of Exportation. Bounties and Encouragements was not to be decided on a summary application; that the claimant might sue the officer; or that he might apply to the treasury and justice would be done (1). The searcher, or other proper officer of the customs, seems therefore to be liable to an action if he refuse to give his certificate to enable the exporter of goods to receive a bounty to which he may be entitled (2). The commissioners of excise seem also liable to an action for refusing to pay a drawback out of funds in their possession, as directed by act of parliament (3). An action, however, cannot be maintain (1) Ex parte Wilson, 2 Anstr. 269. per Thomson Baron. There is this difference between a motion like the present and a mandamus, the mandamus compels the officer to make return, and the point appears on the record; the motion is only determined by the strength of the affidavits. (2) Wilson v. Sutton, 2 Anstr. 444. see also Stephani v. Burrow, 2 Anstr. 346. an action against under-searcher of customs for refusing to sign a debenture to entitle to drawback on Peruvian bark: verdict for the defendant on the merits. (3) Whitmore and others v. Papillon and others, 24. Mr. Justice Ashhurst's Paper Book, MSS. 84. Case reserved for opinion of the court on trial before Buller, J. The declaration stated, that plaintiffs were dealers in foreign wines within the limits of the chief office of excise, and defendants commissioners of excise; that after passing of 27 G. 3. c. 31. plaintiffs had certain wines in their stock as dealers within limits of chief office of excise, and which wines had been imported, and all the duties paid and proved to be paid; that before the committing of the grievance complained of, the plaintiffs applied to defendants, so being commissioners, for the allowances by the act granted, by a petition in writing, stating the amount of the allowances claimed, and the sorts and quantities of wine, and from whom same was received, and that the same was the sole and entire property of palintiffs, to which said petition was annexed an affidavit, made by one of the plaintiffs before two of the defendants, being two commissioners, verifying the particulars; and at the time of making claim plaintiffs produced to defendant, so being commissioners, a certificate, under the hand of the proper officer of the customs, certifying the duty paid, made out in such form as usual to obtain the drawback on wines shipped for exportation according to the statute; and defendants, so being commissioners were satisfied that the duties had been paid; and by reason of the premises, and by force of the statute, defendants, so being commissioners, ought to have paid,. and became liable to pay, out of the monies in hand arising from duties of excise on foreign wine by a certain act, the sum of £— being the allowances upon the excess of said foreign wines of plaintiff, after deductinggalions, at the times and in the manner directed by the act, the defendants having monies,&c.; yet defendants, so being commissioners, not regarding the stat. nor their duty, have not paid, &c. See 27 G. 3. c. 31. s. 1, 2, 3, 4, 5, &c. Defendants pleaded Not Guilty, and paid money into court, (so in the paper book). Wood for defendants; and court being clearly of opinion that plaintiffs were entitled to the drawback, judgment was given for plaintiffs. See as to drawback on foreign wines 26 G. 3. c. 59. s. 46–49. ed against a revenue officer to recover money wrongfully paid Encouragements of Exportation. to him, after he has paid it over to his superior. (1) British Com The encouragement afforded to exportation by the stipulations The facilities to in treaties of commerce between this country and foreign states, merce by Comis the next division of the subject which we proposed to consi- mercial Treaties. der (2). The discussion entered into in a former chapter, on the nature and effect of commercial treaties, as they were established on the principles of the law of nations, and as they affected the commerce of the world at large, renders it unnecessary that we should consider them in this place, any further than as they operate on the trade and commercial policy of Great Britain in particular. (3) Independently of peculiar motives, not to be adopted as the basis of a general line of conduct, it is extremely questionable whether it is politic or useful to encourage a trade with a particular country, in exclusion of other nations. The general objection to commercial restraint, that capital is forced into channels in which it would not otherwise flow, seems equally to apply to a restraint introduced through the medium of a commercial treaty with a foreign potentate. The adventitious succour afforded by the favoured nation may be withdrawn by the breaking out of a war, or by other incidental circumstances; and then much greater confusion would be introduced than if we had allowed trade to find its level, had dealt equally with all the world, and had bought our goods where the best and cheapest were to be found. The individual trader, whose place of business is deserted by the public, and whose gains are derived from the friendship or caprice of one or two customers, would find it much more to his permanent, though not perhaps his immediate interest, to offer his goods on such terms as are likely to attract a more extended notice. The advantages, if any present advantages accrule, are but precarious, and are not likely to counterbalance the general mischief. Whereas, when no such encouragement is affered, the merchant is left to pursue that branch of trade which is most beneficial to himself; he knows and finds the most profitable market; and as the indivi (1) See Whitbread v. Brooks bank, Cowp. 69., more fully and differently reported in Loft, 532. 534. S. C. Greenway v. Hurd, 4 T. R. 553. Campbell v. Hall, Cowp. 204. (2) See divisions of the subject, ante, 515. (3) Ante, 38 to 47. 106, 107. merce by Treaties. (1) Encouragements dual gains, it is most probable that the state will gain also; for of British Com- the state is made up and composed of individuals. The treaties of peace lately concluded between this country and the continental powers, therefore on this principle provide for a general reciprocity of the benefits resulting from a free commerce between the respective states. (1) Treaties with The definitive treaty of peace between this country and France contains an article declaring the desire of the two powers to establish the most friendly relations between their respective subjects; and they promise to come to a mutual understanding and arrangement as soon as possible upon their commercial interests, with the view of promoting the prosperity of both nations (2). The convention afterwards concluded between the two powers, contains a stipulation on the part of France to farm to the British government in INDIA (3), the exclusive right to purchase the salt manufactured in the French possessions on the coasts of Coromandel and Orixa, subject to certain reservations and conditions. A right is reserved to the French government to be supplied with opium at each of the periodical sales of that article, in any quantity not exceeding 300 chests per annum, on making a requisition to the governor general at Calcutta. Should any restriction be imposed on the exportation of saltpetre, the king of France is to be allowed at all events to export that article to the extent of 18,000 maunds. His Majesty has engaged to allow the French to continue in India so long as they demean themselves peaceably and act according to law (4). An act of parliament has been lately passed to impose (1) Smith W. of N. vol. 4. 161. 168, 169, Buchanan's ed. and Mr. Pitt's speech, id. ibid.; and see the several treaties, Hawkesbury's collection of treaties, Chalmers treaties, treaties with continental powers, Pope on Customs, and post Appendix. (2) Definitive treaty between France and England, signed at Paris, 30th May 1814, confirmed in general by treaty 20th November 1815. Pope, 69., and Appendix. Mr. Pitt's treaty in 1786 was framed to abolish the restraint that formerly shackled the commerce between the two nations, and to establish a free trade. 4 Smith, ed. 1817. 161. Appendix 38. The wines of France imported directly from France into Great Britain, according to that treaty, were to pay no higher duties than the wines of Portugal then paid, art. 6. See ante 74, 75. The older treaties will be found in Hawkesbury's collection of treaties, and Chalmer's Treaties. (3) It will be observed that these provisions relate more peculiarly to the East Indies than to Great Britain, but it was thought advisable to mention them here, in order to give an idea of the tenor of the treaties. See also the treaties more fully stated in the Appendix. (4) Convention between Great of British Com. merce by a tonnage duty on French packets or passage vessels that fre- Encouragements quent the ports of Great Britain, in consequence of a similar duty being levied on British vessels of the same description Treaties. when they enter or leave the ports of France. Every packet or passage vessel belonging to the subjects of the king of France, which shall lade or unlade goods, or take in or set on shore any passengers, in a port of Great Britain, is now subject to a tonnage duty at the rate of three shillings and sixpence for every ton of the ship's burthen; and the tonnage is to be ascertained by admeasurement by the proper officer of the customs (1). The attorney and solicitor general have, however, given it as their opinion that the act does not extend to all vessels in general, but only to such as are used as packets or passage vessels for the conveyance of letters or mails, or passengers and their baggage, or for the conveyance of goods or baggage, and not to such as are really trading vessels bringing cargoes. (2) The treaty of peace between Great Britain and Spain provides, Treaties with that the two powers shall proceed without delay to a definitive Spain. arrangement of the affairs of trade between their respective subjects (3). Great Britain is, at present, admitted to trade with Spain on the same conditions as existed previously to 1796. The treaties of commerce which subsisted at that period between the two nations, have been ratified and confirmed by the late treaty (4). The king of Spain has issued a decree, dated the 20th March 1818, for establishing the ports of Cadiz, Alicant, Corunna, and Santander, as ports of deposit for all goods which are allowed to be imported into Spain. The motive for this measure, as set forth in the decree, is a desire to give encouragement to commerce, by allowing the delay of a year in the pay Britain and France, signed at London 7th March 1815; another treaty was signed at Paris 20th November 1815. The 11th article declares, that the treaty of Paris of the 30th May 1814, and the final act of the congress of Vienna of 9th June 1815, are confirmed, and shall be maintained in all such of their enactments as are not modified by that treaty. See Appendix, and Pope, tit. 69. (1) 56 Geo.3. c. 9. Packets detained until paid, s. 2.; no entry other foreign countries may be (2) 56 G. 3. c. 9. Pope, tit. 69. (3) Treaty between Great Britain and Spain, signed at Madrid, 5th July 1814, art. 3. Pope, 70. (4) Additional articles to the treaty between Great Britain and Spain, signed at Madrid, 28th August 1814. Pope, 70. Encouragements of British Com merce by Treaties. Treaties with Portugal. ment of duties, and to facilitate the obtaining of supplies at all times for the markets of America (1). Articles imported into Spain for America in register ships, are likewise to be allowed to be deposited; the duty to be paid is two per cent. on the value of the goods, one-half to be paid upon the entry of them, and the other half upon their being taken away from the magazines. After the expiration of a year, an application must be made to the Minister of Finance for permission to renew the deposit. The goods are to be sealed on entering the magazines, with the seal of the owner, and of the magazines. The packages are not to be opened, but only weighed; if the goods which they contain should be found, upon a sale taking place, to be of a different nature from what was specified when they were received, they are to be confiscated; and if they should be deposited at a price inferior to their value, a fine of 20 per cent. is to be levied upon them. A statement of the goods in deposit is to be published every month by the consulados of the ports. (2) The treaty between Great Britain and Portugal, signed at ' Vienna, on the 22d January 1815, annuls the treaty of alliance, concluded by the same powers at Rio de Janeiro in 1810, as being founded on circumstances of a temporary nature (3); but it is expressly agreed, that the new treaty shall not prejudice the (1) See as to our own warehousing system, ante, 546. (2) Letter from Sir H. Wellesley, the Ambassador at Madrid, to Lord Castlereagh, dated 27th April 1818. But an order of the general board of revenne in Spain, dated 8th May 1818, states, that the King has ordered the depôts of merchandize not to be permitted till further communications are received, which will be issued immediately. The preparations are made in every port that the royal decree of March 1818 may take effect in all the designated ports at the same time. Pope, tit. 70. (3) The only provision of the treaty of the 19th February 1810, which is now in force with regard to the commerce of the two states, seems to be that which stipulates for the general alliance and friendship between the two crowns, and renews all treaties then subsisting See |