Wicfqueort's Rights

40.

to process as other persons, nor for the state by which he had been so dismissed from his employment to take offence at his arrest."

That the difference between a Consul and a public minister may appear in the most striking point of view, the following case, inserted in the former editions of this work, is reprinted.

The governor of Cadiz, having once affronted and confined the Dutch Consul, the of Ambas States General complained thereof to the Court of Madrid, as of a violence done to the sadors, p. law of nations, instead of urging the non-execution of those treaties, from which alone they ought to have expected safety for their pretended minister, and not elsewhere. Some years since they attempted to make their Consul, who resided at Genoa, pass for a public minister; but the Senate wrote them, that it did not acknowledge him as such, and that all which it could grant, or they expect for him, was the peaceable fruition of those rights and privileges, which custom had bestowed on this kind of .employment: the generality of Consuls are only merchants, who, notwithstanding their office of judge in the controversies that may arise among those of their own nation, carry on at the same time a traffic, and are liable to the laws of the place where they reside, as well in civil as in criminal matters, which is altogether inconsistent with the quality of a public minister; though, where it is otherwise, and a Consul does not trade, I think a proportionable regard and respect ought to be paid as due to his character.

In the year 1634, the Republic of Venice had almost broke with Pope Urban VIII. on account of the violence offered by the governor of Ancona, to the Consul of that sage Senate, who, in state and maritime affairs, stands in the foremost rank of preceptors.

The Consul's name was Michael Oberti, a native of Bergamo, whose family had discharged that office for many years; but the governor suspecting his having given some advices, that occasioned the republic's gallies to take some small vessels belonging to Ragusa, for having smuggled the duties that are paid in the gulf, so persecuted the Consul, that he was forced on a voyage to Venice, to acquaint the Senate therewith. He was no sooner departed, than the governor put a garrison in his house, and carried off his furniture and papers, even those which related to the functions of his employment; the Senate complained hereof, and demanded reparation with so much warmth, that the French ambassador, apprehending they might proceed to an open rupture with the Pope, endeavoured to adjust the difference to the satisfaction of the parties offended; but before the accommodation could be perfected, the governor caused the Consul to be summoned, and for contumacy condemned him to banishment, under the pretext, that during the contagion which reigned, he had unladed goods contrary to the prohibition. There was more of passion than justice in this sentence, as Oberti could prove that he had done nothing without the magistrate's approbation; so that this iniquitous and unjust proceeding gave more offence to the Senate than the first, and a repetition of the French ambassador's good offices was necessary, to dispose the minds of the jarring parties to an accommodation, which he at last accomplished, upon condition, that the governor should repeal the outlawry and suffer Oberti's re-establishment; and that the Senate, who should afterwards recall Oberti, should substitute in his place whomsoever it pleased. Michael dying before all this could be executed, the Senate put his brother in his room; but this last was no sooner arrived at Ancona, than the governor caused him to be imprisoned, and would not release him till he had given security for his leaving the town, and not returning.

The French ministers, who had laboured in the reconciliation, and engaged their words for performance of the conditions, which, as above expressed, allowed the Ve

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netians to nominate any other for Consul that they should think fit, were very much chagrined at this proceeding; and the Senate, to shew its resentment, refused audience to the nuncio, and forbad its ambassador to ask one of the Pope, till they had received ample satisfaction, which the governor was forced to give.

We shall now give a general sketch of the functions of a British Consul residing in a foreign port, and of the respect and obedience due to him from his fellow subjects, being merchants, masters of ships, or mariners, resorting to the said port, a subject which has been so totally neglected by our commercial writers, that it is high time to supply the deficiency.

A British Consul, in order to be properly qualified for his employment, should take care to make himself master of the language used by the court and the magistracy of the country where he resides. If the common people of the port use another, he must acquire that also, that he may be enabled to settle little differences, without troubling the magistracy of the place for the interposition of their authority. Such are accidents happening in the harbour, of the ships of one nation running foul of and doing damage to each other, &c. At Ostend, the vulgar tongue is Flemish, but public business with the magistracy and with the Court of Brussels is transacted in the French language.

At his first establishment, he should procure a tariff, or specification of the import duties on all commodities arriving at his port from Great-Britain or Ireland. Also, of the duties on all commodities exported from the said port, and destined for any port belonging to the dominions of his sovereign. He must take especial notice of all prohibitions to prevent the export or import of any articles, as well on the part of the state wherein he resides, as of the King his master; that he may admonish all British subjects against carrying on an illicit commerce to the detriment of the revenues, and in violation of the laws of either. And it is the more essential, that he should attend diligently to this part of his duty, because there are merchants and factors in every country, who for selfish ends will encourage smuggling, and hazard the detention, nay, even the confiscation of ships, and the imprisonment of the masters and mariners to the great injury of owners, freighters, and other parties concerned.

It is his duty likewise to make himself master of the municipal laws of the country; and of all the ordinances of the magistracy, that his fellow subjects may not be involved in difficulties and distresses, through ignorance, or be fined and imprisoned through the artifices of extortionate farmers of the inland excises, or mercenary officers of the police, resembling our trading Justices. They are to consider themselves as the lawful protectors of all British subjects trading to, residing in, or travelling through the places within their jurisdiction, but more especially of all masters of British ships and mariners: they are not to suffer the natives to offer them any insult, or do them any wrong, nor the custom-house or other officers of the government of the country to impose on them, illegally to detain their persons, ships, or merchandize, or exact money from them on fraudulent pretexts; and in all cases of this nature, when the Consuls cannot obtain redress from the administration on the spot, they are to prefer their complaint by memorial to the British minister, residing at the Courts on which their consulships depend. If there is no such minister, they are to transmit the memorial themselves to the Court, and failing of redress, if the complaint be well founded and important, the same should be transmitted to his Majesty's principal Secretary of State for that province. They have a right to demand audience of the prime minister or ministers of the sovereign or state wherein they reside, as persons invested with public characters, in the absence or non-residence of ambassadors, or other public ministers from their own sovereign. The Editor had frequent occasion to demand it, in the absence of the late Sir James Porter, his Majesty's minister plenipotentiary at the

Court of Brussels, and he always obtained it with great politeness from the late Count Cobentzel, Prime Minister for the Austrian Netherlands, a most accomplished statesman-and from his late Royal Highness Prince Charles of Lorraine, uncle to the present Emperor, Governor General of the low countries.

If any insult or outrage is offered to the inhabitants of the country where British Consuls reside, by British subjects, the magistrates before they proceed to the punishment of the offenders, will usually complain to the Consuls, who ought to interpose their authority, to summon the offending parties before them, and, if they will not appear voluntarily, to compel them by an armed force: upon their appearing, he is to order them to make immediate satisfaction, and, if they refuse this, he must resign them to the civil jurisdiction of the magistrates, or to the military law of the garrison; always persisting, however, in being present, and acting as counsel or advocate, upon all trials of British subjects, whether their lives or properties be at stake. But if an accusation is brought against them for offences, alleged to have been committed within the dominions or jurisdiction at sea of their natural sovereign, it is the duty of a British Consul to claim cognizance of the cause for his sovereign; to insist upon the release of the parties, if detained in prison by the magistracy of the place, on any such accusation brought before them; and that all judicial proceedings against them do instantly cease. He is likewise to demand the aid of the power of the country, civil and military, to enable him to secure and put the accused parties on board such British ship as he shall judge fit, that they may be conveyed to Great Britain, to be tried by their proper Judges.

A remarkable case of this kind happened in the beginning of the year 1768, at Ostend. Peter Horseman, master of a merchant ship, was driven into that port by stress of weather, being bound for Hamburgh from Seville. On his passage he had anchored some days off the Mother-Bank, Spithead; and during this time his sailors, as he alleged, had mutinied, and signed a round robin *. Upon coming on shore, the British Vice-Consul, Mortimer, being absent, his duty having called him for a few days to Dunkirk, he laid a charge of mutiny against three of his men before the magistrates, who caused them to be arrested by their officers, threw them into prison, loaded them with irons, and would have proceeded to trial; but upon the Vice-Consul's return he presented a memorial, insisting that the men should be released, and given up to him, in order to their being sent to England, consigned to the Lord Warden of the port of Dover, to be by him detained till orders should arrive concerning them from the Court of Admiralty, the offence, if committed at all, having happened within the territoral jurisdiction of the King of Great Britain. The magistrates of Ostend persisted in maintaining their civil jurisdiction over the prisoners, and prepared without delay for the trial. The British Vice-Consul drew up a memorial, and transmitted it to Sir William Gordon, his Majesty's minister at Brussels: that court gave evasive answers; and the Vice-Consul, finding the lives of British mariners at stake, applied to the Board of Admiralty at London, stating the case. The Lords of the Admiralty sent the case to their solicitor, who gave it as his opinion, that the Vice-Consul was perfectly in the right; and that Lord Weymouth, Secretary of State for the northern department, ought to lay the matter before the King, in such manner that the Imperial ambassador should be required instantly to write to Vienna, that orders might be given to the government of Brussels to stop all judicial proceedings against the sad sailors, and to release them, which was done accordingly.

It is the duty of British Consuls to recover all wrecks, or cables, anchors, &c. belong

A sea term for a mutinous conspiracy against the captain, in which the persons signing the agreement write their names in a circle round the paper, so that it may not appear who was the first or ringleader.

ing to the King's ships, found at sea by the fishermen, or other persons, and brought into the ports where they reside; to pay the accustomary salvage, and to inform the Navy Board in England of his proceedings thereon; also, to relieve all distressed British mariners, to allow them sixpence daily for their support, to send them home in the first British vessels that sail for England, and to keep a regular account of his dis bursements, which he is to transmit yearly, or oftener if required to the navy office, attested by two British merchants of the place.

He must likewise give free passes to all poor British subjects wishing to return home, directed to the captains of the King's pacquet boats, or ships of war, requiring them to take them on board.

No merchant ship of his nation shall leave the port wherein a British Consul resides without his passport, which he shall not grant till all just demands on the master and the crew from the government of the country be satisfied; and, for this effect, he ought to see the governor's pass, if a garrisoned town, or the burgomaster's; unless the merchant or factor, to whom the ship was consigned, makes himself responsible for all con

sequences.

The consul is the natural arbitrator between the masters of British ships and the freighters, being inhabitants of the place wherein he resides, and he must therefore attend, if required, at all arbitrations where property is concerned.

His fees are regularly established in countries where large factories of his nation are settled in some places they are regulated by the burthen of the ship, in others by the length of the voyage; but where there is no fixed rule, they are regulated by precedent. And it is remarkable, that the Consuls of other nations are protected by the sovereigns, and authorized to take the Consul's fees; but the British have not any authority whatever to support their claim, where there is no commercial treaty. If a master refuses to pay, he cannot detain the ship; for the owners and freighters would bring their actions for damages: but that excellent Chancellor, Lord Hardwicke, held, that the Consul might send on board, and seize any piece of valuable furniture belonging to the cabin, which would not hinder the navigation of the ship, and detain it for his fee.

Another hardship upon British Consuls is, that they are often obliged to imprison disorderly seamen, upon the complaint of their masters, as an indispensable duty of their office; yet every one of these seamen has it in his power to bring his action against the Consul for false imprisonment in the Courts of law in England, when it is probable the master is on a voyage in some other part of the world.

Therefore, it is the duty of the Consul to be very cautious how he confines or punishes British seamen, or masters of ships, upon their mutual complaints against each other; and to keep a regular and well-attested account, fairly written in a book for that purpose, of all his official transactions, entering therein-the date of the arrival of every British ship, the master's name, name of the ship, burthen, quality of lading, place from whence she came, to whom consigned, and his departure.

British Consuls should strictly mark the progress of the commerce of other nations in the places of their residence, study the means of improving that of their own, and transmit intelligence to the Secretary of State, when it is upon the decline, assigning the causes, and proposing suitable remedies.

Lastly, with respect to religion, they are to take care to give no offence themselves, nor suffer any insult or indecency to be offered by British subjects to the established religion of the country; neither are they to make a public profession of their own, nor to hold assemblies for Protestant worship in Roman Catholic countries, unless expressly sti pulated by treaty, or permitted: But, on the other hand, being always allowed the free exercise thereof privately in their own houses, they are not to be molested therein, nor are they to be prevented attending or assembling at the houses of their Consuls for such

purposes: and the said Consuls are to take care that no Protestant be forced to comply with any of the rites and ceremonies of the religion of the country; such as compelling parents to send their children to be baptized by their priests, or to be educated in the Romish faith. Neither are they to suffer the seizure of any bibles, common prayers, or other religious books, in the houses of British subjects, though such books are strictly prohibited by the laws of the country to other inhabitants. And, as cases of this kind sometimes happen, it may not be improper to observe, that a book taken out of a house, by a priest or friar, should be claimed as the common property of the owner; and the offender should be proceeded against at common law, not by memorial; the common law of every country affording relief in such instances.

The office of a British Consul is much more difficult in time of war than in time of peace; especially on account of the great care he must take to prevent any violation of the neutrality of the port in which he resides, by the masters of British merchant ships: for which reason, and because the system of the maritime powers of Europe has just undergone a revolution tending to diminish and restrain that universal empire of the seas heretofore claimed and maintained by Great Britain, we have thought it right to introduce a new chapter, on the freedom of navigation, immediately after the present, and before that on insurance, as they seem to be subjects intimately connected; for it is part of the Consul's duty to inform the owners or underwriters of a ship, if required, whether the master has or has not made void the policy of insurance by violating the freedom of navigation, or the neutrality of ports.

OF FREEDOM OF NAVIGATION.

ALTHOUGH it cannot be expected that merchants should study thoroughly all the laws of nations, yet it may be supposed that most of them know something of the contents of the treaties of commerce; and that there is a difference in the treaties of commerce between England and Denmark and Sweden, and between England and Holland, and England and France and Spain; and that only between the four last, the rule" of free ships making free goods, though belonging to enemies, except contraband," had been reciprocally established; however, for the use of those who may be desirous to know what passed with regard to navigation in former wars, as well as the late, I here subjoin some remarkable passages which I have met with on this subject, with some observations that may considerably elucidate it.

From the letters written by that great statesman John de Witt, Pensionary of Holland, and others received from the Dutch ambassadors employed at the Courts of France and England during his ministry, which were published at the Hague 1723-24, in four parts in 4to, it appears that this minister, being sensible that Holland's wealth depended chiefly upon keeping peace, and having a free and unmolested navigation from and to all parts, laboured hard to obtain from England and France, by particular treaties of commerce, the concession that free ships should give freedom to all goods, even those belonging to enemies, except contraband.-His letters wrote to, and those received from, William Boreel, in 1653-54, part 1, page 77, 78, shew that France by a provisional treaty made in 1646, and by a declaration of the French King in 1651, having allowed this rule to the Dutch, was the first who deviated from it. Mr. Boreel writes, page 66, 68," they now say that their enemies ought not to be protected nor served by ships of the states, in carrying their goods: that such goods would be taken out of the Dutch ships, and confiscated as good prize:" He adds, " and the French may perhaps even fall upon maintaining their old maxim, que la robe d'ennemi confisque celle