the object of which was to extend, consolidate, and strengthen the maritime power of the country by confining our foreign trade, as far as was consistent with the extent of it, to the shipping and mariners of this country; and, in order to accomplish that object, to hold out peculiar privileges and immunities to the mariners and shipping of Great Britain; and to prohibit, under severe penalties, the communication of these immunities to the shipping and mariners of foreign states (a).

As these statutes contain comprehensive and positive enactments which bind the Crown (b), it may be laid down as a general rule, that the King does not possess any general common law prerogative with respect to foreign commerce. The King is called by Sir Wm. Blackstone (c)," the arbiter of commerce:" a term which would be somewhat loose, as stated by Mr. Wooddeson (d), if it were applied to general commerce; but which appears to be extremely applicable to the King's authority with respect to domestic trade: in which sense only it is used by Sir Wm. Blackstone. A general discretionary power of restraining, regulating and superintending foreign commerce is not assigned by the common law to the King. His prerogatives on this subject are by no means so extensive for the affairs of general commerce relating to subjects of independent states are regulated by statute law, and by the lex mercatoria which the European nations agree to

observe.

The freedom of trade and the general inability of the King to restrain it, or to exercise any discretionary power on the liberty of the subject in this respect, by virtue of his common law prerogatives, and independently of any legislative authority, appears to be clear both on sound constitutional principles and from authorities of the first weight and character (e).

In the first place the provision in Magna Charta, ch. 30., extending the freedom of trade to foreign merchants, strongly proves that the English had this liberty before: otherwise they

(a) 2 Smith, W. N. 212. Beaw. Lex Merc. 16, 17. Chitty, L. of Nat. 200. (b) 12 East, 296. (c) 1 Com. 273. (d) 1 V. L. 80.

M 2

(e) 2 Inst. 57. Hale de Portibus Maris. Pref. to Hargr. Hale, Tracts, vol. 1. p. xxx. Com. Dig. Trade, D. 1. 4 Bac. Ab. Merchant, 595.

would

would not have extended it to aliens, and left themselves without it.

In the second place it is declared by many Acts of Parliament; and particularly by the statute 18 Ed. 3. st. 2. c. 3.; que le mere soit overt" "that the sea shall be open to all manner of merchants to pass with their merchandise (where it shall please them)."

“ All merchants, strangers and denizens, or any other may sell corn, &c. and every other thing vendible to whom they please, foreigners or denizens, excepting the King's enemies, and any charter, proclamation, allowance, judgment, &c. to the contrary shall be void (a)."

Again if it be necessary, the various statutes which have been expressly made for the purpose of preventing the importation or exportation of particular articles, might be used as an argument against this power of the Crown. The embargo which was issued by his Majesty to prevent the exportation of corn in 1766, is noticed by Beawes in his Lea Mercatoria (b), as having been illegally imposed; such exportation, says he, being allowed by law at the time; and therefore, the preamble to the statute 7 G. 3. c. 7. for indemnifying all persons advising or acting under the order of council, laying an embargo on all ships laden with corn or flour, during the recess of Parliament in 1766, says, "which order could not be justified by law, but was so much for the service of the public, and so necessary for the safety and preservation of his Majesty's subjects, that it ought to be justified by Act of Parliament." This embargo, as was allowed, saved the people from famine; yet it was declared illegal by the above Act of the legislature, including the King himself, who laid it, which was therefore needful to sanction it: and the proprietors of the embargoed ships and cargoes were accordingly indemnified by government. Here there is a legislative declaration what the law is on this subject.

It is on this principle also that embargoes which occasion a suspension of commercial intercourse, are not legal at common law, except when they operate for the public good and

(a) 9 Ed. 3. c. 1. 25 Ed. 3. c. 2. 11 Rich. 2. c. 7.

(b) Page 276. See Hargr. Law Tracts,

Preface, xxx. Chitty, L. of Nat. 72. See also ante, ch. 7, as to Proclamations.

safety;

safety; being used in time of enmity and threatened hostilities and on an emergency, and not for the private advantage of a particular trader or company (a). Nor can a civil embargo, that is, an embargo which is employed in the case of allies and subjects, be imposed upon British ships in a foreign port, unless by the concurring authority of the state to which that port belongs; for the King has no right to disturb the peace of other nations, by any seizures, however useful to the interests of his own people. This may be collected from the judgment of Sir William Scott, in the case of the Gertruyda (b).

In 1721, on the occasion of ships of war being built by English subjects in England for the Czar, which was complained of by the King of Sweden, the Judges were of opinion that the King could not prohibit the same (c).

Lord Hale does indeed in his treatise de portibus Maris (d) consider this question very cautiously; and, with his usual diffidence on doubtful and important constitutional subjects, avoids giving a decided opinion: but it is tolerably evident what his sentiments were. He concludes (e) by observing, "that upon the whole matter, it will appear from the several Acts of Parliament that have been made for the support and increase of trade, and for the keeping of the sea open to foreign and English merchants and merchandise, that there is now no other means for the restraint of exportation or importation of goods and merchandises in times of peace, but only when and where an Act of Parliament puts any restraint. Several Acts of Parliament having provided, que la mere soit overt, it may not be regularly shut against the merchandise of English, or foreigners in amity with this Crown, unless an Act of Parliament shut it, as it hath been done in some particular cases, and may be done in others."

The following opinion, upon establishing British manufactures in France, was written in 1718 by Mr. West, then counsel to the Board of Trade, and who died Chancellor of Ireland, in 1726 (ƒ).

(a) Salk. 32, 335. 3 Lev. 352. A Mod. 176. 4 Bac. Ab. 595, title Merchant. Chitty, L. of Nat. 72.

(b) 2 Rob. 211.

(c) Fortescue R. 388.

(d) Hargr. Tr. Pars Secunda, ch. 9. (e) Ibid. ch. 10.

(f) 2 Chalmers' Collection of Opinions, 247. 1 ed. Preface, xxxiii.

"To

"To the Right Honourable the Lords Commissioners for Trade and Plantations.

"My Lords,

"In obedience to your Lordships' commands, signified to me by Mr. Popple, I have perused and considered the several letters relating to the establishing several manufactures in foreign parts by British artificers; but, as the case is not particularly stated unto me, it will not be possible for me to give a direct answer to the question proposed. I shall, therefore, beg leave of your Lordships to consider it something at large, and to lay down some general positions, which I take to be agreeable to the law of England; a right application of which, I believe, will in a great measure amount to an answer to such inquiries as may be made.

"That particular subjects should have an uncontroulable liberty of all manner of trading, is not only against the policy of our nation, but of all other governments whatsoever. I do, therefore, take it to be law, that the Crown may, upon special occasion, and for reasons of state, restrain the same; and that not only in cases of war, plague, or scarcity of any commodity of more necessary use at home, for the provision of the subject or the defence of the kingdom, &c. (in which case the King's prerogative is allowed to be beyond dispute), but even for the preservation of the balance of trade: as, suppose a foreign Prince, though in other respects preserving a fair correspondence and in amity with us, yet will not punctually observe such treaties of commerce as may have been made between the two nations; or in case there are no such treaties existing, refuses to enter into such a regulation of trade, as may be for the mutual advantage and benefit of both dominions: on such occasion, I am of opinion, that the King, by his prerogative, may prohibit and restrain all his subjects in general from exporting particular commodities, &c.; or else, generally, from trading to such a particular country or place: since trade does not only depend upon the will or laws of the Prince, whose subjects adventure abroad to carry it on, but also of that Prince into whose country the commodities are exported, and with whose subjects commerce is negotiated and contracted; without such a power it is obvious that the government of England could not be upon equal terms with the rest of its neighbours, and since trade depends principally upon such

treaties

treaties and alliances as are entered into by the Crown with foreign Princes; and since the power of entering into such treaties is vested absolutely in the Crown, it necessarily follows, that the management and direction of trade, must, in a great measure, belong to the King.

66

Things of this nature are not to be considered strictly according to those municipal laws, and those ordinary rules, by which the private property of subjects resident within the kingdom is determined; but a regard must also be had to the laws of nations, to the policy and safety of the kingdom; the particular interest and advantages of private men must, in such cases, give way to the general good; and acting against that, though in a way of commerce, is an offence punishable at the common law.

"Foreign trades carried on by particular subjects, for their private advantage, which are really destructive unto, or else tending to the general disadvantage of the kingdom, are under the power of the Crown to be restrained or totally prohibited. There may be a prohibition of commerce without open enmity, as an actual declaration of war, and particular subjects, who, for private gain, carry on a trade abroad, which causes a general prejudice or loss to the kingdom, considered as an entire body; in doing so, manifestly act against the public good, and ought not only to be prohibited, but punished. Carrying on such trades is in truth (what some Acts of Parliament have declared some trades to be) being guilty of common nuisances, and if the Crown, which in its administration of government, is to regard the advantage of the whole realm, should not be invested with sufficient power to repress and restrain such common mischiefs, it has not a power to do right to all its subjects. If the public mischiefs, from such a way of trading, be plain and evident, there is the same reason for restraining particular persons from carrying on a trade that draws such consequences after it (though it be a trade, that, of itself, is not prohibited by any particular law), as there is that a private subject shall not make such an use of his own house and land (in which he has an absolute propriety and a legal title to it) as will turn to the common annoyance and public detriment of the rest of the kingdom.

"The general trade of the nation, and the maintaining of the customs and duties granted to the Crown for the support

of