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belonging to enemies, not having letters of safe conduct inrolled, they that take the goods shall them enjoy.
The subjects taking such ships, not having letters of safe conduct within the said 20 Hen. 6. ships, and bringing them within the realm, shall not be endamaged for such taking, ifc. 1. ■. 4. they be ready to make restitution, within reasonable time after knowledge is made to them of the letters of safe conduct, inrolled in Chancery before the taking.
If any subjects attempt to offend upon the sea, or in any port under the King's obe- 31 Hen. 6. dience, against any strangers in amity, league, or truce, or by safe conduct, the Chancellor shall have authority to cause such person to be delivered, and the goods or ship taken to be restored, &c.
c. 18. a. 1.
If any person shall, within his Majesty's dominions, or without, falsely forge or coun- 4 Geo. 2. terfeit any pass for any ship, commonly called a Mediterranean Pass, or shall alter or erase any pass made out by the Commissioners for executing the office of Lord High Admiral; or shall publish as true any forged, altered, or erased pass, knowing the same to be forged, &c. every such person, being convicted in Great Britain or Ireland, or his Majesty's plantations, where such offence shall be committed, shall be guilty of felony without benefit of clergy.
Passports under the King's sign manual, or licences from his Ambassadors abroad, are now more usually obtained, and are allowed to be of equal validity with the ones observing the above regulations of inrolment, &c. In order to prevent foreigners from arriving and continuing in England for the purpose of promoting sedition and confusion in the country, the statute 33 Geo. 3. c. 4. was passed, imposing various restraints on all aliens; but which statute was repealed by 42 Geo. 3. c. 92. which enacted provisions nearly similar to the statute 33 Geo. 3. c. 4. and was subsequently itself repealed by the statute 43 Geo. 3. c. 155. making various provisions respecting aliens, and enacting, amongst other things, that his Majesty may, by his proclamation, order all aliens to register themselves as may be therein directed, and to obtain a licence under such restrictions as shall be specified, and to give an account of all arms in their possession, and if necessary to deliver them up.
By 45 Geo. 3. c. 32. s. 3. it is enacted, that aliens residing in any place surrendered to his Majesty may act as merchants or factors, taking the oath of allegiance; but this act is only to be in force during the war.
The law of England, as a commercial country, pays a very particular regard to foreign 1 Black. merchants in innumerable instances, and particularly by Magna Charta it is provided, s that all merchants (unless publicly prohibited beforehand) shall have safe conduct to depart from, to come into, to tarry in, and to go through England for the exercise of merchandize, without any unreasonable imposts, except in time of war; and if a war breaks out between us and their country they shall be attached (if in England) without harm of body or goods till the King or his Chief Justiciary be informed how our merchants are treated in the land with which we are at war, and if our's be secure in that land they shall be secure in ours.
There was formerly appointed in these realms a conservator of safe conducts, and as the same person had also the care of truces, it naturally leads me to treat of them,
OF LEAGUES AND TRUCES.
LEAGUES OF TRUCES are either with enemies, friends, or neuters, and those made with 1 Molloy the former are for a limited time, or perpetual.
3 E 2
Mar, c. 9, p. 199.
Perpetual is where peace finishes all disputes, and restores a perfect amity between the contracting parties.
And treaties for a time are termed Truces, which are also general or particular. General Truces include all the states of both princes, in regard to their subjects and commerce; whilst particular ones are only for certain places, or certain persons, with a limitation of their trade, and sometimes go no farther than a bare suspension of arms.
A truce, however, whether general or particular, is an agreement on a cessation of all hostilities during the time stipulated, and ought not to be infringed or broken on any account it frequently is a parent of peace, as it allows room for consideration, and to treat of it; and, besides, affords opportunity for settling the jarring interests of princes, who are to be comprehended in it.
When any one is bound by alliance not to make peace or truce without the consent Mar. c. 9. of his ally, and whose agreement seems doubtful, they add in the treaty, that it shall
take place for all those the contractors shall name, and they shall set down no prefixed time, but that it shall continue till he refuse, and some reasonable time ascertained after.
Rot. Parl. 4 H. V. Numb. 4;
A general truce is sometimes settled for so long a term as to become equal to a peace; and such are commonly made betwixt princes equal in power, who are unwilling to quit any thing of their supposed right by peace, and yet desire to live quietly in their present state, and by this medium satisfy their point of honour. Such truces are likewise, from the foregoing considerations, less subject to a breach than a peace that is made perpetual, as princes, who by this latter find themselves aggrieved, will seek out plausible reasons to forsake or evade it; but in the other, when the limited time is expired, they have only to renew or excuse it.
Some alliances are contracted for an enterprize, and for one sole effect, in that part in which the allies are interested; and these are generally called Leagues, and have been sometimes here confirmed by act of Parliament, and are such agreements as are always made by command of the supreme power; and these, as well as safe conducts, are or ought to be of record, that is, inrolled in Chancery, that the subjects may know who are friends, and can have actions personal here, or who the contrary, and can have
It is a general maxim, that in all treaties the power of the one party and the other
1 Mol. de Jure Mar.
c. 9. p.196, ought to be equal; nor are they to be held firm till ratified.
4 Instit. 152.
Leagues commonly are offensive, and the ordinary causes for which princes and republics make them are either to facilitate a conquest, or to balance the power of an ambitious and enterprising neighbour; such were those entered into against the opulency and growing greatness of the Spaniards, and since in opposition to the attempts of Lewis XIV. to acquire universal monarchy.
But though leagues are generally offensive, yet many are confined only to the defensive part, and these entered into with the sole view of guarding against the sinister intentions or attempts of any vicinal power, of which I might produce many instances; but as what I have already said on the subject may suffice for a place in a mercantile treatise, I shall not intrude any farther on my reader's time or patience by enlarging on it, but proceed to the articles:
OF PROCLAMATIONS FOR WAR AND PEACE.
THE proclaiming of war, or settling of peace, is one of the royal prerogatives belonging to the Kings of Great Britain; but though it has always been exercised by them,
yet they have seldom failed to ask the advice of Parliament in both cases, and generally
The reason given by Grotius why, according to the law of nations, a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be kept upon his guard, (which is a matter rather of magnanimity than right,) but that it may be certainly clear that the war is not undertaken by private persons but by the will of the whole community, whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society.
At present, a fatal change in the system of politics has taken place; and the European powers make no scruple of going to war, without making the usual proclamations, to the great injury of their subjects, who may entertain hopes of a reconciliation of differences, so long as such declarations are suspended, and may venture their property on the ocean, únder the sanction of peace, not imagining that privateers and ships of war will be authorized to seize them prior to a declaration of war. No nation can properly justify this conduct, and posterity will load with reproaches the names of those statesmen, whether Spanish, French, or British, who first brought this foul practice into use.
In order, however, to legalize a war, it must not only be commenced or declared by one of the contesting states, but such commencement or declaration must be made by that particular branch of the state which is invested by the constitution with this important prerogative. "If," says Brooke in his Abridgment," all the people of England would *Tit. Denimake war with the King of Denmark, and the King, (that is, our own King,) will not consent to it, this is not war, but when the peace is broken by Ambassadors the league is broken."
It was usual by declarations of war to cut off all intercourse with the enemies of our country; but since the late custom of going to war without any public proclamation, intercourses have been carried on highly detrimental to public affairs, by those who perhaps did not look upon themselves as traitors to their King and country, whereas if a proclamation had declared such correspondence to be treasonable, they would not have carried it on.
War and peace are always proclaimed by the Herald at Arms, accompanied by proper Notaries and a body of the Life-Guards; and when they enter the city of London, they are joined by some of the city officers: the proclamation is read by the notaries to the herald, who repeats it, all being bare-headed, first at St. James's, then at Charing-Cross, Temple-Bar, Cheapside, and the Royal-Exchange.
When war is proclaimed, it is customary to prohibit, though not always, all commerce with the enemy, by interdicting the entrance of any of the commodities of his
zen, p. 20.
c. 4. s. 8.
country into our's, as was done in the war with Spain in 1740, by the act of Parliament, 13 Geo. 2. c. 27.
No principle is now more clearly established than when war takes place between two nations, all commercial intercourse between them must immediately cease. Hostilities once commenced, any attempt at trading on the part of the subjects of either state, unless by the permission of the Sovereign, is interdicted and becomes ipso facto a breach of the allegiance due to their respective Sovereigns, and as such is interdicted by the The Hoop, general maritime law of Europe; by that law which does not spring from the instituRep. 198. tions of this or that particular state, but which having its source in natural reason and natural justice is alike binding on the whole community of the civilized world. So indisputable is this proposition, so necessarily, as it were, does it grow out of the very nature of war itself, that all the great writers who have treated on the law and practice of nations, assume it as a point which is incontrovertible. This rule is founded upon tius, lib. 3. the principle that war puts every individual of the respective belligerent governments into a state of mutual hostility, and there is no such thing as a war for arms and a peace shock, lib. for commerce. In that state all treaties, civil contracts, and rights of property, are Vattel. lib. put an end to, and the law imposes a duty on every subject to attack the enemy and seize his property, though by custom this is restrained to those individuals only, who Dr. Philli- have commissions from their government for that purpose. Trading, which supposes the existence of civil contracts and relations, and a reference to courts of justice, and Licences,5. the rights of property, is necessarily contradictory to a state of war; besides it is criminal in a subject to aid and assist the enemy, and trading affords that aid in the most effectual manner by enabling the merchants of the enemy's country to support their government. Export duties are to be paid, when goods are brought from an enemy's country, which is furnishing the very sinews of war to the hostile government; and such trading would facilitate the means of conveying intelligence and carrying on a traitorous correspondence with the enemy, which would more than counterbalance any advantage likely to accrue to individuals from such trading. These considerations apply with peculiar force to maritime states, where the principal object is to destroy the marine and Term Rep. commerce of the enemy, in order to force them to peace.
J. c. 3.3. c. 4.
more in his
It was observed by Sir William Scott, in the cause of the Hoop," that by the law and constitution of this country, the Sovereign alone has the power of declaring war and Rep. 196. peace. He alone, therefore, who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse, which is a partial suspension of the war. There may be occasions, where such an intercourse may be highly expedient. But it is not for individuals to determine on the expediency of such occasions on their own notions of commerce, and of commerce merely and possibly on grounds of private advantage, not very reconcileable with the general interests of the state. It is for the state alone on more enlarged views of policy, and on consideration of all circumstances that may be connected with such an intercourse, to determine, when it shall be permitted, and under what regulations. In my opinion, no principle ought to be held more sacred, than that this intercourse cannot subsist on any other footing, than that of the direct permission of the state. Who can be insensible to the consequences that might follow, if every person in a time of war had a right to carry on a commercial intercourse with the enemy, and under colour of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme: and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them, if necessary, under the eye and controul of the governmen charged with the care of the public safety?" And after enumerating all the cases w
tended to establish this rule, Sir William Scott observed, "The cases which I have produced prove, that the rule has been rigidly enforced, where acts of Parliament have, on different occasions, been made to relax the navigation law, and other revenue acts; where the government has authorized, under the sanction of an act of Parliament, a homeward trade from the enemy's possessions, but has not specifically protected an outward trade to the same, though intimately connected with that homeward trade, and almost necessary to its existence; that it has been enforced, where strong claim, not merely of convenience, but almost of necessity, excused it on behalf of the individuals; that it has been enforced, where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage after the first notice of hostilities; that it has been enforced, not only against the subjects of the crown, but likewise against those of its allies in the war, upon the supposition that the rule was founded on a strong and universal principle, which allied states in war had a right to notice, and apply mutually to the subjects of each other."
The principal cases, which establish the illegality of commerce between belligerents, 1 Rob. are the Hoop, and Pott v. Bell and others. In the first case, Mr. Malcolm, of Glas- Rep. 196. gow, and other Scotch merchants, had traded to Holland, for articles necessary for the Rep. 548. agriculture and manufactures of that part of the country, for which they had several times before applied for and obtained the King's licence; but after the passing of certain acts of Parliament, having, upon application to the commissioners of the customs at Glasgow, been informed (erroneously as it afterwards appeared) that such licences were no longer necessary, they had omitted to obtain one on that occasion, in consequence of which, the cargo being taken was condemned as prize, on the general ground, that all trading with an enemy, without the King's licence, was illegal and a cause of confiscation. And in the case of Potts v. Bell, a British subject shipped from the enemy's country, on board a neutral ship, goods which he had purchased of the enemy during hostilities, and it was decided, that an insurance upon such cargo was illegal and void. These cases shew, that there is no distinction between trading with an enemy and with an enemy's country, and that aid is considered as being equally given to the enemy, whether goods be furnished immediately by the enemy, or through the medium. of a neutral merchant, and that the danger of a traitorous correspondence is the same..
This strict exclusion of trade between belligerents has been carried so far as to prohibit a remittance of supplies even to a British colony, during its temporary subjection to an enemy. This extreme point is established by the case of the Bella Guidita. In 1 Rob. that case, Grenada, a British possession, had been seized by the French, but by the Rep. 207,. public acts, both of France and of this country, it appeared, that the island was not considered to have entirely changed its national character; the French having made ordinances with respect to it, which they would not have made in the case of an island strictly French, and the British legislature having even enacted, in the 20th year of his present Majesty, that it being just and expedient to give every relief to the proprietors of estates there, no goods of the produce of Grenada, on board neutral vessels going to neutral ports, should be liable to condemnation as prize. Notwithstanding all these evidences, that the character of Grenada was not to be considered strictly hostile, notwithstanding even the express permission to export the produce of that island, a neutral vessel sent from England with goods to be imported into Grenada was seized, as em, ploying itself in an illicit intercourse with the enemy, and condemned in the ViceAdmiralty Court of Barbadoes; upon appeal to the Privy Council by the proprietors of the cargo, the sentence was affirmed.