❝ to every other market for the goods they wanted, but that the Encouragements of British Com"British market was excluded; and as to the apparent disadmerce by 66 vantage under which the citizens of the United States would Treaties. "carry on trade with the British territories in India so con"ducted, it was argued that so to understand the treaty would "be only to give the fair and due preference to the great "national commerce of the East India company. Whether "this trade should have been conceded under any qualifications "or restrictions is one thing; it having been conceded, now to "attempt to cramp it by a narrow rigorous forced construction " of the words of treaty, is another and a very different conside"ration. The nature of the trade granted, in my opinion, fixes "the construction of the grant. If it were necessary to go "further, strong arguments may be drawn from the context of "this article, and the contrast which the comparing it with "the preceding article will produce.

66

66

From the context it

appears that the trade was to be free, subject only to certain specific regulations. There may be reason to apprehend "that this treaty will open a door to many of our own people, "whom the policy of our laws has excluded from a direct trade "to the East Indies. I conclude that this circumstance was "foreseen, and that the balance of advantage and disadvantage "was found to preponderate in favour of the treaty. The cir

66

cumstance that this part of the cargo of the Argonaut was "procured here, and the share which the plaintiff Wilson, a "British agent, had in procuring it, might have deserved con"sideration, as evidence of collusion, by means of which Wil"son was carrying on for himself an illicit trade to the East "Indies, which might have subjected this ship and cargo, or "this part of the cargo, to seizure and confiscation. But this. "use has not been made of the facts found by the special ver"dict, and no other use consistent with our opinion of the "legal effect of the treaty could be made of them. For a citizen "of the United States being allowed to trade to the British "territories in India generally, with the exception of the "trade in a few articles only, as he may take in his cargo in "the ports of his own country, so he may take it in in the ports "of this country as well as any other; and he may employ an "agent, and that agent may be a British subject. It seems to "me impossible to maintain in argument, that the subject of a "nation in amity, who may trade to the British territories in "India, should be excluded from one market for his outward

British Commerce by Treaties.

ncouragements investment, when all other markets are open to him, and "when it is distinctly admitted that the markets of all the "world, including ours circuitously, must be open to him (1).” A natural-born subject of Great Britain is entitled to the privileges conferred by treaty on the subjects of a foreign country, if he is domiciled and has become a citizen in that country. (2)

(1) Marryatt v. Wilson, I Bos. & Pul. 430. 8 T. R. 31. S. C.

(2) Marryatt v. Wilson, 1 Bos. & Pul. 430. 8 T. R. 31.; and see Bell & Reid, 1 M. & S. 726.

CHAP. XII.

Of the Colonial Trade and Laws affecting it, and the Foreign Commercial Companies (1).

THE remaining encouragement afforded to the commerce of Great Britain is derived from her colonies and settlements abroad. The beneficial effects of the colonial trade principally consists in opening an extensive market for such parts of the natural produce of the united kingdom and of her manufactures as may exceed the demand of the markets nearer home, those of Europe and of the countries that lie round the Mediterranean Sea, and in furnishing to the mother-country the peculiar commodities of the colonial regions (2). Without subtracting from the home markets any part of the produce that has been usually sent to them, it encourages Great Britain to increase the surplus, by continually presenting new equivalents to be exchanged for it. It tends to increase the quantity of productive labour in the mother-country, without altering the direction of that which had been employed there before (3). The learned author of the Treatise on the Wealth of Nations, who endeavours to prove that exclusion of other nations from the colonial trade, is injurious to the wealth of the parent state, feels himself obliged to admit that the advantages of the colonial trade of Great Britain more than counterbalance the bad effects of the monopoly. He observes, that this branch of trade, as it is carried on at present, is greatly advantageous. The new market and the new employ

(1) See in general Smith's W. of N. b. 4. c. 7. Brougham's Inquiry into Colonial Policy of European Powers, 803. vol. 1. & 11. passim. Paley's Mor. Phil. vol. 1. page 387. Edwards West Indies, vol. 2. Robertson's History of America, vol. 3. Tucker on Trade, 40, 41. Stoke's Laws of the Colonies, per.tot. and the respective Laws of the several islands and plantations, printed in folio and quarto; and Montesquieu Esp. L. b. 21. c.17.; and Rees Cyclopedia, tit. Colony,

per. tot. and titles Charter Governments. Bridgeman's Iudex, title Colonies.

(2) Per Sir W. Scott in case of Immanuel, 2 Robinson's Rep. 197. Montesquieu, Esp.L. b. 21. c. 17., and see ante 211.

(3) As to the advantages and disadvantages incident to the establishment of colonies, see the works above referred to, and Rees Cyclopedia tit. Colony. Tucker on Trade.

ment which are opened by the colonial trade, are of much greater extent than that portion of the old market and of the old employment which he conceived was lost by the monopoly. The new produce and the new capital which have been created by the colonial trade, maintain in Great Britain a greater quantity of productive labour than what could have been thrown out of employment by the revulsion of capital from other trades. And it is rather for the manufactured than for the rude produce of Europe that a new market is opened by the colonial trade. (1)

Some nations have given up the whole commerce of their colonies to an exclusive company, of whom the colonies were obliged to buy all such European goods as they wanted, and to whom they were obliged to sell the whole of their own surplus produce. It was the interest of the company, therefore, not only to sell the former as dearly and to buy the latter as cheaply as possible, but to buy no more of the latter, even at this low price, than what they could dispose of for a very high price in Europe. It is their interest not only to lower, in all cases, the value of the surplus produce of the colony, but in many cases to discourage and keep down the natural increase of its quantity (2). But although these mischievous consequences are likely to result from exclusive companies, occasions may exist in which the institution of an exclusive company will be justifiable and proper. As an inducement to men of speculative and enterprising minds to embark their capital in a difficult branch of trade, it is sometimes just that they should be allowed to remain for a time in exclusive enjoyment of the profits, in return for the labour and expence originally bestowed. When, for instance, an undertaking is of such magnitude as to deter private persons and voluntary associations from entering upon it; when large sums must be expended before the project can be brought to bear, and the trade to answer; it is but reasonable that those who adventure in a joint stock should be incorporated, and have the privilege of excluding all others from interfering in the new branch of commerce till the adventurers are sufficiently paid for the risks they have incurred and the expences to which they have been put. An eminent author is of opinion, that the establishment of exclusive companies may be justified on this ground; for, as he observes, it is better to have the trade of an exclusive company than no trade at all: and in process of

(1) Smith's W. of N. b. 4. c. 7. (2) Smith's W. of N. b. 4. c.l.

time, as the reasons for continuing the company will cease, the trade should be laid open (1). On the same principle it has been decided, that where a place for trade is discovered with the great peril of any persons, the king by his prerogative may grant them the sole trade there. (2)

The subject proposed to be considered in this chapter will be arranged in the following order; first, we shall consider what country is to be deemed a colony or plantation; secondly, what laws are in force in the colonies, how justice is administered, and what tribunals are to be resorted to to obtain redress for. wrongs committed there; thirdly, of the East India Company; fourthly, the West India Trade; fifthly, the Hudson's Bay Company; sixthly, the South Sea Company; seventhly, the African Company; eighthly, the Sierra Leone Company; ninethly, the Russia Company; tenthly, the Eastland Company; eleventhly, the Turkey Company; and twelfthly, the Greenland Fisheries.

lands,

The settlements and colonies of Great Britain in Asia, Africa, and America are designated by different terms in different provisions of the acts of navigation and other statutes. In the act 12 Car. 2. c. 18. s. 1. they are spoken of as islands, plantations, or territories;" in section 18. of the same statute, the goods enumerated are not to be carried but to some other English "plantation." In statute 13 & 14 Car. 2. c. 11. s. 6. ships are required to be built in the king's "dominions" in Asia, Africa, or America, and persons of the king's "plantations" are declared to be English within the meaning of the act of navigation. The statute 7 & 8 W. 3. c. 22., which is stated in the title to have been passed to regulate the plantation trade, generally uses the terms colonies and plantations, and sometimes plantation only. The act recites that the governors of the colonies or plantations were by statute 12 Car. 2. c. 18. obliged to take a certain oath, whereas in the act they are called the governors of the lands, islands, plantations, or territories, without any mention of colonies. Mr. Reeves expressed an opinion that the legislature used the word "plantations" in a different

(1) Dean Tucker's Essay on Trade, 67 to 71., but see id. 40, 41. See also as to exclusive companies, 2 Smith W. of N. b. 4. c. 7: 379, &c. where they are in general

(2) 1 Rol. Rep. 5. Com. Dig. Trade, D. 1.

(3) See Division, supra; and see ante, 212.; and Definition in Stoke's Laws of Colonies, page 1.

Ist, What Country is a Colony or Plantation of Great Britain. (3)