66

them, into the ports of the British territories from one port of
delivery to another for the purpose of a market. The word
'original" serves the purpose for which it is used perfectly well,
and it marks a total indifference to the question where the cargo
was picked up. I have already had occasion to take notice that
as to the cargo to be imported no other restriction or qualification
was in the view of the contracting parties than that it should
consist of articles not expressly prohibited. But when this article
is contrasted with the preceding article, the true construction of it
will be seen in a still clearer point of view. The 12th article is in
substance, that it shall be lawful for the citizens of the United States
to carry to any of his Majesty's islands and ports in the West Indies
from the United States in their own vessels, not being above seventy
tons, any goods or merchandize being of the growth, manufacture
or produce of the said States, which British vessels might carry to
the islands from the said States, and that the citizens of the United
States may purchase, load and carry away in their said vessels
to the United States from the islands all such articles being of the
growth, manufacture or produce of the islands as British vessels
could carry from thence to the said States, provided that the
American vessels carry and land their cargoes in the United States
only, it being agreed that the United States are to prohibit and
restrain the carrying any molasses, sugar, coffee, cocoa, or cotton
in American vessels either from his Majesty's islands or from the
United States to any part of the world except the United States,
and there is a proviso that British vessels may import from the
islands into the United States, and may export from the United
States to the islands, all articles of the growth, produce or manu-
facture of the islands or of the United States respectively, which
by the laws of the said States might be then imported or exported.

The trade to be carried on between the citizens of the United States and the British West India islands, by virtue of this article, is required to be in goods of the growth, produce or manufacture of the islands and United States respectively. This trade in the nature of it must be immediate and direct. It could not be in the contemplation of the contracting parties that it might be circuitous, except indeed within the limits of the United States and within the range of the British West India islands, and so far as I take it, it is circuitous. The contracting parties could not look *to so remote a possible case as that a citizen of the United States might load the native commodities of the United States in a foreign port, and

therefore we are not driven to collect the meaning of this article
from the precision of the language it uses. Its language is, how-
ever, most precise. The terminus à quo and the terminus ad quem
are designed with as much certainty as would be required in an
indictment for not repairing a particular part of the King's high-
way. And to exclude all possibility of misapprehension, mark how
entirely this trade was to be immediate and direct, a provision
is added that the United States are to prohibit the carrying goods
of the produce of the West India islands in American vessels to any
port of the world except the United States. Thus contrasted, those
articles afford an illustration of the internal evidence of the import
and true intent and meaning of each considered separately, and
the conclusion from the whole appears to us to be irresistible that
the trade to be carried on under the 12th article between the
United States and the British West India islands is a direct trade,
and that the trade to be carried on between the United States and
the British territories in the East Indies under the 13th article
may be as circuitous as the enterprising spirit of commerce can
make it. There may be reason to apprehend that such an inter-
course with the British territories in the East Indies may prove
very injurious to the interests of the East India Company, and to
Great Britain in respect of the great national commerce which
is carried on by that Company. In particular there
In particular there may be reason
to apprehend that this treaty will open a door to many of our own
people whom the policy of our laws has shut out from a direct
trade to the East Indies. In truth it can hardly be expected that
the spirit of commerce, too often found eluding laws made to keep
it within bounds, that the lucri bonus odor should not embark
British capital in this trade. This ought to have been foreseen,
and therefore I conclude it was foreseen, and that it was found that
the balance of advantage and disadvantage preponderated in favour
of the treaty. If not; those who advised it will have to answer
for it the responsibility is not with us. We are not even the
expounders of treaties. This treaty is brought under our considera-
tion incidentally as an ingredient in a cause in judgment before us:
we only say how it is to be understood between the parties to this
record. This we are bound to do; and we have but one rule by
which we are to govern ourselves. We are to construe this treaty
as we would construe any other instrument public or private. We
are to collect from the nature of the subject, from the words and
from the context, the true intent and meaning of the contracting

MARRYAT

v.

WILSON.

[ *439 ]

MARRYAT

v.

WILSON.

[ *440 ]

parties, whether they are A. and B., or happen to be two independent States. The Judges who administer the municipal laws of one of those States would commit themselves upon very disadvantageous ground, ground which they can have no opportunity of examining, if they were to suffer collateral considerations to mix in their judgment on a case circumstanced as the present case is. It has been urged that in this instance (at least as to the goods in the third policy) this was a commerce direct from this country, and that this treaty does not open a trade between Great Britain and the British territories in the East Indies to the prejudice of the monopoly vested in the East India Company. This objection is plausible but not founded. The circumstance that this part of the cargo of the Argonaut was procured here, and the share which the plaintiff Wilson had in procuring it, might have deserved consideration as evidence of a collusion by means of which Wilson was carrying on for himself an illicit trade to the East Indies which might have subjected this ship and cargo, or this part of the cargo to seizure and confiscation. But this use has not been made of the facts found by the special verdict: and no other use, consistent with our opinion of the legal effect of the treaty, could be made of them. For a citizen of the United States being allowed to trade to the British territories in India generally with an exception of a few articles only, as he may take in his cargo in the ports of his own country, so he may take it in in the ports of this country as well as any other; and he may employ an agent, and that agent may be a British subject. It is a lawful agency. It seems to me impossible to maintain in argument that the subject of a nation in amity who may trade to the British territories in India should be excluded from one market for his outward investment when all other markets are open to him, and when it is distinctly admitted that the markets of all the world, including ours, circuitously must be open to him.

There remains one other topic of which I am called upon to take some notice. It is said that Collet, who is solely interested in the two first of these policies, and has a joint interest with Butler in the last, being a natural-born subject of this country, *cannot shake off that character, and become an American so as to entitle himself to the protection of this treaty. He is a British subject trading to the East Indies: his trade is therefore illicit : the voyages insured are illegal: and the policies are void. perhaps the objection ought to be put another way thus. vessels in which only the trade can lawfully be carried on between

Or

The

the United States and the British territories in India according to the provisions of the statute 37 Geo. III. c. 97, must be owned by subjects of the United States, and whereof the master and threefourths of the mariners at least are subjects of the United States : whereas this vessel the Argonaut was in part the property of a natural-born subject of this country, and this part-owner was also the master; consequently she was not owned by a subject of the United States, nor navigated by a master a subject of the United States, within the true intent and meaning of the navigation laws, and particularly the statute 37 Geo. III. c. 97. The conclusion will be the same. The voyages insured were therefore illegal and the policies void. This is the only point in the case which has appeared to me to have any difficulty in it. I must confess that when I found it stated as a fact in this special verdict that Collet and Butler were natural-born subjects of his Majesty, I felt myself embarrassed, and I could not readily disengage myself. And when I found that in the year 1797 there had been a reference (1) from the Privy Council

(1) By 37 Geo. III. c. 97, s. 1, goods of the growth of America are allowed to be imported into Great Britain from the United States of America in British ships owned, navigated and registered according to law, or American ships “whereof the master and three-fourths of the mariners at least are subjects of the said United States." On this a question arose, whether one Smith who had become a citizen of the United States since the declaration of independence, and came here as master of an American vessel, was within the meaning of the Act. The case was submitted to the opinion of the King's Advocate and the Attorney and Solicitor-General ; which was as follows:

To the Lords of his Majesty's Most
Honourable Privy Council.

May it please your Lordships,
In obedience to your Lordships'
order of the 16th instant, referring to
us the petition of John Montgomery,
the representation of Simon Cock, and
papers accompanying the same, to your
Lordships' order annexed, and requir-

ing us to consider thereof, and report,
whether Alexander Smith therein
named is to be considered according to
the true construction of his Majesty's
Order in Council of the 31st May, 1797,
for regulating the trade between Great
Britain and the territories belonging
to the United States of America, as a
subject of the United States of
America, and whether he is entitled
to be master of a ship belonging to
the said United States trading to this
country, and to confer on the said
ship the benefit of the said Order in
Council: We have considered the said
papers so referred to us, and we are
of opinion, that Alexander Smith,
being a natural-born subject of his
Majesty, and not having been admitted
a citizen of the United States of
America until the 6th of May, 1796,
cannot be considered, with respect to
this country, as a subject of the
United States, so as to entitle him to
be master of a ship belonging to the
*United States trading to this country,
and to confer on the said ship the
benefit of the said Order in Council.
We apprehend that this point was sub-
mitted to the opinion of Sir Philip

MARRYAT

v.

WILSON.

[ *441, n. ]

MARRYAT

v.

WILSON. [441]

*to the then Advocate-General, and the two law officers of the Crown, and that they had concurred in opinion that the master of an American vessel, a subject of the United States domiciled there, but in fact a natural-born subject of Great Britain, was not to be considered as a subject of the United States within the meaning of our navigation laws, founding themselves upon an opinion of Lord HARDWICKE When he was Attorney-General, and that the Council had adopted and acted upon that opinion, I felt my difficulty increase upon me: for though this was not a judicial decision, (as in the argument at the Bar of the Court

COUNCIL OFFICE, WHITEHALL, 23rd June, 1797. SIR, The Lords of his Majesty's most honourable Privy Council having had under consideration a report of his Majesty's Advocate, Attorney and Solicitor-General, on the petition of John Montgomery, and a representation of Simon Cock his agent, and papers accompanying the same, requesting the entry at the port of Liverpool of the American ship America, Alexander Smith master, from New York; notwithstanding it has been objected to, on the grounds of the master of the said ship not possessing all the qualifications of an American subject; I am commanded by their Lordships to transmit a copy

of the said report to you for the in-
formation of the Lords Commissioners
of his Majesty's Treasury, and I am
to signify that the Lords of the Council
agree in opinion with his Majesty's
Advocate, Attorney and Solicitor-
General, that a British subject cannot
so divest himself of the character of a
British subject, by being naturalized
or becoming a citizen of any foreign
State, as to entitle him to be con-
sidered, in this country, as a subject
of such foreign State, under the laws
of navigation. And their Lordships
are further of opinion, that for many
reasons it would be very contrary to
the interest of this country to admit
of such a claim, yet, as this is the first
case with respect to the United States
of America in which a claim of this
nature has been brought forward,
their Lordships do not think it would
be proper to take advantage of the
forfeiture of the said ship, &c. and are
even of opinion, that under all the
circumstances of the present case, the
said ship America should, according
to the request of the memorialist, be
permitted to enter the cargo at the
port of Liverpool; I am however
directed by their Lordships to desire
that a copy of the said report may be
transmitted to the Commissioners of
his Majesty's Customs, and that they
may be informed, that after such
notice a like indulgence will not be
granted.
I am, &c.,
W. FAWKENER.

GEO. ROSE, Esq.

(1) Vide Reeve's Law of Shipping, 252.