The Friendschaft. 1818. ly revived and renewed in every successive treaty which has been formed between the two countries, and may be enumerated under the following heads. First. Prizes made by British subjects, from nations at peace with Portugal, may be carried into the Portuguese ports for adjudication, and condemned whilst lying there. If the ports of Portugal can be so far considered as British, as that British prizes may be carried into them, and condemned, surely they must be considered such in respect to British subjects résiding and trading there. The rule of reciprocity, or amicable retaliation may be extended to them (being enemies,) though it may not be extended by the Court to the subjects of Portugal, (because they are friends,) and the judicial department cannot reciprocate to, or retaliate on them, the unjust proceedings of their na tion. Second, Portugal is bound, by treaty, to deliver British vessels captured and brought into her ports by the enemies of Great Britain, but her friends Third. British subjects resident in Portugal are exempt from the ordinary jurisdiction of the country; and are amenable only to the judge conservator appointed by themselves, who has cognizance of all civil causes in which they are concerned; and the ordinary authorities of the country cannot proceed against them in criminal cases, without a permission in writing from the judge conservator, except only where the offender is taken flagrante delicto. Fourth. up The Henrick and Maria, 4 Rǝb. 50. b2 Chalmer's Coll. Treat. 279. e 2 Chalmer's 271. Treaty of 1674, art. 7. 13. Treaty of 1810. art. 10. 1818. The Friend The Portuguese courts of probate, or orphan's courts, have no authority whatever, in the distribution of the effects of British subjects deceased, in Portugal, but schaft. the same is referred to the adge conservator, under whose superintendence administrators are appointed by a majority of the British merchants resident in the place, Fifth. British subjects in Portugal, have the privilege of being paid with debts due to them by Portuguese subjects, whose property may be seized by the inquisition, or the king's exchequer. Sixth. They are exempted from the operation of the fundamental law of the Portuguese monarchy, which has immemorially excluded every other religion from Portugal, except the Roman Catholic; and they are permitted to enjoy their own religious priciples and worship as Protestants Seventh. This favoured nation are also exempted from all the monopolies, and other exclusive privileges, with which the internal and external commerce of Portugal and her colonies are cramped and restrained and to which Portuguese subjects are exposed. The only exception to this immunity is the crown farm, for the exclusive sale of certain precious productions. The treaty of 1810, now subsisting, confirms and renews all the privileges and immunities granted by former treaties, or municipal regulations, except only the stipulation that free ships should make free goods. These privileges and immunities segregate British residents in c a 2 Chalmers. 271. Ib. 281. e Chalmers, 265. b2 Chalmers, 260. d Treaty of 1810, art. 3. 1818. The Friend schaft. Portugal from the general society, and from the commercial, political, and ecclesiastical regulations of the country. They distinguish those residents from the other inhabitants, as much as the merchants of Christendom are distinguished from the natives in the oriental countries. The privileged character of Christians, established in those countries, depends as much upon the conventional law, as does that of British subjects settled in Portugal. The treaties and capitulations between the powers of Christendom and the Porte secure to the subjects of the former, privileges not more extensive than those which are now enjoyed, and have been enjoyed from time immemorial, by the British in Portugal. It is true, that by the treaty of 1810, art 26. his Britannic majesty renounces the right of establishing factories or corporations of merchants in the Portuguese dominions, but there is a proviso, that this concession "shall not deprive the subjects of his Britannic majesty, residing within the dominions of Portugal, of the full enjoyment, as individuals engaged in commerce, of any of those rights and privileges mhich they did or might possess, as members of incorporated commercial bcdics; d, also, that the trade and commerce carried on by British subjects shall not be restricted, annoyed, or otherwise affected by any favours within the dominions of Portugal; and in the case of Mr. Fremcaur, the lords of appeal in England decided, that the claimant was to be considered as a Dutchman, because he carried on trade at Smyrna, under the protection of the Dutch Consul, al a Velin, Sur l'Ordon. 234, 235. 2 Chambers, 436, though it was proved in that gentleman's case, that there was no Dutch factory at Smyrna, and that the Dutch merchants there are not incorporated.a Mr. Gaston, for the respondents and claimants. 1. On the first point the claimants have to encounter a difficulty purely technical, which cannot pretend to a foundation in justice, and which, indeed, aims to prevent a decision upon the merits of the controversy. If this difficulty can neither be surmounted nor escaped without a vidation of the established principles and rules of jurisprudence, the claimants must submit without repining. But it will be impossible for the friends to the repose of nations, and to the impartial administration of justice in the courts of belligerents, not to regre, that the highest tribunal in our land should find itself so fettered with forms, as to be unable to do what shall appear to them to be right; as to be compelled to condemn as prize of war what the inferior tribunals shall have restored, (in their opinion. justly,) as neutral property. The captors' objection is founded on a literal exposition of the decree of August, 1814, inconsistent with its obvious meaning. However desirable it may be that precision should be used in drawing up the decrees of judicial tricunals, yet the infirmity of human nature, and the imperfection of human language, alike demand that these decisions should not be perverted by verbal criticism from their substantial import. No one can doubt the 1818. The Friendschaft. Cited in the Indian Chief, 3 Rob. 32. lb. App. Note No I. 235. 1818. The Friendschaft meaning of the sentence of August, 1814. No one |