebind- ^^^^ ^^^^ *^^ action could not be maintained, (r) 
 
 ing in English 
 
 We proceed now to our third head, the forfeiture of wages. 
 
 Of the for- All the acts of seamen which the law punishes by the 
 
 forfeiture of their wages are either breaches of their 
 agreement with the master, or violations of acts of parlia- 
 ment passed for the regulation of merchant sailors. These 
 acts, as we have frequently before had occasion to state, 
 are the 2 Geo. II. c. 26; 31 Geo. III. c. 39; and the 
 37 Geo. III. c. 73. all of which will be found in our Ap- 
 pendix. The first case of forfeiture of v/ages is desertion 
 from the ship. Such desertion w as punished by the for- 
 feiture of wages by an act as early as William the 
 Third ; (s) but which punishment is more expressly or- 
 dained by the 2 Geo. II. c. 36. in which it is enacted, 
 " That in case any seaman or mariner shall desert, or re- 
 fuse to proceed on the voyage on board any ship or vessel, 
 bound to parts beyond the seas, as aforesaid, or that shall 
 desert from the ship or vessel, to which he or they sliall 
 belong, in parts beyond the seas, after he or they shall 
 have signed such contract or agreement, he or they shall 
 
 (p) White V. Maltison, 2 Star. N. customs in paying seamen, Hull v. 
 
 ■ P. 325. Ilcitmaii. Abbott, 463. 
 
 (7) 2 H(Mi. Black. GO,}. (s) 1 1 & 18 Will. 111. C. 7. s. 17. 
 (r) Sec likewise as to foreign
 
 CHAP, v.] Of the Wages of Merchant Seamen. ^^^ 
 
 forfeit to the owners of such ship or vessel the wages 
 which shall be due to him or them, at the time of his or 
 their deserting from such ship or vessel, or obstinately re- 
 fusing to proceed on such voyage." 
 
 The Pearl, Denton, (/) is a principal case under this The Pearl, 
 head, being distinguished by the peculiar circumstance ^" "°" 
 that the master had given permission to the crew to 
 leave the vessel against the declared will of the 
 owner. The sailors \Yere hired by the master in the 
 Downs, for the run to Hull, at twelve guineas per 
 man, and they were in fact only three days occupied in 
 that navigation. When the ship arrived in the Hum- 
 ber, the port of Hull was so full that the vessel could 
 not enter immediately ; and the master was induced to 
 come to anchor in the Roadstead, where these men 
 insisted on quitting the ship, as having completed their 
 voyage. It was proved, that though the master permit- 
 ted the niariners to depart, the owners expressly warned ^ 
 them not to leave the ship ; indeed, the mariners them- 
 selves offered to remit a guinea of tlieir w ages, or to hire 
 others. Sir William Scott, in giving judgment, said. That 
 in order to support a claim of this kind, a mariner must 
 prove one of two points ; either the perforujance of the 
 contract, or that some circumstance had intervened, which 
 would equitably discharge him from its terms, and con- 
 tinue to him the benefit of a legal and virtual perform- 
 ance. The obligation of mariners is for the whole voyage, A master can- 
 in the river as well as at sea; and if the port lies high up jj,"^!^^ ^ *^'* 
 
 *'e to 
 
 the river, a very considerable portion of their services may absent hnu- 
 remain to be performed in the river. The contract for the ^^^ declared 
 
 voyage, therefore, was not performed in its terras. The will ot the 
 
 * . 1 • 1 .1 ii -ill owner!* of tb 
 
 next consideration was, whether there was any equitable sjjjp 
 
 ground for exempting the sailors from this compliance in 
 terms, and the ground alleged was the consent of the mas- 
 ter. The master undoubtedly had given this consent ; but 
 he had no authority to do so against the declared will of his 
 
 it) & Rob. 824.
 
 454 Of the Wages of Merchant Seamen. [part ii. 
 
 The Pearl, owners. The owners themselves had come on board, and 
 told the mariners that they had not arrived in port, and 
 that they were not to be discharged. The master was 
 but their representative in making the contract ; and they 
 had a right to insist on the full performance of it. 
 
 Under these circumstances the learned Judge pro- 
 nounced that the mariners had failed in their case, and 
 were not entitled to their wages. 
 
 But the courts of law will not suffer the sailors to be 
 surprised into these acts of forfeiture ; nor to lose their 
 wages for an act, which is indifferent in its consequences, 
 and venial in its circumstances, though not a compliance 
 in terms with their agreement. But the act must be such 
 as in no degree to injure the ship or the venture; and the 
 permission of the master must be reasonably implied. And, 
 therefore, in Neave v. Prat, {u) where the vessel was safe 
 in port, and had no cargo to discharge, and a seaman, 
 (who had served eight weeks out of the three months for 
 which he was engaged,) asked permission of the mate to 
 go on shore to see his wife, and being told by the mate, 
 that he could not say whether he might have leave or not, 
 did so go on shore, the learned Judge told the Jury that 
 he thought the master could not have refused the leave 
 asked without a sufficient reason; and left it to them to 
 consider whether the ship was in a place of safety or not, 
 upon which the Jury found a verdict for the seaman. 
 
 By the sixth section of the 2 Geo. II. c. 3Q. it is enacted, 
 " That in case any seaman or mariner, not entering into 
 the service of his majesty, his heirs and successors, shall 
 leave such ship or vessel to which he or they belong, be- 
 fore he or they shall have a discharge in writing from the 
 master or commander, or other person having the charge 
 of such sliip or vessel, he or they so leaving such ship or 
 
 («) 2 Bos. & Pull. N, R. 408.
 
 CHAP, v.] Of the Wages of Merchant Seamen. 4$5 
 
 vessel shall forfeit one month's pay" to the use of Green- Frontine v. 
 
 I lost 
 wich Hospital. In Frontine v. Frost, {v) the plainliff, a 
 
 ship's carpenter, liad quitted the ship after her arrival in 
 port, but before slic was moored. The defendant con- 
 tended, that the plaintiff had thereby forfeited his whole 
 wages under the 2 Ceo. II. c. S6. ; or at least, that he had 
 forfeited a month's wages to Greenwich Hospital by ab- 
 senting- himself witliout leave in writing. Tiie Jury, 
 under the direction of tlie Judge at Guildhall, having- 
 found a verdict for the plaintiff subject to the opinion 
 of the c'ourt upon both points ; and the matter after- 
 wards coming to argument in the Common Pleas 
 against the rule Nisi for setting aside the verdict, Lord 
 Alvanley, Chief Justice, delivered an opinion so illus- 
 trative of the whole subject of seamen's wages, that it 
 will save much future explanation to give it at length. "An i. a seaman 
 attempt has been made in this case," his Lordship said, " to y'. V'"'.^!- 
 put a new construction on the articles, (the articles be- tcr licr ar- 
 tween master and mariners,) which are in the usual printed i,'nt' before she 
 form. Those articles provide that twenty-four hours' ab- •** moored, 
 sence without leave shall be deemed a total desertion, therebv sub- 
 
 and render every seaman liable to the forfeitures and ne- .K'ct 'mnselt 
 
 ■' • to the tor- 
 
 nalties in the 2 Geo. II. c. 36., and the 37 Geo. III. c. 73. feiiure of his 
 
 But this clause of the articles cannot be supposed to render g to entfue 
 
 seamen liable to the penalty imposed by those acts for de- the master to 
 
 sertion in cases to which the acts themselves do not apply. ,„oiiih'swao-es 
 
 Now it is clear that the intention of the le"islatin'e in in- *<>r the bene- 
 fit of G. H., 
 flictir^ a forfeiture of the seaman's whole wages for de- itisincum- 
 
 sertion by 2 Geo. II. c. 3Q. s. 3. was confined to the case ^"f "" ';j"\ 
 y to shew, that 
 
 of his refusing to proceed on the voyage, or quitting the the seaman 
 
 ship abroad, by which the master might be exposed to the shin without 
 
 necessity of hiring another person to supply his place at leave in writ- 
 
 an exorbitant rate of ^^'ag■es. It is provided by the fifth such a deduc- 
 
 section, that if any seaman shall absent himself without tion cannot 
 
 1- n^ 1 1 .1 ■ ^ • besetuftby 
 
 leave from the commanding ofhcer, he shall torleit two the master, in 
 
 days' pay to the use of Greenwich Hospital. The mean- JJJ^^J'i""[j|g 
 
 ing of these two sections is, that if the sailor run away be- seaman, un- 
 less the mas- 
 (r) 3 Bos. & Pull. SO'^. ttr has previ-
 
 456 
 
 Of the Wages of Merchant Seamen, [part ii. 
 
 ously debited 
 himself to 
 G. H., for the 
 aiuouut, in a 
 book kept ac- 
 cordiu<j,to the 
 direction of 
 the statute 
 2 Geo. II. c. 
 3t». d. 6, 9. 
 
 The Baltic 
 Merchaat, 
 Sniith. 
 
 fore the voyage is commenced, or in ports beyond the seas, 
 he shall forfeit his whole wages; if he absent himself dur- 
 ing the voyage and return, he shall forfeit two days' pay. 
 It having been found, however, that seamen were in the 
 habit of quitting the ship after her arrival at the port of 
 delivery, and before the ship was unladen, a clause was 
 introduced authorising the master to deduct a month's 
 wages where any seaman was guilty of such offence. And, 
 to prevent persons from setting up a pretended permission, 
 it was provided that the permission should be in nriting. 
 But if the master make this deduction, he should immedi- 
 ately make an entry to that effect in a book to be kept for 
 that purpose ; which book must be signed by himself and 
 two principal officers of the ship. Unless this be complied 
 with, I do not see how the master is to avail himself of the 
 deduction by way of set-off in an action for the wages. 
 The next question is, whether the case were properly left 
 to the jury upon the evidence r In cases of forfeiture, the 
 best evidence of which the nature of the case admits 
 ought to be given by the party who insists upon the for- 
 feiture. It is said, however, that a negative cannot be 
 proved ; but there are many cases in which it may ; and in 
 this case it might have been shewn that the mate, who at 
 the time had the command of the ship, had not given a dis- 
 charge. It appeared, indeed, that the plaintiff* went away 
 at the same time with most of the other seamen, at a period 
 when he might or might not be wanted, and a\ hen the sea- 
 men commonly have leave to go on shore. I think, there- 
 fore, that there was a fair ground for the jury to infer that 
 the absence was not without permission." 
 
 In the Baltic Merchant, Smith, (w) Sir William Scott, 
 having occasion to refer to this judgment, and in some 
 degree to contest the conclusion which had been popularly 
 drawn from it, made the following observations : " The 
 case of Frontine and Frost produced a great deal of de- 
 
 (w) Edw. A. D. Rep. 86.
 
 CHAP, v.] Of the Wages of Merchant Seainen. 457 
 
 liberation among the judges of the court in which it was Owners en- 
 
 . , , /.^ ' , 1 . I 1 1 • titled to com- 
 
 consiaered ; ana it was there laid down pretty strongly in pensation for 
 
 the argument of council, that the delinquent does not for- defect of duo 
 
 . * service trorn 
 
 leit the whole of his wages, which is true. But it was seamen, over 
 
 further argued, that the master njust have debited himself ^nd above the 
 
 o ' lorfeiture of 
 
 to Greenwich Hospital in order to entitle himself to make wages by sta- 
 
 the deduction, on the ground that the deduction is for the ^"^^ ^" ^" "' 
 benefit of that charity, and not for the compensation of tlie 
 owner. Now I take the interpretation of tlie case to be 
 this, that it will not entitle the owner to set-oft" the for- 
 feituie to Greenwich Hospital as a forfeiture under the sta- 
 tute which he had done in his pleadings, unless he shall 
 have complied with the requisitions of the statute, not that 
 he shall lose his own right of deducting a compensation 
 due to himself personally on account of the imperfect exe- 
 cution of the contract. 1 have had opportunities of con- 
 versing with very learned persons w ho were interested in 
 that judgment, and from whom I understand that the au- 
 thority of their opinions concurs in sustaining the proposi- 
 tion that the owner is not debarred by the provisions of 
 the statute from those rights to which he was entitled 
 under the old law. The legislature never could have in- 
 tended to deprive the owner of his remedy, when it super- 
 added this forfeiture in favour of the hospital, which was 
 to be obtained in the modes it has prescribed. This case 
 does not, I think, in any manner interfere with the prin- 
 ciple which 1 have laid down, that the owner is at liberty 
 to set-oft' the compensation to which he is entitled against 
 a demand for wages independently of that statute." 
 
 The subject of contest in the above case, the Baltic West India 
 
 Merchant, was, whether a seaman was to forfeit his whole completed till 
 
 wages, or one month's pay to Greenwich Hospital only, the arrival of 
 
 who had quitted a West India vessel without leave a little w^^D.'f and ^ 
 
 below Bkckwall, and before her entrance into the AVest «ages forfeit- 
 
 ' . ed by deser- 
 
 India Dock, her proper place of unlading, m consequence lionof the 
 
 of which the owners had been compelled to hire another fgjlj'^^'^j'gf ^* 
 
 in order to assist in discharging the vessel. The owners
 
 458 Of the Wages of Merchant Seamen, [part ii. 
 
 Baltic Mer- insisted upon the trial that this was a total breach of the 
 agreement ; a total failure of their contract to complete 
 the voyage ; and, therefore, that the entire right to wages 
 was forfeited. Sir William Scott was of the same opinion, 
 and decreed accordingly. He added, that the voyage was 
 not completed, in the interpretation of law, by the mere 
 fact of arrival ; but that the act of mooring was an act to 
 be done by the crew, and that the duty of the seamen ex- 
 tended to the time of the delivering of the cargo. That 
 the forfeiture of the whole wages in such a case is not to 
 be regarded as a mere penalty in law ; but as a civil com- 
 pensation for injury received, existing in all reason and 
 justice antecedently to any statute upon the subject, {x) 
 
 As respects the penalties and forfeitures claimed or re- 
 tained by the master under the 2 Geo. II. c. 36. it will be 
 seen by Lord Alvanley's judgment in Frontine v. Frost 
 above reported, (^) that the master must enter such penal- 
 ties in a book to be kept for that purpose, and must have 
 such entries signed by himself and two or more principal 
 officers ; and, further, that he cannot make such deductions 
 unless such entries have been duly made. 
 
 In the case of seamen employed in the coasting trade, 
 in vessels of one hundred tons and upwards, if any sea- 
 man should refuse to proceed on his voyage, after signing 
 the article, he is to forfeit all the wages due to him at that 
 time ; but if he desert after the commencement of the 
 voyage, and at any time before the delivery of the cargo, 
 or before he shall have a discharge in writing from the 
 master, he is to forfeit one month's wages to the use of 
 Greenwich Hospital. (2) 
 
 Wilful absence from the ship, without leave, is in all 
 cases, both as to coasters and others, to be punished by 
 
 (x) The Baltic Merchant, Edw. {y) Sec ante, yagc, 455. 
 
 Adra. Rep. 86. (z) See ante, page.
 
 CHAP, v.] Of the Wages of Merchant Seamen. 459 
 
 the forfeiture of two days' pay, for each day's absence, to 
 the use of Greenwich Hospital. If the voyage in the 
 coasting- trade be for less than a month, llie forfeiture of a 
 month's pay, under the act, is to be considered as the for- 
 feiture of the whole wages, {a) 
 
 But such forfeiture may, of course, be waived by the party The master 
 
 interested, and therefore, in Miller r. Brant, (^;) where a "'ay waive the 
 " " 5 V -' seamen s lor- 
 
 seaman was absent a day and a night from the ship, but feiture of his 
 having afterwards returned was received by the master *^ 
 and employed in his regular duties, it was decided by the 
 court that the master had waived the forfeiture, and the 
 seaman was entitled to recover his wages. 
 
 In the case of desertion from a British ship in the West 
 Indies, the seaman, by the 37 Geo. III. c. 73. is not only 
 to forfeit all his wages as to the ship from which he de- 
 serted, but likewise as to the ship on board of which he 
 has served. 
 
 It has been before stated, that by the 22 and 23 of 
 
 Charles II. c. 11. the crime of refusing to co-operate with 
 
 the master in the defence of ships against pirates and 
 
 enemies, is punished by loss of wages. And, in the case Gross neo^lcct 
 
 of Robinet v. The ship Exeter, (c) Sir William Scott, in «f duty by a 
 11- • i-.i 1 11 1 i?jx seaman IS sub- 
 
 delivenng his judgment, observed, that neglect ot duty, jecttoafor- 
 
 drunkenness, and disobedience, existing in a gross and i*^''^"''^ of 
 
 " ' ® ^ _ wages But if 
 
 extreme degree, was sufficient to deprive a seaman of his a seaman be 
 
 wages. But the neglect of duty must be wilful, and ^fj^^^^sej^oj. 
 
 amount to that degree of inattention which might expose obliged to 
 
 the ship to danger. The drunkenness must have the ^^^ account of 
 
 same character — must be extreme and habitual — and not inhuman 
 
 treatment, it 
 one or more of those acts of nitemperance too common will not 
 
 amidst the hardships of seafaring life. What the same »»"""■}* to 
 •^ ^ , , desertion, 
 
 learned J udge added, in the same case, as the description and he will be 
 of what the court would regard as disobedience of orders ^"s'^ga-es*' 
 
 (a) 31 Geo. HI. c. 39. s. 9. {p) 2 Campb. 590, (<?) 2 Rob. 261. 
 
 1
 
 460 Of the Wages of Merchant Seamen. [part n. 
 
 Robineti;. is at the same time so precise in itself, and so cliarac- 
 eter. terised by tlie knowledge of life and of tlie manners of 
 
 men, that we shall consult the satisfaction of the intel- 
 ligent reader by giving it at ]eno<h. " As to disobe- 
 dience of lawful commands, (said Sir W. Scott,) it is an 
 offence of the grossest kind; the court would be parti- 
 cularly attentive to preserve that subordination and dis- 
 cipline on board of ship which is so indispensably neces- 
 sary for the prefervation of the whole service, and of 
 every person concerned in it. It would not, therefore, 
 be a peremptory or harsh tone, or an overcharged manner 
 in the exercise of authority, that will be ever held by this 
 court to justify resistance. It will not be suflicient that 
 there has been a want of that personal attention and 
 civility which usually takes place on other occasions, and 
 might be wished, generally, to attend the exercise of au- 
 thority. The nature of the service requires that those 
 |)ersons who engage in it should accommodate themselves 
 to the circumstances attending it ; and those circumstances 
 are not unfrequently urgent, and create strong sensa- 
 tions, which naturally find their way in strong expres- 
 sions and violent demeanor. The persons subject to this 
 species of authority are not to be captious, or to take ex- 
 ception to a neglect of formal and ceremonious observ- 
 ances of behaviour ; and, on these grounds, the court 
 would hold, that the charges of this defence are of a 
 nature sufficient to justify dismissal, if they are properly 
 substantiated in evidence ; although, it might, at the same 
 time, be proved that less personal civility had been used, 
 than would excuse something of an hesitation of obedi- 
 ence in other modes of life." But it has been deter- 
 mined that where, by a ship's articles, no wages are to be 
 paid until the vessel reaches her ultimate port of des- 
 tination, and the master wrongfully dismisses a seaman, 
 the wages are payable immediately, {d) So, where a 
 seaman sent on shore, on duty, requested permission to 
 
 {d) Sigard v. Roberts, 3 Esp. N. P. 7 1. per Lord £l4oD 
 
 2
 
 CHAP, v.] Of the IVd^es of Merchant Seamen. 461 
 
 be permitted to stay there to get tood, having had none 
 in the cour-e of the day ; and, permission being refused, 
 he remained there till the next morning-, when he re- 
 turned to the ship, but was not received ; it was held 
 to be no desertion, {e) Nor is it desertion, if a sailor 
 leave a ship on account of inhuman treatment. (/) 
 
 In the case of any embezzlement or wilful injury to the A seaman 
 
 cargo, the master may deduct the value of the injury sus- hi^whole*^^*' 
 
 tained from the wages of those concerned. But such de- wages, nor 
 
 duction must be made from those only guilty of such act .^^ proportion- 
 
 of embezzlement, wilful injury, or gross neffliffence. And, able part, bj 
 . „ V. ,.• another sea 
 
 therefore, in Thomson v. Collins (^), it was said by the man embez- 
 
 Court, that the master could not levy a contribution on ^ ^"^ 
 
 ' -^ cargo. 
 
 the innocent part of the crew for the misconduct of the 
 others. 
 
 We now proceed to the fourth head of seamen's wages, q^ ^j^^ means 
 
 namely, the process of law by which, in the case of dis- ^y which sea- 
 
 ,, , 1 A 1 -x 1 '"<^'^ '"^y re- 
 
 pute, they may be recovered. And it seems scarcely ne- cover their 
 
 cessary to say, that the suit for wages, if personal against wages. 
 the owners, and not in re against the ship, can only be main- 
 tained against the parties signing the articles with the sea- 
 men, or the owners in actual possession. Therefore, it 
 has been holden, that where a ship was mortgaged, but 
 the mortgagor continued in possession, the master or sea- 
 men employed by the mortgagor could not maintain an 
 action for wages and disbursements against the mortgagee, 
 upon the ground that there was no privity of contract 
 between them: For where there is an express contract 
 with the mortgagor, the legal ownership of the ship be- 
 comes immaterial, {h) 
 
 Ithasalreadybeen repeatedly stated, that the seamen, with The master 
 
 must sue the 
 
 (c) Sigard v. Roberts. (h) Annett v. Carstairs, 3 Camp. ""'"^[* P^";- 
 
 ^ ° ^ ' f sonally ; he 
 
 {/) Linland v. Stephens, 3 Esp. 356 ; and see ante, Martin v. Pax- has no lien 
 
 269. ton, 353. upon, nor 
 
 (ff) 1 Bos. and Pull. N. R. 347. P^^^^**^ '"' ^«
 
 462 
 
 Of the Wages of Merchmit Seamen, [paut ii. 
 
 Court of Ad- 
 miralty 
 against the 
 ship. 
 
 Seamen may 
 arrest the ship 
 for wages by 
 suit in the 
 Court of Ad- 
 miralty. 
 
 Of the juris- 
 diction of the 
 Court of Ad- 
 miralty. 
 
 the exception of the master, have in all ordinary cases a 
 three-fold remedy — against the ship, the owners, and the 
 master; but that the master, from a just jealousy of 
 the law, is excluded from any lien or claim upon the 
 ship in re, and must, therefore, sue the owners personally 
 in a court of law. The master's contract is personally 
 with the owners : he trusts to their credit; and must, there- 
 fore, bring his action in the common law courts on the 
 contract, and he cannot sue the ship in the Admiralty. 
 Thus, in Smith v. Plummer, (0 it was determined that 
 the master had no lien on the ship or freight for wages, 
 or other disbursements on account of the ship. All 
 the seamen, however, either singly or altogether, ex- 
 cept the master, may sue in the court of Admiralty, and 
 may arrest the ship by the process of that court, as a secu- 
 rity for their demand, or may cite the master, or owners 
 personally to answ er them. By the term, in all ordinary 
 cases, it is to be understood, that the seamen are hired in 
 the usual manner, that is, by the usual articles, and not by 
 a deed. This, therefore, is the general rule as to the man- 
 ner of suing for wages by seamen, as appears not only 
 from all the cases hitherto stated, but from a series of 
 them from the earliest times downwards, collected in the 
 note below, (k) 
 
 The jurisdiction of the Court of Admiralty, indeed, is, 
 by its constitution, confined to causes and disputes arising 
 upon the high seas; and, by two statutes (13 Rich. II. 
 Stat. II. c. 5. and 15 Rich. II. c. 3.) is expressly com- 
 manded not to meddle in any thing done within the realm, 
 
 (i) I Barn, and Aid. 371. 
 
 (A:) Raj^g v King, 2 Str. 858. 
 1 Barnard, 297. Clay v. Snellgrave, 
 Salk. 33. 1 Lord Raym. 576. 
 12 Mod. 405. Carth. 518. Read 
 I'. Chapman, ^ Stra. 937. The Fa- 
 vorite, De Jersey, 2 Rob. A. R. 
 232. Wiqch, 8. Allison v. March, 
 
 2 Vent,. 1 SI. Anon. 8. Mod. 379. 
 Bins V. Parre, 2 Lord Raym. 1206. 
 The Boatswain, King v. Rag, 2 
 Stra, 858. 1 Barnard, 297. The 
 Carpenter, Wheeler v. Thomson, 
 I Stra. 707. The Surgeon, Sayer, 
 136. The J/a/e, Bay ley t). Grant, 
 1 Lord Rayra. 632.
 
 CHAP, v.] Of the Wages of Merchant Seamen. ^QS 
 
 nor with any contracts, pleasii, and quarrels arising within 
 the bodies of counties. But from the i^reat advaiitagcs of 
 the seamen being- enabled to proceed in a court in which 
 all mayjoin in one suit, and may, )noreover, have the ship 
 as their security, the courts of law have given a liberal 
 indulgence to this jurisdiction, and as large an interpreta- 
 tion as is possible to the restrictive words of the two 
 statutes. And hence, if a party, having- a good giound of 
 prohibition, shall, nevertheless, suffer the cause to pro- 
 ceed to a judgment upon its merits in the Court of Admi- 
 ralty, the courts of common law will not interfere after- 
 wards, nor allow him to avail himself of an objection 
 which they regard him as having waived. (/) " Indeed, 
 if the master, (says the learned writer to whom this sub- 
 ject is so much indebted,) have obtained a sentence in the 
 Court of Admiralty upon the usual allegation, stating 
 that he was hired within the jurisdiction of that court, the 
 courts of Westminster-hall will not prohibit the execu- 
 tion of the sentence." (w) 
 
 Nor are the seamen, in suing- in the Admiralty Court, 
 confined only to their actual service at sea ; they may sue 
 likewise for their wages earned in rigging and fitting- out a 
 ship for a voyage, though the owners have not prosecuted 
 such voyage, (w) They may sue likewise in the same court 
 for the wages of a coasting voyage, or for navigating a 
 vessel from one port of England to another; (o) and if the 
 subject come before the Court of Admiralty in a suit 
 instituted, the court may decide whether a place at which 
 a ship shall have arrived be such a determination of the 
 vo} age as to entitle the seaman to wages, (p) 
 
 (Z) Biiggin V. Bennet, 4 Burr. Raymond, 1044, 6 Mod. 238. 
 
 2035. Mills and Another v. Gregory, 
 
 (j/O Barber and another V. Whar- Sayer, 127. 
 
 ton, 2 Lord Raymond, 1452. Ab- (o) Anon. 1 Vent. 343, 
 
 bott, 485. (p) Brown v. Benn and Others. 
 
 (w) Wilts V. Osman, 2 Lord 2 Lord Raymond, 1247,
 
 4G4 
 
 Of the Wages of Merchant Seamen, [part ii. 
 
 The Court of 
 Admiralty ex- 
 tends to fo- 
 reign seamen. 
 
 The Court of Admiralty will extend to foreign seamen, 
 whose ships are in a British port, the advantage of the 
 same remedy against their ships for wages, but v,'ill not 
 entertain such a suit, where the contract is of a special 
 kind, necessarily referring to their own laws ; such law, 
 not being incorporated in the contracts, and, therefore, 
 not before the court. But if foreign sailors, before the 
 commencement of a voyage, stipulate in their own coun- 
 try that they will not sue the captain for any money 
 abroad, they cannnot maintain an action against him for 
 wages in the courts of this country. And the 2 Geo. II. 
 c. 36. does not apply to the case of British seamen entering 
 on board a foreign ship in a British port, {q) 
 
 As the master, though an agent and servant of the 
 owners, has a distinct interest from them, in any suit 
 against the owners, he may be a witness in their be- 
 half in an action for sailors' wages, (r) 
 
 Such, therefore, is the rule and the practice in actions 
 for their wages by seamen, namely, that all except the 
 master may sue the ship in specie in the Admiralty, pro- 
 vided only that the articles in substance, if not in letter, be 
 of the common kind, in which case there will be no dif- 
 ference whether sueh articles be with or without a seal. 
 For, as was said by one of the Judges of the King's 
 Bench, in a case upon an analogous subject. If the Court 
 of Admiralty has jurisdiction over the subject mutter, the 
 circumstance of the instrument being under seal does not 
 deprive them of their jurisdiction. (5) 
 
 If the agree- But if the agreement between the master and mariners 
 
 w^ges hi spe- ^^ °* * special nature, and be under seal, that is to say, 
 
 cial, and >iii- 
 
 der seal, the (g) The Courtney, English, 1 
 
 common law _, . . , ■„, i ■ i 
 
 courts will Edw. 239. Johnson j'. Mackicl- 
 
 jtroiiiljil the ten, 3 Camph. 44 and Dickmanv. 
 
 Admiralty Benson, ibid. 290. 
 
 JunsdicUoii. 
 
 (r) The Lady Ann, Wardell, 
 1 Edw. 235. 
 
 (s) Menetone v, Gihbons, 3 
 T. R. 207.
 
 CHAP, v.] Of the ]Vagr<i of Merchant Seamen. 4^5 
 
 be a deed, as the fact of such deed, if denied, cannot be 
 tried in a Court of Admiralty, so a court of common law 
 upon the allegation that such a special agreement or such 
 a deed exists, will issue its prohibition to the Court of Ad- 
 miralty from proceeding in the suit. But it appears to be of prohibi- 
 
 the safer course, that the master or owners intending to use ^'"" !" c, , 
 ' _ o _ Courts of Ad- 
 
 such a defence, should plead such special agreement in the miralty in 
 
 Court of Admiralty, as a bar to the jurisdiction of that !?*LwI'^'" 
 court ; and should only apply to the Court of King's Bench, wages. 
 if the Court of Admiralty should not allow the plea. (/) 
 But if they suffer the Admiralty Court to proceed to sen- 
 tence, they cannot afterwards, as we have already said, 
 avail themselves of such objection, (m) Yet if the appli- 
 cation be made to the Court of King's Bench before the 
 sentence of the Court of Admiralty, the Court of King's 
 Bench is bound to entertain (he motion; and, if satisfied 
 of the truth of the allegation, to issue its prohibition. 
 Thus, in Ossy v. Child and others, (.r) which was a motion 
 made for a prohibition to the Court of Admiralty in a suit 
 there for mariner's wages, upon a suggestion of a contract 
 made for them upon land, the Court held, that for the 
 convenience of seamen the Admiralty had been allowed 
 to hold pleas for mariner's wages, but yet with this limi- 
 tation, that if there be any special agreement, by which 
 the mariners are to receive their wages in any other man- 
 ner than is usual, or if the agreement be under seal, so as 
 to be more than a parol agreement, in such case a pro- 
 hibition shall be granted ; and so it was granted in this 
 case. In Day v. Serle, (j/) and Howe r. Napier, {z) the Court 
 of King's Bench granted simihir prohibitions upon the au- 
 thority of the above case. In the former of those cases, the 
 
 (/) The Mariner's Case, 8 Mod. proceedings, that they had uo ju- 
 
 379. Trin. T. 11 Geo. 1. risdiction. 3 T. R. 5. 4 T. R. 
 
 (m) Buggin V. Beunet, 4 Burr. 397 ; and Doug. 378. 
 
 S035. A prohibition to the Ad- (x) Salk. 31. 
 
 miralty, or Spiritual Courts, after (i/) 2 Strange, 968. 2 Basnard. 
 
 sentence, will not be granted, un- 419. 
 
 Ifss il appear upon Wx^face of the (3> 4 Burr. 1944. 
 
 -2 H
 
 466 
 
 Of the Wages of Merchant Seamen. [part ii. 
 
 Where there 
 is any thing 
 out of the 
 usual course 
 (whether by 
 the contract 
 for wages 
 being under 
 seal, or con- 
 taining spe- 
 cial cove- 
 nants) the 
 Court of K.B. 
 will issue a 
 prohibition, 
 if the applica- 
 tion be made 
 before sen- 
 tence, and the 
 Court of Ad- 
 miralty re- 
 fuse to re- 
 ceive the 
 plea. 
 
 motion for a prohibition was founded upon an allegationj 
 that the contract of the seamen was of a special nature, and 
 was, moreover, made on land, in this country, and sealed 
 and delivered by the parties ; and that the defendant in 
 the Court of Admiralty had offered to prove such spe- 
 cialty, and had alleged such deed, but that the Judge of 
 that Court had altogether refused to receive the plea and 
 allegation. Upon these grounds the prohibition was ac- 
 cordingly granted by the Court of King's Bench. Lord 
 Hardwicke, Chief Justice, said, that as the Admiralty 
 Court proceeds in suits for mariners' w ages upon contracts 
 made at land, which cannot be the proper cognizance of 
 the maritime jurisdiction, merely by indulgence, a prohi- 
 bition would always be granted where the contract differed 
 from the common and usual contracts between masters of 
 ships and seamen about wages, by reason of some special 
 terms contained in it ; and that in this agreement there 
 seemed to be some special covenants, as, for example, 
 I. That if the mariners should enter into any of his Ma- 
 jesty's ships of war, they should forfeit their wages; which 
 was directly contrary to a clause in the late act. And, 
 IT. That where the agreement was by writing, signed 
 and sealed, there also a prohibition should go, which was 
 likewise the present case. («) In Howe v. Napier, the 
 prohibition was likewise granted ; and Lord Mansfield ob- 
 served, that this case differed from the ordinary contract 
 for seamen's wages in other particulars besides the seal. 
 
 As the agreement under which the seamen are hired 
 always remains in the possession of the nuister or owners, 
 and the seamen might be delayed, if not defeated, in their 
 claim for wages, if it were necessary for them to produce it, 
 it is expressly directed by the 2 Geo. 11. c. 3Q. and the 31 
 Geo. HI. c. 59. that when it becomes necessary to produce 
 the contract in court, it shall be so produced by the master 
 9v owners of the ship, and that no seaman shall fail in any 
 
 («) Abbott, 4^tt,
 
 fHAP. v.] Of Ike Wageti oj Merchant Seamen. 467 
 
 suit or process for the recovery of wages for want of the 
 production of it. In the usual action in the Admiralty by 
 seamen for tiieir wages, the suit is rested upon the service, 
 and not upon the hiring; and, therefore, the contract upon 
 which such seamen are hired, wliatever it may be, is not ne- 
 cessarily produced in the Court of Admiralty. And this, in- 
 deed, is the reason why, if a master or owner intend to 
 avail himself of the plea of a deed or special agreement, 
 he must plead it in bar in the court of Admiralty ; in 
 which case the court must admit such plea, or appli- 
 cation may be made to the court of King's Bench for a 
 prohibition. But in Buck v. Atwood,(6) where the Whereadced 
 owners pleaded such a deed, but the plaintiff replied that tained by 
 
 the deed was obtained by fraud and circumvention, and fraud, the 
 
 ^ . , . , , , . . , , , Court of K.B. 
 
 the court of Admiralty, declaring it to have been so ob- will not pro- 
 
 tained, gave sentence for the plaintiff to recover his wages, |!'^'* * '"'f 
 
 ^ ^ * ... '^r wages m 
 
 the Court of King's Bench refused a prohibition. The theAdmi- 
 
 court said, in substance, that the object of the deed was ^^in^hJl^'pro. 
 
 confined to certain circumstances under which the seamen hibit, where 
 
 were to forfeit their wages, but could not enable them to notimme- 
 
 sue for their wages at law : the deed, therefore, was only diately relate 
 
 to Wijy^St 
 an incident, and, as such, might be collaterally taken as 
 
 part of the proceedings in the Court of Admiralty. 
 
 It has been before stated, that seamen's wages take Limitation of 
 precedence of all other demands. But actions for such seamen'* 
 wages must be commenced within six years after the cause wages. 
 of such action shall accrue, unless the party entitled to 
 sue shall at that time be within the age o^ twenty-one 
 years, ix feme covert, non compos mentis, or imprisoned, or 
 unless such party, or the party sued, shall be at that time 
 beyond the seas ; in which cases the suit may be brought 
 within six years after the party suing shall be of full age, 
 discovert, of sane memory, or at large ; or either the 
 party suing, or the party sued, shall return from beyond 
 the sea. (c) If the action be brought in a court of com- 
 
 (*) SStra. 781. (e) 4 Ann. e. 1«. «. 17, 18. aHd »»» 
 
 2h 2
 
 468 
 
 Of the Wages of Merchant Seamen, [part ii. 
 
 mon law against the master or owners, it is subject to the 
 same limitation. But if the agreement be by deed, the 
 demand may be made at any period within twenty years 
 instead of six. The form of action is by assumpsit, or ac- 
 tion of debt, except in the case of a deed, where the 
 action must be by debt or covenant. The plaintiff may 
 apply to a Judge of the court for an order for the defend- 
 ant to produce the articles to the plaintiff's attorney. 
 
 Summary 
 provisions by 
 the 59 G. 
 III. c. 58, for 
 the more ex- 
 peditious re- 
 covery of 
 seamen's 
 wages by the 
 adjudication 
 of a Justice 
 of the Peace ; 
 provided such 
 wages do not 
 exceed the 
 sum of twenty 
 pounds. 
 
 By the 59 Geo. III. c. 58. an act passed in the last Ses- 
 sion of parliament, considerable facilities are afforded to 
 mariners for the recovery of their wages. This act re- 
 cites, that seamen and mariners employed in the merchant 
 service, and in the coasting trade of this kingdom, had 
 been exposed to great difficulties, expence, and inconve- 
 nience in suing- for and obtaining payment of their wages, 
 in cases of dispute with the masters or owners of vessels 
 in which they had served. The act then recites, that it 
 was expedient that greater facility should be given for the 
 recovery of such wages. It then empowers Jusiice?^ of 
 Peace, on the complaint of seamen, to hear and settle dis- 
 putes about wages, not exceeding twenty pounds. And if 
 the owners or masters shall refuse to comply with the de- 
 termination of" the Justices, the amount of wages which 
 tliey shall adjudge to be due, may ])e levied by distress 
 upon their goods and chattels. And the determination of 
 the Justice or Justices is to be lina!, unless an appeal be 
 interj)os('d by either party to the High Court of Admi- 
 ralty, within th'.' space oi' seven day.^ after the order made. 
 The act provides, that if seamen or others are dissatisfied 
 with the order of the magistrate, they must give notice of 
 their intention to appeal to the High Court of Admiralty, 
 within ri)rty-ei^;ht hours after the order made, A moni- 
 tion is to be tnkrn out against the adverse party within 
 thirty days; and good and sufficient bail, in double the
 
 CHAP, v.] Of the Wages of Merchant Seamen. 469 
 
 amount of the wages claimed, must be given before a 
 Commissioner of Prizes, or the Justice who shall have pro- 
 nounced the order. This bail is to be certified, according 
 to a form given in the schedule, and transmitted without 
 delay to the High Court of Admiralty. Seamen, however, 
 are not to be precluded from the benefit of any agreements 
 entered into before the passing of the act ; nor of any 
 other remedy to which they may now resort. This act 
 will be found in the Appendix.
 
 470 
 
 CHAPTER VI. 
 
 OF PILOTS. 
 
 Laws of 
 
 Oleroo. 
 
 I HE conduct of ships into ports and havens being some- 
 times the most difficult and dangerous part of the whole 
 voyage, and the depth and shallows of inland rivers, and 
 the bounds and capacity of ports, being necessarily less 
 known by sailors than by those who live in the vicinity, it 
 has been the practice of the maritime law from the 
 earliest times, not only to encourage, but to require the 
 masters of vessels to avail themselves of the service of 
 pilots ; that is to say, of persons taken on board at a par- 
 ticular place for the purpose of conducting ships through 
 rivers, roads, and channels, or from, or into ports. Thus, 
 by the laws of Oleron the pilot was bound to bring the 
 ship into a safe harbour; and if the vessel or cargo perished, 
 or were injured whilst under the pilot's charge, the pilot 
 was responsible. If the fault of the pilot were notoriously 
 gross, the crew, by the same law, might lead him to the 
 hatches, and strike off his head, (a) 
 
 Masters of 
 ships itt fo- 
 reign trade 
 must take a 
 pilot ill their 
 outward and 
 homeward 
 voyage. 
 
 The law of England, adopting the reason of the law 
 merchant, though not the barbarous severity of the laws 
 of Oleron, requires, as a general rule, the master of a ship 
 engaged in foreign trade to take a pilot on board, both 
 homeward and outward, wherever such pilots are estab- 
 lished, (b) The several statutes mentioned in the note 
 below (c) constitute the system of pilotage as at present 
 
 (a) Leg. Olcr. cap. 23. Molloj, 
 B. 2. C.9. Land 2. 
 
 (b) Law t'. Hollingworlh, 7 T. 
 R. 160. 
 
 («)3Gco. I.e. \J. 7 (ko. 1.C.21. 
 
 3 Geo. II. c. 20, 21. 43 Geo. III. 
 c. 152. 47 Geo. III. s. 2. c. 71. 
 48 Geo. III. c. 104. 52 Geo. III. 
 c. 39. and J3 Geo. HI. c. 140.
 
 rHAP. VI.] 0/ Pilots. 471 
 
 required and acted upon by the law of England and prac- Pilotnge cou- 
 tice of merchants. The two last of these statutes, the ^°|^ ^^^ 
 52 Geo. III. c. 39., and the 33 Geo. III. c. 140., which not 
 only consolidate the former statutes respecting pilotage 
 up and down the Rivers Thames and Bledway, but con- 
 tain enactments applying to other ports of the kingdom 
 generally, will be found in tlie Appendix. It is more mat- 
 ter of general regulation than of law; and, being the daily 
 course of business amongst masters, belongs rather to their 
 books of practical navigation. 
 
 But the reason of the law in thus requiring masters to Masters, if 
 
 take pilots being to secure owners against the too common owners orpart 
 
 . , owners, may 
 
 confidence of masters in themselves, the law now dispenses pilot their 
 
 with the rule in all cases where the reason does not apply; **^° *"'P'* 
 that is, where the master is owner, and conducts his own 
 »hip. Accordingly, a clause is introduced in the 52 Geo. 
 III. c. 39., by which such persons, namely, masters and 
 part owners, are allowed to conduct their own ships up or 
 down the Rivers Thames or Medway, or into, or out of, 
 any port or place within the jurisdiction of the cinque 
 ports. This clause was introduced after the judgment of 
 the King's Bench in the case of Kimber v. Blanchard, (d) 
 in which the court determined, that under the acts preced- 
 ing the 52 Geo. III. c. 39. a master who shall conduct 
 his own ship was within the penalties of the pilot acts, (e) 
 
 Upon the same principle in Rex v. Lambe, and Rex v. 
 Neale, a doubt having existed amongst masters of ships, 
 though not adopted by the court in the trial of these 
 cases, whether a master could under any circumstance 
 move a vessel from her original moorings, a clause was 
 introduced in the twenty-second section of the 52 Geo. III., 
 by which it is provided, " That nothing in this act 
 
 (d) Kimberv. Blanchard, 2Black. 76. Rex ». Neale, 8T. R. K. B. 
 §90. 5Burr. 260S. 241. 
 
 («) Hci V. Lambc. b T. R. K. B.
 
 472 Of Pilots. [part ii. 
 
 contained shall be construed to prevent any ship or vessel 
 which shall be brought into any port or ports in England 
 by any pilot duly licensed, from being afterwards removed 
 in such port or ports by the master or mate, or other per- 
 son belonging to any such ship or vessel, and having the 
 command thereof, or if in ballast, by any other person or 
 persons appointed by any owner, or the master, or any 
 agent of the owner, for the purpose of entering into or 
 going out of any dock, or for changing the moorings of 
 such ship or vessel." 
 
 Ratesof pilot- The rates of pilotage are in almost all cases settled by 
 ^^^' the 52 Geo. III. c. 39.; but, where the statute is silent, are 
 
 to be regulated by the usage of the port. The rates to be 
 paid for pilotage, within the Rivers Thames and Medvvay, 
 and in the channels leading thereto, to pilots licensed by 
 the corporation of the Trinity-house, are enumerated in a 
 table annexed to the statute. And in the same manner in 
 a second table, the rates to be paid for pilotage to the 
 cinque port pilots. (/) But these rates seem only to apply 
 to the Trinity-house pilots, (g) 
 
 By the fifty-seventh and fifty-eighth sections of the same 
 
 act, if the ship be not a foreign ship, the pilotage may be 
 
 recovered of the owners or masters, or from the consignees 
 
 or agents ; and may be levied in like manner as penalties 
 
 are directed to be recovered, demand being made in writ- 
 
 Of the pilot- ing at least fourteen days before such levy. If it be a 
 
 ^^d B -["r^" foreign vessel, the sum due for pilotage may be recovered 
 
 ships. of the consignees or agents of such vessels, who shall have 
 
 paid or engaged to pay any charge whatever in relation to 
 
 such ship or vessel. Such sum due for pilotage to be paid 
 
 upon proof thereon being made, within fourteen days after 
 
 such pilotage shall have been performed, " on the oath of 
 
 such pilot before any justice of the peace, that the same 
 
 (/ ) 52 Geo. III. c. 39. s. li. and 9. 227. 
 
 ie) Nclsgn, Main, ii Rob. A. R. .
 
 CHAiv VI.] Of Pilots. 473 
 
 has not been paid by the captain of such siiip or vessel. If 
 payment thereof shall be demanded from any such con- 
 signee or consignees within twentj/-one days thereafter ; such 
 sums are recoverable in like manner, as any penalty under 
 the sum of 20/. may be recovered by virtue of the act ; 
 and such consignees or agents ot' foreign ships or vessels 
 are hereby authorised and empowered to retain in their 
 hands respectively out of any monies which they may have 
 received or shall thereafter receive for or on account of 
 snch foreign ship or vessel, or the owner or owners thereof, 
 so much as shall be sufficient to pay and discharge such 
 pilotage, and any expences attending the same." By the 
 fifty-ninth section of the act, masters of vessels which shall 
 be piloted by any other than a duly licensed pilot (within 
 the limits of pilotage,) are liable to forfeit double the 
 amount of the sum which would have been demandable for 
 the pilotage of the vessel ; and also an additional penalty Penalty for 
 
 of 5/. for every fifty tons' burthen of such vessel, if the cor- "Z**^* j"?,* 
 •' ', , . liceiised pilot. 
 
 poration of the Trinity-house shall consent thereto, in cases 
 Avhere their pilots are concerned ; or the lord warden of 
 the cinque ports, or his lieutenant, where the cinque port 
 pilots are concerned, such consent to be certified in writ- 
 ing, (h) 
 
 But masters are not liable to any penalty for acting „ ceoiion*. 
 
 as pilots of their respective vessels (not anchoring within 
 
 the limits of any port or place for which pilots are or 
 
 shall be appointed,) in passing up and down the English 
 
 channel ; or elsewhere, in passing by any part of the coast 
 
 of England, in the course of any voyage; or within the 
 
 limits of the port to which such ship belongs, (such port 
 
 not being theretofore regulated, in respect to pilotage, by ^^J be'em- 
 
 any charter or act of parliament,) and mky employ any ployed as a 
 
 pilot to assist 
 ships in dis- 
 (h) Semble—A forfeiture for re- 118. As to calculating the penal- tress. 
 
 fusing to receive a pilot on board ties imposed by the 52 Geo. III. 
 
 is not incurred unless the pilot pro- c. 39. s. 11, sec Mackic v. Lan- 
 
 duces his licence on demanding don, 6 Taunt. '256 ; and 1 Marsh, 
 
 admission. Usher v. Lyon, 2 Price 585. 
 
 o
 
 474 Of Pilots. [part ir 
 
 person As pilot, or act themselves as such, in cases when 
 no duly qualified pilot offers ; and no person shall, in any 
 case, be liable to a penalty when employed as pilot in as- 
 sisting ships in distress. 
 
 Besides the above exemption from the necessity of tak- 
 ing a pilot under this act, namely, that of a master con- 
 ducting his own ship, the second and twenty-ninth sec- 
 P rticular tions exempt, " as well all colliers, as also all ships and 
 exemptions vessels trading to Norway, to the Catlegat, and to the Baltic, 
 pUot. * ""* and likewise round the North Cape , and into the White 
 Sea, and all constant traders inwards from the ports be- 
 tween Boulogne inclusive, and the Baltic, such ships and 
 vessels having British registers, and coming up the North 
 Channel by Orfordness, but not otherwise ; and likewise, 
 Coasters and all coasting vessels, and all Irish traders, using the na- 
 
 shipsnotex- yiffation of the River TAawc5 as coasters; and ships not 
 ceeding the ^ ... 
 
 burthen of 60 exceeding the burthen of sixty tons having British re- 
 lons — if re- • , »» 
 gistered. g'^ters. 
 
 In Usher r. Lyon, {i) it was decided, that coasting ves- 
 sels were not compellable to take pilots on board on en- 
 tering rivers within the limits of a jurisdiction having au- 
 thority to appoint and license pilots ; and that the exemp- 
 tion in the 52 Geo. III. c. S9. was not confined to coasters 
 using the navigation of the Thames alone. 
 
 Limitation of By the twenty-sixth section, it is enacted, " That owners 
 the responsi- ^^^ masters shall not be responsible for loss or damage, 
 
 bility ot own- ^ ^ ° ' 
 
 crs and mas- nor shall owners or consignees be prevented from recover- 
 
 tcrs, when - ^pon any contract of insurance, or other contract re- 
 
 nilols are on s> r •' ' 
 
 board, by -)2 lating to any ship or vessel, or any cargo on board the 
 same, by reason ot no pilot having been on board such 
 ship or vessel, unless it be proved the want of a pilot shall 
 have arisen from a refusal to take one, or from the wilful 
 neglect of the master in not heaving-to, or using all prac- 
 
 (0 'i Fritc, 1 18; and anlr, page 473.
 
 i^uAP. VI.] ()/' Pibts. 475 
 
 ticable means to take on board any pilot wlio sluill offer." 
 And by the thirtieth section it is provided, " That no 
 owner or master of any ship or vessel shall be answerable 
 for any loss or damage, nor shall any owner or owners of 
 any ship or vessel, or consignee of goods, be prevented 
 from recovering any loss or damage upon any contract 
 of insurance of the same, or upon any other contract re- 
 lating to any ship or vessel, or any cargo on board the 
 same, for or by reason or means of any neglect, default, 
 incompetency, or incapacity of any pilot taken on board of 
 any such ship or vessel under or in pursuance of any of the 
 provisions of this act." By two other sections, (A) no 
 owner of a ship or vessel shall be liable for any loss or 
 damage beyond the value of such ship or vessel, and her 
 appurtenances, and the freight due for the voyage wherein 
 such loss or damage may arise. And " nothing in this 
 act contained shall be construed to extend to deprive any 
 persons of any remedy by civil action against pilots or 
 other persons, which they might have had, if this act had 
 not passed." And it has been determined, that the clause 
 in this act, exempting masters from liability for damage oc- 
 casioned by the pilot's misconduct, is not confined to da- 
 ni age to the piloted ship and cargo. (/) 
 
 The object of the 53 Geo. III. c. 140. which is the 
 
 last pilotage act, is substantially expressed by its title, 
 
 which is, '^ An act for the more effectual reo ulation of Amended Pi- 
 , <• r M ^ , . , 1 . lot Act, 53 
 
 pilots, and oi the pilotage or ships and vessels on the coast Geo. III. c. 
 of England, and for the regulation of boatmen employed '^^' 
 in supplying vessels with pilots, licensed under the said 
 act, so far as relates to the coast of Kent, within the limits 
 of the Cinque Ports." 
 
 In pursuance, therefore, of this object, it is enacted by Boatmen to 
 
 be licensed by 
 
 (k) Twcnty-seyenth and thirty- 309 ; and Beunet v. Moita, 7 
 first. Taunt. 258 ; and see this latter 
 
 ' {I) Ritchie y. Bousfield, « TaiuU. case, post, p. 181.
 
 476 
 
 Of Pilots. 
 
 [part II. 
 
 the Lurd 
 Warden of 
 the Cinque 
 Ports. 
 
 To be ex- 
 amined as to 
 their corape- 
 tenry by 
 Commission- 
 ers duly ap- 
 pointed. 
 
 the first clause, that one hundred and forty boatmen shall 
 be licensed by the Lord Warden of the Cinque Ports, or 
 by his lieutenant, or by the deputy lieutenant governor 
 of Dover Castle, or such other persons as he shall spe- 
 cially authorize for that purpose, within the jurisdiction 
 of the Cinque Ports, for the purpose of assisting ships in 
 distress, and conducting them into, and out of, the har- 
 bours of Dover, Ramsgate, Margate, and Folkestone, and 
 putting licensed Cinque Port pilots on board of ships 
 and vessels coming from the westvk'ard, and bound up the 
 River of Thames, or Medway ; and fifty of such boatmen 
 shall constantly reside at Dover, fifty at Deal, twenty at 
 Ramsgate, and twenty at Margate ; and all such boatmen 
 shall be respectively required by such licences to reside at 
 the respective places to be specified, and shall, upon quit- 
 ting their places of residence, or neglecting to use or act 
 under the same for the space of two months, unless pre- 
 vented by illness, forfeit such licences ; and every such boat- 
 men, before licence be granted, shall be examined as to his 
 knowledge of the coast, and ability to conduct ships and 
 vessels into the Downs and the harbours of Dover, Rams- 
 gate, Margate, and Folkestone, by the commissioners of 
 the lord warden of the Cinque Ports for settling salvage, 
 and the other commissioners appointed by this act, at the 
 respective places where such boatmen shall apply to be 
 licensed, at a meeting to be held for the purposes of this 
 act, upon whose certificate the lord warden or his lieute- 
 nant, or the deputy lieutenant governor of Dover Castle, 
 or such other person authorised as aforesaid, shall be em- 
 powered to grant such licences ; and if the number of per- 
 sons so approved and qualified to act as such licensed 
 boatmen shall exceed the number prescribed by this act, 
 the names of the persons so approved and qualified shall 
 be entered in a book, to be provided for that purpose, 
 together with the times of their approval and examination, 
 in order that they may regularly succeed, by rotation, to 
 the vacancies that may from time to time occur by death 
 or forfeiture of licences or otherwise, in order that the
 
 rHAP. VI.] Of PHotfi. 477 
 
 number of licensed boatmen may at all times be complete. 
 
 And by the tenth section it is enacted, that no more than y;^ J^^^^^. ^]^^^ 
 
 two licensed boatmen shall be allowed to go in each boat ; two licensed 
 
 , , , ,. , , 1 11 T • • boatmen to 
 
 and whenever any such licensed boatmen shall be cruising, go in each 
 
 without any licensed Cinque Port pilot, and fall in with ''"^^• 
 any ship or vessel requiring a licensed Cinque Port pilot, 
 one of the licensed boatmen shall be left on board the 
 ship or vessel wanting such pilot, as a guarantee for a 
 proper pilot being brought or sent off the shore to such 
 ship or vessel; and the boatman so left shall not be en- 
 titled to any sum of money or payment for being so left, 
 or being on board. And by the thirteenth and fourteenth 
 sections it is enacted, that every licensed boatman who 
 shall, on bein^ applied to by any licensed Cinque Port Penalty on a 
 pilot, to take him off to any ship or vessel, refuse so to do, fi^jln*^^" [^j^g 
 unless prevented by illness,. shall, upon due proof tiiereof, a licensed 
 in the place where he shall be licensed, forfeit his licence, a ship. 
 and any sum not exceeding twenty pounds for each of- 
 fence. And if any pilot, whose turn it shall be to go off 
 on duty, shall refuse or neglect so to do, on being applied 
 to by any licensed boatman, such pilot shall lose his turn, 
 and the ship or vessel shall be piloted by any duly li- 
 censed pilot who shall first get on board, but w hich shall 
 not be taken for the turn of duty of such last-mentioned 
 pilot. 
 
 It appears scarcely necessary to add, except that a prin- British pilot 
 
 cipal case was once determined upon it, that a British ^'^.""otsus- 
 
 ■^ , ' ^ tain a suit tor 
 
 pilot cannot sustain a suit for wages for navigating a fo- wae:es for na- 
 
 reign ship to an enemy's port. In the Benjamin Frank- fofgi^n^sl^i 
 
 lin,(wO the case had some singularity, as this objection was into an ene- 
 
 taken by the Judge, instead of being suggested in the de- ' 
 
 fence. It was a suit brought for wages on the part of The Benjamin 
 
 J. Gillman, a British pilot, for conducting a ship, being franklin. 
 
 an American vessel, from the Downs to Flushing. The 
 
 demand was resisted, on a suggestion of want of skill in 
 
 '»»' 
 
 (m'l 6 Robinson, 350.
 
 478 
 
 Of Pilots. 
 
 [part ii. 
 
 running the vessel on a sand, by which considerable da- 
 mage was sustained. But Sir William Scott stopped the 
 case upon its statement, on the ground that a suit could 
 not be maintained on the part of a British subject for 
 services performed in aiding the commerce and importa- 
 tion of the enemy. Would not such services be a contri- 
 bution of their skill and experience to assist and promote 
 the navigation of the enemy's ports ? That pilots may 
 often engage in such services will be of little signification. 
 They may be disposed to undervalue the obligation of ab- 
 staining from all traffic with the enemy, and to risk their 
 own personal safety for the sake of gain. But a court of 
 justice will not so consider it, nor give any support to de- 
 mands arising out of a course of navigation which must 
 be pronounced to be illegal to a British subject. 
 
 Where a ship 
 is engaged in 
 any trade or 
 enterprize 
 contrary to 
 the law of 
 nations, the 
 »iLOT, as wejl 
 as the sea- 
 men, forfeit 
 ail claim to 
 wages. 
 
 In the Leander, Murray, (n) the court carried this 
 principle still further, Sir William Scott laying it down 
 as a general rule, that not only the pilot, but all the sea- 
 men, must lose any claim to w ages, where the ship was en- 
 gaged in any trade or enterprize contrary to the law of 
 nations. As this case bears upon a traffic too common at 
 the present period, it may not be without utility to re- 
 late it more fully. It was a suit for wages, instituted on 
 behalf of James Minus, who was shipped at New York, 
 in January, 1806, by Lewis, the former master, as a sea- 
 man on board this vessel, at twenty-six dollars per month, 
 of which he received a month's pay in advance. The ship 
 wasoneofthose employed in the expedition against Spanish 
 America, under General Miranda ; and upon her arrival 
 at a port, in the island of St. Domingo, which was 
 within a month from the time of the shipment of Minus, 
 several of the crew were permitted to volunteer their ser- 
 vices in the military department of the expedition, and 
 Minus then entered as an artillery man. It was agreed 
 between the master and those of the crew who volun- 
 
 (ij) Fdvrards, A. H. p. S5.
 
 CHAP. VI.] Of Piloh. 479 
 
 teered, that from that period they were to cease to be The Leauder, 
 
 . Murray, 
 
 considered as seamen, and were to receive a quarter dol- 
 lar per day, and a gratuity of prize-money, and land 
 in case the expedition succeeded ; but the pay and prize- 
 money were to depend on that event. The expedition 
 having failed, Captain Lewis and several of the crew left 
 the ship, and she afterwards proceeded to Trinidad, and 
 was there sold to the present owners. The remainder of 
 the crew were paid at the time of the sale, as far as the 
 funds of the former owners would extend, and gave full 
 discharges for the whole amount of their wages. But no 
 demand was made by Minus, or any of those who had 
 volunteered in the military department, as it was under- 
 stood that their claim to remuneration was extinguished 
 by the failure of the expedition. Minus, sometime after, 
 claimed wages of General Miranda ; but on being in- 
 formed that he was not entitled to any, he commenced 
 these proceedings against the ship. Sir William Scott, 
 in his judgment, said, This question arises on the admis- 
 sion of a defensive allegation ojfFered by the oM^ners of this 
 vessel, in answer to a petition for wages. It appears that, 
 at the time this person entered into the service of the ship 
 at New York, as a mariner, she was the property of 
 American owners, but that the vessel has been since trans- 
 ferred to British subjects. NoWj although it is a settled 
 principle for the protection of mariners generally, that 
 wages form an indelible and perpetual lien on the ship, 
 and follow her wherever she goes, it is easy to see the 
 great inconvenience that might arise from carrying this 
 principle to its full extent in the case of foreign pur- 
 chases. Where an English ship is purchased by English 
 merchants, the purchasers have an opportunity of becom- 
 ing acquainted with all the circumstances of the ante* 
 cedent history of the vessel ; but in making purchases of 
 this description, it is scarcely possible for them to inform 
 themselves of all the transactions, regular or irregular, in 
 which she may have been engaged. And I should, there- 
 fore, be extremely unwilling, without further consider-
 
 480 Of Pilots. [pARTir. 
 
 The Leander, ation and examination of the subject, to lay tlown univer- 
 sally, that it is a principle which this court is bound to act 
 upon under all circumstances with respect to ships pur- 
 chased of foreigners by British subjects, or by foreigners 
 of British subjects. The allegation now offered states 
 many circumstances which are dissembled in the summary 
 petition. It appears that no less than one hundred and 
 eighty men Avere engaged on board the vessel, and that 
 the agreement was for a voyage from New York to St. 
 Domingo, and back again to America ; whether to North 
 or South America is not stated. Now this is a fact that 
 savours very little of a commercial voyage; they could not 
 have been engaged for the mere purposes of navigation, 
 as it is shewn that fifteen men were amply sufficient for 
 purposes of that species ; and from this circumstance, as 
 well as from general notoriety in the port from which the 
 ship sailed, it was easy to surmise that the object of the 
 voyage was not commercial. The fact is, that on coming 
 in sight of St. Domingo, the true nature of the voyage 
 was explained to all persons on board ; they were told 
 that the ship was destined to form a part of General 
 Miranda's expedition against South America, and that all 
 those who chose to enlist would be entitled to prize- 
 money, and to an allotment of lands. This proposal was 
 accepted by the claimant, who entered into a new agree- 
 ment to serve as a soldier in the expedition ; so that there 
 is an end of the former contract, if that were a contract 
 purely maritime. I do not think it material to enquire 
 whether he was to serve as a soldier or a sailor, because 
 the expedilion itself appears to a court of justice inerel// 
 as an unauthorized, and consequenllt/ an illegal adventure, 
 not sanctioned hy the government of any country, and such 
 as will not support a demand for wages earned in the prO' 
 gress of it. What private connivance or encouragement 
 might have been given by any particular state (as has 
 been suggested in argument) does not appear. No 
 public commission or formal authorization of any kind is 
 pretended ; and Ti'ifhojrf something of that sort is nllrgrd or
 
 CHAP. VI.] Of Pilots. 481 
 
 shewn, it is the mere unlicensed enterprise of an individual. The Leandcr, 
 
 11' 1 ^ Murray. 
 
 To what country the claimant belongs is not stated. As 
 
 a British subject he could not regularlj/ embark in such an 
 
 undertaking under this military commander without the au- 
 
 ihoriti/ of his goveriiment ; and if he be an American, his 
 
 own government had prohibited such an engagement 
 
 by public proclamation. If he is a subject of some other 
 
 country, the general objection holds, that the expedition 
 
 itself was the unauthorized act of a private person, out of 
 
 which no legal claims can arise. For that part of the 
 
 voyage which was legal, it is admitted that the wages had 
 
 been paid in advance; and I am clear, therefore, that if 
 
 this allegation is proved, it is of a nature to bar the claim 
 
 which is set up, especially against the present holders of 
 
 the vessel, who come in as innocent successors to the former 
 
 owners, and know nothing of her antecedent history. 
 
 Where a pilot is on board, under the pilot acts, and Where a pilot. 
 
 it would seem, upon principle, where a pilot is on board, '" j". '^'\^'''^' 
 
 in any place, or upon any occasion, where pilotage is tual govern- 
 
 made necessary by the legislature, the master is not liable ^\^-^ "jm '*' 
 
 for damage occasioned in running down another sliip, niastcror 
 
 , . J , . , , . , , owners are 
 
 unless, indeed, express evidence be given, that the not liable for 
 
 master superseded the pilot in the management of the ^"^ damage 
 
 ' ° or loss occa- 
 
 ship, and that the fault was occasioned by himself or sioned to the 
 
 crew. In Bennet v. Moita, (o) the ship Ranoer had ^'^'P- cargo, 
 
 ' ^ ' A 5 or to any 
 
 taken a pilot on board, off Gravesend, to navigate her other vessel, 
 to her moorings, near llotherhithe ; in the course of j|.^,j*^!'jte"or^ 
 proceeding to this place she was run foul of by the loss he occa- 
 defendant's brig the Carvalto, the Carvalto at that their omi de- 
 time having an old experienced pilot on board. The *''"'^' "r that 
 . ^ ' '■ oi the crew. 
 
 counsel tor the defendant objected, that the aclion'could 
 
 not be maintained, the Carvalto having a pilot on board, 
 by whom the authority of the master was divested. He 
 supported this objection upon the 52 Geo. III. c. 39. s. SO. 
 
 ip) Holt, N. P. 359 ; and 7 Taunt. Noidstrom, I Taunt. 568. Nichol- 
 258.— See likewise Boucher v. son f, Mouiisey, IG East. 3SI. 
 
 2 I
 
 482 
 
 Of Pilots. 
 
 Lpart n. 
 
 Bennet v. 
 Moita. 
 
 (before cited) by which it is provided, " That no master or 
 owner of any ship or vessel shall be answerable for any loss 
 or damage ; nor shall any owner or owners of any ship or 
 vessel, or consignee of goods, be prevented from recover- 
 ing any loss or damage upon any contract of insurance 
 of the same, or upon any other contract relating to any 
 other ship or vessel, or any cargo on board of the same, 
 for or by reason or means of any neglect, default, in- 
 competency, or incapacity of any pilot taken on board 
 of any such ship or vessel under or in pursuance of this 
 act." 
 
 It was contended on the other side — 1. That the act did 
 not extend to ships in the River Thames. The act was 
 entitled " an act for the more effectual regulation of 
 pilots and pilotage of ships and vessels on the coast of 
 England." Now, the term coast was properly confined 
 to the shores of the sea. Had rivers been intended, 
 would not the act have used the characteristic word 
 banks ? 2. That the statute did not prevent an action being 
 brought against the captain ; and that, at any rate, to ex- 
 culpate the captain, it should be shewn that the accident 
 arose from the negligence or incapacity of the pilot. 
 But Gibbs, C. J. determined both points in favour of the 
 defendant. He said, that the act manifestly extended to 
 the River Thames; and the pilot being on board, and 
 the authority of the master thereby divested, the latter 
 ceased to be responsible when he ceased to act. 
 
 Carrutbers t'. 
 Sydebotham. 
 
 So, likewise, in Carruthers v. Sydebotham, (;?) the 
 Court of King's Bench decided, that where the captain 
 of a vessel took on board a pilot by virtue of the Liver- 
 pool Pilot Act, (which incorporated the general provi- 
 sions of the 52 Geo. IH. c. S9.) and a loss happened, oc- 
 casioned by the neglect of such pilot, whilst the ship 
 was under his conduct, the assured were not prevented 
 
 (/>) 4 Mnule and Selw. 11.
 
 CHAP. VI.] Of Pilots. 483 
 
 from recovering an average loss upon a damage by- 
 stranding. 
 
 In Carriithers v. Sydebotham the judgment of the Court 
 of King's Bench was founded upon the principle, that 
 tlie master shall not be answerable for the act of the pilot 
 whom he does not appoint ; whom he is bound by law to 
 receive into his vessel ; and who, when on board, displaces 
 his authority, and supersedes him in the temporary govern- 
 ment of the ship. It seems, indeed, unreasonable to make 
 a master responsible where he has no controul. It was 
 upon this principle that the decision in Nicholson v. 
 Mounsey, supra, proceeded. But, unquestionably, the 
 captain would be answerable for any individual personal 
 misconduct in himself and crew. It must be observed, how- 
 ever, that Carruthers v. Sydebotham is somewhat at vari- 
 ance with a case subsequently decided in the Court of Ex- 
 chequer. In the Attorney General v. Case, (cj) that court Attorney Ge- 
 decided, that the owners of a merchant vessel running foul "*^ *'• ^^^^' 
 of, and damaging a king's ship lying in the River Mersey, 
 by the misconduct of the persons on board, were liable in 
 an information for damages, in the nature of an action on 
 the case, although she had on board, at the time of the 
 accident, a pilot duly licensed. This case likewise turned Construction 
 
 on the Liverpool pilot act, and not on the 52 Geo. III. ^^*'/*;,^'^''^'^" 
 ^ *- ' pool Pilot 
 
 c. 39. ; and the distinction which the court took was, that Act by the 
 the Liverpool pilot act was not of itself (nor by reference chequer. 
 to the 52 Geo. III. c. 39.) imperative, compulsory, or 
 penal on the captain, to take a pilot on board whilst his 
 vessel was lying at anchor; but merely subjected him to 
 the payment of the pilot's regulated allowance on refusal. 
 In this case also the court, after great deliberation, de- 
 termined, that the thirtieth section of the 52 Geo. III. 
 c. 39. (which, they said, was commonly, but improperly/, 
 termed the general pilot act,) discharging masters and 
 owners of vessels having pilots on board from responsi- 
 
 {q) .S Price, 302. 
 
 2 I 2
 
 4SI Of Pilots. [part 11 
 
 bility for damages occasioned by the neglect of the pilot, 
 did not apply to vessels having on board pilots appointed 
 for othtr places than those express!?/ named in the preamble 
 and provisions of that act. They thought, however, 
 where that act did apply, that the crown was equally 
 bound with the subject. Indeed, the 52 Geo. III. has al- 
 ways been considered as an act in relief of the general re- 
 sponsibility of the master and owners of ships, having pilots 
 on board in pursuance of its provisions. Therefore, in 
 Ritchie v. Bousfield, before cited, (r) the Court of C. P. 
 decided, that the exemption of the master, &c. from re- 
 sponsibility by the thirtieth section of that act was not 
 confined to loss or damage happening to the piloted ship 
 and cargo ; but extended to damage done by that ship 
 to others. 
 
 (r) ? Taunt, 309 ; and see ante, page 475.
 
 485 
 
 ciiaptI':pv vu. 
 
 OF CONVOV. 
 
 OMIPS and their cargo being a species of projDerty of no Of the reason 
 less importance to nations than to tlieir individual pro- acts. " '^^ 
 prietors, and being often of a character, tiie capture of 
 which would add to the hostile means and power of the 
 adversary, the legislature has imposed restraint during a 
 period of war, the object of which is to prevent them 
 from falling into the hands of t!;e enemy. 
 
 With this purpose the law requires all captains and 
 masters, unless in certain excepted cases, to sail with con- 
 voy; Accordingly, at the commencement of every war, it 
 is usual to pass an act of parliament, prescribing and re- 
 gulating the stations of convoy, and the duties of captains 
 to sail with them ; but which act necessarily expires with 
 the war which gave occasion to it. The last of these acts 
 was the 43 Geo. III. c. 57, which expired upon the conclu- 
 sion of the late peace ; but the provisions of this statute 
 are so reasonable, and so necessarily applicable to all 
 wars, that, as they must be re-enacted fundamentally upon 
 any future commencement of hostilities, they may be re- 
 garded as constituting the law of convoy in a period of 
 war ; and under this view they fall within the present 
 division of our subject. 
 
 With a difference only in the name and date of the actj 
 according to any future occasion, the following principles 
 and cases will for the most part apply to any subsequent 
 act of convoy. 
 
 By the 43 Geo. III. c. 57., the last convoy act as above Oftbeprovi- 
 said. it was enacted, " That it shall not be iawfui for any hte convoy
 
 486 Of Convoy, [part iI. 
 
 act of the ship belonging to his majesty's subjects, (except as therein 
 c. 57. after provided,) to depart from any port or place what- 
 
 ever, unless under such convoy as may be appointed for 
 that purpose. And the master is required to use his utmost 
 endeavours to continue with the convoy during the whole 
 voyage, or such part thereof as the convoy shall be directed 
 to accompany the ship, and not to separate therefrom 
 without leave of the commander, under very heavy pe- 
 cuniary penalties. And in case any ship shall depart with- 
 out convoy, contrary to the act, or wilfully separate there- 
 from, all insurances on the ship, cargo, or freight, belong- 
 ing to the master, or to any other person who shall have 
 directed or been privy to such departure or separation, 
 are made null and void. And the officers of the customs 
 in Great Britain and Ireland are required not to allow 
 any ship, which ought to sail with convoy, to clear out- 
 wards from any place in the United Kingdom to foreign 
 parts, until the master shall have given bond with one 
 surety, with condition that the ship shall not depart with- 
 out convoy, contrary to the directions of the act, nor after- 
 wards desert or wilfully separate therefrom. But the re- 
 gulations of this act do not extend to any ship that is not 
 required to be registered ; nor to any ship having licence 
 to depart without convoy, from the Lord High Admiral, 
 or three of the Commissioners of the Admiralty, or such 
 person as shall be duly authorized for that purpose by him 
 Exceptions ^"^ them ; nor to any ship proceeding with due diligence 
 from the con- to join convoy from the port of her clearance, in case the 
 convoy be appointed to sail from some other place, except 
 as to the beforementioned bond to be given upon clear- 
 ance ; nor to any ship bound from any place in the United 
 Kingdom to any other place within the same ; nor to any 
 ship belonging to, or in the employ of, the East India Com- 
 pany, or the Iludsoti^s Bay Company ; nor to any ship or 
 vessel departing without convoy from any Jbreign port or 
 place, in case there shall not be any convoy appointed for 
 such ships oc vesscis, loor any person at such foreign port 
 or p(a&ie authorized to appoint convoys for such ships or 
 
 "voy act.
 
 €HAP. VII.] Of Convoy. 487 
 
 vessels, or to "rant licences to such ships or vessels to de- Exceptioni 
 
 . Iiom the coa- 
 
 part without convoy. voj act. 
 
 It is also provided, that a ship employed in the New- 
 foundland fishery, being' wholly laden with fish or other 
 produce of that fishery, or with articles of the growth or 
 produce of the island of Newfoundland, or the coast of 
 Labrador, may depart from any place in that island, or on 
 that coast, without convoy or licence; except trom the 
 port of St. John's, duiring the time any admiral, or person 
 authorised to grant licences shall be stationed or resident 
 at that port. 
 
 Under these provisions, therefore, the general law of Summary of 
 convoy, in any period of hostilities, may be substantially . *^""^"y 
 stated as follows : — Every vessel is required, during- such 
 war : ^r*^, Not to depart from port unless under such 
 convoy as may be appointed. Secondlj/j To continue with 
 the convoy during the whole voyage, or such part of it as 
 the convoy shall be directed to accompany the ship. — 
 Thirdli/j All insurances, whether on ship, cargo, or freight, 
 are avoided, on the event of a xoluntary breach of these 
 laws. Fourthly^ Officers of the customs are required to 
 detain any ship, which ought to sail with convoy, until 
 the master shall have given a bond, with one surety, to 
 comply with the act. 
 
 But the regulations of the act do not extend, /^rs/. To Exception 
 any ship that is not required to be registered. Secondljt/, from the c^a 
 Nor to any ship having licence to depart without convoy. 
 Thirdly., Nor to any ship proceeding with due diligence to 
 join convoy from the port of her clearance, in case of tlie 
 convoy being appointed to sail from any other place ; the 
 master, however, giving the bond beforementioned. Fourthly y 
 Nor to any ship bound from any place in the United King- 
 doms to any place within the same. Fifthly^ Nor to any 
 ship belonging to the East India or Hudson's Bay Com- 
 panies. Sixthly, Nor to any ship departing without con-
 
 4SS Of Convoy. [part ir. 
 
 voy from any foreign port or place, in case there should 
 not be any convoy appointed for such ship; nor any per- 
 son at such foreign port authorised to appoint a convoy. 
 Nor, lastly., To any ship employed in the Newfoundland 
 fishery, (a) 
 
 The sailing The Sailing with convoy required by this act is a saii- 
 
 with convoy -^ vixXXx convoy for the voyaa:e : and it is not sufficient to 
 
 must be a sail- p •' . , 
 
 ing with con- Sail with a convoy appointed for another voyage, though 
 
 for tlicf '^"^ ^ ^^ ™^y ^^ bound upon the same course for great part of 
 
 voyage. the way; and a ship cannot legally sail from port to port 
 
 without convoy, unless she is bound from port to port; 
 
 and if a convoy has sailed, a ship cannot legally endeavour 
 
 to overtake it. (6) But the statute 43 Geo. III. c. 57., 
 
 does not avoid policies on ships sailing without convoy, 
 
 unless the party interested in the insurance was privy to 
 
 or instrumental in the sailing without convoy, (c ) From 
 
 the two last cases it appears, that the master of the trading 
 
 vessels should not omit to obtain the sailing instructions 
 
 and orders delivered out by the commander of the con- 
 
 The master of voy. In Anderson v. Pitcher, Lord Eldon observes, 
 
 b^undto^oh- " The value of a convoy appointed by government arises 
 
 tain the sail- from its taking the ships under controul, as well as under 
 
 tious deliver- Protection. But that controul does not commence until 
 
 ed out by the sailing instructions have been obtained ; nor can it be en- 
 commander . - 1 1 • -nr- 1 w 
 
 ofthe convoy, forced otherwise than by their means. \\ \i\\owX {sailing 
 instructions,) the ship does not stand in that relation, or 
 under those circumstances, in which she can take the full 
 benefit of the government convoy. If the fleet be dispersed 
 by a storm, how is she to learn the place of her ren- 
 dezvous ? If it be attacked by the enemy, how is she to 
 obey signals ? In short, what communication can the pro- 
 tected have with the protecting force ?" 
 
 (a) Vide 43 Geo. III. c. 57. 1 M. and S. 468.— See likewise 
 
 (6) Cohen v. Hinckley, 1 Taunt, Webb v. Thompsou, 1 Bos. & PulL 
 
 24l>. 5. Anderson v. rilclicr, 2 Bos & 
 
 (c) Henderson I. Ilindc, 1 Taunt. Pull. 164. 
 
 2j0, n. Wilson v. Foderingham,
 
 CHAP. Aai.] Of Convoy. 487 
 
 But if the master do all in his power to obtain sailings 
 instructions, but is prevented from obtaininj;^ them by bad- 
 ness of weather, or if they are refused by tlie commander 
 of the convoy, he is excused. In such cases he would 
 be excused, although there should be a warranty to sail 
 with convoy, (d) The convoy act is a very penal act ; 
 and, tlierefore, to be construed strictly, (e) 
 
 The greater proportion of the cases under the last con* What is to be 
 , ,, . ,.-... f, . understood 
 
 voy act arose upon the w arranty usual in policies of m- j,y ^ couvoy. 
 
 surance, that the vessel insured should sail with convoy. 
 The convoy to be understood in this warranty must be 
 a vessel appointed under the authority of government ; 
 and it has been decided in the case of Hibbertt'. Pigou,(y) 
 that the accidental accompaniment of a ship of war, which 
 may happen to be bound on the same voyage, is not a con- 
 voy within the construction of this warranty. But the 
 warranty to sail with convoy is of course to be understood 
 as an engagement to take such convoy at the usual or 
 nearest port where it is to be had. Hence a vessel from 
 London may take up her convoy at the Downs, (g-) It is 
 likewise sufficient under this warranty if the vessel goes 
 with the convoy, so far only as the convoy shall be going 
 on the same course or voyage; and if the convoy be called 
 off by the admiral or other commanding officer before the 
 conclusion of the voyage, the warranty is satisfied. (^) 
 
 The law of course in no case requires a master to do Excuses for 
 Avhat it is impossible he should do ; and, therefore, where ^^^^"^ ^^^^ 
 the convoy quits him, in the mid-sea, or before he reaches 
 the port, or where the force of the convoy is diminished, 
 and the ship is accompanied by a part only of the squadron, 
 
 (</) Vide Abbott, 243. (/) Park, c. 493. 
 
 (c) Vide Carstairs v. Allnutt, 3 (g) Lcthulier's case, 2 Salk. 443, 
 
 Campb. 497. Waiuhouse v. Cowic, andGordoiii'. Morley, 2Stra. 1265. 
 
 4 Taunt. 178. Wake v. Atty, Ibid. (/() D'Eguino v. Bcwicke, 2 H. B. 
 
 493. Ingham t'. Agucw, 15 East. 551. 
 517.
 
 400 
 
 Of Convoy. 
 
 [part II, 
 
 or by a single ship only; in ail these cases the warranty iw 
 satisfied. (/) But, so far as depends upon the master, he 
 
 The ship must not only sail with the convov, but keep with it; 
 
 must not ^ ^ _ f II- 
 
 only sail with though, upon the principle of necessity above stated, he is 
 b""I"fide'"*^ excused if separated by tempest, or other inevitable cause 
 keep with it. and accident. (A) It has been before said, that the master 
 should provide himself with the sailing instructions of the 
 commander of the convoy ; but the impossibility of doing 
 so, whether arising from the tempestuousness of the 
 weather, or the refusal of the commander of the convoy, 
 is upon the abovementioned principle a sufficient excuse 
 under the warranty in a policy of insurance. (/) 
 
 Where ships 
 a^e condition- 
 ally licensed 
 to sail with- 
 out convoy, 
 they must 
 strictly ad- 
 here to the 
 terras of the 
 condition. 
 
 In the ship Providence, Hinckley v. Walton, (m) the 
 question before the court was, whether the vessel had com- 
 plied with the conditions of her licence, and by such com- 
 pliance had. entitled herself to sail without convoy. The 
 licence was granted to sail without convoy, provided she 
 should be manned and armed as stated in the representa- 
 tion, upon which the licence w^as granted. The ship sailed 
 with the number of men and guns stated in the representa- 
 tion, but had put some on shore in the course of her 
 vogage; and had, therefore, less than the complement 
 stipulated when captured. Under these circumstances 
 the court decided, that the condition of the licence had not 
 been complied with ; and that the vessel had, therefore, 
 sailed without convoy, contrary to the act. 
 
 The two following cases, Ingham v. Agnew, and 
 D'Aguilar v. Tobin, comprehend so large a portion of the 
 general law of convoy, that we shall give them in some 
 detail. 
 
 (i) Smithv. Rcadshaw,Park510. JellVey u. Lcgendra, Carth.216 
 DcGaray v. Clagget, /W</. Man- 3 Lev. 820. 
 ning V. Gist, Marshall, Book I. c. 
 H.S.4. Audley v. Duff', 2 Bos. & 
 
 Pull. m. 
 
 (A-) Lilly V. Ewer. Doug. '?iJ.— 
 
 (0 Victoria v. Clceve, 2 Slra. 
 I'i.'jO. Vcedon r. Wilniot, Chief 
 Just. Lcc, at Guildhall. 
 
 (m) 3 Taunt. 131.
 
 CHAP. VII.] OfConvoT/, 491 
 
 In Inffham v. Aonew,(«) the circumstances were as Ingham t». 
 ... , . Agnew. 
 
 follow : — The plaintiffs having hired the ship Ocean, by 
 
 charter-party, for a voyage to Messina, Palermo, or Malta, 
 loaded a cargo of goods, in which they were duly interest- 
 ed, on board her at Hull for Palermo, procured the policy 
 in question to be effected, and obtained a licence from the 
 admiralty, dated the 29th of June, 1810, authorizing the 
 ship, (which was therein described as bound on a voyage to 
 Gibraltar, without mentioning any other port,) to sail from 
 Hull to Gibraltar without convoy. The sailing instruc- 
 tions to the master for his voyage were given in the fol- 
 lowing letter : " Hull, 14th July, 1810. Captain Thomas 
 Aubane, on receipt of this you will immediately proceed 
 with the Ocean under your command, from hence to Spit- 
 head, where you will make the necessary enquiries about 
 the convoy. If you find there is one appointed for the 
 Mediterranean on the point of sailing, you are to take ad- 
 vantage of it ; but as you are on no account to wait for it 
 longer than the wind may continue favourable, you must 
 not take instructions until it is actually under weigh, that 
 you may be at full liberty to pursue your voyage singly, 
 should the convoy not sail the moment the wind becomes 
 fair. In that case you will make the best of your way 
 direct to Palermo, without touching either at Gibraltar 
 or any other port ; if, however, in passing Gibraltar, you 
 are ordered into the bay by any of the cruizers, in order 
 to join convoy bound upwards, you must comply; but not 
 otherwise; as your great object must be to get to Palermo, 
 your port of destination, in as short a time as possible." 
 The master accordingly sailed with the ship and cargo 
 on the voyage insured, having no goods on board for Gib- 
 raltar; but with clearances for Gibraltar, Malta, and Mes- 
 sina. When the ship arrived in the Gut of Gibraltar, the 
 master was compelled by stress of weather to put into 
 that port. The course of the voyage to Palermo and to 
 Gibraltar is the same, until the vessel arrives in the Gut 
 
 (;i) I J East. 511.
 
 492 Of Convoy. [part h, 
 
 of Gibraltar. Having- staid at Gibraltar ten days, but 
 finding- no convoy, and no person tiiere authorized to ap- 
 point convoy:-;, or to grant licences, he sailed again for 
 Palermo, and was captured on the way thither. In an 
 action against the underwriters, it was contended that the 
 voyage was legal, because there was a licence to proceed 
 to GibraHar without convoy ; and the further prosecution 
 of the voyage from that place was within the exceptions of 
 the statute : but the court held the voyage to be illegal, 
 the ship not having in fact sailed for Gibraltar, as her 
 licence imported. 
 
 D'A^uilar v. D'Aguilar n. Tobin (o) was an action on a policy of in- 
 '^^^*"' surance upon the ship, the Samuel Gumming, at and from 
 
 Jamaica, and Trinidad, in the island of Cuba, to any port 
 or ports of her discharge in the United Kingdoms; war- 
 ranted to sail from Cuba on or before the 1st of August, 
 1814. Loss by capture. The vessel took in ballast from 
 Jamaica; sailed July 6th for Trinidad de Cuba; arrived 
 the 10th. She sailed again the 1st of August, at six 
 o'clock, P. M. and got out of harbour that night. She 
 took her course for Cape Antonio, at the west end of the 
 ' island, which it was necessary to make, in order to get 
 into the gulf stream. She called off the Havannah, 
 which is on the north side of the island ; but neither 
 dropped anchor, nor entered the harbour. The captain 
 staid there less than an hour, and during that time went 
 in his boat within the Mors castle. She then proceeded 
 through the gulf, in her course to England : and was 
 captured by an American privateer, on the 17th. The 
 vessel had no convoy or licence. There had been a con- 
 voy on the 30th of June from Jamaica to England, but 
 she was not ready then.- There was likewise a convoy at 
 the latter end of July to England. It was objected that 
 the ship was not authorised to go to Havannah ; though 
 it might be contended that she went there to seek convoy ; 
 
 (o) Holt, N. r. 185.
 
 CHAP. VII.] Of Convoy. 493 
 
 and that the clause in the policy as to the return of premium, 't is no devia- 
 
 ., , . , ,. , , . , . tioii, when a 
 
 if the ship sailed with convoy, did not authorize a devia- vessel sails, 
 
 lion in (luest of it. ButGiBHs, L. C. J. said, " Whatever bona fide, in 
 ' ^ ' ... quest or con- 
 
 is necessary for the safety of the ship, provided it be voy, in or der 
 
 not excluded by the terms of the policy, may be done by [,*^r!ielf^fi^o 
 the captain ; and what is so done is done as agent to the capture. 
 underwriters. A vessel, when insured, may always do 
 whatever it would be expedient to do if uninsured. She 
 may deviate somewhat from the straight line of her track 
 to seek convoy, when it is for the common good and pre- 
 servation. It may be as justifiable to seek convoy as 
 to avoid an enemy. Therefore, not only does the reduc- 
 tion of the premium, in case she sails with convoy, autho- 
 rize her to seek it, but she is at liberty to do so for her 
 own security." The defendant's counsel then relied 
 on the first and eighth sections of the convoy act, and 
 contended that the vessel should have waited for convoy. 
 In 1814 Admiral Brown was on the Jamaica station, and 
 had actually appointed convoys; one on the 30th of June, 
 another on the 30th of July. They did not, however? 
 produce any order from the Admiralty which authorized 
 Admiral Brown to grant convoy or licences ; but they 
 contended, that it was to be inferred that he had this 
 power, from being nominated to the station, and having 
 actually appointed convoys. But the Lord Chief Justice 
 observed, " Ships sailing from foreign ports are exempted 
 from the restrictions of the convoy act, unless there are 
 persons at those ports authorized by the Admiralty to 
 grant convoy or licences. I cannot infer, from the act of 
 the admiral in appointing a convoy, an authority from the 
 Admiralty to grant one. This act is highly penal, and 
 Jamaica might have been excluded. There is no proof 
 that there was any convoy for Cuba at the time. The 
 legislature saw it would be inequitable to oblige vessels 
 to sail w ith licences or convoy, when no one in foreign 
 ports was authorized to grant them. I think this vessel 
 was not within the prohibition of the convoy act, because 
 it does not appear that, at the time of her sailing, there
 
 494 Of Convoy. [part ii. 
 
 was any one at Jamaica legally authorized to grant 
 convoy." (p) 
 
 Though a ship cannot legally sail from port to port with- 
 out convoy, unless she is bound from port to port ; {q) never- 
 theless, a vessel which sails with convoy, and is driven 
 back by Aveather into her port of clearance, may lawfully 
 sail thence again with her cargo on the voyage, without 
 waiting for the next convoy from the same port, or join- 
 ing convoy from any other port, (r) But every person 
 who ships goods on board a vessel which sails without 
 convoy (when the act of parliament requires convoy to be 
 taken,) does it at his own peril of such ship's having a 
 sufficient licence for the voyage, without which all in- 
 surances on his goods are void by the statute 43 Geo. III. 
 c. 57. {s) And this, although the owner of the goods 
 supposed and intended that the ship should have a suf- 
 ficient licence ; and although he lived at a distance from 
 the port, and had no concern with the management of the 
 ship, or the obtaining for her the necessary documents, (/) 
 It has been likewise held, as we have before seen, that a 
 licence to sail without convoy to a port which a ship must 
 pass on her voyage, is not a sufficient licence to authorize 
 her to run, without licence or convoy, for the residue of 
 her voyage, after she has touched at that port ; and that 
 a licence to Gibraltar will not legalize a voyage to Pa- 
 lermo, Messina, and Malta, touching at Gibraltar, and 
 finding there neither licence nor convoy, (m). 
 
 We have already said, that to vacate a policy of insur- 
 ance, on the 4th section 43 Geo. III. c. 57. (a clause so 
 liighly penal,) it is not enough to shew that the ship sailed 
 
 (p) Holt's N.P. 187. 178. 
 
 {q) Cohen u. Hinckley, 1 Taunt, (0 Id. Ibid. 
 
 249. (m) Id. Ibid. ; and see Ingham v. 
 
 (r) Laing v. Glover, 5 Taunt. Agnew, 15 East. 517, anil ante, 
 
 49. page 491. 
 
 (*) Wainhouser, Cowic, 4Taiint. 
 1
 
 CHAP. VII.] Of ConvoT/. 495 
 
 without convoy, by the instrvmcnlalili/ of an agent of the 
 assured, unless It be likewise shewn, that the agent had 
 iiulhority from his principal for that purpose. (,r) And, in 
 order to shew that a voyage without convoy from a foreign 
 port is illegal, it is incumbent on the underwriter to 
 prove that there is convoy occasionally appointed from 
 that port ; and that there is some one resident there, au- 
 thorized to grant licences to sail without convoy. (^) So, 
 likewise, in anotlier case. Lord Ellenborough held, that, 
 where the law required a ship to sail with convoy, he 
 would presume that the law was obeyed till the contrary 
 was shewn. " This principle (he added) had been settled 
 in Williams v. The East India Company, (s) and a variety 
 of other cases." (a) 
 
 (jr)Car9tairs«.Allnutt, 3 Campb. (a) 3 East. 192. 
 
 497. (a) Thornton v. Laace, 4 Carapb. 
 
 (J/) Waker.Atty, 1 Taunt. 493. 231. 
 
 END OF PART II. AND VOL. I. 
 
 ?RINTKn BY J. AND T. CLARKE, 38, ST. JOHN's SQUARF, LONDOV.
 
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