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France, or of her allies, or of any other country at war with His Majesty, or to any port or place from which the British flag, as aforesaid, is excluded, or to any colony belonging to His Majesty's enemies, and which shall not have cleared out as is hereinbefore allowed, to discontinue her voyage, and to proceed to some port or place in this kingdom, or to Gibraltar or Malta; and any vessel which, after having been so warned, or after a reasonable time shall have been afforded for the arrival of information of this His Majesty's order at any port or place which she sailed, or which, after having notice of this order, shall be found in the prosecution of any voyage contrary to the restrictions contained in this order, shall be captured, and, together with her cargo, condemned as lawful prize to the captors.
And whereas countries not engaged in the war have acquiesced in these orders of France, prohibiting all trade in any articles the produce or manufacture of His Majesty's dominions; and the merchants of those countries have given countenance and effect to those prohibitions by accepting from persons, styling themselves commercial agents of the enemy, resident at neutral ports, certain documents, termed “certificates of origin”, being certificates obtained at the ports of shipment, declaring that the articles of the cargo are not of the produce or manufacture of His Majesty's dominions, or to that effect:
And whereas this expedient has been directed by France, and submitted to by such merchants, as part of the new system of warfare directed against the trade of this kingdom, and as the most effectual instrument of accomplishing the same, and it is therefore essentially necessary to resist it:
His Majesty is therefore pleased, by and with the advice of his privy council, to order, and it is hereby ordered, that if any vessel, after reasonable time shall have been afforded for receiving notice of this His Majesty's order, at the port or place from which such vessel shall have cleared out, shall be found carrying any such certificate or document as aforesaid, or any document referring to or authenticating the same, such vessel shall be adjudged lawful prize to the captor, together with the goods laden therein, belonging to the person or persons by whom, or on whose behalf, any such document was put on board.
(2) RESOLUTIONS OF LORD ERSKINE IN PARLIAMENT, March 8, 1808.
1st, That the power of making laws to bind the people of this realm, is exclusively vested in his majesty by and with the advice and consent of the lords spiritual and temporal, and commons of the realm, in parliament assembled: and that every attempt to make, alter, suspend, or repeal such laws, by order of his majesty in his privy council, or in any other manner than by his majesty in parliament, is unconstitutional and illegal.—2nd, That the advising his majesty to issue any Order in Council, for dispensing with, or suspending any of the laws of this realm, is a high violation of the fundamental laws and constitution thereof. That the same cannot in any case be justified, but by some unforeseen and urgent necessity endangering the public safety. And that in every such case it is the duty of his majesty's ministers to advise his majesty, after issuing such order, forthwith to assemble his parliament, in order both that the necessity of such proceeding may be inquired of and determined; and that due provision may be made for the public safety, by the authority of his majesty in parliament.—3d, That the Law of Nations is a part of the law of the land, and that neutral nations, not interposing in the war between his majesty and his enemies, have a legal right to such freedom of commerce and navigation, as is secured to them by the Law of Nations.
4th, That the late Orders of his majesty in Council, are contrary to the law of nations, inasmuch as they purport to interrupt the commerce of friendly and unoffending nations, carrying on their accustomed trade in innocent articles, between their own country and the ports of his majesty's enemies, not actually blockaded; and even between their own country and those of his majesty's allies. And also, inasmuch as they purport to compel such trade in future, to come, in the first instance, under pain of confiscation, to the ports of his majesty's dominions, or of his allies, and there to submit to such regulations, restrictions and duties as shall be imposed upon them.—5th, That by the Law of Nations, all independent governments have an undoubted right, both in war and peace, to regulate in their own territories, and according to their own convenience, except where specially restrained by treaty, the admission or exclusion of the ships or merchandize of other states. That by the municipal law of this and other European countries, it hath been usual to require, that vessels trading to or from the ports thereof, shall carry such certificates or other documents, showing in what country the vessel hath been built, fitted or owned, by what sailors she is navigated, and in what country the articles composing the cargo have been grown, produced or manufactured, as may be judged necessary to entitle them to entry. And, that the ships of friendly nations carrying such papers in time of war, do not thereby violate any rule of amity with other countries, or legally incur any penalty whatever, unless such should be found to be fraudulent.—6th, That so much of his majesty's Order in Council, of the 11th of Nov. last, as directs, that'any vessels carrying any certificates or documents, declaring, that the articles of the cargo are not of the produce or manufacture of his majesty's dominions, or to that effect, or carrying any other document referring to such certificate or document, shall, together with the goods laden therein, belonging to the persons by whom, or on whose behalf, any such document was put on board, be adjudged lawful prize to the captor'; is a gross and flagrant violation of the Law of Nations, of the statutes made for the freedom of navigation and commerce, and of the rights and liberties of the people of this realm; inasmuch as it purports to expose the property both of foreign merchants, and even of his majesty's subjects, in the ports of this realm, as well as on the high seas, to unjust detention and forfeiture in cases where no offence whatever hath been committed against any known principle, or rule of the Law of Nations, or against any law, statute, or
usage of the realm.—7th, That the free access to the ports of this realm, and the liberty of trading to and from the same, has been secured to merchant strangers, not being of a hostile nation, by Magna Charta and divers other ancient statutes in which it is expressly provided, 'that no manner of ship, which is fraught towards England or elsewhere, be compelled to come to any port of England, nor there to abide against, the will of the masters and mariners of the same, or of the merchants whose the goods be. And that the said statutes were intended, not only to protect the innocent commerce of friendly nations, but also to secure to the people of this realm, the benefits of a free and open market for the sale of the produce and manufactures thereof; and for the carrying on of such trade as might conduce to the profit and advantage of the realm.—8th, That the above-mentioned Orders of his majesty in Council are in open breach and violation of the said statutes, inasmuch as they direct that ships fraught to other places than this kingdom, and even to ports belonging to his majesty's allies, may be compelled to come to the ports of this realm, or of its dependencies, and there to abide under such restrictions or regulations as his majesty may be advised to impose upon them; and also inasmuch as they direct that the goods laden in such vessels shall not be cleared out again from such ports, without having been, in some cases, previously entered and landed; nor, in other cases, without having obtained from his majesty's officers licences to depart, which licences such Officers are not, by any known law of this realm, authorized to grant.” (Hansard's Debates, Vol. X, columns 969-971.)
(3) AT THE COURT OF THE QUEEN'S PALACE, the 26th of April, 1809. Present, the King's Most Excellent Majesty in council.
Whereas, His Majesty, by his order in council of the 11th of November, 1807, was pleased, for the reasons assigned therein, to order that "all the ports and places of France and her allies, or any other country at war with His Majesty, and all other ports or places in Europe from which, although not at war with His Majesty, the British flag is excluded, and all ports or places in the colonies belonging to His Majesty's enemies, should from henceforth be subject to the same restrictions in point of trade and navigation as if the same were actually blockaded in the most strict and rigorous manner,' and also to prohibit “all trade in articles which are the produce or manufactures of the said countries or colonies," and whereas, His Majesty, having been nevertheless desirous not to subject those countries which were in alliance or in amity with His Majesty to any greater inconvenience than was absolutely inseparable from carrying into effect His Majesty's just determination to counteract the designs of his enemies, did make certain exceptions and modifications expressed in the said order of the 11th of November, and in certain subsequent orders of the 25th of November, declaratory of the aforesaid order of the 11th of November and of the 18th of December, 1807, and the 30th of March, 1808:
And, whereas, in consequence of divers events which have taken place since the date of the first-mentioned order, affecting the relations between Great Britain and the territories of other Powers, it is expedient that sundry parts and provisions of the said orders should be altered or revoked:
His Majesty is therefore pleased, by and with the advice of his Privy Council, to revoke and annul the said several orders, except as hereinafter expressed; and so much of the said several orders, except as aforesaid, is hereby revoked accordingly. And His Majesty is pleased, by and with the advice of his Privy Council, to order, and it is hereby ordered, that all the ports and places as far north as the river Ems, inclusively, under the Government styling itself the Kingdom of Holland, and all ports and places under the Government of France, together with the colonies, plantations, and settlements in possession of those Governments, respectively, and all ports and places in the northern parts of Italy, to be reckoned from the ports of Orbitello and Pesaro, inclusively, shall continue, and be subject to the same restrictions, in point of trade and navigation, without any exception, as if the same were actually blockaded by His Majesty's naval forces in the most strict and rigorous manner; and that every vessel trading from and to the said countries or colonies, plantations or settlements, together with all goods and merchandize on board, shall be condemned as prize to the captors.
And His Majesty is further pleased to order, and it is hereby ordered, that this order shall have effect from the day of the date thereof with respect to any ship, together with its cargo, which may be captured subsequent to such day, on any voyage which is and shall be rendered legal by this order, although such voyage, at the time of the commencement of the same, was unlawful, and prohibited under the said former orders; and such ships, upon being brought in, shall be released accordingly; and with respect to all ships, together with their cargoes, which may be captured in any voyage which was permitted under the exceptions of the orders above mentioned, but which is not permitted according to the provisions of this order, His Majesty is pleased to order, and it is hereby ordered, that such ships and their cargoes shall not be liable to condemnation, unless they shall have received actual notice of the present order before such capture, or, in default of such notice until after the expiration of the like intervals, from the date of this order, as were allowed for constructive notice in the orders of the 25th of November, 1807, and the 18th of May, 1808, at the several places and latitudes therein specified.
And the right honorable the Lords Commissioners of His Majesty's Treasury, His Majesty's principal Secretaries of State, the Lords Commissioners of the Admiralty, and the Judge of the High Court of Admiralty, and Judges of the Courts of the Vice-Admiralty, are to give the necessary directions herein as to them may respectively appertain.
JURISDICTION OVER FOREIGNERS IN SIAM
BY ELDON R. JAMES
The course of the development and modification of exterritoriality in Siam is so little known that an account of it may not be without interest to students of international law. Exterritoriality, which affects only a minority of the foreigners resident in Siam, for the majority have never enjoyed its privileges, began less than three generations ago when Siam's legal institutions were still of a primitive sort and it seemed, therefore, to be a logical and simple expedient upon which to base trade relations with Europeans. Since then these institutions have been very considerably modified and exterritoriality, regarded in Siam as a temporary device to last only until the law and the courts could be placed upon a modern footing, has become increasingly burdensome now that the number of foreigners, originally European but now preponderatingly Asiatic, affected by it has grown to considerable proportions, and the administration of justice has been improved and modernized.
The reorganization of courts and law, which has taken place since 1855, and especially since the reorganization of the Ministry of Justice in 1892, accompanied, as it has been, by advances in general administrative efficiency, has resulted in many instances in a progressive amelioration of the régime of exterritoriality. In the course of this process, there have been introduced some novel restrictions upon the action of Siamese courts in their dealings with foreigners and these restrictions and guarantees are not without interest. However, notwithstanding their utility as temporary measures during a period of transition from the old system of justice to the new, many of these guarantees must be regarded as in their turn fast becoming obsolete and doomed to pass with exterritoriality itself and to become matters of historical interest only.
With the promulgation and coming into force of the new codes, the completion of which is not far distant, and with an increasing efficiency in the administration of justice, there will be less and less reason, as the years go by, for insistence upon special procedure in judicial matters involving privileged groups of foreigners which is not insisted upon in other states. The state of the law and of the administration of justice is a matter about which foreigners in all countries are extremely sensitive, but if the progress already made is kept up in the future, Siam may not unreasonably expect to receive at no distant day the consideration in such matters due to a fully free and independent member of international society.