II. Trade of Great Britain with Europe. Decisions and section of navigation Act. rates (1). Holland being then considered as a part of Germany, it became a custom to admit juniper berries, on the low duty of the growth of Germany, to be imported from Holland as from the place of growth, a custom, considering Holland as no part of Germany as is now the case, by no means reconcilable to the law, as declared by the act of 13 & 14 Car. 2. c. 11.; but Sir Dudley Ryder thought this usage might be maintained if it were res integra. In the year 1708 it became a question whether French wines could be imported for the queen's use contrary to this statute; and it was held by Mr. Powis, Mr. Northey, and Mr. Harcourt, that her Majesty might import such wines for her own use; but Sir James Montague was of a contrary opinion, as far as the usual course of trade was concerned; but he thought they might in one of the queen's own ships, under certain restrictions (2). Thus far then it appears that long established usage has been allowed to controul, even the special enactments of an act of parliament; and it is fair from these instances to presume, that in all other cases long usage may be sufficient to prevent a forfeiture which would otherwise be incurred. We will now proceed to consider the construction of the opinions on 8th eighth section of the navigation act, as explained by the different decisions and opinions upon it. In the case of Scott v. Schwartz (3), it was laid down by Chief Baron Comyns, that the words describing the ships in which Russia goods should be imported, "such as belong to the people thereof," (4) must mean the people of Russia; but this decision was afterwards overruled in the case of Scott v. D'Achey, in which it was settled to mean British ships manned with British subjects (5). Upon the decision of Chief Baron Comyns, Mr. Reeves observes (6), that a very little verbal criticism would have drawn from the above 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 (1) This case is not likely to occur again, because the new consolidation act, 43 Geo. 3. c. 68. does not retain the head of grocery, but names all the articles of it in their proper alphabetical order. Reeves, 2d ed. 158, (2) Reeves, 2d ed. 170. (4) See the section ante, 176. Great Britain admit that "ships belonging to the people thereof" may, when II. Trade of referred to Russia, have an antecedent to which they may refer, with Europe. it may be asked, what people are referred to, where no country is mentioned as the place where the enumerated goods are produced? that in all cases, except that of Russian commodities, this construction upon these words would leave 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 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 the 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 fisheries: it is likewise used in several parts of the act subsequent to the eighth section. The exception at the close of the eighth section has occasioned some discussion (1), "except only such foreign ships as are of the built of the country or place of which the said goods are the growth, production, or manufacture, 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 (2)." Upon this exception to the section it has been held that a ship is not of the built of Russia within the meaning of the navigation act, which, having been originally constructed in another country, was wrecked on the coast of Russia, and repaired there at an expence of more than two-thirds of her value, although by the (1) Reeves, 1st ed. 230. 2d ed. (2) See the section ante, 176. II. Trade, of Great Britain with Europe. law of Russia she was under these circumstances to be considered a Russian-built ship; and although she afterwards had a Russian register, and was owned by a Russian subject, and was navigated under the Russian flag. And Lord Ellenborough said, "I hold "repair" is not "built," a ship must be of the built of the place where she was originally constructed; and while her identity continues, it is impossible in the nature of things that the place of her birth should ever be altered: the law of Russia cannot be of force to controul the navigation act of Great Britain; the importation into England of Russian produce in such a ship was certainly illegal. (1) The most material doubt upon the words of the above excep. tions 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-mentioned case of Scott v. Schwartz (2), that it was confined to the Turkey trade; but this was overruled by the Chief Baron Comyns, who clearly thought the exception extended to the whole section; upon the consideration, that all 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. The case of Scott v. D'Achey (3) was as follows: An English ship having become French property, imported French wine and vinegar from France, the master and three-fourths of the mariners being French. In favor 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. 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 (1) Redhead v. Cater, 4 Campb. 188. 1 Stark. 14. S. C. (2) Comyns Rep. 677. we could have prohibited the importation of European goods in II. Trade of foreign bottoms; but as that could not at that time be done Great Britain with Europe. 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 desite 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 detrimental to trade, and in the end defeat the very design of the act. mariners must The requisite that "the master and three-fourths of the mariners To what country should be of the same country or piace," led also to considerable the masters and discussion. This point was decided in the case of Scott and belong. Schwartz (1); and in which it was adjudged to be the design of II. Trade of with Europe. the act, that no foreign ships should import any of the goods enumerated and described in this 8th 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 to the phrase than belongs to the term natives, and the precise meaning 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 that 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 |