was a natural-born subject of the King, resident in London, and knew that the ship called the Argonaut was destined for the British territories in the East Indies, and that the said goods were intended to be carried on board her directly from the respective places at which the same were so shipped and intended to be shipped as aforesaid to those territories, and intended to be landed and imported there for the purpose of trade therein. The special verdict then stated notice to the defendant of all the premises, and a demand of payment and refusal, and his undertakings in the manner stated in the 1st, 3rd, and 5th counts, upon which damages are assessed; and it negatived the premises in the other counts; concluding in the common form. [The case was argued three times at great length, and on the conclusion of the arguments the COURT took time for consideration.] LORD KENYON, Ch. J. now delivered the opinion of the COURT: As this case was argued so recently, and as every argument was urged that bore on the subject either on the one side or the other, may be. The citizens of the United "It is agreed that the first ten to this treaty; which articles, from want of time, and other circumstances, cannot now be perfected; it is agreed that the said parties will from time to time, readily treat of and concerning *such articles, and will sincerely endeavour so to form them, as that they may conduce to mutual convenience, and tend to promote mutual satisfaction and friendship: and that the said articles, after having been duly ratified, shall be added to and make a part of this treaty." An additional article was subjoined to the said treaty before the ratification thereof in America, whereby it was further agreed, in manner following (viz.) "It is further agreed between the said contracting parties, that the operation of so much of the 12th article of the said treaty as respects the trade which his Majesty thereby consents may be carried on between the United States and his islands in the West Indies, in the manner and on the terms and conditions therein specified, shall be suspended." little remains for us but to draw the proper conclusion from those arguments. Without stating again all the facts of the case, the question is, whether, as the ship and goods insured have been totally lost to the assured, the party against whom this action is brought be or be not liable to pay that loss on his contract of indemnity? In discussing that question other points of great magnitude were raised. On the part of the defendant it was said that this was a case of vast importance, because it was an attempt by the plaintiff to invade the monopoly of the East India Company, and to supplant them in their trade; and that this affected the public as well as individuals, because the East India Company is so nearly connected with the political state of the country, and because our possessions in the East Indies contribute so largely to the revenues of this country. On the other hand, it is a case of great importance, inasmuch as it involves in it the fair exposition of the treaty between this country and America. And in the course of the argument we were (a little irregularly) threatened on both sides; by the one party, not to touch the concerns of the East India Company; by the other, not to irritate our allies in America. With regard to the East India Company, they will always find their interests secured by the laws of this country, as administered in our courts of justice. And I hope that there is no jealousy, or even ground of jealousy, on the part of the Americans, but that they know that when their rights come to be discussed here, the greatest attention will be paid to their interests. They have long been acquainted with the habits of this country, and with the mode of administering justice here: until within these few years their causes used to come over here to be discussed; and I never heard that the decisions in our Courts ever awakened the least jealousy in the breasts of the inhabitants of that country. The great question in the cause is, whether or not, the loss having happened, any circumstances be disclosed in the verdict on which the defendant can resist the plaintiff's claim? Three objections have been raised on the part of the defendant. *I will dispose of that first which was the last in the argument, namely, that Collet the captain of the ship and part owner, was an Englishman by birth, and was not therefore a citizen of America within the meaning of the treaty between this country and America. On a former day we intimated our opinion that there was not much weight in this objection; and after consideration we are clearly WILSON v. MARRYAT. [ *45] WILSON of opinion that there is none. v. Collet is a citizen of this country MARRYAT. by birth, so that he cannot throw off his allegiance to this country; he is also a citizen of America for the purposes of commerce, it being found by the special verdict that he has been adopted as a citizen of that country; and the circumstance of his being a natural-born subject here, cannot deprive him of the advantages of being a citizen of that country. [ *46] The next objection arises on the construction of the 13th article of the treaty between this country and America, which has been confirmed by Act of Parliament. It was contended that the intercourse must be immediate and direct between America and the East Indies, on the true meaning of that article: but on the fullest consideration that we can give, comparing this with the other articles of the treaty, we are also of opinion that this objection is unfounded. That the party insured might have come from America to other countries in Europe, and bought goods and carried them back to America, and from thence to the East Indies, seemed to be admitted. Then, in point of reason, why may not that which may be done indirectly be done directly? and on the fair construction of the words of this article we think that this objection cannot prevail. The remaining objection is, that the voyage insured was a part of a voyage, the whole of which (supposing it to be one integral voyage) was not legal in its inception, and that if there be any infirmity in any part of an integral voyage, the whole for this purpose becomes illegal. But this argument is too refined as applied to this case. Before the commencement of this voyage, there was a rumour that a treaty between the two countries was in agitation; and this person came to England probably with a view of carrying on the voyage to the East Indies under the treaty. However, in deciding this case, we must look to the facts disclosed in the special verdict. Now it is not there stated that the continuation of the voyage to the British settlements in the East Indies was the voyage that was at all hazards to be performed when the voyage began in America; for though different plans *had been suggested by Butler in his letter for the continuation of the voyage, it is only found by the special verdict, that Collet, when he sailed from America, intended to go to the East Indies, without saying to that part that belongs to Great Britain. As far as respected the Americans, every other part was mare liberum ; and though before the treaty the party assured could not have MARRYAT. gone to any of our ports in the East Indies without being guilty WILSON of an infraction of our laws, he might have gone to any other port in the East Indies. Every thing therefore in the verdict relating to these different plans, though a fair subject of investigation and discussion, may now be laid out of our consideration; it not being found in any part of the special verdict what precise voyage the parties had in contemplation at the inception of the voyage in America. Then, if the voyage insured be not infected by what was done in America, it was a legal voyage. The ship originally sailed from Philadelphia to Brest, and then to Bourdeaux, which she might legally do; and before she left the latter place the treaty between this country and America was ratified; it then appears that in May, 1796, she sailed to Madeira, where she took in other goods, "for the purpose of proceeding with the whole cargo to the British territories in the East Indies;" which then she might well do under the treaty that had before that time been ratified. Then it does not appear that Collet had any intention of going to any of our settlements in the East Indies until after the ratification of the treaty. And though I admit that, if there had been any infirmity in any part of the integral voyage, it would have made the whole illegal, so that the assured could not recover upon a policy on any part of it; yet it not appearing that in fact there was any illegality in any part of this voyage, we are of opinion that this objection also fails. On the whole, therefore, we are of opinion that the plaintiff is entitled to the judgment of the Court. [430] A WRIT of error having been brought in this Court on the judg- EYRE, Ch. J. ment given in the Court of King's Bench between these parties, the case was argued early in this Term by Rous for the plaintiff in error and Gibbs for the defendant; the general line of argument however being the same as that in the King's Bench, and much commented on in the judgment of the Court, it was thought R.R.-VOL. LIII. 8 MARRYAT v. WILSON. [431] unnecessary to do more than subjoin in the form of notes to the following judgment whatever appeared at all new or material. The COURT took time to consider of their opinion, which was this day delivered by EYRE, Ch. J.: The substance of this record having been very recently stated to the Court, and the record at large being to be found in the Term Reports, I shall content myself with referring to it, stating so much of it only as may be necessary to introduce the questions which have arisen upon it. This is an action upon policies of insurance set forth in the first, third, and fifth counts of *the declaration. That in the first count being a valued policy on one moiety of the ship Argonaut, Collet master, at and from Bourdeaux to Madeira and the East Indies, and back to America, with liberty to touch, stay and trade at all ports and places whatsoever or wheresoever on the outward or homeward bound voyage; and this policy is stated and found to have been effected by the plaintiff for the use of John Collet. The policy in the third count being a valued policy on goods neutral property on board the same ship on a voyage at and from Bourdeaux to the East Indies with liberty to touch, call and trade at all ports and places or islands whatsoever and wheresoever as well at the Cape as on this or the other side of the Cape of Good Hope, until her arrival at her port of discharge in Bengal; and this policy is also stated and found to have been effected for the use of the said John Collet. The policy in the fifth count being on goods warranted American property laden on board the same ship for a voyage at and from Madeira to her last port of discharge in India, with liberty to touch, stay and trade at all ports, places and islands whatsoever and wheresoever as well at, as on this and on the other side of the Cape of Good Hope; and this policy is stated and found to have been effected for the use of the said John Collet and one Anthony Butler. The defendant underwrote all these policies, and a loss has been sustained both of ship and cargo which is admitted to be within the terms of the policy; but it has been insisted upon the part of the defendant that the voyages described in these policies are illegal voyages, and as such cannot be made the subject of contracts of this nature, and therefore that the defendant is not bound by these contracts to make good his proportion of the loss. The facts of the case upon which this charge of illegality is |