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 there, under the hands of two known British merchants at such foreign port, it shall not be lawful for any of the persons authorised by this Act to make seizures of ships or vessels navigated contrary to the directions of this Act, to stop or detain any such ship or vessel so found at sea, or to hinder her from proceeding on her voyage; but such persons shall, and are hereby required to indorse the certificate so produced, testifying the production thereof, and when and where met with at sea, and that the number of foreign mariners correspond with the certificate of such British consul, or such known British merchants, for the consideration and investigation of the commissioners of his Majesty's customs in England and Scotland respectively. The Statute 13 Geo. 2. c. 3. sec. 1. and 4. contains a proviso enabling 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 exceed three-fourths of the mariners at any one time employed 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 natives, or his Majesty's naturalized subjects of Great Britain; sudden death, and the hazard and casualties of war and the seas, saved and excepted. And this right is reserved to the King by 33 Geo. 3. c. 68. sec. 9.. Since the union of Great Britain and Ireland, regulations similar to those which we have noticed, have been made by the legislature with respect to the navigation of Irish ships by subjects of the united kingdom. We have seen that a vessel of which a foreigner is part-owner, is excluded in certain branches of trade from the privileges of a British ship, though it be British-built and British navigated. Wherever, therefore, a foreigner purchases a share in a vessel, the shares of the other owners, of course, became materially prejudiced. To remedy this evil, it was enacted by the 34 Geo. 3. ch. 68. sec. 20. That no foreigner, or other person or persons whatsoever, not being a natural-born subject of his Majesty, his heirs or successors, shall be entitled to, or purchase, or contract for, any part or parts,, share or shares, of any British ship or vessel whatsoever, belonging only to natural-born subjects of his Majesty, his heirs or successors, without the consent, in writing, of the owner or owners of three-fourth parts in value, at least, of such ship or vessel, for that purpose first had and obtained, and indorsed on the certificate of the register of such ship before two witnesses; and all agreements, contracts, purchases, and sales of any part or share of any British ship or vessel, belonging only to natural-born subjects of his Majesty, his heirs or successors, made, entered into, contracted for, or concluded, by any such foreigner, or other person or persons, not being a natural-born subject or subjects of his Majesty, his heirs or successors, without such consent first had and obtained, and indorsed as aforesaid, shall be, and are hereby declared to be, absolutely null and void, to all intents and purposes whatsoever." the naviga It now remains only to add a few words upon the general policy of the Acts of Policy of Navigation; various, indeed, and difficult to be digested, but concurring and combining, throughout all their numerous and complicated ordinances, to the one great object of enlarging and strengthening the maritime power of Great Britain. O VOL. I. Dr. Adam Smith observes, that there are two cases in which it will generally be advantageous to lay some burden upon foreign, for the encouragement of domestic, industry. The first is when some particular sort of industry is necessary for the defence of the country. The defence of Great Britain, for example, depends very much upon the number of its sailors and shipping. The Act of Navigation, therefore, very properly endeavours to give the sailors and shipping of Great Britain the monopoly of the trade of their own country, in some cases by absolute prohibitions, and in others by heavy burdens upon the shipping of foreign countries. When the Act of Navigation was made, though England and Holland were not actually at war, the most violent animosity subsisted between the two nations. It had begun during the government of the long Parliament, which first framed this Act, and it broke out soon after in the Dutch wars, during that of the Protector and of Charles the Second. It is not impossible, therefore, that some of the regulations of this famous act may have proceeded from national animosity. They are as wise, however, as if they had been all dictated by the most deliberate wisdom. National animosity, at that particular time, aimed at the very same object which the most deliberate wisdom would have recommended, the diminution of the naval power of Holland, the only naval power which could endanger the security of England. The Act of Navigation is not favourable to foreign commerce, or to the growth of that opulence which can arise from it. The interest of a nation, in its commercial relations to foreign nations, is like that of a merchant, with regard to the different people with whom he deals, to buy as cheap, and to sell as dear as possible. But it will be most likely to buy cheap, when, by the most perfect freedom of trade, it encourages all nations to bring to it the goods which it has occasion to purchase; and for the same reason, it will be most likely to sell dear, when its markets are thus filled with the greatest number of buyers. The Act of Navigation, it is true, lays no burden upon foreign ships that come to export the produce of British industry. Even the ancient aliens duty, which used to be paid upon all goods exported as well as imported, has, by several subsequent acts, been taken off from the greater part of the articles of exportation. But if foreigners, either by prohibitions or high duties, are hindered from coming to sell, they cannot always afford to come to buy; because, coming without a cargo, they must lose the freight from their own country to Great Britain. By diminishing the number of sellers, therefore, we necessarily diminish that of buyers, and are thus likely not only to buy foreign goods dearer, but to sell our own cheaper, than if there was a perfect freedom of trade. As defence, however, is of much more importance than opulence, the Act of Navigation is, perhaps, the wisest of all commercial regulations of England.t "Experience," says Mr. Reeves," has shewn the advantage of adhering to this maritime policy. The inducement and obligation to employ British ships, had the effect of increasing their number. The increase of their number became a spur to seek out employment for them. Foreign trade and the fisheries were, by various expedients, made subservient to advance the interests of shipping. Trade and shipping thus reciprocally contributed to advance each other; and, thus combined, they constituted very considerable sources of national wealth. Having been at first encouraged for the sake of the navy, they were afterwards encouraged for their own. *2 Smith's W. N. 212.-The good policy of the regulations is also admitted by Savary.-See Beawes' Lex Merc. 16. 17. + M. Savary observes upon the sound policy of the English Navigation Act, and urges his own countrymen, the French, to adopt similar regulations.-See Beawes' Lex Mercatoria, 16. Law of Shipping, 548. From being subordinate and auxiliary to another object, they are "This action and re-action between shipping and trade, has even been promoted by the effects of naval armaments. It has been found, that after the conclusion of a war, there has constantly been a great increase of mercantile shipping. This has been caused, first, by the government having employed, during the war, a number of transports, which has induced the merchants to invest their money in the building of ships for that service. Secondly, the privateers which were fitted out during hostilities have no employment at the peace but the merchants' service. Transports and privateers fall into foreign trade or the fisheries; and in this manner, does the service of the navy pay back to trade and navigation the obligations it had before received. "If the wisdom of any scheme of policy is to be measured by its effects and consequences, our navigation system is entitled to the praise of having attained the end for which it was designed. Whether we regard the primary or inferior objects in this system; whether it is the increase of shipping, the extension of our foreign trade, or the strength of our navy, they have all advanced to a degree of consideration unex ampled, and they owe that advancement to this system," FISHERIES.* FISHERIES are public or private. Public are either fisheries in distant seas in which all nations have a right to fish, and some of which are encouraged by act of parliament, or they are fisheries within the four seas, or within public navigable rivers in which all British subjects have a right to fish, in exclusion of other nations, subject in some particular instances to modifications by acts of parliament, or the prescriptive rights of individuals. Private fisheries are those in which some particular persons are entitled to an exclusive right of fishing. fisheries. Public fisheries, as a matter of national concern, are of great importance, since Public they are not only the source of considerable provisions for the population of the country, but constitute a nursery for our seamen. We therefore find that the common law has, in various instances, particularly protected such fisheries, and that a great variety of statutes have been passed to regulate them. seas. The natural right of all nations to take fish in the sea may be restrained or regulated Fisheries in by treaty or by customary law. An instance of the latter occurred in the case of distant Fennings v. Lord Grenville, from which it appears that, by the custom of the whale 1 Taunt,24. fishery, amongst the Gallipagos islands, he who strikes a whale with a loose harpoon is entitled to receive half the produce from him who kills it; and that, by the custom of the Greenland whale fishery, unless the person who strikes a fish continues his power over it till he has got possession of it, any other who kills it acquires the entire property. In that case, Mr. Justice Chambre laid it down, "That there must of necessity be a custom in these things to govern the subjects of England, as well amongst The law relative to fisheries both public and private, is considered in Schultes on Aquatic Rights. Com Dig. Tit. Pischary. Selwyn's Ni. Pri. Tit. Fishery. Chitty on Game Laws, 238 to 385. Burn's Justice, Tit. Fisheries. The New fishery. themselves as in their intercourse with subjects of other countries. The usage in the Greenland fishery is held to be obligatory, not only as between British subjects, but also 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 every person was bound by 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 different nations. The same necessity must prevail in the South Seas, (although the fishery has not been so long in use,) in order to regulate our intercourse with the French, Americans, and others who resort thither." The extending and improving of the fisheries occupied a considerable portion of that attention which has lately been bestowed on the shipping and navigation of the country. The regulations for conducting these in a great measure, and the bounties for their encouragement altogether, depended upon certain temporary laws which were near expiring in the twenty-sixth year of his Majesty's reign. Thus, the bounties granted by stat. 15. Geo. 3. c. 31. for the Newfoundland fishery were to expire on 1 January, 1787. The bounties given by stat. 11. Geo. 3. c. 38. for the Greenland fishery were to expire on 25 December, 1786. The bounties given by stat. 15. Geo. 3. e. 31. and stat. 16. Geo. 3. c. 47. for the Southern whale fishery were to expire 1 January, 1787. The bounties given by stat. 11. Geo. 3. c. 31. and stat. 19. Geo. 3. c. 26. for the British white herring fishery, were to expire with the close of the session of parliament next after 22 October, 1785. It became immediately necessary to consider the policy to be observed respecting these objects of trade and navigation. The result of this consideration was, that bills were brought into parliament and passed into laws, in the twenty-sixth year of the king, for granting new bounties, and making new regulations for carrying on these fisheries with every possible advantage to the nation. We shall now take a view of these acts, and the general scope of them, without entering too far into their detail, The first is c. 26. for the Newfoundland fishery; the next is c. 41. for the Greenland fishery; c. 50. for the Southern whale fishery; and c. 81. for the British fisheries. The bounties granted by stat. 26. Geo. 3. c. 26. are for ten years, for vessels emfoundland ployed in the British fishery on the banks of Newfoundland. They are to be Britishbuilt, and wholly owned by his Majesty's subjects residing in Great-Britain, Ireland, Guernsey, Jersey, or Man, navigated with a master and three-fourths of the mariners of the same description. They are also to be qualified and subject to the regulations of stat. 10. and 11. Will. 3. c. 25. and they are to clear out from some port in Great-Britain, Guernsey, Jersey, or Alderney, after 1 January in every year, and proceed to the banks of Newfoundland; and having catched there a cargo of not less than ten thousand fish, they are to land them at one of the ports on the north, east, or south side of the island, between Cape St. John and Cape Raye, on or before 15 July, and then make one more trip at least to the banks, and return with another cargo of fish, catched there, to the same port. The one hundred ships which shall first do this are, if navigated with not less than twelve men, to be entitled to 401. each; if with less than twelve, but not less than seven men, 251. each: provided, that if in either of those cases the vessel is wholly navigated by men going out upon shares, that is, receiving a certain share of the profits of the voyage in lieu of wages, such vessel shall in the first case be intitled to 501. and in the latter case to 351. Again, the next one hundred vessels so arriving are in the first case to have 251. each, in the latter case. 181. each; and such of them as are wholly navigated by men going out upon shares shall in the first case be intitled to 351. and in the latter case to 211. In order to prevent frauds, a certificate is to be exhibited to the collector of the customs before he pays the bounty, from the governor of Newfoundland, that all the requisites were there complied with. The sanction of oaths by the master and mate is Sect. 1. required to certain facts. Provision is made for preventing the desertion of seamen, Sect.1.4.7. and the selling of boats, vessels, or tackle, for the fishery to foreigners. Powers are given to his Majesty's officers on that station to seize vessels. Again, by stat. 29. Geo. 3. c. 53. it was declared, that no fish taken or caught by any of his Majesty's subjects or other persons arriving at Newfoundland, or its dependencies, or on the banks thereof, except from Great-Britain, or one of the British dominions in Europe, should be landed or dried on that island; with a saving of the rights granted by treaty to the French king: a provision that was occasioned by persons from the Bermuda islands having lately aimed at possessing themselves of a share in the fishery. The stat. 26. Geo. 3. c. 26. was revived and continued by 37. Geo. 3. c. 99. 39. Geo. 3. c. 102. 39. & 40. Geo. 3. c. 45. s. 8. and 41. Geo. 3. c. 97. The 27. Geo. 3. c. 19. s. 8. & 9. provides that vessels not exceeding 30 tons, and not having fixed decks may be employed in the Newfoundland fishery. The 41. Geo. 3. c. 77. s. 1. & 2. and the 42. Geo. 3. c. 20. s. 5. 43. Geo. 3. c. 154. s. 6. 46. Geo. 3. c. 103. 47. Geo. 3. s. 1. c. 24. authorize the importation of salted salmon and cod-fish from Newfoundland, and give a bounty. Sect. 12, 13. Sect. 14.15. Sect,20,21. land Fish The bounties granted by 26. Geo. 3. c. 41. are for five years; they are for British The Greenships, owned by British subjects usually residing in Great-Britain, Guernsey, Jersey, ery or Man, which proceed from those places on the whale fishery to the Greenland Seas or Davis's Streights, 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 appear upon inspection and examination upon oath of certain persons, and it shall be certified by such officer, that she is properly furnished with tackle and equipment for the whale fishery, according to the requisites of the act, and means to proceed thither, and endeavour to take whales, or other creatures living in the seas, and on no other design or view of profit in the voyage, and to import the whale-fins, oil, and blubber thereof into Great-Britain, specifying 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 Sect. 1. upon the return of such ship, and her condition being reported by the officer of the port, and oath made by the master as to the performance of the voyage, and that all the whale-fins, oil, and blubber, imported were really and bona fide caught and taken in those seas by the crew of such ship, or with the assistance of some other ship licensed for that voyage, there is to be paid by the commissioners of the customs a bounty of thirty shillings per ton of such ship. Sect. 3. Such ship must sail on her voyage on or before 10 April, and continue in those seas diligently endeavouring to catch whales or other creatures, and not depart before 10 August, unless laden with a certain quantity of oil, blubber, or whale-fins, unless they shall be compelled, by some unavoidable accident, to depart. Ships of more than Sect. 4. four hundred tons, already employed in the fishery, might continue to be rated as of four hundred tons, and not more. All ships coming into the fishery after 25 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 Sect. 8. for more than four hundred or three hundred tons. Sect. 9. If a log-book has not been constantly kept on board, no bounty will be allowed. Sect. 10. By stat. 28. Geo. 3. c. 35. his Majesty is empowered to make regulations for more peaceably carrying on the French fishery. |