lusive. And he says, that therefore the functions of a consul seem even to require that he should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned, unless he himself violate the law of nations by some enormous crime; and that though the importance of the consular functions be not so great as to procure to the consul's person the inviolability and absolute independence enjoyed by public ministers, yet, being under the particular protection of the sovereign who employs him, and entrusted with the care of his concerns, if he commits any crime, the respect due to his master requires that he should be sent home to be punished; and that such is the mode pursued by states that are inclined to preserve a good understanding with each other: but that the surest way is expressly to settle all these matters, as far as practicable, by the commercial treaty; and that in default of treaties, custom is to be the rule on these occasions; because a prince who receives a consul without express condition, is supposed to receive him on the footing established by custom. Vattel then proceeds to argue, that the authorities quoted by Wicquefort in support of the contrary doctrine, contradict his proposition. Some other authors have followed Vattel in the same course of argument. (1) Wicquefort, in his treatise of the office of ambassador (2), states, that "princes who employ consuls protect them, as persons concerned in their service, and as every good master protects his servants and domestics, but not as public ministers. The governor of Cadiz having within seven or eight months affronted and confined the Dutch consul, the estates of the United Provinces complained thereof to the court of Madrid, as a violence done to the law of nations; instead of complaining of the violation of those treaties wherein they ought to find safety and security for their pretended minister, and not elsewhere. Some years since they were for making the consul (who resided at Genoa) pass for a public minister, but the senate wrote them word that they did not acknowledge him for a public minister, and that all that could be expected from them, was the peaceable fruition of those rights and privileges which custom has (1) Vattel, b. 2. c. 2. s. 34. Warden, 90, 91-95. 100. 104. See also Le Ministre public dans les Cours Estrangeres, &c. par du Franquenay, Amsterdam, 1733. chap. 11. Borel de l'Origne et des Fonctions des Consuls, pp. 39, 40. 1 (2) B. 1. c. 5. p. 40. bestowed on this kind of employment. Consuls are only merchants who, notwithstanding their office of judge in the controversies that may arise among those of their own nation, carry on at the same time their own traffic, and are liable to the justice of the place where they reside, as well in civil as criminal matters, which is altogether inconsistent with the quality of a public minister." This doctrine has not only been recognized by Beawes in his Lex Mercatoria (1), but has lately been confirmed and established by the court of king's bench in the case of Viveash v. Becker (2); in which it was decided that a resident merchant of London, who is appointed and acts in England as consul to a foreign prince, is not exempted from arrest upon mesne process in a civil action. And the court held clearly that he was not a public minister within the meaning of the statute 7 Anne, c. 12, which privileges ambassadors and other ministers from arrest; and that as to the observation that a consul is entitled to the protection of the law of nations, so is every man who comes into this country from a foreign state under a safe-conduct: that this particular consul was also a natural-born subject of this country, and carrying on commerce as a merchant here, which constituted additional reasons against his claim of privilege. That as a consul has the power of appointing a deputy or vice-consul, no inconvenience can result from his being liable to arrest; and on the contrary, if he were privileged, so would be every vice-consul he might appoint in every port, which increase of immunities would be the means of creating an exemption from arrest indirectly, which the crown could not grant directly, and the number of which would be enormous. Other of our law authorities state it ts an incontrovertible doctrine, that a consul has not the privilege of ambassadors or other public ministers. The Lord Chancellor Talbot, in Barbuit's case (3), expressed that opinion; and also considered, that a party having a commission as agent of commerce from the king of Prussia, not intrusting him to transact affairs between the two crowns, but only to assist his Prussian majesty's subjects here in their commerce, did not privilege him from arrest. Again, in Clark v. Critico (4), which was decided on the ground (1) Vol. 2. P. 419. See also Pardessus, tom. 4. p. 149. Brown in his Elements of Civil Law, 91. Boucher's Ed. Consulat. de la Mer. (2) 3 M. & S. 285. (3) Rep. Temp. Talbot, 281. See observations of Lord Ellenborough on this case, in Viveash v. Becker, 3 M. & S. 296, 7.; and see Com. Dig. Ambassador, B. (4) 1 Taunt. 106. See also Marshal v. Critico, 9 East, 447. of the party having been divested of the character of consul at the time of his arrest, Mansfield, C. J. seems to have inclined to the opinion that a consul is not privileged. It seems, therefore, to be now established in this country, that a consul is subject to the civil and criminal law of the country in which he officiates. But there are two decisions, one by the imperial court of cassation, and the other by the imperial prize court at Paris, that foreign consuls cannot be prosecuted before a French tribunal for acts done by them in France by order of their government, and with the authorisation of the French government; and that in general a consul cannot be prosecuted without the previous consent of his government (1). In a late work on the French commercial law (2) it is stated, that the privileges of consuls, as well with respect to actions which private men can bring against them, as in cases where they should be prevented from disturbing public order or committing every other crime, depend upon the treaties entered into by the respective states, or usage which has not been derogated by particular treaties. They are much less extensive in Christian than Mahometan countries. In the latter, consuls are free from all taxes, and cannot be imprisoned for any cause whatever, except by demanding justice against them of the Porte. But if it be a Frenchman who has a demand against the consul or vice-consul of his nation, in a foreign country, he can only sue him before the tribunal in France. The tribunals of the place, however, would not be incompetent, as they are with respect to ambassadors; they should only allow exceptions to be taken to their jurisdiction when treaties forbid them the cognizance of the action, the same as with regard to the treaties of France with the Ottoman empire. By the present French consular system, it seems that if a consul contract debts or commercial engagements towards the inhabitants of the place of his residence, he is responsible to the tribunals of that place. (3) fees. The salary of a consul ought to be commensurate with his si- of the consul's tuation, and enable him to subsist without having on his own account any commercial duties (4). In some places English consuls have salaries from the crown; in others they have nothing but the pecuniary dues or fees of office. Where English (1) See the cases stated, Warden, 108-116. (2) Pardessus, tom. 4. 149. (3) Warden, 200. factors are established, the fees are regulated by the burthen of the ship; in others, by the length of the voyage. It has been observed, that it is remarkable that the consuls of other nations are protected by the sovereigns, and authorized to take the consul's fees; but the British have not any authority whatever to support their claims where there is no commercial treaty. If a master refuse to pay them, the consul cannot detain the ship, for the owners and freighters would bring their actions for damages; but it is stated that Lord Chancellor Hardwicke held that the consul might send on board and seize any piece of valuable furniture belonging to the cabin, which would not hinder the navigation of the ship, and detain it for his fee (1). In a late publication (2) the numerous advantages of consular establishments are urged as sufficient motives for their multiplication and support; and that the duties of customs alone upon a very few cargoes of merchandize would more than pay the salaries of all our consuls in the Mediterranean; and had England three times the number there, it would always be of increased advantage to this country that when a man of war goes into any port of the Mediterranean for supplies, the vice-consul, usually a Greek or Italian, will not furnish them unless he has a prospect of gaining thirty-five per cent. exclusive of the usual commission; no British accredited consul would suffer this within his jurisdiction. In France the subject of consuls has always been a principal object, both in the time of the monarchy and of the republic: the late conduct of the French, in sending an immense number of consuls and commercial agents to all ports and cities of any consequence in the Morea, Levant, and Egypt, ought to have been sufficient to open the eyes of the English." Great Britain certainly appears to have paid less attention to the office of consul, and the regulations respecting it, than some other of the states of Europe. (1) Beawes, vol. 2. p. 423. Warden, 260. (2) Reflections on the Com merce of the Mediterranean, &c. by John Jackson, Esq. F. S. A. New York edition. CHAP. IV. Of the Freedom of Trade. The Illegality of Restrictions on the Commerce of independent States. - The Right of a Nation to limit its own Commerce, and Consequences of Infraction.. The Right to refuse free Passage by Land or Water, or limit the same; and of the Dominion of the Seas. Of the British Seas.Consequent Rights. Modifications of the general Law of Nations by particular Treaties. HAVING in the last chapter considered the facilities to commerce by the employment of consuls, we are now to proceed further to inquire how far the commerce of a country may be legally affected in the time of peace by the acts of foreign states, and especially of the freedom of trade—the illegality of interfering with the commerce of independent states—the right of a nation to prohibit or impose regulations on the commerce or intercourse of another nation with her own state or her colonies, and to refuse passage through her territories, whether by land or water, and the consequent rights and liabilities. The discussion of these rights involve some of the greatest questions of international law, and in a mercantile point of view, as connected with the right of imposing limitations upon commerce, are matters of most important concern. The restrictions on trade which have been enforced absolutely or conditionally by almost all the powerful nations of the world, have been the cause of a thousand wars, and the groundwork of innumerable treaties; and therefore it is important that we should give them full consideration. With respect to the freedom of trade it has been laid down by the wisest of politicians and best of men, that every nation ought not only to countenance trade as far as it reasonably can, but even to protect and favour it; and that freedom being very favourable to commerce, it is implied in the duties of nations, that they should support it as far as possible, instead of cramping it by unnecessary burdens or restrictions; and this position |