their crews on the high seas; (2) as against foreigners who are excluded on the high seas from any act of sovereignty over them, just as if they were part of the soil of their country. Vattel considers ships on the high seas as part of a nation's territory: Liv. i. c. 19, s. 216; ii. c. 7, s. 80. As to ships of war, they are, even in foreign ports, exempt from this local jurisdiction. "It seems now established both in England and America, that no vessel or other property used by the Government for public purposes, whether those purposes be military, fiscal, or of police, are subject to judicial proceedings without the consent of the Government:" Wheaton, Internat. Law, s. 63, note 63 (8th edit.): see The Lord Hobart, 2 Dods. Adm. 103; 7 Attorney Generals' Opinions, 122. Woolsey observes (Internat. Law, s. 54): “In both cases, however, it is on account of the crew rather than of the ship itself that they have any territorial quality. Take the crew away-let the abandoned hulk be met at sea; it now becomes property, and nothing

more."

In R. v. Lopez, 27 L. J. (M. C.) 49, it was said, arguendo, by the counsel for the Crown, that it is a general principle of international law that a ship, public or private, on the high seas is, for the purpose of jurisdiction over crimes, a part of the territory of the country to which it belongs, and that a foreigner going voluntarily on board an English ship, and serving as one of her crew, is as amenable as a British subject on board the ships, and, like a British subject, would be liable in this country for a crime by statute 28 Hen. 8, c. 15, and 7 & 8 Vict. c. 2: see Notes to Chapter VII. on Extra-territorial Jurisdiction, p. 233. And it was contended that the same principle governs the law of America and France, in support of which the following authorities were cited: The United States v. Palmer, 3 Wheat. Rep. 609; The United States v. Holmes, 5 Ibid. 112; Vattel, book i. c. 19, s. 216; Foelix, Traité du Droit Internat. Privé, ss. 544, 573; 2 Ortolan, Régles Internat. de la Mer; R. v. Depardo, 1 Taunt 26; R. v. Serva, 1 Den. C. C. 104. In R. v. Desley, 29 L. J. (M. C.) 101, it was said, per cur.: "It is clear that an English ship on the high seas, out of any foreign territory, is subject to the laws of England; and persons, whether foreign or English, on board such ship are as much amenable to English laws as they would be on English soil. The same principle has been laid down by foreign writers on international law."

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They went on board an English ship (of war), which for the purpose may be considered a floating island, and in that ship they became subject to the English laws alone" per Holroyd, J., Forbes v. Cochrane, 2 B. & C. 464; and see per Byles, J., in R. v. Anderson, 11 Cox C. C. 205. But although merchant ships on the high seas have some of the attributes of territory, when they arrive in a foreign port they have no privilege, and are considered merely as the property of aliens.

The Court of Admiralty has jurisdiction in an action brought by a British subject against a foreign ship for a collision in foreign waters: The Griefswald, Swabey, Adm. 430.

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CHAPTER XV.

ON THE POWER OF THE CROWN TO GRANT EXCLUSIVE RIGHTS OF TRADE (1).

(1.) OPINIONS of SIR WILLIAM JONES, SIR F. WINNINGTON, and MR. J. KING, on the Statute of Monopolies, 21 James 1, c. 3, as to how far an action would lie, in the Barbadoes Courts, for seizing goods of the African Company. 1676.

An action is brought against B in the Barbadoes, upon the Statute (21 Jac. 1, cap. 3) of Monopolies, for seizing certain goods imported thither from Guinea, contrary to the immunities and privileges granted by his Majesty to the Royal African Company.

Quære 1. Whether, in this case, the action lies upon that statute for treble damages, considering the proviso that exempts all charters granted to any companies or societies, erected for the maintenance or ordering of any trade or merchandize out of that statute?

I am of opinion, that this proviso doth exempt any charter, granted to any society of merchants, for the maintenance or ordering of trade, from being within the penalty of the statute; for that proviso, as it doth not confirm such charters, but leaves them to stand and fall by the common law, so it doth not inflict any new penalty upon them: wherefore, I think, an action will not lie upon this statute for treble damages, for doing anything in execution of such charter.

Quære 2. If any action lies upon the statute, can it be brought in any other courts but the King's Bench, Common Pleas, or Ex

(1) Some of the views expressed in the Opinions in this chapter would certainly not be considered sound law at the present day, but I have thought it right to insert the Opinions in my work, as it is interesting and useful to see the change that has taken place in the mode of regarding some of the alleged prerogatives of the Crown.

chequer at Westminster, the statute seeming to restrain the subject to those courts?

It cannot be brought within any of the inferior courts within England; but if the law of the Barbadoes doth enact all statutes made in England to be of force there (for a statute made in England doth not of itself extend to any of the foreign plantations, unless the statute doth particularly name them), then an action will lie within their courts there upon a statute made here, though confined to the principal courts here; but, upon the answer given to the first quære, I think no action will lie upon this statute, for putting in execution this charter, but it will stand or fall by the common law.

November 13, 1676.

WM. JONES.

The second quære is out of the case, by the resolution of the first; for if this statute, as to the recovery of treble damages, extends not to the Royal African Company (as I conceive it doth not), then no action can be brought in Barbadoes or anywhere else. November 16, 1676. F. WINNINGTON.

I conceive no action lies upon this statute against the Company, or any agent of theirs, for any matter done in pursuance of their charter.

November 16, 1676.

J. KING.

(2.) OPINION of the Attorney General, SIR ROBERT SAwyer, concerning Interlopers in the East Indies. 1681. REPORT OF THE ATTORNEY GENERAL CONCERNING INTERLOPERS. In obedience to your Majesty's Order in Council of the 10th of November, whereby I am commanded to consider of the petition of the East India Company, and to report how the law stands, and whether such a proclamation may be granted as is desired: I humbly conceive that, by law, your Majesty's subjects ought not to trade or traffic with any infidel country not in amity with your Majesty, without your license; and that your Majesty may signify your pleasure therein, and require your subjects' obedience thereunto, by your royal proclamation. I am likewise of opinion, that

the license given to the Company to trade into India, with a prohibition to others, is good in law, and the penalties of forfeitures of goods may therein run upon any goods which shall be seized within the limits of the Company's charter, as for breach of a local law made by your Majesty, which I conceive your Majesty may make in the foreign plantations and colonies inhabited by your Majesty's subjects by your permission. I am of opinion that your Majesty may issue such proclamation as is desired.

November 16, 1681.

R. SAWYER.

(3.) OPINION of MR. WEST, Counsel to the Board of Trade, on the question of establishing British Manufactures in France, and on the Prerogative of the Crown to restrain Trade. 1718. To the Right Honourable the Lords Commissioners of Trade and Plantations.

MY LORDS,-In obedience to your Lordships' commands, signified to me by Mr. Popple, I have perused and considered the several letters relating to the establishing several manufactures in foreign parts by British artificers; but, as the case is not particularly stated unto me, it will not be possible for me to give a direct answer to the question proposed. I shall therefore beg leave of your Lordships to consider it something at large, and to lay down some general positions which I take to be agreeable to the law of England; a right application of which, I believe, will in a great measure amount to an answer to such inquiries as may be made.

1. That particular subjects should have an uncontrollable liberty of all manner of trading, is not only against the policy of our nation, but of all other Governments whatsoever. I do, therefore, take it to be law, that the Crown may, upon special occasion, and for reasons of state, restrain the same; and that not only in cases of war, plague, or scarcity of any commodity, of more necessary use at home, for the provision of the subject, or the defence of the kingdom, &c. (in which cases the King's prerogative is allowed to be beyond dispute), but even for the preservation of the balance of trade; as, suppose a foreign prince, though in other respects preserving a fair correspondence and in amity with us, yet will not punctually observe such treaties of commerce as may have been

made between the two nations; or, in case there are no such treaties existing, refuses to enter into such a regulation of trade as may be for the mutual advantage and benefit of both dominions. On such occasion, I am of opinion that the King, by his prerogative, may prohibit and restrain all his subjects, in general, from exporting particular commodities, &c.; or else, generally, from trading to such a particular country or place; since trade does not only depend upon the will or laws of the prince whose subjects adventure abroad to carry it on, but also of that prince into whose country the commodities are exported, and with whose subjects commerce is negotiated and contracted. Without such a power, is obvious that the Government of England could not be upon equal terms with the rest of its neighbours, and since trade depends principally upon such treaties and alliances as are entered into by the Crown with foreign princes; and, since the power of entering into such treaties is vested absolutely in the Crown, it necessarily follows that the management and direction of trade must, in a great measure, belong to the King.

it

2. Things of this nature are not to be considered strictly according to those municipal laws, and those ordinary rules, by which the private property of subjects resident within the kingdom is determined; but a regard must also be had to the laws of nations, to the policy and safety of the kingdom; the particular interest and advantages of private men must, in such cases, give way to the general good; and acting against that, though in a way of commerce, is an offence punishable at the common law.

3. Foreign trades carried on by particular subjects for their private advantage, which are really destructive unto, or else tending to the general disadvantage of the kingdom, are under the power of the Crown to be restrained or totally prohibited. There may be a prohibition of commerce without open enmity, as an actual declaration of war; and particular subjects, who, for private gain, carry on a trade abroad, which causes a general prejudice or loss to the kingdom, considered as an entire body, in doing so, manifestly act against the public good, and ought not only to be prohibited but punished. Carrying on such trades is, in truth (what some Acts of Parliament have declared some trades to be), being guilty of common nuisances: and if the Crown, which in its