tection of God, the wealth, safety, and strength of this kingdom is so much concerned; be it enacted, That no goods or commodities whatsoever shall be imported. into or exported out of any lands, islands, plantations, or territories to his Majesty belonging, or in his possession, or which may hereafter belong unto, or be in the possession of his Majesty, his heirs and successors, in Asia, Africa, or America, in any other ship or ships, vessel or vessels whatsoever, but in such ships or vessels as do truly, and without fraud, belong only to the people of England or Ireland, dominion of Wales, or town of Berwick upon Tweed, or are of the built of, and belonging to, any 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."

Some material alterations have been made in this Act by the Statute 45 Geo. 3. c. 57. which was passed to consolidate and extend several previous ordinances. It enacts, in the first section, that "wool, cotton-wool, indigo, 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 furs, 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 the colonies or plantations in America, or of any country on the continent of America belonging to or under the dominion of any foreign European sovereign or state, and all coin and bullion, diamonds, and precious stones, may be imported from any of the said countries into the several ports of Kingston, Savannah La Mar, Montego Bay, Saint Lucea, Antonio, and Saint Ann, in the island of Jamaica, the port of Saint George in the island of Grenada, the port of Rosseau in the island of Dominica, the port of Saint John's in the island of Antigua, the port of San Josef in the island of Trinidad, the port of Scarborough in the island of Tobago, 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 ports of Pitt's Town and Portland Harbour in Crooked Island, another of the Bahama islands, the port of Kingston in the island of Saint Vincent, and the principal port in the island of Bermuda, in any foreign sloop, schooner, or other vessel whatever, not having more than one deck, and 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, any law, custom, or usage to the contrary notwithstanding." To these ports the Statute 46 Geo. 3. chap. 72. has added Road Harbour in the island of Tortola.

By the second section it is provided, "That tobacco, the growth or production of any island or continental country of America, under the dominion of any foreign European state, may be also imported into the same ports. The importation of foreign coffee and sugar is permitted by Sect. 4. but limited to the ports of Nassau and Pitt's Town, to the principal port in the island of Bermuda, and such other port or ports in the Bahama and Caicocs islands as shall be approved by his Majesty in council; and the 7th section provides, that no foreign ship shall import from any of the beforementioned places in America, any goods except those before enumerated.

The 8th section permits, "That British rum and Negroes, and all goods legally imported, except masts, yards, bowsprits, pitch, tar, turpentine, and such iron as shall have been brought from the British colonies or plantations in America, may be again exported to any of the colonies or plantations in America, or any countries on the continent of America, belonging to or under the dominion of any foreign European sovereign or state, in any sloop, schooner, or other vessel whatever, not having more than one deck, and being owned and navigated by persons inhabiting any such colony, plantation, or country.'

So much of this enactment as relates to Negroes is annulled by 47 Geo. 3. s. 1.

r.226.

be navigated by English masters and mariners; and comparing it with the wording respecting the importation of articles from Turkey, which requires the ship to be English-built, it was said, that the manning of Russia ships with English mariners, was a policy extremely beneficial to English navigation, and such as both countries would find an advantage in; but that it was foreseen, that Turkish ships would hardly be suffered by the Mahometans to be navigated by Italian sailors, nor would it be proper for Christian powers to condescend to suffer it; and therefore the Act requires, in that case, that where the mariners were English, the ship also should be such. This seems to have been the decided opinion of the Chief Baron upon that occasion."

But Mr. Reeves, in his history of the Navigation Laws, observes, "That very little verbal criticism would have drawn from these words a very different construction. For, in the first place, it is not only the goods of Russia that are in question, but also various enumerated goods which are not expressed to be the produce of any particular country; and therefore, when we admit that ships belonging to the people thereof may, when referred to Russia, have an antecedent to which they may refer, it may be asked, what people are referred to where no country is mentioned as the place where the enumerated goods are produced? So that in all cases, except that of Russian commodities, this construction upon these words leaves them without effect or meaning.

"In the next place, this construction seems to be taken contrary to the obvious method of tracing the antecedent referred to. For the words being-that no goods, &c. of Russia, &c. nor any masts, &c. shall be imported into England, Ireland, Wales, or Berwick, in any ship or vessel whatsoever, but in such as do truly and without fraud belong to the people thereof, or some of them, as the true owners and proprietors thereof-and whereof the master and three-fourths of the mariners at least are English, the natural construction is to refer the people thereof to the last antecedent, viz. England, Ireland, Wales, and Berwick, and not to Russia."

Lastly, upon comparing this description of the ships, and the manning of them, with other descriptions of ships in the same Act, it appears to be the same form of words as is used in various places, in former parts of the Act, to describe English shipping. It is used in the first section to describe the shipping for the plantation trade; in the third section, to describe those that are to bring the commodities of Asia, Africa, and America; it is nearly repeated in the fourth section; and as much of it as regards ships is used in the fifth section, relating to the fishery; it is likewise used in several parts of the Act subsequent to the eighth section. Indeed, this is the sense in which this provision is understood on a subsequent occasion. In the case of Parker's Scott v. D'Achez, Lord Chief Baron Parker lays down the law in that sense, without noticing the determination to the contrary, or that there was any doubt ever entertained upon the subject.

Rep. 27.

29.

Reeves,

29. 230.

The exception at the close of this section has occasioned some discussion: "Except only such foreign ships as are of the built of the country or place of which the goods are the growth, &c. or of such port where the 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."

The most material doubt upon these words was, whether they applied only to the latter part of the section, relating to currants and the Turkey trade, or extended to the whole of the section. It was maintained by the crown lawyers, in the before Comyns mentioned case of Scott v. Schwartz, that it was confined to the Turkey trade; but Rep. 677. this was over-ruled by the Chief Baron Comyns, who clearly thought the exception

extended to the whole section, upon the consideration that the goods of Russia, and the enumerated goods, as well as currants and the commodities of Turkey, are all

declared in the ninth section to be aliens goods, if they are imported in other than English shipping."

It was for some time contended by many, that English-built ships, sold to foreigners and navigated by them, were qualified under this section of the Navigation Act. But this opinion was over-ruled by the decision in the case of Scott v. D'Achez; where Parker's an English ship having become French property, imported French wine and vinegar Rep. 30. from France, the master and three-fourths of the mariners being French. In favour of this ship, it was objected, that the main design of the act was, that the English, and not foreign nations, should be carriers; and therefore they may carry as well in foreign-built ships, being their property, as in ships of the built of their own country, if they qualify them according to the tenth section, and navigate them with a master and three-fourths of the mariners English; and this is enforced in the eleventh section. Again, if a foreign ship may have the privilege of an English ship, pari ratione, or rather à fortiori, an English ship, being foreign property, should be entitled to the like privilege, taking the encouragement of ship-building to be the second consideration of the Act. For, in the present case, our own timber and workmen were employed, and we had the benefit of rigging and furniture; whereas, if she had been French-built, she would have been duly qualified to have imported those articles, and we should not have had the advantage of building and equipping.

To these objections it was answered and resolved, by the Chief Baron Parker, that they were indeed specious, but were founded on a supposition, that we could have prohibited the importation of European goods in foreign bottoms; but, as that could not be done with safety to our trade, the force of the objections vanished.

It was seen, said he, that many countries in Europe, as France, Spain, and Italy, could more easily buy ships than build them; that, on the other hand, countries like Russia, and others in the North, had timber and materials enough for building ships, but wanted sailors. It was from a consideration of this inaptness in most countries to accomplish a complete navigation, that the parliament prohibited the importation of most European goods, unless in ships owned and navigated by English, or in ships of the built of, and manned by sailors of that country of which the goods were the growth. The consequence would be, that foreigners could not make use of ships they bought, though English subjects might. This would force them to have recourse to our shipping; and the general intent of the Act, to secure the carrying trade to the English, would be answered as far as it possibly could. On the other hand, if foreign property had been sufficient to qualify ships, foreigners 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 preventing this must greatly counterbalance any advantage that could accrue to England from the building and equipping ships for foreign use; which too, being a secondary consideration in making the Act, was not to defeat the primary one.

The Chief Baron remarked, that, with all the desire the parliament had to encourage English shipping, and notwithstanding they had, with that view, required the productions of our own colonies, and those of Asia, Africa, and America, to be imported only in English shipping, yet they wisely foresaw, that if they restrained the importation or exportation of European goods, unless in our own ships, and manned with our own seamen, other states would do the same; and this, in its consequences, would amount to a prohibition of all such goods, which would be extremely detri mental to trade, and, in the end, defeat the very design of the Act. This exposition of the Act of Navigation is certainly the true one.

The requisite, that "the master and three fourths of the mariners should be of the

Comyns'

same country or place," led also to considerable discussion. The point was decided Rep. 677. in the case of Scott v. Schwartz; and in which it was adjudged to be the design of the

Ibid. 689.

nies.

act, that no foreign ships should import any of the goods enumerated and described in this section, if mariners were brought from any foreign kingdom to navigate them. From the same case we may further collect, that though the Act does not precisely fix and determine who shall be the people of a country, yet it gives a larger extent and signification of the phrase than belongs to the term natives; and the precise notation of it is left to the general import and common understanding of the words.

In this case of Scott and Schwartz, there was a ship, Russian built, from Riga, navigated by a master who was born out of the Russian dominions, but who had, nine years before, been admitted a burgher of Riga, and had ever since continued so, residing there when not engaged in voyages. There were eleven mariners, four of whom were born in Russia; the fifth was born in Ireland, there bound apprentice to the master, and as such went with him to Riga; for three or four years before the seizure, he served on board this ship, and sailed in it from Riga on the present voyage.. The other six were born out of the dominions of Russia; but one had resided at Riga. for eight years next before the seizure; another, five years; another, four years; another, seven years; and the last four had, during the same period, sailed from Riga in that and other vessels. It was understood there was no such thing as naturalization known in Russia.

The Chief Baron Comyns was of opinion, that the master being a burgher, and having taken an oath of allegiance to the Empress, as was proved on the trial, there was hardly any thing more cogent than this to denominate a man of a country; he must be a subject of the Empress. As to the other four mariners, he thought them to be people of the country within the meaning of the Act: first, because the Act seems to intend nothing more than fixed and settled inhabitants there; and a residence of four or five years might well satisfy that expression: secondly, because it seemed to answer the intent of the Act; which was not so much to create difficulties to other countries to find mariners amongst themselves, as to prevent their supplying themselves with them from other countries than England: thirdly, because, by the civil law, such a residence gives a country a right to the resident's service: fourthly, because, in the present case, it was not found by the special verdict, that these persons had ever any habitation or residence out of the Empress of Russia's dominions; and what does not appear, is not to be intended. It was found that they had made several voyages from Russia, but it did not appear that they had made any voyage from any other country; so that they might properly be said to be mariners of Russia, but not of any other country and as the Act speaks of mariners of the country, and does not say mariners born in the country, and as mariners is a denomination they must acquire, for they cannot be born mariners; if therefore they were of that country while they were mariners, and never were mariners of any other country, they seem to satisfy the words and intent of the Act.

Upon the whole, it was said, that it would be almost impracticable, and make commerce very hazardous, if a 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.

Having thus fully considered the trade of England herself upon her own shores, and our colo- with the dominions of all other states, we are next to examine the regulations affecting the trade of the British possessions abroad. The Statute 12 Car. 2. c. 18. contains the following enactment: "For the increase of shipping, and encouragement of the navigation of this nation, wherein, under the good providence and pro

tection of God, the wealth, safety, and strength of this kingdom is so much concerned; be it enacted, That no goods or commodities whatsoever shall be imported. into or exported out of any lands, islands, plantations, or territories to his Majesty belonging, or in his possession, or which may hereafter belong unto, or be in the possession of his Majesty, his heirs and successors, in Asia, Africa, or America, in any other ship or ships, vessel or vessels whatsoever, but in such ships or vessels as do truly, and without fraud, belong only to the people of England or Ireland, dominion of Wales, or town of Berwick upon Tweed, or are of the built of, and belonging to, any 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.

Some material alterations have been made in this Act by the Statute 45 Geo. 3. c. 57. which was passed to consolidate and extend several previous ordinances. It enacts, in the first section, that "wool, cotton-wool, indigo, 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 furs, 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 the colonies or plantations in America, or of any country on the continent of America belonging to or under the dominion of any foreign European sovereign or state, and all coin and bullion, diamonds, and precious stones, may be imported from any of the said countries into the several ports of Kingston, Savannah La Mar, Montego Bay, Saint Lucea, Antonio, and Saint Ann, in the island of Jamaica, the port of Saint George in the island of Grenada, the port of Rosseau in the island of Dominica, the port of Saint John's in the island of Antigua, the port of San Josef in the island of Trinidad, the port of Scarborough in the island of Tobago, 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 ports of Pitt's Town and Portland Harbour in Crooked Island, another of the Bahama islands, the port of Kingston in the island of Saint Vincent, and the principal port in the island of Bermuda, in any foreign sloop, schooner, or other vessel whatever, not having more than one deck, and 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, any law, custom, or usage to the contrary notwithstanding." To these ports the Statute 46 Geo. 3. chap. 72. has added Road Harbour in the island of Tortola.

By the second section it is provided, "That tobacco, the growth or production of any island or continental country of America, under the dominion of any foreign European state, may be also imported into the same ports. The importation of foreign coffee and sugar is permitted by Sect. 4. but limited to the ports of Nassau and Pitt's Town, to the principal port in the island of Bermuda, and such other port or ports in the Bahama and Caicocs islands as shall be approved by his Majesty in council; and the 7th section provides, that no foreign ship shall import from any of the beforementioned places in America, any goods except those before enumerated.

The 8th section permits, "That British rum and Negroes, and all goods legally imported, except masts, yards, bowsprits, pitch, tar, turpentine, and such iron as shall have been brought from the British colonies or plantations in America, may be again exported to any of the colonies or plantations in America, or any countries on the continent of America, belonging to or under the dominion of any foreign European sovereign or state, in any sloop, schooner, or other vessel whatever, not having more than one deck, and being owned and navigated by persons inhabiting any such colony, plantation, or country."

So much of this enactment as relates to Negroes is annulled by 47 Geo. 3. s. 1.