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as the denial of the right itself would be. On these rights of pre-emption, of staple, and of toll, Puffendorf thus expresses himself (1). Thus much we must reasonably do: we may stop the vessel in such a case, and force them to leave the cargo in our territories, that we may have the benefit of the first purchase. For besides that the frequent passage of strangers may sometimes create danger, or at least may give suspicions to our state, what should hinder us from deriving that profit on our own people, which would otherwise be made by foreigners, since, in matter of favour, we ought constantly to prefer the former to the latter. And he asks again-why, since the foreigner has no right of excluding us from such a gain, we ought not to give ourselves the preference, and to be beforehand with him in the advantage; which we shall be if, whilst we lie thus in the midst between two people, we take care not to let such goods pass from one to the other, without going first through our own hands. And unless this be admitted for fair and equitable dealing, I see not on what grounds we can defend those staples and other rights which we find in some countries, by virtue of which foreign commodities are stopped and carried to the public place of sale; and strangers are permitted to traffic, not immediately betwixt themselves, but at second-hand with the natural subjects. Now, why custom should be imposed on goods carried over land, there is this manifest reason; because such heavy conveyance sometimes trespasses on the fields adjoining to the common roads, and because the sovereign of the country is put to charge, both in repairing the ways, and in securing the passengers; and further, if it be necessary to erect bridges for this purpose, it is plain in equity that the sovereign may set up a toll to reimburse himself for those expences; and at the same time he who does require such toll, is obliged not only to let the bridges stand, but likewise to keep them in constant repair. The like impositions are reasonable in those places where, by the industry of the natives, the roads are rendered more short or more easy; as by the filling up of pits and ditches, or by other useful labours for the convenience of passengers and of goods. Another reason which some bring to assert the equity of impositions on land carriage, is this; that by so perpetual confluence of strangers, the price of provisions is exceedingly raised. To which we may add in conclusion, that a sovereign on this account requires

(1) Puff. b. 3. c.3. s. 6. pp. 29, 30. 1 Bla. Com. 287.

some acknowledgment from the goods of foreigners, because he suffers them, by passing through his territories, to receive such goods immediately from a third people; whereas, should he erect a staple, the gain and benefit would be fairly intercepted by his own subjects.

"As to the river tolls, this, amongst other arguments, may be offered to justify them: that since the water, by continually preying on the adjoining lands, and sometimes by overflowing them, is the cause of no inconsiderable damage, for the prevention of which it is often necessary to secure them with banks and other works of great charge and labour; it seems by no means unreasonable that, towards the making up of those losses, some moderate consideration should be allowed by those who gain advantage by the river, without being concerned in its ordinary mischiefs."

Grotius speaks less decisively on this subject: he says (1), "It is questioned whether the sovereign of the country can impose a duty on goods that are transported either by land or upon a river, or some part of the sea which may be called an accessary to his dominions: now it is certain that equity does not permit the exacting of duty for goods which has no manner of relation to them; as it would be unjust to make strangers, who only pass through a country, pay a poll tax which is laid on the subjects to defray the charges of the state. But if one is obliged to be at any charge either expressly and merely for securing the transportation of goods, or amongst other things for that use, then, to recompense this, some duty may be laid on those foreign commodities, provided it be not higher than the reason of exacting it requires; for on that depends the justice of customs and taxes."

Vattel says (2), "The construction and preservation of bridges and canals being attended with great expence, the nation may very justly oblige all those to contribute to them who receive advantage from their use: this is the legitimate origin of the right of toll. It is just that a traveller, and especially a merchant, who receives advantage from a bridge, or canal, or a road, in his own passage, and in the more commodious conveyance of

(2) Vattel, b. 1. c. 9. s. 103.

(1) Grotius, b. 2. c. 2. s. 14.

How the freedom of trade is modified by treaties.

his merchandize, should help to defray the expence of these useful establishments, by a moderate contribution; and if the state thinks proper to exempt the citizens from paying it, she is under no obligation to gratify strangers in this particular. But," continues he" the arbitrary or customary law of nations at present tolerates this abuse, while it is not carried to such an excess as to destroy commerce."

In speaking of the rights of staple, pre-emption, and toll, it has not been thought necessary to consider the question of carriage over the territory belonging to any state, separately from the question of carriage over the sea belonging to the same state; because, if we succeeded in proving that a property may be acquired as well in the sea as in the land or rivers, it will follow, that the rights which that property gives, namely, the rights of levying tributes and imposing conditions upon strangers for the use of what is ours, will be equally well founded in maritime and in territorial cases. The rights, therefore, of toll, pre-emption, and staple, we suppose to arise upon the sea as amply and advantageously as upon the lands.

These are the principles which generally prevail with respect to the freedom of commerce and passage over the land, navigable rivers, and seas of a state, when there is no treaty regulating the subject; but, in modern times, we have seen that almost all the states of Europe have fixed a definite rule by express treaties with one or more particular states (1). Thus, by the treaty of 1786, between Great Britain and France in particular, it is declared, that there shall be a reciprocal and entirely perfect liberty of navigation and commerce between the subjects of each state, in all their kingdoms and territories, for all kinds of goods, in those places, upon the conditions, and in such manner and form, as in the following parts of the treaty are prescribed (2); and that the subjects and inhabitants of the respective dominions shall have liberty freely and securely, without licence or passport, general or special, by sea or by land, or in any other way, to enter, travel through, remain in, and return from the respective territories, and to buy and purchase as they please; conducting themselves, nevertheless, according to the laws, and in a peaceable manner (3). It is then provided, that the subjects of each state

(1) Ante, 38, 39.

(2) Treaty 1786, art. 1.
(3) Art. 4.

shall have leave to come with their ships, and goods on board, the trade and importation whereof are not prohibited by the laws of either kingdom, and to enter into every part of the country, ports, and rivers in Europe; and to remain there, and to have houses, or to lodge with others,, and to buy freely, and to deposit goods in warehouses, and to expose them to sale, without being obliged to bring them to marts and fairs. Nor are they to be burthened with any imposition or duty, except those on ships and goods regulated by the treaty, or those to which the subjects of the two states shall themselves be liable. A tarif or list of duties is then fixed, and a prohibition of dealing in particular enumerated goods; and then follow other regulations conducive to the commercial objects of this treaty.

So by the general treaty between the king of Sardinia, Austria, England, Russia, Prussia, and France, of the 25th May 1815 (1), certain principles of regulation for the free navigation of certain rivers in Europe were fixed; and it was declared, that the navigation of a river which separates or traverses several states should, from the point where the same becomes navigable to its mouth, be entirely free, and shall not, in respect to commerce, be prohibited to any one; it being, however, understood, that the regulations with regard to the police of such navigation should be respected, as they would be framed alike for all, and as favorable as possible to the commerce of all nations.

(1) See Collection of Treaties of A. D. 1815, pp. 134, &c.

aliens.

CHAP. V.

Of Subjects, Aliens, Denization, and Naturalization; and the Commerce of Aliens.

Of subjects and UPON the before-mentioned principle, that a nation has a right to limit her own commerce, and to prohibit the intercourse of strangers with her subjects, depend the municipal regulations of the English law by which the commerce of aliens is affected, and which we will now proceed to consider. Some discrimination between citizens and foreigners, with different degrees indeed of rigour, has prevailed in the laws of all or most countries; and no jurist has ever yet attempted to maintain, that a foreigner can justly claim to be incorporated into the civil community of another state, and to enjoy the municipal rights of natural subjects (1). The law of this realm marks out with great clearness the characteristics by which British subjects are to be distinguished from aliens, and the various rights, immunities, limitations, and prohibitions, wherein aliens are peculiarly indulged or restricted. As the enactments and decisions upon this subject have no where been very amply detailed, and as they are of very great importance, in a commercial as well as in a political point of view, we will now consider them in detail, as far as they relate to the rights and liabilities of aliens in time of peace, reserving the consideration of the provisions relating to alien enemies and neutrals to that division of the subject in which it is proposed to inquire how the commerce of a country may be affected by the acts of foreign states during war.

Lord Coke, in his report the inhabitants of a state: an alien born, or subditus, a a friend that is in league, or an enemy that is in open war:

of Calvin's case (2), thus divides Every man is either alienigena, subject born: every alien is either

(1) 1 Woodeson's Vin. Lect. 368. 2 Smith's W. N. 251, 2. Bac. Ab. Alien, C. by Gwillim, notes;

but see Tucker on proposed General Naturalization Bill.

(2) 7 Coke's Rep. 17.